Ministers’ Deputies

CM Documents

CM(2016)7 add6          27 January 2016[1]

 

1248 Meeting, 24 February 2016

4 Human rights

 

4.3 European Commission against Racism and Intolerance (ECRI) ‒

General Policy Recommendation No. 15 on combating Hate Speech
adopted on 8 December 2015 by ECRI at its 68th meeting (8-11 December 2015)

 

The European Commission against Racism and Intolerance (ECRI):

Reaffirming the fundamental importance of freedom of expression and opinion, tolerance and respect for the equal dignity of all human beings for a democratic and pluralistic society;

Recalling, however, that freedom of expression and opinion is not an unqualified right and that it must not be exercised in a manner inconsistent with the rights of others;

Recalling moreover that Europe derives from its history a duty of remembrance, vigilance and combat against the rise of racism, racial discrimination, gender-based discrimination, sexism, homophobia, transphobia, xenophobia, antisemitism, islamophobia, anti-Gypsyism and intolerance, as well as of crimes of genocide, crimes against humanity or war crimes and the public denial, trivialisation, justification or condonation of such crimes;

Recalling that this duty of remembrance, vigilance and combat is an integral part of the protection and promotion of universal and indivisible human rights, standing for the rights of every human being;

Taking note of the differing ways in which hate speech has been defined and is understood at the national and international level as well as of the different forms that it can take;

Considering that hate speech is to be understood for the purpose of the present General Policy Recommendation as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatisation or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of "race",^[2] colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status;

Recognising that hate speech may take the form of the public denial, trivialisation, justification or condonation of crimes of genocide, crimes against humanity or war crimes which have been found by courts to have occurred, and of the glorification of persons convicted for having committed such crimes;

Recognising also that forms of expression that offend, shock or disturb will not on that account alone amount to hate speech and that action against the use of hate speech should serve to protect individuals and groups of persons rather than particular beliefs, ideologies or religions;

Recognising that the use of hate speech can reflect or promote the unjustified assumption that the user is in some way superior to a person or a group of persons that is or are targeted by it;

Recognising that the use of hate speech may be intended to incite, or reasonably expected to have the effect of inciting others to commit, acts of violence, intimidation, hostility or discrimination against those who are targeted by it and that this is an especially serious form of such speech;

Aware of the grave dangers posed by hate speech for the cohesion of a democratic society, the protection of human rights and the rule of law but conscious of the need to ensure that restrictions on hate speech are not misused to silence minorities and to suppress criticism of official policies, political opposition or religious beliefs;

Conscious of the particular problem and gravity of hate speech targeting women both on account of their sex, gender and/or gender identity and when this is coupled with one or more of their other characteristics ;

Recognising that the use of hate speech appears to be increasing, especially through electronic forms of communication which magnify its impact, but that its exact extent remains unclear because of the lack of systematic reporting and collection of data on its occurrence and that this needs to be remedied, particularly through the provision of appropriate support for those targeted or affected by it;

Aware that ignorance and insufficient media literacy, as well as alienation, discrimination, indoctrination and marginalisation, can be exploited to encourage the use of hate speech without the real character and consequences of such speech being fully appreciated;

Stressing the importance of education in undermining the misconceptions and misinformation that form the basis of hate speech and of the need for such education to be directed in particular to the young;

Recognising that an important means of tackling hate speech is through confronting and condemning it directly by counter-speech that clearly shows its destructive and unacceptable character;

Recognising that politicians, religious and community leaders and others in public life have a particularly important responsibility in this regard because of their capacity to exercise influence over a wide audience ;

Conscious of the particular contribution that all forms of media, whether online or offline, can play both in disseminating and combating hate speech;

Conscious of the harmful effects suffered by those targeted by hate speech, the risk of alienation and radicalisation ensuing from its use and the damage to the cohesion of society from failing to tackle it;

Recognising that self-regulation and voluntary codes of conduct can be an effective means of preventing and condemning the use of hate speech and that their use needs to be encouraged;

Stressing the importance of those targeted by hate speech being themselves able to respond to it through counter-speech and condemnation as well as through bringing proceedings in the competent courts and authorities;

