CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Unlike Article 7 UDHR, the new wording prohibits not only incitement to discrimination, but also incitement to hostility and violence. Compared with Article 19 UDHR, the concept of hate speech has thus been considerably expanded by Article 20 ICCPR. One might expect that, based upon common values and interests, it would be easier to define a common approach to hate speech in Western countries. However, as has been pointed out by various academic studies, 9 hate speech regulations differ significantly in Europe and the US. It seems that these differences concern not only the specific legislative and administrative measures adopted on both sides of the Atlantic, but also the very understanding of the term “hate speech”. As a rule, there is less urgency to elaborate on the different elements and aspects of hate speech in legal cultures based on a broad concept of freedom of expression. In other words, the more restrictions on hate speech are introduced, the more precisely the conditions for such restrictions must be defined. Of course, one can question the value of historical analysis in the context of current problems related to hate speech. Understandably, the drafters of Article 19 UDHR and Article 20 ICCPR were reflecting the reality of media in the post-World War II period. They could hardly have foreseen the current problems related to the viral spread of hatred on social networks. On the other hands, given the arguments which were raised when the main international human rights documents were drafted, it would be rather naive to assume that the old definitional issues related to hate speech have disappeared in the light of new media and new forms of mass communication. On the contrary, it seems that given the immense amount of hate speech and undesirable content being disseminated online, the need for differentiation and precise delimitation of such content is more urgent than ever. The travaux préparatoires of international human rights documents also reveal that from the beginning it was mostly undemocratic, authoritarian, and totalitarian states that called for limitations on freedom of speech. This fact should give pause for thought to those who today demand ever greater restrictions on freedom of speech in the name of protecting human rights. 2. The concept of hate speech in the practice of international human rights bodies While the above-mentioned basic human rights documents contain limitation clauses allowing for the prohibition of various forms of hateful expression, these provisions have long been of minor importance in the practice of monitoring bodies. Since only few individual communications were submitted in connection with Article 20 ICCPR, the Human Rights Committee’s main legal arguments can be found in its very brief General Comment No. 11 of 1983. 10 After criticizing the fact that not all state reports provided sufficient information on the implementation of Article 20 ICCPR, the Human Rights Committee (HRC) 9 See, for example, BLEICH, Erik. Freedom of Expression versus Racist Hate Speech: Explaining Differences Between High Court Regulations in the USA and Europe. Journal of ethnic and migration studies , 2014, 40(2), pp. 283-300; DOUGLAS-SCOTT, Sionaidh. The hatefulness of protected speech: a comparison of the American and European approaches. The William and Mary Bill of Rights journal, 1999, 7(2), pp. 305–346. 10 CCPR/C/21/Add.2 (1983).

227