The horrific war triggered by Russia has sparked a debate about stopping the pro-Putin trolls. In the heat of the fight against Russian and Chinese influence in the EU, it is somehow forgotten that if we lock up and silence our fellow citizens with differing—often stupid—opinions, are we not moving towards a restriction of freedom? And will we change their minds? We already know the answer. We have only reinforced their beliefs which doesn’t help a thing and they have found a new source of disinformation anyway.
We will not mention the fact that many have used the war in Ukraine to increase pressure to adopt an anti-hate speech agenda. The European Parliament has done this, for example, by adopting the report drawn up by the Special Committee on Foreign Interference in All Democratic Processes in the European Union, including disinformation (INGE). Similarly, the European Commission is seeking new EU powers to combat hate speech without defining how they will be written. This is no small matter. It is a change to EU primary law. The Commission proposal would extend the list of criminal offences listed in Article 83(1) TFEU to include hate speech and hate crimes as EU offences. The proposal is under negotiation and needs to be unanimously approved by national justice ministers. I understand that Poland and Hungary do not like the proposal. How can you approve something you know nothing about, especially in such a sensitive area as hate speech?
Away from the public eye, the main body of the Council of Europe (the Committee of Ministers of Foreign Affairs) is preparing a book of instructions for member states on how to crack down on ‘bad opinion’ dissenters and how to combat ‘hate speech’ on and off the Internet. This is, in effect, a draft recommendation of the Council of Ministers in the fight against hate speech. It was on a program for adoption on 20th April, but it was postponed.
Now, this is a paradox. The first generation of human rights promulgation after World War II sought to guarantee freedoms to the individual against the state. “Everyone has the right to life and liberty and shall not be subjected to torture,” states the Universal Declaration of Human Rights of 1948. The European Social Charter already speaks the language of rights to something—the right to housing, for example, or the right to professional career guidance. We are now in a situation where we are suppressing other rights, such as the right to freedom of expression, in the name of the “right to a safe environment.”
What are human rights?
Almost every political demand of the so-called experts and interest groups—groups that have been privatised by transnational human rights organisations—is nowadays described as a human right. Out of the reach of public and media scrutiny, experts with zero legitimacy are gradually drafting an example of what is sometimes called a ‘soft law’ (i.e., legally non-binding norms which, however, because of the authority of the human rights body, have substantial national influence). And at the supranational level, things that would not have a chance to pass at the national level pass without any problems. A concrete example is the draft recommendation to the Member States of the EU on how to combat hate speech, which is currently under discussion.
The fight against hate speech (whatever that means; it has had a completely flexible definition) has been a priority of the supranational institutions of the European Union and the OSCE for many years (for example, the European Commission recently initiated a legislative process to expand the definition of hate speech in EU law, which I wrote about here). The Council of Europe does not want to be left behind either. It has therefore officially issued an Action Plan to counter violent extremism and radicalisation leading to terrorism. In 2019, the Committee of Ministers of the Council of Europe appointed a Committee of Experts on Combating Hate Speech to prepare a comprehensive proposal for the Member States. A draft recommendation was soon prepared.
Repression without borders
This draft recommendation is nothing if not ambitious. The main problem, however, is the vagueness of the concept of hate speech. But—judge for yourself. According to Article 3 of the draft Recommendation, hate speech “means all kinds of speech that spreads, incites, promotes or justifies violence, hatred, discrimination or prejudice against a person or group of persons based on perceived or actual personal characteristics or status, including race, colour, language, religion, citizenship, national or ethnic origin, age, disability, sex, gender, gender identity and sexual orientation” (emphasis mine).
So will women in prison, for example, commit hate speech if they complain about the placement of a transgender woman (biological man) in a women’s prison, citing fear of rape? According to the above definition—yes, they will indeed.
The current draft recommendation is ground-breaking in its sincerity. It directly admits that it is time to address the hateful acts that are not illegal. Indeed, the draft recommendation recognizes three categories of hate speech: 1. punishable by criminal law, 2. punishable by administrative and civil law, 3. not unlawful but harmful.
