Words that Hurt (1): Normative and Institutional Considerations in the Regulation of Hate Speech in Europe

Abstract

Europe is experiencing at present intense dilemmas in regulating hate speech and online harassment. Free speech exercise can be offensive and even contribute to a climate of prejudice and discrimination against minorities. Often, the media exacerbate the tendency by reporting negatively about minorities. The first working paper on this topic engages with the normative dimensions of the balance between the need to control and limit incitement to violence in reconciliation with the fundamental right to freedom of expression.

Three distinct aspects of hate speech are covered: the first relates to the role of freedom of expression as a tool of inclusiveness. With the limits of liberal tolerance being unclear, just like the definition of hate speech itself, legal actors and systems are torn between criminalising the speaker’s motive alone or in conjunction with the effects of the speech. A survey of recent related European Court of Human Rights case-law demonstrates these ambiguities. The second aspect covered looks at the challenges of the regulation of the freedom of expression in the digital age, with emphasis of the online dimensions of the phenomenon from a legal perspective. The final aspect of the paper proposes an actor-based analysis of hate speech, as it emerges from the current regulatory frameworks applied. This section deals not only with the role of the State but also with that of equality bodies, political parties and private businesses in providing more efficient networks of protection of minorities from such violent expressions of hatred.

Keywords: freedom of expression, online hate speech, discrimination, minorities, European Court of Human Rights