58217398 Hate Speech and Group Libel

8/11/2019 58217398 Hate Speech and Group Libel

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IN DEFENSE OF CIVILITY:IN DEFENSE OF CIVILITY:

REFLEXIONS ON HATE-SPEECH ANDREFLEXIONS ON HATE-SPEECH AND

GROUP-LIBELGROUP-LIBEL

International Association for the protection of human rights in Cyprus.

Conference on international law and human rights, Limassol, October 7, 200.

!oger "rrera

Conseiller d#$tat honoraire

%isiting &rofessor, Central "uropean 'ni(ersity, )udapest.

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?rouplibel and hatespeech statutes are generally posterior to *B2. One e6planation

of the adoption of such statutes would consist in affirming that it was caused by the e6istence

of a new form of political discourse, composed of antiforeign and 6enophobic opinions,

antisemitism and of other writings and public e6pressions directed against specific minorities.

-owe(er, this form of political discourse is neither new nor recent in "urope or in the 'A.

Literature directed against 5ews, aliens, immigrants and )lac@s has e6isted at least since the

end of the FIFth century. 4he first three currents reached unprecedented heights during the

*10#s in "urope. retHmer and ". >lein "ds, 4he -ague and Dewor@, 2002 ).=athieu, J La dignitK de la personne humaine8 Guel droit Muel titulaireN, D+*.22 )."delman, J La dignitK de la personne humaine, un concept nou(eau N, id*7.*B %.aint5ames, J !Kfle6ionssur la dignitK de l#tre humain en tant Gue concept EuridiGue du droit franPais N, eue du droit public.*.*B ).5orion, J La dignitK de la personne humaine, ou la difficile insertion d#une rQgle morale dans le droit positif N,id, *.*7. On the +rench Conseil constitutionnel case law on this notion see the decision of 5uly 27, *, nR11S1 3C, !ec., p *00. +or an application in administrati(e law see Conseil d#"tat, October 27, *B,*ommune de orsang sur .rge and /ille d01i# en )roence , the 9dwarf#s case;/ commented in */)ublic

Law. *, and the 'D -uman !ights Committee decision, 2ac%enheim + "rance, ineue trimestrielle desdroits de l0homme,nR BB, 2001.*0*7, commented by =. Le(inet, at *02. On the notion of human dignity in

?erman constitutional law, see Art. * */ of the ?erman Constitution 94he dignity of man shall be in(iolable;/.4his Article is part of the "wig@eit clause of Art. 71 >. ontheimer, 9&rnciples of -uman 3ignity in he+ederal !epublic;, in !ermany and its &asic Law+ )ast, )resent and "uture+ 1 !erman-1merican-Symposium ,

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protection of the rights of personality. 4he more general reason can be summed up as

follows8 legislati(e inter(ention is deemed to be necessary not only and perhaps not mainly

to protect certain targeted groups and their members but also for the wellbeing of society as a

whole. uch a discourse is an attac@ on its (ery fabric, on the form of ciilitywhich forbids to

(ilify an indi(idual or a group of persons on the ground of theiridentity. ayser, J Les droits de la personnalitK Aspects thKoriGues et pratiGues N, eue trimestrielle de droitcompar(.*7*.B.B> .?reenawalt, Speech, *rime and the 4ses of Language, O6ford 'ni(ersity &ress, Dew or@, *.2. In The orality of *onsent, ale 'ni(ersity &ress, Dew -a(en and London, *7B, A. )ic@el, discussing5ustice )randeis#s premise in


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recogniHed that 9group (ilification: poses : harms/ both to targeted groups and the

political community as a whole;.?ates*0Guotes =atsuda8 9A legal response to racist speech

is a statement that (ictims of racism are (alued members of our polity: In a society that

e6presses its moral Eudgment through the law, the 9absence of law against racial speech is

telling;. Do less remar@able has beeen the use of such central concepts as those of indi(idual

autonomy and identity, human dignity**, eGuality and ci(ility, i. e. personality rights*2.