It defines not unlawful hate speech as: “Hate speech that does not give rise to criminal, civil or administrative liability but nonetheless provokes prejudice and hatred and raises concerns about tolerance, decency, inclusion and respect for the rights of others [and which] should be addressed by means other than the law.”
These extra-legal measures are seemingly at odds with the laws of many European nations. For instance, they may contravene the principle of legal licence guaranteed by Article 2(4) of the Constitution of my own nation, the Czech Republic: “Every citizen may do what is not prohibited by law, and no one may be compelled to do what the law does not require.” This is an egregious example of supranational encroachment on the legitimate governance of nations following the principle of subsidiarity.
We’ll check you out …
And what are some examples of sanctions of such “not unlawful” hate speech? An ideal example is in the United Kingdom, where there are indeed “non-crime hate incidents.” These are incidents that have been reported to the police and which the police say contain an element of “hatred.” A hate incident is defined very broadly as an incident that is subjectively so perceived by the victim or another person as being motivated by hostility or prejudice. A hate incident is recorded, although the recording is based on subjective perception and does not take into account the purpose or intent of the alleged perpetrator. This hate incident record will appear on the enhanced criminal record certificate. This enhanced UK Criminal Records Bureau (DBS) extract can be requested by some employers, including those who supervise teachers, social workers, and caregivers. Remember that people guilty of these “hate incidents” need not be members of extremist groups or even particularly hateful. By the current definition, any expression whatsoever counts, so long as it has been interpreted by someone to be motivated by hatred. This pernicious practice was halted only by a landmark ruling by the Court of Appeal of the United Kingdom last December. In its ruling, the Court said the practice of keeping records of hate incidents that are not criminal offences is unlawful.
However, this practice (not only non-criminal hate speech but also “mere criminal hate speech”) has indeed ruined the lives of many people for their political comments, opinions, or jokes on social media. Like Maya Forstater who was fired for a tweet. It was not until the appeal procedure before the court that she obtained redress. On Twitter, Forstarter suggested that biological sex simply cannot be changed. The horror stories and missteps are extensively documented in a book by British satirist Andrew Doyle, Free Speech and Why it Matters.
Society needs to be re-educated
But back to the draft recommendation of the Council of Europe. Article 50 expressly states that: “Member States should ensure that human rights education, education for democratic citizenship and media and information literacy are part of the general education curriculum and address hate speech both online and offline.” Our basic curricula already incorporate this general objective. However, the draft recommendation sets out the specific way in which the Member States are to implement the objective:
To this end, the Member States should ensure adequate teacher training and make textbooks and relevant online materials available. Furthermore, Member States should mandate competent independent educational organisations to conduct regular reviews of textbooks, educational materials and teaching methods in order to filter out stereotypes and promote equality and non-discrimination (emphasis mine).
It is obvious which organisations would apply for the opportunity to revise the content of textbooks. NGOs already specialise in combating hate speech. But they are strongly activist and need to generate activity.
The draft recommendation also calls for raising awareness through various initiatives and training on hate speech for parents, teachers, youth workers, judges and prosecutors, police officers, doctors, civil servants, and journalists. The goal is obvious: society needs to be re-educated. Society needs to be taught that saying “a woman gives birth” is transphobic, as trans men can also give birth to children.
At the same time, the draft recommendation in Article 63 opens Pandora’s box. It calls for victims of so-called hate speech to be exempted from paying court and administrative fees and legal representation costs. The criteria for ‘hate speech’ can be fulfilled very quickly; it just depends on the zeal of the law enforcement/administrative authorities. At the same time, because of the flexibility of the definition of hate speech and its features, the circle of potential victims may be boundless. The overall tenor of Article 63, in conjunction with the rest of the document, raises the question of whether this is intentional or not.
