There is only ban on hate speech
Racial and
Religious Hatred Act 2006. ... The Racial and
Religious Hatred Act 2006 (c. 1) is an
Act of the Parliament of the
United Kingdom which creates an offence in
England and Wales of
inciting hatred against a person on the grounds of their
religion.
Hate speech, freedom of expression and freedom of religion: a dialogue
KEY POINTS
· Public controversy over anti-Islamic films and cartoons can make freedom of expression and freedom of religion appear in conflict.
· But this need not be so. Neither human right is unlimited: international human rights law provides a sound framework for resolving possible conflicts in particular cases.
· This framework allows States a significant margin of appreciation to decide how to implement this framework in their own moral and social context. But as a rule of thumb, international human rights law protects believers, not beliefs themselves.
· The issues remain internationally controversial. Trust – particularly between Western and Muslim-majority States – is low. All try to shift the international framework better to reflect their own views on how to address matters of speech and religion.
DETAIL
1. The relationship between hate speech, freedom of expression, freedom of religion and belief, and religious intolerance is politically fraught and legally complex. To provide clarity, this note takes the form of a dialogue: the dialogue is fictional, of course, but the questions are typical of those posed and argued both in public discourse and in formal legal and political settings. The issues discussed in this note intersect and overlap with other controversies. Particularly: (a) wider questions of freedom of expression, racism and the like. And (b) other debates within freedom of expression and freedom of religion or belief, including those on religious symbols in schools, wearing of religious dress (crucifixes, veils etc.), registration of religious sects etc.
Are freedom of expression and freedom of religion in conflict?
2. It sometimes seems that way. Extreme speech can challenge and offend individuals’ intimately-held religious beliefs and convictions. The reactions to cartoons satirising the prophet Muhammad, to burnings of the Koran, and to offensive anti-Islam videos can make it appear that an intractable conflict exists. And it’s not just Islam and Muslims affected: many of the cases taken to the European Court of Human Rights (ECtHR) and communicated to the UN Human Rights Committee concern other beliefs, including Christianity and Judaism. Though in recent years, the most high profile cases causing the most international political controversy have tended to focus on intolerance against Islam, not least given the violent reaction by some people to some such instances of intolerance.
So that proves my point?
3. Not quite. Freedom of expression (FoE) certainly deals with speech and other forms of expression, and freedom of religion or belief (FoRB) deals with religion. Although these concepts may clash, a human rights perspective shows that FoE and FoRB can and should be complementary, and indeed mutually reinforcing. Many actions – e.g. to manifest one’s religion – are protected by both FoE
and FoRB. And there is as much potential for tension between two individuals’ right to FoRB (or FoE) as there is between one person’s right to FoE and another’s right to FoRB.
What do you mean by a ‘human rights perspective’?
4. One that is grounded in the actual text of legally-binding international human rights treaties, rather than abstract rights and wrongs. And also in relevant non-legally-binding political commitments made by States, e.g. in UN General Assembly and Human Rights Council declarations and resolutions. At the international level the relevant international human rights treaty is the International Covenant on Civil and Political Rights (ICCPR):
The European Convention on Human Rights (ECHR), in its Articles 9 and 10 respectively, contains similar provisions to those in ICCPR Articles 18 and 19. It has no explicit equivalent to ICCPR Article 20. Specific cases referred to below relate to those of the ECtHR.
So what do these treaties offer, beyond confirmation that people should be free to speak and believe as they wish?
5. They set out a clear legal basis for obligations of States, and entitlements of individuals. In particular, they provide a framework for resolving tensions between freedom of speech and religion/belief that can arise in specific cases. They do so particularly through their limitations clauses.
Limitations? Surely free speech is free speech?
6. No. Freedom of expression as set out in Article 19 of the ICCPR and Article 10 of the ECHR expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason specific limitations are permitted, including when necessary for the protection of the rights of others.
https://defence.pk/pdf/file:///C:/U...on_and_freedom_of_religion_final___.doc#_edn1 For example, freedom of speech doesn’t give you the right to defame people.[ii] Nor is there is there an absolute right to insult religious believers or even their beliefs. Let alone threaten violence against them.
But what about critiquing religious doctrines?
7. The grounds for limiting both expression and manifestations of religion or belief are carefully drawn. They can only be imposed as prescribed by law, and as are necessary to protect the rights of others and public safety etc.. And no limitations can be placed on individuals’ right to think or believe (the ‘forum internum’). The right to critique and challenge religious and other doctrines helps protect non-believers, people whose beliefs are branded ‘heretic’ by the mainstream, and believers themselves, of all religions and beliefs. Most if not all religions, after all, make claims on the veracity of at least some other faiths. The importance of this is recognised by the ECtHR and the Human Rights Committee, which are careful to ensure that restrictions on freedom of expression are carefully imposed in accordance with the exceptions provided for in the Conventions.[iii]
Can I provoke? Can I be offensive?
