What does the United Nations, the Council of Europe and the European Union have in common? This is unanimity on the question of penalising the "talk of hatred". Criminal, civilian or administrative sanctions are involved. The subject is highly important, due to the fact that in Poland work is underway on amending the Criminal Code, which is intended to penalise the alleged hatred speech. The Ordo Iuris Institute has so prepared a publication on the rules of global organisations concerning this phenomenon.
The Institute focused on papers prepared by the United Nations, the Council of Europe and the European Union. The publication shows that there is not a single commonly accepted definition of “hate speech” in the global area and that each organisation presents its own approach and recognises the request to make a universal term. Although these regulations are non-binding in the case of the UN and the Council of Europe, the European Union has already prepared legislation.
As Ordo Iuris points out, the legal problem of regulating the phenomenon of alleged hatred speech has late become increasingly interesting, both on national and global grounds. More and more countries are adopting regulations aimed at combating “hate speech” and “hate crimes”. An example on Polish dirt is presently being conducted Proposal for a change of content provisions of the Criminal Code. In particular, there is simply a large deal of importance in this context in the papers and legal acts of various organisations specified as the United Nations, the Council of Europe or the European Union that form global human rights standards, including issues concerning hatred speech or the right to free speech.
Therefore, the Ordo Iuris Institute has decided to present the most crucial global legal acts relating to the issue of "hate speech", briefly presenting the definition of this concept, the proposals for sanctions and their legal nature in the papers of the 3 global organisations mentioned above (UN, RE, EU). These entities were selected for their rank and significance.
First of all, the authors focused on various acts of the United Nations, presenting the main assumptions of the Rabat Action Plan on banning the promotion of national, racial or spiritual hatred, which is an incitement to discrimination, hostility or force from 2013 or the UN strategy and Action Plan on combating hatred speech from 2019. In each case, mention was made to the definition of the concept of ‘loath speech’ (if any) and to the meaning and main assumptions of these documents.
The various acts of the Council of Europe, the global government organisation established in 1949 to defend and advance human rights, democracy and cooperation between the associate States that formed it, were subsequently presented. In this context, it was pointed out that the first RE paper relating to the phenomenon of “hate speech” was advice R (97) 20 of the Committee of Ministers of the Council of Europe on hatred speech, dated October 1997. The word “hate speech” is defined as “any form of speech that spreads, incites, promotes or justifies racial hatred, xenophobia, anti-Semitism or another forms of hatred based on intolerance, including intolerance expressed in the form of aggressive nationalism or ethnocentrism, discrimination or hostility towards minorities, migrants, or persons from migrant communities”.
Other publications, crucial for the subject of the report, including e.g. advice No 6 on the European Commission's general policy against Racism and Intolerance on combating the dissemination of racist, xenophobic and anti-Semitic materials via the net of December 2000 and advice CM/Rec(2022) 16 of the Committee of Ministers to the associate States on combating hatred speech of May 2022.
The 3rd and last global organisation reviewed is the European Union. The authors of the publication highlighted the peculiar importance of this legal strategy for Poland, which is mainly due to the binding nature of the standards created by the European Union for the associate States.
In this context, it has been pointed out in Council Framework Decision 2008/913/JHA on combating certain forms and manifestations of racism and xenophobia by means of criminal law measures of November 2008, which was the first act of derivative law relating to the issue of "talk of hate". The decision was adopted to prevent and combat racism and xenophobia by harmonising the law at associate State level (to establish effective, proportionate and dissuasive minimum criminal sanctions).
It was subsequently referred to the Directive (EU) 2024/1385 of the European Parliament and of the Council of 14 May 2024 on combating force against women and home violence, which stigmatized the crime of "digital call for force or hatred". The report's authors point to the deficiency of detailing the individual elements of the definition of this crime.
The importance of the European Commission's proposal to add hatred speech and hatred crimes to the list of European crimes listed in Article 83(1) of the Treaty on the Functioning of the European Union (TfEU).
Article 83(1) TFEU confers competence on Union authorities to legislate in 10 well-defined areas, which are peculiarly serious cross-border crime. On the basis of this provision, the European Parliament and the Council can therefore, by means of directives, establish the alleged minimum standards laying down basic standards of protection, relating, inter alia, to the definition of crime and the indication of penalties, in areas strictly defined in the Treaty.
The task states that “the speech of hatred” should be understood as “covering all forms of speech that they spread, initiate, advance or justify racial hatred, xenophobia, anti-Semitism or another forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism, ethnocentricism, discrimination and hostility towards minorities, immigrants and people of immigrant origin”.
The Institute’s experts pointed out a number of doubts about the European Commission’s proposals, including the way in which the word “particularly serious cross-border crime” is understood.
The last part of the study has been devoted to the broad criticism that many scientists, lawyers, are directing constitutionalists towards the proposal to criminalise “the speech of hatred”. The fundamental importance of the rule of freedom of speech or the hazard of introducing preventive censorship, referring primarily to the opinions of abroad authorities, has been pointed out.
The study was presented at a press conference.
Adw. Rafał Dorosiński of the Management Board of Ordo Iuris pointed out attempts to restrict the fundamental rights of citizens by allegedly combating the alleged hatred speech. – The desire to fight the “talk of hatred” is frequently utilized by left-wing liberal politicians as a pretext to supply an apparent justification for a process of unequivocally censoring character. The best example of this is the request to remove the concessions of 1 of the leading tv stations in Poland, thus limiting freedom of expression, freedom of public debate and access to information He stressed.
Patrick Ignaszczak of the Center for global Law Ordo Iuris stressed that the fight against alleged hatred speech is simply a postulate put forward by global bodies and in many countries has already led to crucial violations of civilian rights. – The issue of "hate speech" is presently 1 of the most crucial topics that our Institute deals with. This is due to the reflection of the practice of applying the law in another countries, where the abuse of the broadly understood "talk of hatred" has led to far-reaching restrictions on human rights. Therefore, the Institute has prepared a publication dedicated to the “talk of hate” in almost 3 major global organisations – he noted.
The United Nations is 1 of the bodies that pushes this kind of legislation. Julia Książek, an analyst of the Center for global Law, spoke about its impact on the legal situation in the associate States. – Although the regulation of this organisation is part of the alleged soft law and thus only sets out a certain framework and directions in which legislators are to follow, due to the fact that the UN is an global body, it plays a major function in establishing standards for combating and penalising hatred speech. – she noted.
Source: Ordo Iuris
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