Comparative analysis of selected member states

AuthorPetra Bárd - Judit Bayer
Hate speech and hate crime in the EU and the evaluation of online content regulation approaches
PE 655.135 61
3.1. Hate speech
Codification techniques
Branch of law
Criminal law
Criminal sanction is the strongest instrument of the state. The criminal procedure requires enormous
resources even to get started, moves slowly, and is very high stakes. It can result either in acquittal, and
the speaker can register a victory: gain fame and regain authority or the speaker is convicted which is
damaging to their freedom, social status and through stigmatisation, further destructs their loyalty to
society. In short, criminal hate speech creates a lose-lose situation for the community and contributes
to maintaining hostility and yields even more conflict.
All the examined states had hate speech prohibitions in their criminal law. Similarly, all states' specific
regulations for broadcasting and the mass media included some provisions to protect human dignity
and prohibit hate speech, as it is required by the Audiovisual Media Services Directive (see Chapter
2.4.2. above).
Table 3: Regulatory branch
Criminal law
Civil law
Media law Press self-
DE yes yes183 yes yes
HU yes yes yes yes
IT yes yes yes yes
MT yes - yes -
PL yes yes yes yes
Source: Authors, based on the country reports.
Civil law
Civil lawsuits against insults based on racial, ethnic, national or religious (etc.) belonging is possible in
several states (DE, HU, IT, PL), although in some states only the individual personally targeted may
Only individually targeted and affected victims can sue.
IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
62 PE 655.135
initiate proceedings (PL). In Malta, the injured party may participate in the criminal proceeding, but no
specific civil law provision exists.
Research shows that victims rarely bring civil law actions, and it is assumed that courts may be reluctant
to apply anti-discrimination legislation in hate speech cases. Victims might also be deterred by the
costs and burden of litigation.184
All MSs have implemented the Equal Treatment Directive185, but not all of them apply it with the same
scope.186 Two country experts mentioned this law as a tool against hate speech (HU, PL), being the most
meaningful and frequently invoked protective instrument against discrimination in Hungary, while it
was "very rarely applied" in Poland. On the negative side: the relatively progressive decisions of the
Hungarian Equal Treatment Authority on racist hate speech have sometimes been overturned by the
Although the law's scope is primarily discriminative actions, but 'harassment' can also include verbal
attacks, with the motivation or effect to create an intimidating, hostile, humiliating, degrading or
offensive environment. Thus, the protected value is the objective environment of the victim, rather
than their feelings, therefore it can be interpreted in the context of hate speech.
Most states also had provisions in their voluntary self-regulatory press codes (HU, IT, PL), except for
Germany, where the Press Code does not explicitly address hate speech, only discrimination and the
protection of personal honour, but in Germany, the hate speech committed through established press
is regarded as not prevalent. In most of those states which have hate speech provisions in their press
codes, their effect was reported as unsatisfactory (HU, IT, PL). The Maltese Code of Journalistic Ethics
does not include prohibitions of hate speech, but the Institute of Maltese Journalists has adopted the
Global Charter of Ethics for Journalists (2019) which sets out in Article 9 that ‘journalists shall ensure
that the dissemination of information or opinion does not contribute to hatred and prejudice….”.
184 See the report of Article 19 (2018). Responding to 'hate speech': Comparative overview of six EU countries. Available at
185 See Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial
and ethnic origin. Available at
186 See more in „Implementation of EU anti-discrimination law in the Member States: a comparative approach” (2011), available at
187 Report about the Implementation of the Council of Eu rope Recommendation to member states on measures to combat discrimination
on grounds of sexual orientation or gender identity (CM/Rec(2010)5) in Hungary Prepared by Háttér Society Hungarian LGBT Alliance
Transvanilla Transgender Association. Available at
Hate speech and hate crime in the EU and the evaluation of online content regulation approaches
PE 655.135 63
Table 4: Self-regulation
Is there journalistic self-regulation?
Is it regarded as effective, and why?
DE not on hate speech effective: no hate speech is prevalent
HU yes ineffective: membership not
compulsory, sanctions not
IT yes partly
MT not on hate speech n.a.
PL yes, more limited public awareness about the
existence of ethical codes of conduct
and related sanctions regimes
Source: Authors, based on the country reports.
Is the list of protected characteristics exhaustive, or open-ended?
The list of protected grounds in criminal law can be exhaustive (IT, MT, PL) or open ended (DE, HU).
The Hungarian criminal code protects first of all the "Hungarian nation", then "any nation, ethnic, racial,
religious group", and thirdly gives an open-ended definition of "certain groups of the population" but
in particular with regard to disability, gender identity, sexual orientation.
In Poland and Malta, the closed list of protected grounds is rather limited, lacking age, gender identity,
sexual orientation, disability, refugee status, and many more. Several of the "missing" characteristics
are frequently, very frequently or sometimes attacked by hate speech (see Table 2) in these states as
In Poland, attempts by NGOs as well as the UN Human Rights Council and the UN Committee against
Torture called for extending the list of protected characteristics, in particular to include sex, gender
identity and sexual orientation which are frequently targeted features. Even though an amendment
was initiated by a group of MPs, it was rejected in the Parliament.
Table 2 shows those protected characteristics which are attacked most frequently in the examined
countries, based on the report of our country experts. The responses are based on subjective
assessments by the academic experts and NGOs who are experts of the field in the specific countries.
The responses show the tendencies and problem areas: unanimous responses pointed out that ethnic
origin, race or racial origin, colour, and migrant or refugee status are attacked frequently or very
frequently. On the other end of the spectrum, age is very rarely or never subject to hate speech attacks.

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