8. That depends – partly on what you say, how you say it, and on the effects that you produce. But also on where in the world you say it. States are afforded a margin of appreciation to decide whether and how to protect religious convictions and beliefs: in other words they have space for manoeuvre for deciding how to fulfil their obligations under human rights treaties. For example, a State can stop you showing on its territory a film which gratuitously offends religious sensibilities (cf. Otto-Preminger Institut v. Austria, Wingrove v. UK. Both, incidentally, about anti-Christianity films) or stop you publishing a passage in a book that constitutes an abusive attack on the Prophet of Islam.[iv] But whether a restriction is permissible will very much depend on the circumstances of the case and the situation in the country concerned. And in any case, any restriction must comply with the relevant limitations. Importantly, a State does not have to prohibit speech that is merely provocative or offensive about a religion.
9. The international human rights framework also distinguishes between speech that is offensive about religion and that which is offensive about race. Publicly criticising the value of a religious or other belief system may legitimately stimulate public debate (‘Does God exist?’ etc.). Whereas doing the same to a racial or ethnic group per se is not considered acceptable, not least as such criticism tends generally to be founded on the criticiser’s perceived racial superiority over the group concerned.
Really? States can allow their citizens to say whatever they like about religions and believers?
10. Not quite. In addition to the restrictions on the freedom of expression in Article 19(3), Article 20 of the ICCPR requires States to prohibit “advocacy of ... religious hatred that constitutes incitement to discrimination, hostility or violence”.[v] But the threshold for expression to constitute such advocacy of religious hatred is high. Being offensive or provocative doesn’t necessarily reach that threshold: it depends on the specifics of the case at hand. The degree of the hatred, the effects it generates, and the intent of its originator or distributor are all relevant, amongst other factors. The US, moreover, has a reservation on ICCPR, that “Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States”.
And what about in the UK?
11. The UK Racial and Religious Hatred Act 2006 makes it an offense for a person to use “threatening words or behaviour, or display any written material which is threatening, ... if he intends thereby to stir up religious hatred”. Religious hatred being defined as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”. Similar provisions apply to publishing or distributing written materials or recordings. The Act is explicit, though, that:
“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system”.
The focus, therefore, is to protect believers rather than beliefs themselves.
But what about my rights? Surely individuals can’t justify undermining my rights, simply by pointing to their own rights e.g. to freedom of expression?
12. Correct. ICCPR Article 5 states clearly that:
“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”.
The ECHR has an almost identical provision (Article 17), and ECtHR case law shows that certain cases of extreme speech may forfeit the protection of FoE, for the sake of protecting the rights of others (Norwood v. UK, I.A. v. Turkey. In each of these cases, the ECtHR upheld the States’ concerned right to punish the applicants for making inflammatory statements about Muslims and Islam respectively.).
So surely insulting or abusing my religion should be banned, as it undermines my right to freedom of religion or belief?
13. Hold on. It depends on the specifics of the context and the insult, but there is no general proposition that offensive speech undermines others’ rights. As Professor Malcolm Evans observes: “Such situations are likely to be rare, and they would require that the expression of others’ views be so overwhelmingly potent in effect as to make it unbearable for some religion’s adherents to continue to hold their beliefs, despite their deep-seated wish to do so”.[vi] Insulting what someone believes by no means necessarily stops that person being able to believe what they do. Insults against believers are certainly more likely to warrant prohibition than are insults against religions or beliefs themselves.
Who decides what the thresholds are, then, between permissible insult and prohibited advocacy of religious hatred?
14. Good question. In the first place, individual States, using their ‘margin of appreciation’. But compared to some other areas of international human rights law, there is relatively little machinery or guidance for determining whether States are doing enough to prohibit advocacy of religious hatred. In October 2012, the UN’s Office of the High Commissioner on Human Rights held the last of a series of expert workshops on ‘Prohibition of Incitement to national, racial or religious hatred’. But inter-governmental agreement on the way forward appears unlikely, given the political divisions on the subject.
So this ‘human rights perspective’ on FoE and FoRB actually allows significant diversity in how States address extreme speech and insults to religions, beliefs and believers?
15. Exactly, though it is diversity within defined parameters which are regulated by the relevant international conventions . Freedom of expression and freedom of religion or belief are both to be protected, both in their internal and external aspects. Limitations clauses should not be used in ways that negate those freedoms. But advocacy of hatred is to be prohibited.
This seems to suggest that anything goes, as long as offense and insult doesn’t cross the line into advocacy of religious hatred? That doesn’t say much about States’ supposed commitment to tolerance and pluralism.
