CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … always consistently – distinguished between hate speech which by reference to Article 17 of the European Convention on Human Rights (ECHR), a standard clause on abuse of rights, is not protected at all and statements which are to be assessed in the light of freedom of expression under Article 10 ECHR. Although the ECtHR has used the term hate speech almost on a regular basis since the 1990s, it has not established a definition of the term. To provide some guidance, the ECtHR Press Unit has published a factsheet on hate speech which is constantly updated. Without making a precise distinction, the factsheet lists some typical forms of hate speech according to their content. Whereas the most serious forms of hate speech, such as threats to the democratic order, racial, ethnic, and religious hate or incitement to violence and support for terrorist activities, do not fall under the protection of Article 10 ECHR as they constitute an abuse of rights within the meaning of Article 17 ECHR, other cases concerning, for example, incitement to racial or religious discrimination or hatred and apology of violence and incitement to hostility have been examined in the light of Article 10 ECHR. In some of these cases, the Court found a violation of the freedom of expression. The fact that the line between some of the above categories is quite blurred, such as between religious hate and the incitement of religious intolerance, or between ethnic hatred, racial hatred, and incitement to ethnic, national, and racial hatred, can be taken as evidence that, in the face of an infinite amount of unwanted and harmful content, the ECtHR deliberately refrains from making a precise distinction. Furthermore, it is noteworthy that the ECtHR does not rely on the definition of hate speech which has been adopted by the Committee of Ministers of the Council of Europe in 1997 although it appears that this definition was the first attempt to officially define hate speech at the level of the Council of Europe. According to the Committee of Ministers, the term hate speech shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin. 22 Since this very broad concept of hate speech presupposes a clear understanding of terms such as “aggressive nationalism” and “ethnocentrism”, it seems that the authors have created a need for further definitions by introducing one. Moreover, since the use of the term “anti Semitism” has also caused considerable problems at the international level, 23 a definition of hate speech including this term will always be politically controversial. Some sceptical voices can be found in academic literature. In a study on so-called “gendered hate speech”, the authors noted that “the fact that this type of hate speech occurs on a continuum of seriousness makes it difficult to develop a general definition”. Another problem identified in the same study was the question of seriousness or severity of certain expressions in the light of civil or criminal law. It also remains unclear whether a definition 22 Recommendation No. R (97) 20 of the Committee of Ministers to member states on “hate speech”. 23 For more details, see SCHEU, H., Ch., Das Problem der Definition von Antisemitismus aus rechtlicher Perspektive. In: SOUKUPOVÁ, B. (ed.) Antisemitismus in Mittel- und Osteuropa – Ursachen, Auswirkungen, Kontinuitäten, Vergleiche . Zürich, 2020, pp. 99–124.

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