Yasmin Curzi (17/12/2021). Hate Speech. In Belli, L.; Zingales, N. & Curzi, Y. (Eds.), Glossary of Platform Law and Policy Terms (online). FGV Direito Rio. https://platformglossary.info/hate-speech/.
Author: Yasmin Curzi
This entry aims to (I) present the definition of hate speech according to human rights law and the specialized literature; and (II) draw a distinction between hate speech and harm.
Hate speech is not a new phenomenon, and neither are the attempts to address it. The International Covenant on Civil and Politics Act (ICCP, United Nations, 1966)1 2 prohibited (art. 20) “[the] advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Many other legal instruments subsequently tried to encompass forms of discrimination, such as the Committee of Ministers of the Council of Europe Recommendation No R 97(20) 30.10.1997 on hate speech, which includes other vulnerable groups into the definition. Also, this document makes liable not only the individuals who advocate in favor of hate speech but also the ones that act to “spread, incite, promote or justify” any content related to “racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility towards minorities, migrants and people of immigrant origin” (Council of Europe, 1997)3. These efforts show the commitment of several relevant institutions to cultural changes, being incorporated by domestic legislations worldwide.
Despite the advantages to the existence of general definitions capable of encompassing all of what are to be considered hate manifestations, in a universalist approach, the lack of objectivity leaves enormous discretionary space for judges and punitive institutions in applying the legislation. This can lead to several issues for law enforcement. Similarly, when it comes to online hate speech, there is a huge space for the actions of social network companies to define what they consider to be hate speech and apply content moderation in the online environment.
Considering the online fora as the new public sphere, platforms are being called out to assure the equal participation of users, combat online violence, and enforce content moderation. Moreover, legislators are drawing domestic laws (such as the Germain NetzDG and the Brazilian Responsibility and Transparency Draft Bill) so that platforms commit to the maintenance of a safe digital sphere and the protection of democratic values. On one side of the discussion, some groups are advocating for the prevalence of free speech, as framed in the US’ 1st Amendment, above other principles. These groups tend to call platforms’ initiatives to prohibit hate speech ‘censorship’.
On the other side of the discussion, academics such as Mary-Anne Franks (2019)4 and Danielle Citron say that the debate around hate speech should be centered on how some groups in society are being historically silenced and are powerless against several violations – such as women, non-white men, and other minorities (Citron, 2014)5. In this sense, returning to the ICCP document, in their view, institutions should make efforts to guarantee both the protection of free speech and addressing of hate speech.
References
- International Covenant on Civil and Political Rights. Treaty Series, 999, 171.
- United Nations (General Assembly). (1966).
- Council of Europe, Recommendation No. R (97) 20 of the Committee of Ministers to Member-States on “Hate Speech”, 30 October 1997.
- Franks, M. A. (2020). The Cult of the Constitution. Stanford University Press.
- Citron, Danielle. (2014). Hate Crimes in Cyberspace. Harvard University Press.