Legal protection against hate speech: challenges and future prospects

Claudia Wong & John Tseung

Authors Claudia Wong and John Tseung are law students at HKU enrolled in the BBA (Law) & LLB programme and the BA (Literary Studies) & LLB programme respectively.

1. Introduction

The Norwegian parliament recently passed a notion to widen the scope of legislation on hate speech against the LGBT+ community. The amendment outlaws discrimination based on "gender identity or gender expression", while the expression “homosexual orientation” is replaced by the umbrella term “sexual orientation” [1]. These changes would complement existing legal protection for gay and lesbian people since 1981, extending the scope to be inclusive of bisexual and transgender individuals.

This example of domestic legislation aptly addresses the growing number of hate crimes targeting the LGBT+ community - verbal abuse against the LGBT+ community has become a common occurrence, especially via online channels [2]. In view of this, topics on (i) hate speech law around the world, (ii) diverse opinions on hate speech regulation, and (iii) future development of the law are discussed in the following.

2. What is “hate speech”?

There is no uniform legal definition of “hate speech”. According to the United Nations Strategy and Plan of Action on Hate Speech [3], it refers to “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language” against a person or a group of people because of a particular characteristic, for instance, sexual orientation. Another definition provided by the Committee of Ministers of the Council of Europe  is that hate speech includes “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance [...]” [4]. Although it is generally agreed that hate speech refers to expressions that incite “hate”, there is a lack of a universally applicable definition as to what may constitute “hate”, and what characteristics should be protected against hate speech.
Around the world, there are varying extents of legal protection against hate speech targeting the LGBT+ community. Few countries have extended the hate speech law to protect transgender people, similar to the Norwegian reform. Meanwhile, some countries such as Spain, Denmark and the United Kingdom have adopted domestic hate speech laws on grounds of sexual orientation only. Most countries including New Zealand do not offer specific protection, where the relevant provisions do not explicitly state “sexual orientation” or “gender identity” as a protected characteristic [5]. Even within a country, such as the United States, there may be different levels of protection across states - 23 states specifically offer hate speech protection based on sexual orientation and gender identity while laws of 13 states do not cover hate comments made against LGBT+ community on similar grounds [6].

 3. Diverse opinions as to hate speech law

The differential legal positions across jurisdictions could perhaps be attributed to mixed opinions on what constitutes hate speech. While hate speech necessarily implies a moral breach, it is debatable whether all forms of malicious remarks should be regulated by legislation. In other words, an expression could be considered immoral but whether it is appropriate for government regulation to step in remains open to question. Indeed, it may be improper for the government to arbitrarily draw the line between expressions which are morally questionable and those which should be made legally impermissible [7].
Another concern associated with regulating speech has to do with human rights, specifically freedom of expression. Members of society should be entitled to express their beliefs and opinions freely, clear of government censorship. Arguably, outlawing any form of expression may constitute violation of this right, since it discourages expressions and comments which are potentially considered offensive or hateful.

Alternatively, it may be contended that outlawing hate speech could reinforce certain fundamental human rights. Freedom of expression is not an absolute right. Its application must be balanced with other human rights and civic duties, such as that of equal protection against discrimination by the law as provided by Article 26 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 22 of the Hong Kong Bill of Rights Ordiance (“HKBOR”). Article 19(3) of ICCPR (equivalent to Article 16(3) of the HKBOR) also made it clear that one who exercises freedom of expression undertakes special duties and responsibilities. Such a right is subject to various restrictions, one of which is in respect of the rights or reputations of others. Freedom of expression does not warrant the unrestricted use of abusive or discriminatory language, especially when the intention is to provoke hatred. Indeed, it has been argued that hate speech undermines “equal rights to citizenship in liberal and democratic societies”and “equal rights to human dignity as a public good” [8].
Hate speech, dubbed the “evil twin” of free speech [9], is invariably an abuse of the freedom of expression since it may disturb or violate other fundamental human rights such as security of the person, a basic entitlement granted by the Universal Declaration of Human Rights. Since hate speech provokes hatred and aggression, the right to life of its victim is said to be breached. Prohibiting hate speech could serve as an anti-discriminatory measure which protects the personal security of minority groups.