To make matters worse, the document makes an attempt to present the processes it recommends as “transparent.” The draft recommendation states in Article 66, “Member States are to publish hate speech data, information and analysis as part of transparency.” Remember that the document is vague with regard to what constitutes hate speech in the first place. In this given case, it is not specified whether this means ‘hate speech’ in the narrower sense, i.e., only illegal speech, or ‘hate speech’ in the widest sense. In view of the fact that unlawful hate speech has not been explicitly mentioned, this is about a completely unbounded content. This ambiguity may lead to yet further pressure for more stringent regulation of hate speech.
Hate speech in the Czech Republic
The fact that international initiatives have a real impact on national policy can be seen in the Czech Republic. Already in spring 2020, the Supreme State Prosecutor’s Office concluded a memorandum with the OSCE Office for Democratic Institutions and Human Rights (ODIHR). As a result, an initial ‘Hate crime’ training of trainers for prosecutors in hate crime cases was conducted. The meeting was attended by the representatives of the Supreme Court, the Ministry of the Interior, the Office of the Government of the Czech Republic, the General Inspectorate of Security Forces, the National Centre against Organised Crime, the Federation of Jewish Communities in the Czech Republic, the non-profit organisation IN IUSTITIA, o. p. s., and the Faculty of Social Studies of Masaryk University: “On the basis of this training of future trainers in this area in the Czech Republic, which also included practical exercises, the future trainers received a methodology, teaching materials and a certificate.” At least three more trainings for prosecutors, judges, and their assistants were planned for 2021, but it cannot be verified whether or not they took place. Anyway, the mission is clear. There is an emphasis on searching for hate speech.
In a recent interview with Seznam News, Chief State Prosecutor Lenka Bradáčová, when asked what she wants to do about hate speech on the internet, said:
I think it is absolutely necessary to set up a nationwide unit to specialise in this problem. I’ve been saying that for years. The unit will deal with cybercrime and terrorism, which are very similar in the way they are detected. This unit should provide the police with analytical evaluation of information and procedures related to the screening and investigation of cybercrime. I will also want to emphasise this issue in relation to the subordinate prosecutors’ offices and the police leadership.
It’s the same story as with all bureaucracies. When a special national department is established, its natural DNA is to reward reporting activity at a higher-level than the previous year. And so, in the pursuit of better results, the lives of innocent people who are open about their opinions, or even who just make a single imprudent joke, can be professionally destroyed. It simply loosens the floodgates of state repression without the need for any fundamental change to the current wording of the penal code.
The criminal offences of incitement to hatred against a group of persons, or to restriction of their rights and freedoms (Section 356 of the Criminal Code) and defamation of a nation, race, ethnic or other group of persons (Section 355 of the Criminal Code), already provide a very broad scope for the application of criminal repression. Its boundaries can only be set by the court (and then only after years of nerves and suffering and economic and social losses branded by the criminal justice process and the media), which is, in principle, not significantly limited. All we need is enough ‘aware’ and ‘trained’ prosecutors and judges—so the thinking goes—and we are about to solve a significant problem.
And it is not only the public prosecutor’s office that is stepping up its activities. The Office of the Government of the Czech Republic has received funding from the EEA and Norway Grants in the amount of CZK 61,200,000 for a project called “A Place for All,” which is already underway with the Norwegian partner and is due to be completed at the end of 2023. The aim of the project is to respond
to the increasing level of hate speech against minorities in public space. It aims to expand and sustain the space for a cultivated debate on discrimination and bias-related violence as a means of preventing hate speech and hate violence, and to equip the so called opinion and decision makers with the tools to effectively communicate the topic and related issues.
Funds can be spent on quality content, such as successful examples of integration of foreigners and nice examples of edge-blunting cooperation. But the funds can also be used for PR for those who will combat hate speech.
The situation does not look good for freedom of speech. On the other hand, many things can be changed. Minister Lipavský can still hit the table and reject the proposed wording of the recommendation. But will he do it?
Jan Gregor is a lawyer in Prague and vice-chairman of the Alliance for the Family.
This piece was originally published by info.cz on 11th January 2022. It has been translated and edited for length and clarity.