16. It’s easy to come away with that impression. But the argument so far has been about what individuals should legally be permitted to or prohibited from saying or doing. There is overwhelming inter-governmental consensus on the political message of condemning religious intolerance, whether it constitutes advocacy of religious hatred or not. UN General Assembly resolutions, the latest adopted by consensus in December 2012, are unequivocal on that point.[vii] UN Human Rights Council resolution 16/18 of 2011 – with subsequent resolutions – has provided a consensual framework for continued international dialogue on the subject. Though General Assembly and Human Rights Council resolutions are not legally binding, they display States’ views and express their political commitments.
So if States agree that much, what’s the big controversy over?
17. Four areas stand out:
· The criminalisation and prohibition of offensive speech. For all the consensus on political condemnation of religious intolerance, debate continually returns to questions of legal prohibition.
· The cross-border dimension to offensive speech. The international legal framework allows individual States significant leeway to determine their own boundaries of permissible and impermissible speech. But it provides only weak mechanisms for individuals and States to challenge insufficiently or indeed overly restrictive approaches in other States. The immediacy and accessibility of the internet exacerbates this pre-existing challenge.
· Specific instances of intolerance. It has proved easier to unite in condemnation of religious intolerance in the abstract, than in some specific cases (e.g. Danish cartoons).
· The nature of the response. Western countries have objected to measures taken in or by particularly Muslim-majority countries in response to intolerance, including boycotting goods produced in the country where the intolerance originated, issuing death threats, and actual violence. Such reactions have in turn made it politically harder for Western politicians to condemn the original intolerance.
Is that all? These don’t seem themselves to merit the outrage that we sometimes see, on all sides.
18. The roots of controversy do go deeper. Trust is low. To caricature somewhat, Western States believe other countries use blasphemy laws and similar measures not to protect their citizens’ right to freedom of religion or belief, but rather for social control and to discriminate against religious minorities, apostates and those they deem heretic. While Muslim-majority countries, in particular, think that Western countries are not serious about addressing insults to their citizens’ and the wider international Muslim community’s beliefs: beliefs which they hold closely and attacks on which many see as attacks on their personal identity.
19. Fuelling this distrust, each side accuses the other of hypocrisy, of focusing on the concerns of some religious groups and ignoring, condoning and committing intolerance against others. And the distrust feeds off and into wider international controversies over what human rights are and should be, and the relative powers of the individual and the State.
Doesn’t this controversy undermine the value of the ‘human rights perspective’ on Koran-burning, offensive videos and cartoons, and the like?
20. ‘Undermine’ doesn’t quite capture it. There will be times when freedom of expression and religion will come into conflict and it is the role of international human rights norms, as implemented by States, to ensure that these rights are appropriately balanced so that neither is inappropriately sacrificed. How the rights are balanced will depend on the specifics of each case. There is no ‘template’ situation: extreme speech is sometimes used by religious believers, for example, not just against them.
21. More broadly, the international human rights framework does not give any single party exactly what they want on this agenda. Human rights norms and the international machinery supporting them are not static. The challenge for each player in the international system is to defend the elements it supports, and to encourage their evolution in directions it favours. But the existing international human rights framework on FoE and FoRB is largely as robust as can currently be agreed on those issues. Opening up the core provisions of ICCPR Articles 18, 19 or 20 would likely result in more restrictions on expression and religion or belief, not fewer.
https://defence.pk/pdf/file:///C:/U...and_freedom_of_religion_final___.doc#_ednref1 Article 19 (3) of the ICCPR and Article 10 (2) of the ECHR.
[ii] In its General Comment No.34, the Human Rights Committee explained that even defamation laws need to be carefully crafted to ensure that they comply with para. 3(a) of Article 19 so that they do not serve, in practice, to stifle freedom of expression (para. 47).
[iii] Both the ECtHR and the Human Rights Committee have stated that any restriction on the freedom of expression must comply with the strict tests of necessity and proportionality. See e.g. HRC Communication no. 1022/2001, Velichkin v Belarus. Views adopted 20 October 2005.
[iv] I.A. v Turkey 2005-VIII; 45 EHRR 703 para.s 29-30.
[v] As noted above, the ECHR does not have an equivalent provision but the Court has stated that ‘where … remarks constitute an incitement to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression’. Surek v. Turkey (No 1) 1999-IV GC para 61.
[vi] Malcolm Evans, ‘From Cartoons to Crucifixes: current controversies concerning the freedom of religion and the freedom of expression before the European Court of Human Rights, Journal of Law & Religion, vol. 26, 2010-11.
[vii] “Strongly condemns all forms of intolerance and of discrimination based on religion or belief, as well as violations of freedom of thought, conscience and religion or belief” (UNGA resolution 67/179 on Freedom of Religion or Belief, proposed by the EU). “Expresses deep concern at the continued serious instances of derogatory stereotyping, negative profiling and stigmatization of persons based on their religion or belief, as well as programmes and agendas pursued by extremist individuals, organizations and groups aimed at creating and perpetuating negative stereotypes about religious groups, in particular when condoned by Governments” (UNGA resolution 67/178 on Combating intolerance...based on religion or belief).