 4. The challenge of balancing free speech and protection against hate crimes 

In view of the aforementioned concerns, some jurisdictions have shown efforts to balance the criminal offence of hate speech and freedom of expression by means of legislation. For instance, in the UK, as reflected in s74 and Schedule 16 of Criminal Justice and Immigration Act 2008, in addition to Part 3A of the Public Order Act 1986, there is a threshold to be met for one to be guilty of a “hate speech offence”- there has not only has to be a use of threatening words or behaviours or display of threatening written material, but also an intent to “stir up hatred”. It is made clear that discussions and criticisms of topics such as same-sex marriage shall not be automatically taken as “threatening” or “intended to stir up hate”. A case law example is found in R v Ihjaz Ali, Razwan Javed and Kabir Ahmed [10]. Three Muslim men were found guilty of stirring up hatred on the ground of sexual orientation as they deliberately distribute anti-gay leaflets calling for death penalty to be executed on homosexual individuals in light of a gay pride event. Their acts carry the clear, malicious intent to provoke hatred against gay people, which led to their conviction. The example of UK legislation shows some attempt of balancing the policy concerns of upholding freedom of expression and protecting vulnerable individuals against hate speech. Having a hate speech law does not necessarily deprive citizens of their right to free speech. Rather, it intends to restrict communications which exceed the line of free speech by infringing others’ rights or reputations.

5. Conclusion - Future trend of hate speech law

In Hong Kong, there is no specific hate speech law protection for the LGBT+ group. The only example of the same kind is the protection provided to racial groups under the Race Discrimination Ordinance. Given that the number of hate speech cases targeting LGBT+ people has increased significantly in recent years with the extensive use of social media platforms, and that victims may suffer from severe emotional impacts such as depression and suicidal thoughts, there exists a strong need to offer specific protection to the LGBT+ community against hate speech. In a positive light, it can be foreseen that there will only be more and more domestic jurisdictions making progress in providing specific legal protection to hate speeches based on one’s sexual orientation, and even following the footsteps of Norway, extending the law to cover gender identity.
 
6. Reference
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 [1]     Savage, R. (2020, November 25). Norway outlaws hate speech against trans people. Reuters. Retrieved from https://www.reuters.com/article/norway-lgbt-lawmaking-idUSKBN2852DL
 [2]     Elida Høeg (2019, March 23). One of four LGBT people experience hate speech. Kilden. Retrieved from http://kjonnsforskning.no/en/2019/03/one-four-lgbt-people-experience-hate-speech
 [3]     United Nations. (2019, May).  United Nations Strategy and Plan of Action on Hate Speech. Retrieved from https://www.un.org/en/genocideprevention/documents/UN%20Strategy%20and%20Plan%20of%20Action%20on%20Hate%20Speech%2018%20June%20SYNOPSIS.pdf
 [4]     Article 19 (2013, October). Responding to Hate Speech Responding to Hate Speech. Retrieved from https://www.refworld.org/pdfid/525b9eb64.pdf
 [5]     Ibid
 [6]     Movement Advancement Project (2020). Hate crime laws. Retrieved from https://www.lgbtmap.org/equality-maps/hate_crime_laws
 [7]     George, C. (2015). Hate speech law and policy. The international encyclopedia of digital communication and society, 1-10. Retrieved from https://doi.org/10.1002/9781118767771.wbiedcs139
 [8]     Waldron, Jeremy. The Harm in Hate Speech. Harvard University Press, 2014.
 [9]     Bangstad, S. (n.d.). Hate speech: The Dark Twin of Free Speech. Retrieved from https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2016/03/BANGSTAD_HATE_SPEECH_COLUMBIA.pdf
[10]     Esther Addley (2012, January 20). Three Muslim men convicted over gay hate leaflets. Guardian. Retrieved from https://www.theguardian.com/world/2012/jan/20/three-muslims-convicted-gay-hate-leaflets . For the judgement, please refer to https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/sentencing-remarks-r-v-ali-javed-ahmed.pdf