Comparative analysis of selected member states

• Author: Petra Bárd - Judit Bayer
• Pages: 66-116

Hate speech and hate crime in the EU and the evaluation of online content regulation approaches

PE 655.135 61

COMPARATIVE ANALYSIS OF SELECTED MEMBER STATES

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

MS

Criminal law

Civil law

Media law Press self-

regulation

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

183

Only individually targeted and affected victims can sue.

IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs

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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

Other

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

courts.187

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.

Self-regulation

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

https://www.article19.org/wp-content/uploads/2018/03/ECA-hate-speech-compilation-report_March-2018.pdf.

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

https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32000L0043.

186 See more in „Implementation of EU anti-discrimination law in the Member States: a comparative approach” (2011), available at

http://www.era-comm.eu/oldoku/Adiskri/01_Overview/2011_04%20Chopin_EN.pdf.

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

https://hatter.hu/sites/default/files/dokumentum/kiadvany/hatter-cmrec2010-5-report2018.pdf.

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Table 4: Self-regulation

MS

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

withholding

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

well.

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.