Model Training Materials: Hate Speech, Defamation and National Security protects even “deeply offensive” speech. It also affirmed the complementary nature of Articles 19 and 20, and that prohibitions implementing Article 20(2) must align with the three-part test under Article 19.14 The Committee found that the Netherlands had prohibitions on hate speech under its criminal law and allowed victims to trigger and participate in these proceedings. In this case, Mr. Wilders was prosecuted and the court issued a detailed judgment evaluating his statements. The Committee determined that the Netherlands had taken necessary and proportionate measures to prohibit hate speech and to guarantee an effective remedy to the authors of the complaint. Since Article 20(2) does not impose an obligation on States to ensure that those charged with hate speech “will invariably be convicted by an independent and impartial court of law”, the Committee found there was no violation of Article 20(2) by the Netherlands.15 The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, a document arising from a series of expert workshops organised by the Office of the High Commissioner for Human Rights in 2011 and 2012, provides a six-part “threshold test” for when criminal hate speech convictions will be legitimate. In the Rabat Plan, the test is designed as a guide for judges but the test has become influential in other contexts as well. The Declaration on Principles on Freedom of Expression in Africa, for example, provides that States should consider these six factors when deciding whether to adopt criminal sanctions.16 The six factors in this threshold test are: • • • • Context: Context, including social and political context, should inform assessments of whether the speech is likely to incite discrimination, hostility or violence, and may be relevant to establishing intent. Speaker: The position or status of the speaker, particularly in relation to the audience, should be considered. Intent: Specific intent, and not mere negligence or recklessness, is necessary for a conviction for hate speech, given that Article 20(2) refers to advocating or inciting harm, not merely distributing harmful material. Content and form: The content and form of the speech should inform the analysis, particularly as to whether incitement is present. Examples of this analysis may Ibid., para. 10.4. Ibid., para. 10.7. 16 African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression and Access to Information in Africa, 10 November 2019, Principle 23(2), https://bit.ly/3UqS2Q7. As another example, the UN suggests that its field presences use the Rabat Plan’s factors as a guide when developing appropriate responses to hate speech. United Nations Strategy and Plan of Action on Hate Speech: Detailed Guidance on Implementation for United Nations Field Presences, September 2020, pg. 17, https://bit.ly/3zQubBt. 14 15 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 6