How to beat hatred and xenophobia

Hate Speech: The Limits to Freedom of Expression

In the comment columns of the Internet media and in the social networks, the anger at everything and everyone is expressed unchecked and unchecked in words. Freedom of expression protects this type of expression. It becomes problematic, however, when the statements call for discrimination, hostility and violence against people and groups on the basis of their race, religion, origin, skin color, gender, sexual orientation or gender identity, a disability or illness and so on. The international human rights organs have been dealing with such hate speech for some time and they are trying to define the extremely delicate demarcation between the freedom of expression to be protected and defended and the discriminatory and dignified hate speech to be combated. They also want to clarify the duty of states to combat hate speech. In Switzerland, there is only a criminal investigation obligation against racially motivated hate speech about race, ethnicity or religion.

Hate speech and hate crime

The extent of "hate speech" is well documented and many international bodies (UN, Council of Europe, OSCE) are concerned with the phenomenon and its effects on the social groups concerned and on society as a whole and their cohesion. For example, the OSCE has stated on various occasions that "hate speech" poses a major threat to the security and cohesion of European states. To date, however, the international community has not been able to agree on a uniform legal definition of "hate speech". Some countries, especially the US, put the protection of freedom of expression above all else.

The Council of Europe's Committee of Ministers adopted Recommendation R (97) 20 on hate speech back in 1997. This contains a definition of "hate speech", which is still used today in connection with the topic. Thereafter, this includes:

«Any form of expression that propagates, instigates, promotes or justifies racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance which takes the form of aggressive nationalism and ethnocentrism, discrimination and hostility towards minorities , Immigrants and people of immigrant origin».

Racist hate speech (against Jews, Muslims, Romas, people of dark skin, etc.) and xenophobic hate speech was and is in the foreground of the efforts of the international community, and in particular of the OSCE. The reference to “other forms of hate based on intolerance” makes it clear that other, not explicitly mentioned motives are also included and in particular also hate speech based on gender, gender identity and sexual orientation, a physical or mental disability or the Belonging to a certain class or social group are included (see e.g. OSCE, Freedom of Expression and Hate Speech, p. 27 f.)

There are two reasons for combating such hate speech: On the one hand, speeches that incite hatred of certain groups of people frighten those affected and thus restrict them in the exercise of their fundamental and human rights. On the other hand, they also represent the breeding ground for physical assaults and acts of intimidation against members of the respective groups. Stereotyping denigration prepares “dehumanization” and reduces the barrier to committing criminal acts.

Criminally sanctioned offenses that are motivated by prejudice against specific groups are called "hate crimes". The concept, which originally came from the USA, was mainly taken up by the OSCE. Every year, it compiles figures on the extent of hate crimes among the member states. Such “hate crimes” can affect both people and places that are associated with a group (such as human rights defenders, community centers or religious sites).

Legitimate restrictions on freedom of expression

Freedom of expression is one of the central human rights. It is indispensable for the exercise and protection of all human rights as well as for the functioning of a democratic constitutional state. Various international human rights treaties protect the freedom of expression (in particular Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights (Pact II) and Article 10 of the European Convention on Human Rights (ECHR) and various bodies at the universal and regional level fight against restrictions on the freedom of expression.

Freedom of expression, however, is not absolute. Pact II states that their exercise is associated with special duties and a special responsibility (Art. 19, Paragraph 3, Pact II). It can be restricted to ensure respect for the rights or reputation of others or to protect national security, public order (ordre public), public health or public morality. The ECHR describes the prerequisites for restrictions in even more detail: according to Art. 10 Para. 2 ECHR, it can be “subject to formal regulations, conditions, restrictions or threats of punishment that are provided for by law and necessary in a democratic society for national security, territorial integrity or the public Security, to maintain order or prevent crime, to protect health or morals, to protect the reputation or the rights of others, to prevent the spread of confidential information or to maintain the authority and impartiality of justice ».

