Freedom of speech in jeopardy. European Commission to ban so-called hate speech

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The European Commission intends to take action against freedom of speech. The EC initiative would incorporate the so-called ‘hate speech’ and ‘hate crimes’ in the catalogue of ‘EU crimes’. This means that they would be included in Article 83 (1) of the Treaty on the Functioning of the European Union and, in this way, behaviours covered by these terms would be inevitably considered crimes by all EU Member States. However, these terms have not been clearly defined in any act of international law, so the Commission’s plans could result in violations of freedom of speech. The Ordo Iuris Institute has submitted its opinion on this matter.

On 20 April, the feedback period for the EC initiative ended. Until then, over 1,500 feedbacks were submitted, which proves the large-scale interest in the subject matter across the EU. The number of critical opinions, including the extensive and comprehensive opinion of Ordo Iuris, indicates that Europeans see the threats that the draft act poses to freedom of speech and are reluctant to implement censorship.

In its opinion, the Ordo Iuris Institute expressed its concern that the terms ‘hate speech’ and ‘hate crime’ are neither defined nor clearly explained in any international treaty. These terms have also not been defined by any international court. The only available definitions are non-binding, do not explain much, and point mostly to far-reaching liberty and lack of objective criteria to assess what fits within the boundaries of freedom of speech and what does not.

The ambiguity of the term ‘hate speech’, apparent in international documents, is reflected in the acts drawn up by international companies, NGOs and other public and private entities. It is clear, for example, in the ‘Facebook Community Standards’ which, among others, the European Commission refers to in trying to demonstrate the allegedly overwhelming scale of ‘hate speech’ and ‘hate crime’ on the Internet. In fact, according to the Community Standards, an attack is understood as, among others, ‘expressions about being less than adequate’, ‘expressions about deviating from the norm’, ‘self-admission to intolerance on the basis of protected characteristics, including but not limited to: homophobic, islamophobic’, ‘expressions of dismissal, including but not limited to: don’t respect, don’t like, don’t care for’. In practice, the already functioning definitions of hate speech can give rise to haphazard and subjective interpretations, which turns the fight against hate speech into a threat to the freedom of public debate and can (and sometimes does) take the form of censorship.

Protection of freedom of speech and pluralism of opinions requires precision both in definitions and in legal regulations of freedom of speech. Meanwhile, the term ‘hate speech’ focuses on motivations, feelings, and thoughts or views of the perpetrator and the victim. Such a perspective is basically contrary to the requirement of precision and specificity. These criteria are also far from objective and are difficult to verify.

Freedom of speech as one of the fundamental freedoms is declared in all acts of international and supranational law on the protection of human rights. Freedom of speech is provided for in Article 19 of UDHR, Article 19 of ICCPR, Article 10 of ECHR, and Article 11 of CFR. The idea of combating ‘hate speech’, legitimised by the common disapproval of hatred, involves, without any precision, many more behaviours that those which the advocates of improving the culture of public debate want to counteract. In fact, it degrades this culture by allowing for far-reaching arbitrariness in instrumentally labelling specific behaviours (statements) and removing them from the public debate.

“First of all, the terms hate speech and hate crime do not meet the conditions specified in Article 83 (1) of the Treaty on the Functioning of the European Union, which would allow a treaty amendment involving the addition of such crimes to the list of EU crimes. In fact, hate speech and hate crime are not crimes, but most frequently offences referred to by law as ‘common’. As a rule, they are also not cross-border phenomena, and since there is no precise applicable definition, it is impossible to look for or point to any trend in the number of such crimes. No provision of the Treaty enabling the inclusion of a new crime to the list of EU crimes is met, therefore the European Commission initiative is doomed to fail,” emphasised Anna Kubacka, analyst from the International Law Centre.