.n the wording and implementation of group-libel and hate - speech statutes' %ey legal

concepts and issues+

Once the decision to legislate is ta@en and the choice of criminal law made, a number of

@ey legal issues must be addressed. 4he drafting and wording of such legal instruments must

be (ery careful. In implementing them, courts must @eep in mind their ultimate Eustification as

well as the importance of freedom of e6pression.

a/ &rocedural issues8

eegstra cases the Canadian upreme Court held that the Canadian statute Art. 1* of the CriminalCode/ was consistent with the Canadian Charter of !ights and +reedoms. In the Tundel case it held that Art. **,

punishing the wilful publication of statements or news @nown as false, causing or li@ely to cause inEury or

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members of certain groups;, or 9to lower members of certain groups in a manner which is an

attac@ against human dignity; &enal Code, Art. 2* bis/. 4he notion of human dignity is also

to be found in Austrian and ?erman legislation.

c/ 4o incite to what

-atred is mentioned in +rench, "nglish, Canadian Criminal Code section 1*/, wiss

&enal Code, Art. 2* bis/ and ?erman &enal Code, Art. *10/ criminal law. It is sometimes

accompanied by other notions such as (iolence or discrimination +rench law/ or

discrimination wiss law/, (iolence and attac@ on the human dignity of others ?erman &enal

Code, Art. *10/.

d/ On which grounds

"nglish law seems to be the only one to mention colour. 4he word is used by Art.a

C"!3. !ace is mentioned in "nglish, +rench, ?erman and wiss law. Dationality is

mentioned in "nglish and ?erman law ethnic or national origin in "nglish, +rench, ?erman

and wiss law. =ost countries mention religion +rance, ?ermany, Canada, witHerland/. A

lengthy debate too@ place recently in )ritain on the inclusion of incitement to religious hatred,

un@nown before 200B e6cept in Dorthern Ireland. 4he !eligious -atred Act inserts into the

* Act the following clause8 2)*/ 9A person who uses threatening words or beha(iour,

or displays any written material which is threatening, is guilty of an offence if he intends

thereby to stir up religious hatred;. 4he statute contains also the following pro(ision8

28 9Dothing in this part can be read or gi(en effect in a way which prohibits or restricts

discussion, criticism or e6pressions of antipathy, disli@e, ridicule, insult or abuse ofparticular religions or the beliefs or practices of their adherents, or proselytiHing or urging

adherents of a different religion or belief system to cease practising their religion or belief

system;*.

Canadian law is particular in that the offence consists in inciting hatred 9any identifiable

group;.

*.&oulter, 94owards, id+, Legislati(e !eform of the )lasphemy and !acial -atred Laws;, **/ )ublic Law.17* I. -are, 9Crosses, Crescents and acred Cows8 Criminalising Incitement to !eligious -atred;, 200/

)ublic Law.B2* Lord Lester, 9+ree peech, !eligious +reedom and the Offence of )lasphemy;, n.d.,n.pl.

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A +rench statute of 3ecember 10, 200, has added se6, se6ual orientation and handicap to

the grounds mentioned supra. 3iscrimination based on se6ual orientation or handicap is

mentioned in Art. *1 of the "uropean Community 4reaty, deri(ed from Art. A of the

Amsterdam 4reaty. e6ual orientation applies to homose6uals and bise6uals and probably to

transse6uals20.

e/ &ublic order or public peace.

4he possibility or the li@elyhood of a disturbance of public order or peace is part of the

definition of the offence in Canadian ection 1* * of the Criminal Code/ and ?erman law

Art. *10 * of the &enal Code/.

f/ 3efences.

3efences are sometimes mentioned in hatespeech and grouplibel statutes. One e6ample is

Canada, where ection 1* of the Criminal Code lists four @inds of defences8 truth good faith

in e6pressing an opinion statements rele(ant to a subEect of public interest, the discussion of

which was for the public benefit and reasonably belie(ed by the author/ to be true on a

religious subEect intention, in good faith, to point out, for the purpose of remo(al, matters

producing feelings of hatred toward an identifiable group in Canada.

ection 2 of the &ublic Order Act * in )ritain, mentioned supra, is intended to be a

defence. +rench, ?erman and wiss law do not mention defences.