Recognising that criminal prohibitions are not in themselves sufficient to eradicate the use of hate speech and are not always appropriate, but nevertheless convinced that such use should in certain circumstances be criminalised;

Bearing in mind the six-point threshold test in the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence and being convinced that criminal prohibitions are necessary in circumstances where hate speech is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it;

Stressing the importance of not supporting organisations that facilitate the use of hate speech and the need to prohibit ones that do so when this is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it;

Stressing the need for a prompt and effective investigation into complaints about hate speech and avoiding unduly restrictive interpretations of provisions concerning its use;

Recalling that the duty under international law to criminalise certain forms of hate speech, although applicable to everyone, was established to protect members of vulnerable groups and noting with concern that they may have been disproportionately the subject of prosecutions or that the offences created have been used against them for the wrong reasons;

Recalling that the work of ECRI focuses on hate speech on the grounds of “race”, colour, language, religion, nationality, national or ethnic origin, gender identity or sexual orientation but recognising that hate speech can also be based on all the other considerations already noted, and that the recommendations contained in this text should be applied mutatis mutandis to them;

Recommends that the governments of member States:

1.             ratify the Additional Protocol to the Convention on Cybercrime, concerning criminalisation of acts of a racist and xenophobic nature committed through computer systems, the Framework Convention for the Protection of National Minorities and Protocol No. 12 to the European Convention on Human Rights, if they have not yet done so;

2.             withdraw any reservations to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination and to Article 20 of the International Covenant on Civil and Political Rights and recognise the competence of the Committee on the Elimination of Racial Discrimination to receive and consider communications from individuals or groups of individuals under Article 14;

3.             seek to identify the conditions conducive to the use of hate speech as a phenomenon and the different forms it takes, as well as to measure its extent and the harm that it causes, with a view to discouraging and preventing its use and to reducing and remedying the harm caused, and accordingly:

a.             develop reliable tools for this purpose;

b.            ensure that there are public authorities designated for the purpose of using these tools and that this is done properly;

c.             ensure that the gathering of data on hate speech is not limited to the criminal justice sector;

d.            ensure that the data gathered is appropriately disaggregated;

e.             support the monitoring of hate speech by civil society, equality bodies and national human rights institutions and promote co-operation in undertaking this task between them and public authorities;

f.             support research that seeks to analyse the conditions conducive to the use of hate speech and its forms ;

g.            disseminate, on a regular basis, data about the incidence of hate speech, as well as its forms and the conditions conducive to its use, both to the relevant public authorities and to the public; and

h.             draw on the results of the monitoring and the research to develop strategies to tackle the use of hate speech;

4.             undertake a vigorous approach not only to raising public awareness of the importance of respecting pluralism and of the dangers posed by hate speech but also to demonstrating both the falsity of the foundations on which it is based and its unacceptability, so as to discourage and prevent the use of such speech, and accordingly:

a.             promote a better understanding of the need for diversity and dialogue within a framework of democracy, human rights and the rule of law;

b.            promote and exemplify mutual respect and understanding within society;

c.             facilitate and exemplify intercultural dialogue; and

d.            combat misinformation, negative stereotyping and stigmatisation;

e.             develop specific educational programmes for children, young persons, public officials and the general public and strengthen the competence of teachers and educators to deliver them;

f.             support non-governmental organisations, equality bodies and national human rights institutions working to combat hate speech; and

g.            encourage speedy reactions by public figures, and in particular politicians, religious and community leaders, to hate speech that not only condemn it but which also seek to reinforce the values that it threatens;

h.             encourage perpetrators to renounce and repudiate the use of hate speech and help them to leave groups that use it;

i.              co-ordinate all such efforts, where appropriate, with those undertaken by other States and international organisations;

5.             provide support for those targeted by hate speech both individually and collectively, and accordingly:

a.             endeavour to help them, through counselling and guidance, to cope with any trauma and feeling of shame suffered;

b.            ensure that they are aware of their rights to redress through administrative, civil and criminal proceedings and are not prevented from exercising them through fear, ignorance, physical or emotional obstacles or lack of means;

c.             encourage and facilitate their reporting of the use of hate speech, as well as the reporting of it by others who witness such use;

d.            sanction detrimental treatment or harassment of any person complaining about or reporting on the use of hate speech; and

e.             show solidarity with and provide long-term support for persons targeted by hate speech;

