Hate Crime and Hate Speech in Europe: Comprehensive Analysis of International Law Principles, EU-wide Study and National Assessments This report was produced within the framework of the project "PRISM - Preventing, Redressing and Inhibiting hate speech in new Media”, co-funded by the European Union and coordinated by Associazione Arci Disclaimer The content of this report does not reflect the official opinion of the European Union. Responsibility for the information and views expressed therein lies entirely with the authors. 2 Table of Contents Executive Overview…………………………………………………………………………………………………..4 Repression of Hate Speech: Its Foundations in International and European law……….5 Comparative Analysis: Legislation and Existing Legal Procedures for addressing Hate Crime and Hate Speech across the European Union……………………………………….36 France: In-depth Country Study on Hate Crime and Hate Speech conducted within the Framework of the PRISM Project…………………………………………………………………….100 Italy: In-depth Country Study on Hate Crime and Hate Speech conducted within the Framework of the PRISM Project…………………………………………………………………….152 Romania: In-depth Country Study on Hate Crime and Hate Speech conducted within the Framework of the PRISM Project………………………………………………………….189 Spain: In-depth Country Study on Hate Crime and Hate Speech conducted within the Framework of the PRISM Project…………………………………………………………………….238 UK: In-depth Country Study on Hate Crime and Hate Speech conducted within the Framework of the PRISM Project…………………………………………………………………….284 3 Executive Overview This report serves as a component of the Preventing Redressing & Inhibiting hate Speech in new Media (PRISM) Project, incorporating seven different assessments into one comprehensive study. Part one concerns European and international law principles applicable for the prevention and repression of hate crime, particularly hate speech. This foundational document examines the role of international law, the European Union, and the Council of Europe as they pertain to addressing hate-based crime, while also analyzing the relationships that exist between the phenomenon of hate speech and racism, discrimination, and freedom of expression. With regard to hate speech versus freedom of expression, the report details the ways in which different states balance tackling hate speech with protecting freedom of expression, and the positions of Amnesty International and the UN, OSCE and OAS’ Special Mandates on the right to freedom of expression concerning this topic. Finally, jurisprudence in this field deriving from the United Nations Committee on Human Rights, the European Court of Human Rights, and the US Supreme Court is also looked at in detail. The second part constitutes a comparative analysis of national legislation and its effectiveness on hate crime and hate speech across the European Union. This analysis is based on the responses received by UNICRI via the dissemination of a comprehensive legal questionnaire on hate crime and hate speech, which was sent out to Equality Bodies, government ministries, and other stakeholders in each EU Member state. Entities from 18 different EU countries were able to respond, allowing UNICRI to analyze their responses and identify trends with respect to the formulation of national legislation, adherence to international protocols, legal procedures for countering these issues, information on reporting mechanisms and national entities active in this field, and general awareness among various societal stakeholders concerning hate crime and hate speech throughout Europe. Finally, the last five components of this document constitute in-depth national reports, focusing on the PRISM Project’s five focus countries, namely: France, Italy, Romania, Spain and the UK. Each of these reports examine national legal frameworks and procedures pertaining to discrimination, hate crime, hate speech, and, particularly, hate speech in new media; moreover, the effectiveness of this legal architecture, existing procedural and reporting mechanisms, and jurisprudence in these areas are also analyzed. Additionally, information is provided at the end of each report on the major institutions and associations working on discrimination-related issues at the national level, and a set of conclusions is also put forward, giving insights into the work that needs to be done to further tackle risks in this field. 4 Fabio Marcelli, Research Director at the Institute for International Studies of the National Research Council of Italy (ISGI-CNR) Repression of hate speech: its foundations in international and European law PRISM is a project co-financed by the Fundamental Rights and Citizenship Programme of the European Union 5 Disclaimer This report has been produced with the financial support of the Fundamental Rights and Citizenship Programme of the European Commission. The contents of this report are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commission. The views expressed are those of the authors and do not necessarily reflect the views of the United Nations or the organizations with which the authors are affiliated. Contents of this publication may be quoted or reproduced, provided that the source of information is acknowledged. The authors are not responsible for the use that might be made of the information contained in this report. ISGI-CNR would like to receive a copy of the document in which this publication is used or quoted. The designation employed and presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area of its authorities, or concerning the delimitation of its frontiers or boundaries. 6 Table of Contents 1.Definition of hate speech. Sources and content of applicable international and European law…………………………………………………………………………..………………… .................. ……………8 1.1. International law.................................................................................................... ...8 1.2. Council of Europe................................................................................................ ....10 1.3. European Union................................................................................................ .......10 1.4. A tentative definition of "hate speech".............................................................. .....12 2. Hate speech and racism…………………………………………………………………………………… ……13 3. Hate speech and discrimination………………………………………………………………….… ………15 4. Hate speech and freedom of expression……………………………………………………..…………17 4.1. A delicate balance to be struck......................................................................... .......17 4.2. Different views among States ....................................................................... ..........19 4.3. The position of Amnesty International.......................................................... .. ........20 4.4. The position of the "Special Mandates".......................................................... .. ......21 5. Jurisprudence……………………………………………………………………………………………… . …….…23 5.1. Jurisprudence of the UN Committee on Human Rights………………………………… …..…23 5.2. Jurisprudence of the European Court on Human Rights…………………………… …………27 5.3. Jurisprudence of the US Supreme Court………………………………………………… ……………30 6. Conclusive remarks……………………………………………………………………………………… . …….…32 7. References………………………………..………………………………………………………………… …..…….34 7 Report on international and European law Repression of hate speech: its foundation in international and European law 1. Definition of hate speech. Sources and content of applicable international and European law 1.1. International law In order to identify hate speech contents in the social media, it is worth recalling some international and regional legal sources applicable to the matter. The first, and most important one, is art. 20, para. 2, of the International Covenant on Civil and Political Rights (ICPPR) of 1966, which establishes that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” This norm has to be read in connection with the limits to freedom of expression set by art. 19, para. 3, of the same Covenant, limits “necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals”. The difference between the two norms is clearly explained by General Comment n. 34 by the Committee on Human Rights, which also contains an authoritative interpretation of art. 20 (2). Point 51 of that Comment is redacted in the following terms: “What distinguishes the acts addressed in article 20 from other acts that may also be subject to limitations, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19. The acts referred to in article 20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of national, racial or religious hatred, and, (c) constitute incitement to discrimination, hostility or violence. By “advocacy” is meant public forms of expression that are intended to elicit action or response. By “hatred” is meant intense emotions of opprobrium, enmity and