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Hate Speech and Hate Crime in the EU and the Evaluation of Online Content Regulation Approaches

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Hate Speech and Hate Crime in the EU and the Evaluation of Online Content Regulation Approaches STUDY Requested by the LIBE committee Hate speech and hate crime in the EU and the evaluation of online content regulation approaches Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 655.135 - July 2020 EN Hate speech and hate crime in the EU and the evaluation of online content regulation approaches Abstract This study was commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the LIBE Committee. The study argues that hate speech and hate crimes poison societies by threatening individual rights, human dignity and equality, reinforcing tensions between social groups, disturbing public peace and public order, and jeopardising peaceful coexistence. The lack of adequate means of prevention and response violates values enshrined in Article 2 of the TEU. Member States have diverging rules, and national public administrations are torn by disagreement in values. Therefore, EU regulation is needed to reinforce the existing standards and take measures to counter hate speech and counter-act against hate speech and hate crime. The study – on the basis of a cross-country comparison conducted – proposes concrete, enforceable and systematic soft and hard law measures to counter hate speech and hate crimes EU-wide efficiently. This document was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs. AUTHORS Judit BAYER, Associate Professor, Budapest Business University, Faculty of International Relations Petra BÁRD, Associate Professor, Eötvös Loránd University, Faculty of Law; Visiting Professor, Central European University ADMINISTRATOR RESPONSIBLE Ina SOKOLSKA EDITORIAL ASSISTANT Fabienne VAN DER ELST ACKNOWLEDGEMENTS The authors are grateful to Joelle Grogan, Senior Lecturer at Middlesex University London, for her detailed review, and Miriam Mir for her assistance. The authors are grateful to Bettina Weißer (Director of the Institute for Foreign and International Criminal Law, University of Cologne, Germany) and her research assistants: Johannes Block, Yara Bröcker, Friederike Klimek, Christine Untch, Max Wrobel (Institute for Foreign and International Criminal Law, University of Cologne, Germany); Amélie Heldt (Junior researcher, Leibniz Institute for Media Research Hans-Bredow-Institut, Hamburg, Germany); Marc Coester (Professor for Criminology, Hochschule für Wirtschaft und Recht, Berlin, Germany); Erik Uszkiewicz (Researcher, MTA-ELTE Lendület SPECTRA Research Group, Budapest, Hungary); Eszter Jovánovics (Head of Equality Project, Hungarian Civil Liberties Union, Budapest, Hungary); Alessio Romarri (Ph.D. Economics Candidate, Department of Economics - Public and Political Economy, Universitat de Barcelona, Spain); the Observatory for Security Against Acts of Discrimination (OSCAD, Italy); Giacomo Viggiani (Faculty member, University of Brescia, Italy); for providing answers to the questionnaires in the hate crime section and to OSCAD (Italy) Giulio Enea Vigevani (University of Milano Bicocca, Italy) Palmina Tanzarella (University of Milano Bicocca, Italy) Tamás Dombos (Háttér Society, Hungary) Dalma Dojcsák, (lawyer, Hungarian Civil Liberties Union) the Hungarian Helsinki Committee for providing answers in the hate speech section, and Carla Camilleri (Assistant Director, Aditus Foundation, Malta); Erna Landgraf (Legal intern, Aditus Foundation, Malta); the staff of The People for Change Foundation (Malta); Rebecca Vella Muskat (Assistant Lecturer, Centre for English Language Proficiency, University of Malta); Dominika Bychawska-Siniarska (Member of the board, Helsinki Foundation for Human Rights, Warsaw, Poland); Mateusz Woinski, PhD (Assistant Professor, Kozminski University, Warsaw, Poland), as well as anonymous colleagues, for providing answers to the questionnaires. LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels Email: [email protected] Manuscript completed in July 2020 © European Union, 2020 This document is available on the Internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover image used under licence from the European Parliament The cover image is a photo of the 27-meter graffiti under the Friedensbrücke (Peace Bridge) in Frankfurt am Main, remembering the victims of the racially motivated