European Hate Speech Laws

Since the end of World War II, many European countries have witnessed a proliferation of hate speech legislation designed to curb incitement to racial and religious hatred. Though originally intended to guard against the kind of xenophobic and anti-Semitic propaganda that gave rise to the Holocaust, today, national hate speech laws have increasingly been invoked to criminalize speech that is merely deemed insulting to one's race, ethnicity, religion, or nationality. Under the guise of tolerance and co-existence, Islamists have often manipulated such laws in a bid to monopolize debate and define what is beyond the pale of permissible public discussion.

In large part, the movement to circumscribe the bounds of free expression has its roots in three instruments of international law—the European Convention on Human Rights (ECHR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the International Covenant on Civil and Political Rights (ICCPR). Article 10 of the ECHR, for example, grants the freedom of expression to all, but the exercise of this right is conditioned on conformity with the restrictions necessary, inter alia, "for the protection of the reputation and rights of others." The CERD and ICCPR, which also purport to recognize the freedom of expression, go a step further. Article 4(a) of the CERD obligates signatories to make "all dissemination of ideas based on racial superiority or hatred" a punishable offense, while Article 20 of the ICCPR requires outlawing "any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence."

Given the nebulous standards on which much of Europe's hate speech laws are based—indeed, there is not even a universally agreed upon definition for what constitutes hate speech—it is little wonder that such legislation has ensnared speech it was likely never meant to punish. Delineating the line between speech that is considered rude and that which is considered insulting for the purposes of criminal prosecution is an utterly subjective undertaking, and a distinction that governments are ill-suited to determine. Compounding the problem of these laws' arbitrariness is their selective application: while European authorities have at times appeared reluctant to go after Islamist firebrands spouting hatred, those engaging in legitimate debate about Islamism are frequently targeted for prosecution. Examples abound:

• Denmark: Article 266(b) of the Danish Criminal Code criminalizes "expressing and spreading racial hatred", making it an offense to use threatening, vilifying, or insulting language intended for the general public or a wide circle of persons. In 2001, several Danish politicians were convicted under this provision for allegedly making "anti-Islamic" statements. More recently, in June 2010, the Danish crown prosecutor sought to lift MP Jesper Langballe's parliamentary immunity so that he could face charges under Article 266(b) for publishing an article about the creeping "Islamisation of Europe" and the subjugated status of Muslim women.

• France: France's principal piece of hate speech legislation is the Press Law of 1881, in which Section 24 criminalizes incitement to racial discrimination, hatred, or violence on the basis of one's origin or membership (or non-membership) in an ethic, national, racial, or religious group. A criminal code provision likewise makes it an offense to engage in similar conduct via private communication.

  Such laws have been deployed against individuals across a broad swath of society. In 2002, four Muslim organizations filed a complaint against author Michel Houellebecq for stating that Islam was "stupid" and "dangerous" in an interview. Although the court acquitted Houellebecq, it refrained from doing so on free speech grounds. In 2005, politician Jean Marie Le Pen, runner-up in the 2002 presidential election, was convicted of inciting racial hatred for comments made to Le Monde in 2003 about the consequences of Muslim immigration in France. And in 2008, actress Brigitte Bardot was haled into court and convicted on charges of inciting racial hatred for her criticism concerning the ritual slaughter of sheep during a Muslim feast. Bardot was ordered to pay €15,000, the fifth time she was fined for inciting racial hatred against Muslims since 1997.

• The Netherlands: Long considered a bastion for the freedom of thought and expression, Holland has today joined in the European retreat on free speech. Together, Articles 137(c) and 137(d) of the Dutch Criminal Code operate to prohibit making public intentional insults, as well as engaging in verbal, written, or illustrated incitement to hatred, on account of one's race, religion, sexual orientation, or personal convictions. The most prominent hate speech case to date is that of politician Geert Wilders, who was indicted by the public prosecutor in 2009 for his public comments about Muslims and Islam, and his release of a short film documenting inflammatory passages in the Qur'an.

• United Kingdom: Sec. 18(1) of the Public Order Act of 1986 (POA) states that "a person who uses threatening, abusive, or insulting words or behaviour, or displays any written material which is threatening, abusive, or insulting, is guilty of an offence if: a) he intends to thereby stir up racial hatred, or; b) having regard to all the circumstances racial hatred is likely to be stirred up thereby." Among the panoply of other British hate speech laws is Section 5 of the POA, which makes it a crime to use or display threatening, abusive, or insulting words "within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby." Indeed, it was under this incredibly low threshold that Christian hoteliers Ben and Sharon Vogelenzang, accused by a Muslim patron of calling Muhammad a "warlord", were charged, but ultimately acquitted, in 2009. Conversely, Harry Taylor, an atheist who placed drawings satirizing Christianity and Islam in an airport prayer room, was convicted in April 2010 under Section 5 and given a six-month prison sentence.

The Legal Project has tracked the challenges posed by Europe's national hate speech laws to free speech, educating policymakers and the general public about the danger through op-ed articles, speeches, and blog commentary. The Legal Project has also worked to inform the legal community about the problem through its new Continuing Legal Education course, Suing the Messenger: The Misuse of Law to Suppress Free Speech Regarding Terrorism, Radical Islam and Related Topics.

Further Reading

Jacob Mchangama – "Censorship as Tolerance" – How Europe's raft of hate speech laws are eroding free speech protections.

Christopher Orlet – "Insult to Injury" – Why European hate speech legislation makes for bad law.

Council of Europe – "Fact Sheet on Hate Speech" – A brief explanation of the Council of Europe's approach to hate speech regulation.

Gerard Alexander – "Illiberal Europe" – Why the increase in anti-Nazi speech laws in Europe has impoverished even mainstream political debate.

John C. Knechtle – "Holocaust Denial and the Concept of Dignity in the European Union" – A Florida State University law review article on the European approach to hate speech, and why the European Union's 2007 Framework Decision on Racism and Xenophobia does not provide an antidote.

Reports

Council of Europe – "Legal Measures to Combat Racism and Intolerance in the Member States of the Council of Europe" – A link to a compilation of reports on Europe's national hate speech laws.

Links

Council of Europe – "Protocol to the Convention on Cyber Crime, Related to the Prosecution of Acts of Racist and Xenophobic Nature through Computer Systems" – The text of the 2003 protocol criminalizing hate speech on the Internet.