"Hate speech" may become a crime in the EU. Important vote in the European Parliament

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- A vote will take place in the European Parliament in the coming days on expanding the category of EU crimes to include "hate speech" and "hate crimes."

- However, the proposal itself to add hate speech to the list of EU crimes raises a number of objections, which include questions of legitimacy and the need for such action in light of Article 83 (1) TFEU or the effectiveness of such norms.

- The Ordo Iuris Institute has prepared a memorandum, addressed to MPs sitting in the European Parliament, recommending a vote against the proposal in question.

- In the document, the Institute presented legal arguments in favor of rejecting the hate speech project.

In December 2021, the European Commission issued a communication to the European Parliament and the European Council entitled "A more inclusive and safer Europe: expanding the list of EU crimes to include hate speech and hate crimes." The adoption of regulations on the subject matter was announced earlier, including in September 2020, during the annual State of the Union speech, when the President of the European Commission stressed the need to effectively combat racism and hatred.

To combat these negative phenomena, the European Commission has developed a proposal to add hate speech and hate crimes to the list of EU crimes, based on Article 83(1) of the Treaty on the Functioning of the European Union (TFEU). The proposal was justified, among other things, by the alleged increase in the number of hate speech incidents and hate crimes or the increase in hate speech on the Internet and social media in recent years. The cross-border nature of these acts and the need to protect human rights as well as EU values were also cited.

However, the European Commission's proposal has raised numerous objections, relating to several fundamental issues, more extensively described in the Ordo Iuris study published in March 2022. For this reason, the Institute has been monitoring the work being carried out on the project, an apparent confirmation of which is the memorandum sent to Members of the European Parliament in connection with the vote at the plenary session, scheduled for January 18 of this year.

In its memorandum, the Ordo Iuris Institute points out several important arguments in favor of rejecting the project.

First, it is stressed that the proposal in question does not meet any of the conditions listed in Article 83 (1) TFEU. The provision in question grants the European Parliament and the Council the power to legislate in ten well-defined areas, categorized as particularly serious crime of a cross-border nature. These are so-called "minimum standards" that define basic standards of protection, including definitions of the crime and the definition of penalties. The memorandum notes that behavior falling within the scope of "hate speech and hate crimes," and consisting, for example, in "slandering" or "vilifying" a person, should be judged strongly negatively. The document notes , such acts cannot be included in the category of "particularly serious crime of a cross-border nature." This is because "hate speech" cannot be equated with crimes such as terrorism or sexual abuse of women and children. In addition, "hate speech" crimes generally lack cross-border characteristics, the memorandum pointed out.

The Institute's analysts also drew attention to the problems associated with the effectiveness of this type of regulation, citing as an example the past experience of some European Union member states that have decided to adopt similar solutions. In this context, they cited the casus of Belgium, France and Spain, which introduced legislation on hate speech in the area of sexual orientation and gender, which ultimately did not translate into a significant decrease in the number of crimes related to criminalized behavior. 

The bill is scheduled to be debated in the European Parliament on Wednesday 17 and voted on Thursday, January 18 this year.

- Many countries have so far decided to pass legislation to punish so-called "hate speech" and "hate crimes," and such regulations are becoming increasingly common. Despite this, the regulations, often enacted with noble motives, serve as a tool that ultimately leads to restrictions on fundamental rights and freedoms, including the fundamental right to free expression. An example of this can be seen in recent reports from Finland, where Christian Democrat politician Päivi Räsänen was accused of spreading hatred in connection with critical statements against the LGBT community. Therefore, the Commission's proposal raises far-reaching objections and the work on this project is being monitored by our Institute," says Patryk Ignaszczak of the Center for International Law.