HATE SPEECH AND FREEDOM OF EXPRESSION

A number of CERD cases have engaged issues of “hate speech” and freedom of expression in relation to minority groups. In Jewish Community of Oslo et al v Norway (2005),²³⁵ the Supreme Court of Norway acquitted the giver of an anti-Semitic speech at a rally in commemoration of the Nazi leader Rudolf Hess, on the basis that penalizing approval of Nazism would involve prohibiting Nazi organizations, which it considered to be incompatible with the right to freedom of speech. Article 4 ICERD requires States Parties to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, as well as incitement to racial discrimination, and declare illegal and prohibit organizations which promote and incite racial discrimination. Its provisions are balanced also with ‘due regard’ to freedom of expression. In the present case, the Committee determined of the relevant speech: ‘given that they were of exceptionally/manifestly offensive character, are not protected by the due regard clause … his acquittal by the Supreme Court of Norway gave rise to a violation of article 4’.²³⁶ In Stephen Hagan v Australia (2003),²³⁷ the use of an ‘offending term’ [the “N word”] as a nickname on a stand in a sports stadium originally erected in 1960 should ‘at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded’.²³⁸ CERD’s decision in this case was the culmination of a long legal journey taken by the Aboriginal author of the complaint to have the sign removed.^[239]

It may be noted also that communications involving religious hate speech only have been rejected as falling outside the parameters of the Convention. In P.S.N. v Denmark (2007),²⁴⁰ a Member of Parliament for the Danish People’s Party published discriminatory statements related to Muslims. The Committee observed that ‘the impugned statements specifically refer to the Koran, to Islam and to Muslims in general, without any reference whatsoever to any race, colour, descent, or national or ethnic origin.’²⁴¹ The Committee recognised the importance of the interface between race and religion, and considered that it would be competent to consider a claim of “double” discrimination on the basis of religion and another ground specifically provided for in Article 1 ICERD, including national or ethnic origin. However, this was not the case in the current petition, which exclusively related to discrimination on religious grounds.²⁴² Recalling that the Convention ‘does not cover discrimination based on religion alone’, it considered that general references to Muslims fell outside its scope.²⁴³ An analogous decision is seen in Kamal Quereshi v Denmark (2004),²⁴⁴ which involved offensive statements about “foreigners”. The Committee held that ‘a general reference to foreigners does not at present single out a group of persons, contrary to Article 1 of the Convention, on the basis of a specific race, ethnicity, colour, descent or national or ethnic origin.’²⁴⁵

In TBB-Turkish Union in Berlin/Brandenburg v Germany (2013),²⁴⁶ a journal interview with Mr. Thilo Sarrazin, former Finance Senator of the Berlin Senate and member of the Board of Directors of the German Central Bank, saw Mr. Sarrazin express himself in a derogatory and discriminatory way in relation to ‘Arabs and Turks in this city’. The case revolved around the decision of the Office of Public Prosecution not to prosecute Mr. Sarrazin for these comments, which was reviewed by the Prosecutor General, who agreed that Mr. Sarrazin’s comments were made in the context of a critical discussion on structural problems of an economic and social nature in Berlin and did not constitute incitement against an individual.²⁴⁷ The Committee recalled that it is not its role to review the interpretation of facts and national law made by domestic authorities, unless the decisions were manifestly arbitrary or otherwise amounted to a denial of justice. Nevertheless, it considered it had to examine whether the statements made by Mr. Sarrazin fell within any of the categories of impugned speech set out in Article 4. It determined that the statements did amount to dissemination of ideas based upon racial superiority or hatred, and that the State party had failed in its duty to carry out an effective investigation.²⁴⁸

The decision was criticised in an individual opinion by CERD member Carlos Vazquez. The dissent accepted that Mr. Sarrazin’s statements were ‘bigoted and offensive’ but it noted that in past decisions the Committee had recognized the “principle of expediency”, defined as ‘the freedom to prosecute or not prosecute’.²⁴⁹ It further noted that the Convention does not preclude States Parties from adopting a policy of prosecuting only the most serious cases. The opinion urged taking account of the context and the genre of the discussion in which the statements were made – ‘for example, whether the statements were part of a vitriolic ad hominem attack or instead were presented as a contribution, however intemperate, to reasoned debate on a matter of public concern, as the State party found Mr. Sarrazin’s statements to be.’²⁵⁰ This opinion would prove influential in evolving CERD’s interpretation of Article 4, with some of its elements seen in CERD General Recommendation 35 on combatting racist hate speech.²⁵¹ Today, hate speech caselaw will be considered in light of the contextual factors set out in GR 35 including the content and form of the speech, the economic, social and political climate, the position or status of the speaker, and the reach and objectives of the speech.²⁵² Criminalisation of forms of racist expression ‘should be reserved for serious cases’, with the right to freedom of expression integrated into the Committee’s work on combating hate speech.²⁵³

²³⁵ UN Doc. CERD/C/67/D/30/2003 (2005).
²³⁶ Ibid para 10.5.
²³⁷ UN Doc. CERD/C/62/D/26/2002 (2003).
²³⁸ Ibid para 7.3.
²³⁹ See further Stephen Hagan, ‘The N Word: One Man’s Stand’ (Magabala Books 2005).
²⁴⁰ UN Doc. CERD/C/71/D/36/2006 (2007).
²⁴¹ Ibid para 6.2.
²⁴² Ibid para 6.3.
²⁴³ Ibid para 6.4.
²⁴⁴ UN Doc. CERD/C/66/D/33/2003 (2004).
²⁴⁵ Ibid para 7.3.
²⁴⁶ UN Doc. CERD/C/82/D/48/2010 (2013).
²⁴⁷ Ibid para 2.4.
²⁴⁸ Ibid para 12.9.
²⁴⁹ Ibid, Individual Opinion of Mr. Carlos Vazquez para 10.
²⁵⁰ Ibid
²⁵¹ CERD General Recommendation 35 on Combatting Racist Hate Speech, UN Doc. CERD/C/GC/35 (2013).
²⁵² Ibid para 15.
²⁵³ Ibid paras 12 and 4.