Model Training Materials: Hate Speech, Defamation and National Security • Court did not consider this to be determinative, given the general tone and that editorial choices must be made in a short broadcast.21 Context: The Court also expressed concern over the impact a criminal conviction of a journalist for broadcasting the views of others would have more generally on the ability of the press to fulfil its role in society. Even a limited fine, when imposed on a journalist, could have serious broader implications for media freedom.22 Variations across the Human Rights Treaties Hate speech is one area where the various human rights treaties have occasionally taken divergent approaches. In particular, Article 4 of the CERD requires States to prohibit the dissemination of ideas based on racial superiority or hatred, without explicitly requiring incitement, which is built into Article 20(2) of the ICCPR. However, the CERD specifies that States, when enacting hate speech rules, should have “due regard” to the principles in the Universal Declaration of Human Rights,23 and the Committee on the Elimination of Racial Discrimination has indicated that in interpreting this clause freedom of expression standards should be the “most pertinent reference principle when calibrating the legitimacy of speech restrictions”. 24 The Committee has similarly stated that criminal sanctions should only be imposed in serious cases and should be “governed by principles of legality, proportionality and necessity”. 25 It has also embraced a modified version of the Rabat Plan’s threshold test, although notably excising the intent and imminence factors in respect to non-incitement offences in the CERD. 26 In this respect, “converging interpretations” 27 can be seen between the hate speech provisions of the CERD and the ICCPR, although the CERD still call for bans on non-incitement racist speech with lower threshold requirements. To reconcile commitments under the two treaties, we suggest that if States prohibit non-incitement racist speech in line with Article 4 of the CERD, penalties should be administrative rather than criminal, to avoid triggering the higher standard demanded of criminal hate speech laws under the ICCPR. Some regional variation also exists regarding interpretation of hate speech obligations. So far, the African and American human rights courts have addressed hate speech relatively Ibid., para. 34. Ibid., para. 35. 23 UN General Assembly Resolution 217A (III), 10 December 1948. 24 CERD, note 10, Article 4; and General Comment No. 35, 26 September 2013, para. 19, undocs.org/CERD/C/GC/35. 25 Ibid., para. 12. 26 Ibid., paras 15 and 16. 27 Report of the UN Special Rapporteur on freedom of expression, note 11, para. 15. 21 22 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 8