Model Training Materials: Hate Speech, Defamation and National Security • • include how direct and provocative the speech was and whether balanced arguments were provided. Extent of the speech act: The extent of the speech act, including factors such as its reach, how it was distributed, the size of audience and whether it was public, is relevant. Likelihood, including imminence: A rather direct causation should be present, such that there is a reasonable probability that the speech will actually incite harm (although the harm need not actually occur).17 European Court of Human Rights: Jersild v. Denmark The six factors identified in the Rabat Plan were not derived out of thin air: they reflect principles established by other human rights authorities and earlier commitments and standards. The European Court of Human Rights, for example, has decided numerous cases which predate the Rabat Plan which rely on analysis which was later reflected in the Plan’s six factors. This can be seen in Jersild v. Denmark, a 1994 landmark Grand Chamber judgment involving a Danish journalist who interviewed racist youth and included their racist statements in a broadcast. He was convicted and fined under an article of the Danish Penal Code which prohibited racist hate speech.18 The Court determined that the conviction was “provided by law” and had the legitimate aim of protecting the rights of others. However, it was not “necessary” to protect that aim and therefore violated the journalist’s right to freedom of expression. In making this decision, the Court found several factors to be relevant, many of which can be classified according to those identified in the Rabat Plan: • Intent: The journalist’s purpose in compiling the programme was not racist, a “key question” for the Court.19 • Speaker: The Court also considered it important that the journalist did not make racist statements himself but merely disseminated the statements of others.20 • Content and Form: The broadcast was part of a “serious Danish news programme” and the interviewer clearly disassociated himself from the people he had interviewed. The programme also began with a reference to discussions about racism in Denmark and, overall, portrayed the youth’s racism as part of a general anti-social sentiment; while no explicit condemnation of racism was made, the All summarising language found at the Rabat Plan of Action, note 9, para. 29. 23 September 1994, Application No. 15890/89, https://hudoc.echr.coe.int/eng?i=001-57891. 19 Ibid., paras. 31 and 36. 20 Ibid., para. 31. 17 18 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 7