shootings in Hanau on 19 February 2020. IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs CONTENTS LIST OF ABBREVIATIONS 10 LIST OF BOXES 12 LIST OF TABLES 12 EXECUTIVE SUMMARY 13 INTRODUCTION 16 1.1. Covid-19 and the spread of hatred 16 1.2. Conceptual clarity and terminology 20 Hate speech 20 Hate crimes 22 1.3. Structure and methodology 23 INTERNATIONAL LEGAL FRAMEWORK 26 2.1. UN documents addressing hate speech and hate crimes 26 2.2. Organization for Security and Co-operation in Europe 29 2.3. The Council of Europe 30 The European Convention on Human Rights 33 European Court of Human Rights case law on hate speech 34 Balancing conflicting rights 34 Rejecting for abuse of rights 36 The context and the speaker 37 Speakers' role 37 Context – the margin of appreciation 38 European Court of Human Rights case law on hate crimes 39 Special provisions or penalty enhancements for hate crimes in the national criminal codes 40 Efficient investigations and special vigilance to explore bias motives behind crimes 41 Special vigilance to explore bias motives behind crimes committed by private parties 44 State obligation to unmask other than racial or ethnic bias behind crimes 45 Mixed motives 47 Protection by association 48 2.4. European Union 48 Primary sources of EU law 48 Secondary sources of EU law 50 6 PE 655.135 Hate speech and hate crime in the EU and the evaluation of online content regulation approaches Soft EU laws 53 Observations regarding the Code of Conduct on countering illegal hate speech online 53 2.5. Recent philosophical argumentations on hate speech 55 What makes hate speech harmful? 55 Political hate speech 56 Populism and hate speech 57 Active obligation of the state 59 COMPARATIVE ANALYSIS OF SELECTED MEMBER STATES 61 3.1. Hate speech 61 Codification techniques 61 Branch of law 61 Is the list of protected characteristics exhaustive, or open-ended? 63 Does the legal provision protect only minorities or also majorities? 64 Does law require a higher level of responsibility from persons of authority to refrain from hate speech? 65 Whether insult based on protected characteristics is a crime? 65 Is 'motivation' or 'result' required to establish the hate speech crime, either by law or jurisprudence? 66 Is there a specific rule to combat online hate speech - whether in social media, press or other? 68 Transposition of the Framework decision and implementation of AVMSD 70 Institutions to fight racism and other discrimination 70 Underreporting and other issues with the legal procedures to combat hate speech72 Underreporting 72 Other hindrances to the procedures 73 Prevalence of hate speech in the public discourse and the media 74 Counter-speech: the role of institutions and NGOs 75 Political campaigns and hate speech 76 3.2. Hate crimes 85 Codification techniques 85 Transposition of the Article 4 of the Framework Decision 85 Codification techniques 88 Base crimes 92 Protected groups 92 Minority protection instrument or does it cut both ways 97 Hostility model versus discriminatory selection model 97 PE 655.135 7 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs Official and NGO data 98 Application of hate crime provisions 100 Investigation authorities 100 Problems with reporting and investigation 101 Prosecution of hate crimes 103 Problems in the trial phase 104 Good practices 106 Bias indicators 106 Prevention of secondary victimisation 107 Restorative justice and alternative sanctions 108 Education and trainings 109 CONCLUSIONS 112 4.1. The international standards 112 4.2. Hate speech specific conclusions 113 4.3. Hate crime specific conclusions 115 RECOMMENDATIONS 117 5.1. Speak against: taking counter-speech seriously 117 To counter populistic political communication 118 Make democratic institutions defensive against populism 118 Own the narratives 119 Use EU narratives in EP elections campaign 119 Bring EU narratives down to the local level 119 Integration and empowerment 120 Support local governments or directly NGOs to organise social programmes: 120 Support education programmes 120 Support social programs of empowerment 121 Mainstreaming science 121 5.2. Act against hate speech and hate crimes 121 Hard measures to counteract 122 Provide for restorative justice possibilities and alternative punishments 122 The framework of administrative rules should be reinforced to better tackle hate speech and discrimination. 123 EU programmes and funding
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