3omestic courts decisions relating to the implementation of such statutes may be

re(iewed either by the "uropean Court of -uman !ights or by such bodies as the 'D -uman!ights Committee see below/ or the Committee on the elimination of racial discrimination,

20According to a Eudgment of the "C5 of April 10,*,&.(. and Cornwall City Council, Case C*1S */,"C! I. 2*1, the right not to be discriminated against in one#s wor@ on grounds of se6, based on 3irecti(e7S207 ""C of +ebruary , *7, cannot be reduced to the sole discrimination resulting from belonging to onese6 or the other one. It is bound to apply to discrimination based on se6ual con(ersion, since the latter restsmainly, if not e6clusi(ely, on the indi(idual#s se6. -owe(er two years later, in ?rant (. < 4rains, CaseC2S */ "C! I 2*, the Court refused to include homose6uals. In a Eudgment of October , *, 4he

Dational Coalition for ?ay and )ise6ual eGuality (. the =inister of 5ustice, the outh African ConstitutionalCourt has held that the prohibition of se6based discrimination Art. 1 of the Constitution/ must be construed

broadly and be applicable tio transse6uals. 4his Eudgment is mentioned in .?arneri, J Le droit constitutionnel etles discriminations fondKes sur l#orientation se6uelle N, eue fran?aise de droit constitutionnel, 0.*.72Band *. 2000.7.


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set up under C"!3. In a remar@able decision, the latter recently held that the acGuittal, by the

Dor(egian upreme Court, of the author of proDaHi and antisemitic statements was a

(iolation of Art. and C"!32*.

Denial of the $a6i genocide of the 3ews and of other crimes against humanity

In a number of countries such a denial or minimiHation, accompanied by the allegation

that the genocide has been in(ented by the 5ews for their own purposes, has been the subEect

of boo@s, essays and articles22. As the "uropean Court of human rights rightly held in the

?araudy case, the real purpose of ?.#s boo@ was to rehabilitate the Dationalocialist regime

and, as a conseGuence, to accuse the (ictims of the genocide of falsifying history. 3isputing

the e6istence of crimes against humanity, the Court added, is therefore one of the most se(ere

forms of racial defamation and of incitement to hatred of 5ews.4he denial or rewriting of this

type of historical fact undermines the (alues on which the fight against racism and anti

emitism is based and constitutes a serious threat to public order. It is incompatible with

democracy and human rights and its proponents indisputably had designs that fell into the

category of prohibited aims under Art.*7 "C-!. ConseGuently the Court found that ?., who

had been sentenced by a +rench court to a fine and a suspended prison sentence, could not

rely on Art.*0. -is application was declared illfounded21. 4his is consistent with the case law

of the "uropean -uman !ights Commission2,a dictum of the court in a * Eudgment2Band

a decision of the 'D -uman !ights Committee2.

2*

Committee on the elimination of racial discrimination, Communication nR 10S2001, *B22 August 200B,5ewish Community of Oslo and others (. Dorway, 20.)-!C. 121.22ee &. %idalDaGuet, J 'n "ichmann de papier. Anatomie d#un mensonge N, in Les 3uifs, la m(moire et le

pr(sent, La 3Kcou(erte, **.*1 Les assassins de la m(moire, id+, *7 3. Lipstadt,Denying the Holocaust+The !rowing 1ssault on Truth and emory , 4he +ree &ress, Dew or@, *1 D. +resco J Dou(eau6 (isagesdu (ieil antisKmitisme N, in La lutte contre le n(gationnisme,La 3ocumentation franPaise, 2001.*7.21?araudy (. +rance, 5uly 7, 2001 =. Le(inet, J La fermetK bien(enue de la Cour europKenne des droits del#homme face au nKgationnisme N, eue trimestrielle des droits de l0homme,200.B1+2"uropean Commission on -uman !ights, &. =arais (. +rance, 5une 2, *, 3.!.A.=. had published anarticle in a Eournal called(ision+ -is application was held inadmissible under Art. *0. Art. *7 was mentioned.2B Isorni (. +rance, eptember 21, *. 4he Court remar@ed that negationism or re(isionism relating tohistorically duly established facts, such as the DaHi genocide of the 5ews, were depri(ed by Art.*7 of the

protection of Art.*0.

