Model Training Materials: Hate Speech, Defamation and National Security The obligation to prohibit hate speech does not remove State responsibilities to comply with the ICCPR’s Article 19(3) test for any restriction on freedom of expression. One of the grounds enumerated under the three-part test for restricting expression is to protect the rights of others. Everyone has the right to be free from hate speech and discrimination, so responding to hate speech is a proper ground for restricting freedom of expression under the second part of the three-part test. States therefore can restrict hate speech under international human rights law, and also must do so to the extent required by their obligations under Article 20(2) of the ICCPR and any other relevant international treaties. However, hate speech laws must also be “provided by law” and be necessary and proportionate. International standards provide guidance to States seeking to adopt hate speech laws and policies which meet both the obligations of Article 19(3) and Article 20(2). As a crucial starting point, Article 20(2) only requires the prohibition of a specific kind of “incitement”, namely that which constitutes hate speech. Other types of intolerant speech should be addressed via a multifaceted policy response and awareness/education rather than via criminal proscriptions. Indeed, governments should understand that “legal prohibition alone” cannot eliminate “the human sentiment of hatred”.7 The following mapping outlines the relatively strict international law rules governing what law and policy responses are appropriate for various kinds of intolerant and discriminatory speech. • • Advocacy of hatred which constitutes incitement: Article 20(2) of the ICCPR requires legal prohibition of a very specific type of speech, namely advocacy of hatred which constitutes incitement to discrimination, hostility or violence. o States must prohibit this kind of speech. The normal route for doing this is through criminal offences, although this is subject to strict standards, discussed further below. As with all restrictions on freedom of expression, any sanctions for hate speech must be proportionate and such rules must otherwise comply with the Article 19(3) three-part test. o The Genocide Convention requires States to criminalise direct and public incitement to genocide. States should ensure that such laws reflect the elements of the crime of incitement to genocide under international law. Intolerant, discriminatory or prejudicial speech which does not constitute hate speech: Other kinds of speech may be insulting or harmful to equality, or even be racist and xenophobic, but do not arise to the level requiring legal prohibition. o Criminal sanctions, particularly if the penalty envisages imprisonment, are not the appropriate vehicle for addressing this kind of speech. Report of the UN Special Rapporteur on Freedom of Expression, 7 September 2012, para. 32, undocs.org/A/67/357. 7 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 3