Hate speech and hate crime in the EU and the evaluation of online content regulation approaches
PE 655.135 27
Albeit the literature differentiates genocide from hate crimes due to their different scale, and the
former’s systematic and state-mandated nature,35 genocide can be understood as the most heinous
manifestation of hatred against societal groups. The groups protected by the Genocide Convention –
national, ethnical, racial and religious groups – also have a special status in relation to hate crimes
addressed in most national criminal codes.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of
1965 in Articles 4 and 6 prohibits discriminatory speech and action on a significantly broader scale. It
obliges states to criminalize certain forms of hate speech and the commission of or incitement to acts
of violence against any race, group of persons of another colour or ethnic group; furthermore, states
must create the legal and institutional basis to provide effective protection and remedies against any
acts of racial discrimination, and must provide for reparation and satisfaction for damages suffered as
a result of discrimination.
Most provisions of the ICERD focus on prohibiting discriminatory action rather than speech. Article 4 of
ICERD on the criminalization of certain types of speech is sometimes criticised by advocacy groups,
such as Amnesty International, which urged the Committee on the Elimination of Racial Discrimination
(CERD) to clarify the scope of the respective Article 4a),36 in particular recommending to include the
intent to achieve a prohibited result.
ICERD’s monitoring body, CERD issued several general recommendations to address hate speech.37
Recommendation No. 35. signals a new approach by CERD, as it emphasises the relevance and potential
of alternative responses other than criminal sanctioning, including measures of educational,
informational and cultural nature.38 Importantly, it also draws attention to the "role of politicians and
other public opinion-formers in contributing to the creation of a negative climate towards groups
protected by the Convention".
The International Covenant on Civil and Political Rights (ICCPR) of 1966 (entered into force in 1976)
especially its Article 20 – as interpreted together with Article 19 – is the most relevant international
provision relating to "hate speech." Its definition is sufficiently narrowly defined: the list of protected
characteristics is short and closed (national, racial or religious hatred), it requires "advocacy", that is, an
intentional and public promotion of hatred the advocated "hatred" is supposed to constitute
incitement to discrimination, hostility or violence, i.e. illegal material actions.
The ICCPR also imposes obligations on the states to respect and to ensure rights enshrined in the
document without distinction of any kind, such as race, colour, sex, language, religion, political or other
35 OSCE/ODHIR, Prosecuting Hate Crimes: A Practical Guide, OSCE, Warsaw, 2014, pp. 24, available at
36 Amnesty International, Written contribution to the thematic discussion on Racist Hate Speech and Freedom of Opinion and Expression
organized by the UN CERD, 28 August 2012, available at
https://www.amnesty.org/download/Documents/24000/ior420022012en.pdf. See ICERD 4(a): Shall declare an offence punishable by law
all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance
to racist activities, including the financing thereof.
37 See Recommendations No. 7 (1985) relating to the implementation of article 4; No. 15 (1993) on article 4, which stressed the compatibility
between article 4 and the right to freedom of expression; No. 25 (2000) on gender-related dimensions of racial discrimination; No. 27
(2000) on discrimination against Roma; No. 29 (2002) on descent; No. 30 (2004) on discrimination against non-citizens; No. 31 (2005) on
the prevention of racial discrimination in the administration and functioning of the criminal justice system; No. 34 (2011) on racial
discrimination against people of African descent, and No. 35. (2013) on combating racist hate spe ech, and current ly No. 36 . is in progress,
on preventing and combating racial profiling.
38 McGonagle, T., The Council of Europe ag ainst online hate speech: Conundrums and challenges, Exp ert Paper, Institute for Information
Law(IViR), 2013, available at https://rm.coe.int/16800c170f.