92 Hate Speech Ignited: Understanding Hate Speech in Myanmar 5. Extent of the speech act: This can include considerations such as “size of audience, meth- od of dissemination, and the quantity and extent of communication.” Extent of the speech looks at the general public’s accessibility and whether the communication was circulated in a wide reaching or restricted manner.607 6. Likelihood, including imminence: “Incitement, by definition, is an inchoate crime.”608 Courts must “determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group.”609 Two final points are important to ensure that there is an appropriate balance between uphold- ing freedom of expression and prohibiting certain types of hate speech – namely incitement. First, there must be “a high threshold” so that any “limitation of speech must remain an exception”;610 hu- man rights law requires that the state justify that any restriction be: 1) based in law, 2) be done for legitimate aims, and 3) be necessary and proportional to meet the specified aim.611 Second, given the sensitivity of the analysis involving hate speech, determinations should be made by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the State.”612 (Both of these points will be discussed in further detail in Part IV.B below.) Combating root causes of hate speech The human rights discussion of regulating hate speech does not end with criminalization and prohibi- tions on incitement, however. Indeed, successive UN Special Rapporteurs have emphasized the need for a multi-pronged approach that combats hate speech in a comprehensive way.613 Some offensive speech may fall short of incitement to discrimination, hostility and violence and may not meet the level of an extreme case when considered in light of the six factors from the Rabat Plan of Action. The lack of criminal sanction, however, does not mean that states should not take further action. In some situations, civil or administrative remedies may be appropriate to restrict speech, including: “restoring reputation, preventing recurrence and providing financial compensation.”614 Finally, there is hate speech that may not trigger a specific sanction, be it criminal, civil, or administrative, but could be problematic and “raise concerns in terms of tolerance, civility and respect for others.”615 This latter category of speech is particularly important as it can help tackle the root causes of hate speech. The UN Special Rapporteurs and the Rabat Plan of Action have offered an array of non-legal tools to combat hate speech.616 These tools include educating the general public and key stakeholders as well as policy makers and criminal justice actors about human rights and tolerance.617 607 608 609 610 611 612 613 614 615 616 617 Ibid., para. 29(e). Ibid., para. 29(f). Ibid., para. 11. Ibid., para. 18. See Part IV.B infra for a more detailed discussion of the test. Rabat Plan of Action, para. 31; See Part IV.B infra for a more detailed discussion of the importance of an independent judiciary and adjudicators in the hate speech context. A/67/357, para. 2. A/67/357, para. 81. A/67/357, para. 2; See also Rabat Plan of Action, paras. 20, 34; A/74/486, para. 18. Rabat Plan of Action, paras. 35-48 (discussing similar tools listed in the rest of the paragraph in the text). A/67/357, para. 58.