Thursday 19th, UN 13th session of Forum on Minority Issues. This year, the Forum reunites representatives of States, Civil society, specialists and academics to discuss Hate speech against minorities in social media. Our Director, Agustina Del Campo, was invited to join the panel on the regulatory and institutional framework against hate speech on minority issues.
Thank you, madam President. Good afternoon, your excellencies, ladies and gentlemen. I would first like to thank the UN Special Rapporteur on Minority Issues, and the Office of the High Commissioner for Human Rights for the invitation. And thank the State, civil society and academic representatives that are taking part or following this timely forum on hate speech, social media and minorities.
Our panel was asked to address the complementarity between articles 19 and 20 of the ICCPR as well as other Conventions against discrimination, Legislative and Institutional Frameworks that may contribute to accountability and fighting impunity, and possible solutions to a disturbing trend in raising hate speech, particularly against minorities, and especially in social media. I will attempt to follow this order in my presentation highlighting a few key issues within each that I find particularly relevant to this discussion. These are not exclusive nor are they exhaustive.
On the 1st point:
The issue of hate speech and the current challenges that the international legal framework faces when dealing with this kind of speech have been addressed extensively in recent literature. There is international consensus that Art 20 should be read in conjunction with art 19 and serve as a “lex specialis”. The prohibition of Hate speech with incitement is the only mandated speech prohibition on the ICCPR and such formula is also present in regional conventions such as the European and American Convention on Human Rights. Lacking incitement, discriminatory speech can also be regulated and prohibited, ideally not through criminal law but through civil and administrative law, as long as the restrictions fulfill the requirements set out in art 19 of the covenant.
Still, and despite existing efforts like the Rabat Plan, the lack of a clear and unambiguous definition of hate speech constitutes one of the main challenges towards the complementarity that should exist between articles 19 and 20 ICCPR. As David Kaye highlighted in his 2019 report, current trends in the use and abuse of the term hate speech threaten the legality requirement set out in art. 19, putting political speech, dissent, and also minority speech, at risk. There is an increasing risk of diluting the concept beyond recognition that all stakeholders should be mindful of, particularly States. As these attempts against effective prohibition, prosecution and accountability.
Additionally, we should also be mindful of the relationship between intermediary liability law and international human rights law. Intermediary liability law, which sets the level of liability that internet companies have for the content posted/shared by third parties, must reflect and acknowledge the existing complementarities between the different Conventions mentioned, both in defining the speech for which companies will be liable and in establishing duties for this companies vis a vis this kind on content. Some State initiatives that promote the implementation of upload filters, the use of automated detection and deletion of violating content, or the continuing pressure on companies to adopt standards for content moderation that the State itself cannot adopt itself, constitute important challenges to a sound interpretation of article’s 19 legality, necessity and proportionality tests and may indirectly generate new challenges for counter-speech, minority speech and overall legitimate speech.
Second: Legislative and Institutional Frameworks:
International human rights bodies have proposed different mechanisms to address hate speech. There is agreement that criminal liability for hate speech must be an exception reserved for instances that carry incitement. For other discriminatory speech, there may be civil or administrative measures. Aditionally, the international community has consistently recommended education, campaigns, counter speech, and access to information as least restrictive and more effective means to combat discrimination.
Clear domestic legislative and institutional frameworks are essential to guarantee accountability for hate speech, promote equality and respect freedom of speech and expression. States not only have a duty to respect but also have a duty to guarantee human rights to the people subjected to their control.
Finding the right measures and means to combat discrimination and promote equality must be a democratic, public exercise, that cannot and should not be delegated upon third parties or privatized.
Two trends on legislation addressing online hate speech are particularly worrisome globally:
- Increasing legislative efforts to place companies as adjudicators of hate speech. A trend that David Kaye had already identified and warned against.
- A certain popular belief based on some sort of techno solutionism, that suggest that regulating social media can address all social issues pertaining to internet spaces.
Further research/study is needed on the duties that should be assigned to each stakeholder in this debate, particularly social media companies; 2) In order to do so, there is a need to clarify key terms and best practices in regulating intermediary liability; 3) Additionally, internet platforms transparency in their understanding, their practices, their diagnostics of this phenomenon, their rules and the implementation of such rules are key to better understand and address the specificities of this kind of hate speech.
Finally, Potential solutions:
Online hate speech is a kind of hate speech defined by how it is disseminated. Those who disseminate have duties and responsibilities. However, and particularly watching some of the trends that we have witnessed this year in different regions, as highlighted by different authorities this morning, a lot remains to be done to deal with discriminatory speech offline that could translate and significantly impact online trends.
I would like to focus on 2:
- Hate speech and discriminatory speech by public officials- It is a well established principle and there is extensive jurisprudence establishing that Government officials have special duties vis a vis their public speech. The Interamerican Court in Perozo v Venezuela, while analyzing the responsibility of Venezuela for the damages and violence exerted on journalists from an opposition media conglomerate by private parties, considered that Government officials have higher duties towards their speech due to their credibility, their large audience and the potential effects of their speech. And found the government internationally liable for failing to adequately adjust their speech to their duties and failing to effectively condemn acts of violence against opposition media companies.
Although there seems to be some consensus that these duties exist, these kinds of restrictions to public official’s discriminatory speech seems not to have permeated to local legislation.
After witnessing a year of heightened hate speech and discriminatory speech coming from State officials in different countries, this may be an interesting area for work going forward.
- Distinguish and regulate, following art 19 conditions, speech within Specific contexts that lend themselves to regulation and are prone to spark hate speech: Political campaigning, electoral processes, crisis management are particularly relevant for our topic. Some of these contexts are further regulated than others and legislation varies from one State to another. Still, more could be done to translate existing duties to actionable requests: namely the duty of the State to generate and disseminate public information pertaining to minority groups, capable of informing and effectively countering discriminatory speech as they spike in certain contexts.
Both approaches find solid ground in existing literature, including the Rabat Plan and international jurisprudence. And have great potential for positive impact on a number of fronts including accountability, dealing publicly with impunity and education.
Looking forward to questions, comments and feedback from the members of the forum.
Agustina Del Campo.
PhotoCredit: 13th session of Forum on Minority Issues, UN