In its practice, the European Court of Human Rights (ECHR) uses the provision in Art. 17 ECHR as a further criterion for assessing the limits of freedom of expression. According to this, any act is to be forbidden "which aims to abolish the rights and freedoms set out in the convention or to restrict them more than is provided for in the convention". Nobody who calls for the curtailment of the fundamental and human rights of certain groups of people may therefore invoke freedom of expression. An analogous provision can be found in Art. 5 Pact II.

Pact II also prohibits war propaganda (para. 1) and "any advocacy of national, racial or religious hatred that incites discrimination, hostility or violence" (para. 2). And finally, the anti-racism convention demands of the states positive action in order to «eradicate all incitement to racial discrimination and all racially discriminatory acts» (Art. 4 Anti-Racism Convention).

With reference to Art. 17 ECHR, for example, the ECHR declared the action brought by the French comedian Dieudonné to be inadmissible (M’Bala M’Bala v. France, decision of 20 October 2015). This came to the ECHR because he saw his freedom of expression violated. He had been convicted of publicly insulting people because of their origin or belonging to an ethnic community, nation, race or religion. In the specific case it was about the mockery of people of Jewish origin or faith. On the occasion of an appearance, he awarded a “prix de l'infréquentabilité et de l'insolence” (roughly: price for being ostracized and disrespectful) to a Holocaust denier who was presented by Dieudonné to an employee dressed in striped pajamas with a Jewish star on his chest has been. According to the ECHR, the evening no longer had the character of a satyrical, provocative performance, but represented a demonstration of hatred, anti-Semitism and support for Holocaust deniers. The ECHR decided that Dieudonné could not invoke freedom of expression because he did so exercised in disregard of the provisions and the spirit of the ECHR.

An overview of the practice of the ECHR, in which cases it considers a restriction of freedom of expression to be legitimate, can be found in the study published by the Council of Europe in September 2016 under the title "Freedom of expression and defamation: where is the limit?" (from English: Freedom of expression and defamation: where do we draw the line?).

  • Freedom of expression and defamation: where do we draw the line?
    Council of Europe study, September 2016
  • Hate speech
    Fact sheet on the practice of the European Court of Human Rights (ECHR, English, pdf, 15 p .; on the Dieudonné case, see p. 3)
  • Hate speech
    Documentation on the website of the organization «Article 19»
  • Anne Weber, Manual on hate speech
    Council of Europe, Directorate General for Human Rights and Legal Affairs, 2009 (English, pdf, 96 p.)

Elements of the demarcation between freedom of expression and forms of abuse

The distinction between free expression of opinion and the dissemination of incitement to discrimination, hatred and threats against minorities, which must be prevented and punished, requires careful consideration. The freedom of expression also covers indecent and even insulting speeches, which may hurt the honor of those concerned, but do not (yet) fall under hate speech. Conversely, statements can also represent hate speech that is “objective” and “scientific” and from which no explicit (hate) emotions can be inferred. According to the Committee against Racial Discrimination (CERD), the following points must be included to check whether a statement constitutes frowned upon hate speech:

  • The content and form of the speech
  • The existing social, economic and political climate in which the speech took place, as well as existing patterns of discrimination against the minority concerned (e.g. regarding asylum seekers, groups of foreigners, sexual minorities, etc.)
  • The position of the speaker in society or in the corresponding medium (is it e.g. about politicians, opinion leaders, etc.).
  • The reach of the speech (internet or mainstream media etc.)

The aim of the speech is to be considered as a further point. Here the committee points out that, for example, speeches in defense of human rights or special groups should not be criminalized.

Measures to combat hate speech

Measures to combat hate speech should not be limited to criminal law measures. The states have a duty to take positive measures in the area of ​​prevention and awareness-raising. They should carry out public education and information campaigns on the problem and, in particular, stimulate and support the self-regulation of the media. Furthermore, they have to make politicians, opinion leaders as well as institutions and organizations responsible for combating hate speech. These measures should form part of general measures to combat all forms of discrimination. With this in mind, the Council of Europe, for example, has carried out a campaign to raise awareness among young people against “hate speech” on the Internet (“no hate speech movement”).

