CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … Introduction The possibility of the free exchange of information and opinions on the internet has revolutionised our understanding of individual and mass communication. Opinions and information can be shared through a wide variety of online communication platforms, such as social networks, news portals, and messaging apps. Such new forms of communication have undoubtedly contributed to the democratisation and pluralisation of the European media landscape. However, the risks of this development are also obvious, as in media bubbles and digital echo chambers the psychological barriers to sharing an opinion or an emotion tend to be significantly lower than in traditional media. In many cases, the real or presumed anonymity of the internet encourages people to publish despicable, vulgar and hateful messages. Since, according to a number of studies, 1 social minorities are particularly affected by this phenomenon, the problem of hate speech and especially the question of appropriate measures against hate speech has become an important topic of European minority protection. As a matter of fact, various international human rights organizations and treaty monitoring bodies are paying increased attention to the political, social, and legal issues related to verbal attacks and insults. Moreover, there is an ever-growing number of academic publications dedicated to this subject. In the introduction to their standard commentary on the Framework Convention for the Protection of National Minorities (Framework Convention or FCNM), Rainer Hofmann, Tove H. Malloy, and Detlev Rein point out that the exercise of effective control over new media by public authorities and self-governing organizations is one of the most important open issues in European minority protection. According to them, the question is how to prevent new media from spreading hate speech which often affects minorities. 2 In this contribution, we focus on the concept of hate speech from different perspectives in order to show its relevance for the interpretation and application of minority rights. We firstly look into the development of the concept of hate speech within the broader context of international human rights protection. Secondly, comparing various definitions provided by international human rights bodies we try to point at problematic elements of the concept, the application of which may lead to legal uncertainty in practice. In the last part, we analyse the jurisprudence of the Advisory Committee on the Framework Convention (Advisory Committee) that quite frequently refers to the problem of hate speech and calls on the States Parties to adopt adequate preventive and punitive measures. The major goal of this paper is to highlight the weaknesses of the Advisory Committee’s approach to hate speech and to call for a more consistent solution that takes into account freedom of expression as a fundamental cornerstone of international human rights protection.

1 See, for example, NADIM, M., FLADMOE, A. Hate speech: Research on the nature and extent of hate speech (Report 1), Norwegian Institute for Social Research, 2016. Available at https://samfunnsforskning.brage.unit. no/samfunnsforskning-xmlui/handle/11250/2442521. 2 HOFMANN R., MALLOY T., REIN D. Introduction. In: Hofmann R., Malloy T., Rein D. (eds.) The Framework Convention for the Protection of National Minorities. Commentary. Brill, Leiden, 2018, pp. 3–21.

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