6.             provide support for self-regulation by public and private institutions (including elected bodies, political parties, educational institutions and cultural and sports organisations) as a means of combating the use of hate speech, and accordingly:

a.             encourage the adoption of appropriate codes of conduct which provide for suspension and other sanctions for breach of their provisions, as well as of effective reporting channels;

b.            encourage political parties to sign the Charter of European Political Parties for a non-racist society;

c.             promote the monitoring of misinformation, negative stereotyping and stigmatisation;

d.            encourage the unambiguous condemnation of breaches of these codes;

e.             support appropriate training as to the meaning and negative effects of hate speech, as well as about the ways in which its use can be challenged; and

f.             promote and assist the establishment of complaints mechanisms;

7.             use regulatory powers with respect to the media (including internet providers, online intermediaries and social media), to promote action to combat the use of hate speech and to challenge its acceptability, while ensuring that such action does not violate the right to freedom of expression and opinion, and accordingly:

a.             ensure effective use is made of any existing powers suitable for this purpose, while not disregarding self-regulatory mechanisms;

b.            encourage the adoption and use of appropriate codes of conduct and/or conditions of use with respect to hate speech, as well as of effective reporting channels;

c.             encourage the monitoring and condemnation of the use and dissemination of hate speech;

d.            encourage the use, if necessary, of content restrictions, word filtering bots and other such techniques;

e.             encourage appropriate training for editors, journalists and others working in media organisations as to the nature of hate speech, the ways in which its use can be challenged;

f.             promote and assist the establishment of complaints mechanisms; and

g.            encourage media professionals to foster ethical journalism;

8.             clarify the scope and applicability of responsibility under civil and administrative law for the use of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those who are targeted by it while respecting the right to freedom of expression and opinion, and accordingly:

a.             determine the particular responsibilities of authors of hate speech, internet service providers, web fora and hosts, online intermediaries, social media platforms, online intermediaries, moderators of blogs and others performing similar roles;

b.            ensure the availability of a power, subject to judicial authorisation or approval, to require the deletion of hate speech from web-accessible material and to block sites using hate speech;

c.             ensure the availability of a power, subject to judicial authorisation or approval, to require media publishers (including internet providers, online intermediaries and social media platforms) to publish an acknowledgement that something they published constituted hate speech;

d.            ensure the availability of a power, subject to judicial authorisation or approval, to enjoin the dissemination of hate speech and to compel the disclosure of the identity of those using it;

e.             provide standing for those targeted by hate speech, equality bodies, national human rights institutions and interested non-governmental organisations to bring proceedings that seek to delete hate speech, to require an acknowledgement that it was published or to enjoin its dissemination and to compel the disclosure of the identity of those using it; and

f.             provide appropriate training for and facilitate exchange of good practices between judges lawyers and officials who deal with cases involving hate speech;.

9.             withdraw all financial and other forms of support by public bodies from political parties and other organisations that use hate speech or fail to sanction its use by their members and provide, while respecting the right to freedom of association, for the possibility of prohibiting or dissolving such organisations regardless of whether they receive any form of support from public bodies where their use of hate speech is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it;

10.          take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion is respected, and accordingly:

a.             ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied;

b.            ensure that the scope of these offences is defined in a manner that permits their application to keep pace with technological developments;

c.             ensure that prosecutions for these offences are brought on a non-discriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs;

d.            ensure the effective participation of those targeted by hate speech in the relevant proceedings;

e.             provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response;

f.             monitor the effectiveness of the investigation of complaints and the prosecution of offenders with a view to enhancing both of these;

g.            ensure effective co-operation/co-ordination between police and prosecution authorities;

h.             provide appropriate training for and facilitate exchange of good practices by law enforcement officers, prosecutors and judges who deal with cases involving hate speech; and

i.              co-operate with other States in tackling the transfrontier dissemination of hate speech, whether in a physical or electronic format.