  • No hate speech movement
    Council of Europe campaign
  • A manual for combating hate speech online through human rights education
    Council of Europe Handbook, 2016
  • WE CAN! Taking Action against Hate Speech through Counter and Alternative Narratives
    Council of Europe brochure, 2017
  • No hate speech - campaign of the Swiss Association of Youth Associations SAJV
    Information on the SAJV website
  • Responding to Hate Speech against LGBTI people
    Article 19, October 2013 (English, pdf, 44 pages)
  • Basel Declaration: Rising intolerance, discrimination, and hate crimes pose a major risk for security and require a coordinated response from the OSCE
    Recommendations of the Civic Solidarity Platform to the OSCE, adopted at the Parallel Civil Society Conference, Basel, 2-3 December 2014

Situation in Switzerland: No general ban on hate speech

Switzerland has no generally applicable legal definition of “hate speech”. Only racially motivated hate speech is prohibited by law. These fall under the anti-racism criminal norm in Art. 261bis of the Criminal Code (StGB) and are to be punished ex officio. According to Art. 261 of the Criminal Code, freedom of belief is protected from disruption and disparagement: Anyone who publicly and in a common way insults or mocks the conviction of others in matters of faith, in particular belief in God, or who dishonors objects of religious veneration, or who maliciously prevents a constitutionally guaranteed act of worship , disturbs or publicly ridiculed, is threatened with punishment.

There are no corresponding bans on the discriminatory degradation of women, homosexuals and trans people, people with disabilities or social minorities (social welfare recipients, asylum seekers, etc.). Proceedings in the federal parliament, which wanted to extend the criminal provisions of Art. 261bis StGB at least to homophobic and transphobic hate speech or the denigration of people with disabilities, have all been rejected or are still pending. The Federal Council and Parliament argued that current law already includes provisions to protect against hate speech. Reference was made to the provisions in criminal law regarding criminal acts against honor (defamation, defamation, defamation in Art. 173 ff. StGB) or their equivalent in civil law (protection of personality from Art. 28 ff. ZGB).

Unaware - and as far as can be seen, at least not discussed - seems to the legislature to be the public interest in combating “hate speech” against all vulnerable minorities. The cited criminal and civil law provisions against defamation allow only those directly affected to defend themselves by filing a criminal complaint or filing a civil law suit. The state cannot act of its own accord in such cases and civil society organizations hardly have the opportunity to take legal measures.

If the discriminatory degradation through hate speech is not directed against certain individuals but against minority groups as such, there is no effective legal remedy in Switzerland if the group is not a “racial”, ethnic or religious group. In particular, there is no criminal law provision against group-related sexist or homophobic and transphobic hate speech or against hate speech against people with physical or mental disabilities or other social minorities. It is noteworthy that sexist-motivated hate speech (against feminists, divorced women, sex workers, etc.) and its connection with violence against women in Switzerland has apparently not yet been an issue.

Both the Committee against Racial Discrimination and recently the European Commission against Racism and Intolerance (ECRI) have called for a general ban and other positive measures to combat hate speech from Switzerland. ECRI, for example, recommends that the Swiss authorities “work closely with media representatives and without restricting the freedom of the press to draw up an action plan to break the existing routines and reflexes that can lead to media reporting in Switzerland having a stigmatizing effect on groups in need of protection , especially to Roma and dark-skinned people ». ECRI also demands that one or more police units, preferably the National Coordination Unit for Combating Internet Crime (kobi), be given the responsibility for actively combating hate speech on the Internet and that appropriate technical and human resources are made available to them. As can be seen on the Kobi website, based on Art. 261bis StGB, it is currently only responsible for combating racial discrimination.

Parliamentary initiatives: