Conclusions

• Author: Petra Bárd - Judit Bayer
• Pages: 117-121

IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs

112 PE 655.135

CONCLUSIONS

4.1. The international standards

There is a global consensus that incitement to hatred needs to be prohibited by criminal law. Specific

human rights bodies like CERD have a wider scope perspective of hate speech which they recommend

to prohibit, although their focus is primarily on discriminative actions. ECRI has issued several

meaningful recommendations on specific aspects of hate speech and how to combat it.

Recent actions and soft law instruments by the international bodies have expressed concern for the

growing level of hate speech in particular in the mainstream political discourse. 412 In particular, ECRI

General Policy Recommendation No. 15 called attention to the responsibility of parliamentary

representatives and state officials in letting extremism and intolerance infiltrate into the highest level

of public administration.

"employment of a rude tone in many parliaments and by state officials has been found to contribute

to a public discourse that is increasingly offensive and intolerant. Such discourse has been

exacerbated by some high-level politicians not being inhibited from using hate speech in their

pronouncements."413

The ECtHR, in its case law on hate speech, paid particular attention to the factors of the speaker and

the context of the speech. It repeatedly declared that persons who are role models in a society, such as

a football player, a teacher or a politician, owe an enhanced duty to refrain from using or advocating

racial discrimination (Féret v. Belgium414). Regarding the context of the speech, the Court found that the

underlying social context would largely define the potential impact of the speech, its threat on human

rights. Thus, it accepted a more restrictive approach, that is, a lower threshold of hate speech

restriction, in states with more intense social tensions surrounding the discussed phenomenon

(Perinçek v. Switzerland415).

In legal philosophy, discourse is taking place about the boundaries of freedom of expression in the light

of hate speech. One alternative view is that hate speech should be regarded as harmful without

examination of its potential effect because it abstractly undermines the dignity of the targeted

persons, and damages social equality, cohesion and mutual trust in society.416 Another meaningful idea

is that in a long-standing, prosperous, stable democracy hate speech should be fought against with

genuine social actions, because they possess ample "legal, institutional, educational, and material

resources to admit all viewpoints into the public discourse, and yet remain adequately equipped to

protect vulnerable groups from violence or discrimination"417 and such a natural shield would make

criminal hate speech provisions superfluous. The results of the study however, do not support the

412

ECRI General Policy Recommendation No. 15 on Combating Hate Speech (2015) ECRI Declaration on the use of racist, antise mitic and

xenophobic elements in political discourse (2005), the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious

hatred that constitutes incitement to discrimination, hostility or violence and case law of the ECtHR (Féret v. Belgium, Seurot v. Fran ce).

413

ECRI General Policy Recommendation N°15 on combating hate speech – adopted on 8 December 2015

414

ECtHR, Féret v. Belgium, Application no.: 15615/07, 16 July 2009.

415

ECtHR, Perinçek v. Switzerland, Application no.: 27510/08, 17 December 2013.

416

Waldron, J., ‘Protecting Dignity or Protection from Offense?’, In The Harm in Hate Speech, Harvard University Press, Cambridge,

Massachusetts; London, England, 2012, pp. 105-143. Retrieved June 17, 2020, available at

www.jstor.org/stable/j.ctt2jbrjd.7.

417

Id. p. 44.