2-uman !ights Committee, +aurisson (. +rance, Do(ember , *eue unierselle des droits de l0homme,*7. ?.Cohen5onathan, J DKgationnisme et droits de l#homme N, eue trimestrielle des droits del0homme,*7.B7*.


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4here is nothing to add to the "uropean Court of -uman !ights Eudgment e6cept this8

uch writings are also an aggression against the dead, the sur(i(ors and society at large,

aiming at the desecration of the only gra(e of the former, that is, our memory. 4his is why

certain "uropean countries Austria, )elgium, +rance, ?ermany, pain and witHerland/

ha(e adopted statutes ma@ing it an offense to deny the e6istence or grossly minimiHe the

e6istence of this genocide or of crimes againts humanity in general. 4he wording (aries and

often refers to international law. 4here are also differences on who may initiatiate a

prosecution. 4he )elgian statute of =arch 21, *B ma@es it an offence to publicly deny,

grossly minimise, appro(e or tend to Eustify 9the genocide committed by the ?erman

Dationalocialist rKgime during the second word war;. As to the meaning of genocide, the

statute contains a reference to Art.2 of the * 'D Con(ention on genocide. 4he Center for

the promotion of eGual opportunity and any association which has e6isted for fi(e years and

the aim of which is to defend the interests of resistants and of camp inmates may initiate a

prosecution. 4he )elgian Cour d#arbitrage held that the statute was consistent both with the

)elgian Constitution, Art.*0 "C-! and Art.* ICC&!27. In ?ermany Art.*10 1/ of the &enal

Code ma@es it an offense to contest or minimiHe acts of genocide committeed under the DaHi

regime if this may lead to a breach of public order2. 'nder wiss law Art. 2* bis of the

&enal Code/, it is an offense to deny, grossly minimise or see@ to Eustify, for racist purposes,

9a genocide or other crimes against humanity;. +rench law Art. 2 bis of the Law on the

press, as re(ised in *0/ ma@es it an offense to challenge the e6istence of one or se(eral

crimes against humanity as defined by Art. of the *B London Agreement creating the

International =ilitary 4ribunal and committed either by members of organiHations declared

criminal in application of Art. of the 4ribunal#s tatus, or by a person declared guilty of

such crimes by an international or +rench court. Associations may bring prosecutions. 'nder

Austrian law it is an offence to deny, ma@e banal or glorify nationalsocialist crimes.

Li@e all statutes restricting freedom of speech grouplibel and hatespeech ones deser(e a

permanent and close scrutiny. 4he same applies to the case law relating to their

implementation and the reasoning of the courts# decisions. )oth ha(e important conseGuences

on the public domain and must be ta@en seriously. 4he warning of &rofessor Ale6ander

27Cour d#arbitrage, Eudgment BS of 5uly *2, *,eue unierselle des droits de l0homme.*7.*0 note +.!ingelheim, J Le nKgationnisme et la loi N,*** 3ournal des tribunau#, *7.B .2

ee, for a case relating to meeting during which 3. Ir(ing planned to deny the DaHi genocide of the 5ews andthe condition set by the local authorities, the Eudgement of the ?erman +ederal Constitutional Court, -olocaust3enial case */ 0 )(erf ?" 2*, commented in >ommers, op+ cit+12.

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)ic@el, who argued in *7* with +loyd Abrams the &entagon &apers case before the '

upreme Court2, remains as (alid today as it was 10 years ago8

94here is such a thing as (erbal (iolence, a @ind of cursing, assaulti(e speech that amounts

to almost physical aggression, bullying that is no less punishing because it is simulated:

4his sort of speech constitutes an assault. =ore, and eGually important, it may create a

climate, an en(ironment in which conduct and actions that were not possible before become

possible:

58217398 Hate Speech and Group Libel

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Transcript of 58217398 Hate Speech and Group Libel