Freedom of Expression - PowerPoint Presentation

Freedom of Expression
Freedom of Expression

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Equality Hate Speech ILGA Europe Annual Conference 18 October 2012 Dublin Ireland Andrew Smith Legal Officer ARTICLE 19 Website wwwarticle19org Twitter article19law access2smith Email andrewarticle19org ID: 314964 Download Presentation


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Freedom of ExpressionEquality Hate Speech

ILGA Europe Annual Conference18 October 2012, Dublin, IrelandAndrew Smith, Legal Officer, ARTICLE 19


Twitter: @article19law; @access2smith

Email: andrew@article19.orgSlide2

KAOS GL v TURKEY amicus brief

The Camden Principles: on the relationship between freedom of expression and equalityFreedom of Peaceful Assembly and “anti-propaganda” lawsUN Human Rights Council

Protection of human rights defenders

ARTICLE 19 and LGBTI rightsSlide3

Equality and expression: mutually reinforcingWhat is ‘hate speech’?

Defining and distinguishing hate speechCase studies to considerRestricting speech: the 3 part testObligation to prohibit incitementICCPRECHRThree prong response to hate speech: positive measures, civil/administrative sanctions, criminal sanctions.

The threshold for incitement: 6 factors

1. OverviewSlide4

The rights to freedom of expression and equality are mutually reinforcing rights:

Camden PrinciplesThe right to freedom of expression is guaranteed to all people, including LGBTI people.To seek, receive, and impart: Article 19 UDHR, Article 19(2) ICCPR, Article 10(1) ECHR, Article 11 TFEU.

Equal treatment and non- discrimination: Article 2, 7, UDHR, Article 2 and 26 ICCPR (Toonen


Australia 1994), Article 14 and Protocol No. 12, Article 19(1) TFEU.



employed by LGBTI people as

a mechanism of self-protection.

Furthers vulnerability to rights violations and deprives all people of access to information.

2. Equality and freedom of expressionSlide5

A broad concept: All

forms of expression which spread, incite, promote

or justify racial hatred, xenophobia, anti-Semitism or

other forms of hatred

based on


Committee of Ministers, Council of Europe Rec. 1997

Stereotyping of ethnicity combined with its



, in Nahimana, Barayagwiza and Ngeze, 2003No internationally agreed definitionNo regional or international treaty definitionNo consistent application of a definition by international courtsDivergence in domestic responses to hate speech

3. What is hate speech?Slide6

“Hate Crime” Base criminal offence + bias motivation

Expression used to prove bias motivation Doesn’t raise freedom of expression concerns“Hate Speech”Only in very narrow circumstances should hate speech be criminalized

Term often refers to legal expression protected by international lawVarious positive measures to address prejudice that hate speech is symptomatic of


. Distinguishing hate speech

from hate crimesSlide7

5. Tom Daly twitter caseSlide8

100 leaflets distributed by nationalist group, without the school’s consent, into the lockers of students.

6. Vejdeland v SwedenSlide9

Fundamental but not absolute. Three part test“Embraces even expression that may be regarded as deeply offensive.”

General Comment 34 (2011), Handyside v UK (ECHR)Article 19(3); restrictions must be:provided by law

,pursue a legitimate aim,

the respect of the rights or privacy of others;


the protection of national security or of public order, or of public health or morals


be necessary



7. Limiting the right to freedom

of Expression (ICCPR)Slide10

ICCPR Article 20 (2):“Any advocacy

of national, racial or religious hatred that constitutes incitement to discrimination

, hostility or


shall be

prohibited by law.”


states to prohibit certain forms of speech. Distinct from Article 19(3) which concerns permissible restrictions

HR Committee General Comment 34 and Concluding Observations

8. Obligation to prohibit


Three cases on Article 20 (2) ICCPRRoss

v Canada (2000)Complaint was brought by a teacher who lost his job (administrative sanction) for anti-Semitic speech repeated outside of school on radio shows and in book.Relevant factors:Content: but not in isolationIntent: Distinction between questioning the validity of Jewish beliefs and

teaching/advocating “to hold those of the Jewish faith and ancestry in contempt.” The distinction between critical discussion and advocating contempt against a group appears to be crucial to the finding of no


Position of the proponent of the expression in society

Causality: “It was reasonable to anticipate that there was a causal link between the expressions of the author and the ‘poisoned school environment’ experienced by the Jewish children in the school district.”

9. Interpreting Article 20(2)


No provision obliges states to prohibit certain forms of expression, but some speech falls outside of the convention’s protection (Article 17), or may be restricted under Article 10(2).

Two approaches in jurisprudence:Article 17Article 10(2)Four elements: was the right interfered with? was the interference prescribed by law? Did it

pursue a legitimate aim set out in Article 10 (2)? And was it necessary in a democratic society to achieve that aim?

Under Article 10(2) the case law has demonstrated the following factors as important:

Intent of the expression: important in media cases

Content of the expression: ECHR reluctant to limit “political discourse or matters in the public interest”, “expression of a religious nature”, “statements of fact and value judgments”

Status of the speaker: in the society; politician or teacher, journalists

Status of persons: targeted by the remarks

Form of dissemination: through media or leaflets on a large scale, is it art or satire?

Context of speech: counterbalanced with others

10. European Court of Human


First case at ECtHR extending ‘hate speech’ jurisprudence to protect LGBT people.Swedish offence of ‘agitation against a group’. Chapter 16.8 Swedish Penal Code.

Did not apply Article 17, although note concurrence of Judge Yudkivska and Judge Villiger. Unanimous that there was no Article 10 violation:There was an interference with the right to freedom of expression.

Swedish Penal Code 16.8 “provided by law”Pursues a legitimate aim: protection of the rights of others. “Threatened or expressed contempt towards”.

Applied margin of appreciation. Were factors considered by the Swedish Court “relevant and sufficient”.



and others v


Majority judgment doesn’t clarify the “threshold” for legitimate prohibitionsTwo concurring opinions agreed with the outcome and use of Article 10 (2), but stressed the Court should have considered:

Intent of the proponentContent of the expressionContextProportionality: fines of Euro 200 – 2,000. Custodial sentences up to 2 years available but not considered.12.

Vejdeland continued…Slide15

Committee of Ministers Recommendation No. R (1997

) 20 on ‘hate speech’;Parliamentary Assembly Recommendation 1474 (2000) on the Situation of lesbians and gays in Council of Europe Member States;Recommendation 211 (2007) of the Congress of Local and Regional Authorities of the Council of Europe on “freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons

”; Recommendation on measures to combat discrimination on the grounds of sexual orientation or gender

identity, 31



13. Council of Europe RecommendationsSlide16

Positive policy measuresRedress through administrative and civil laws

Criminal sanctions for the advocacy of hatred that constitutes incitementArticle 20 (2) ICCPR14. Three Tier Response to

“hate speech” – ARTICLE 19Slide17

Camden Principles on FOE and EqualityComprehensive freedom of expression and anti-discrimination legislation and implementation

Comprehensive public policy approachBuilding institutional knowledgePublic education and information campaignsResponsibilities of public officials and mobilisation of influential actors and institutional alliances

Role of an independent, pluralistic, and self-regulated media

15. Positive measuresSlide18

16. Key principles on incitement

Explicit recognition of Article 20 (2) ICCPR. “Advocacy of hatred constituting incitement to discrimination, hostility, or violence.”

Guarantee the right to freedom of expressionDefinitions:


: state of mind characterised as “intense

intense and irrational emotions of opprobrium, enmity and detestation towards the target



any distinction, exclusion, restriction or preference based

on [gender

, sexual orientation] which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Hostility – a physical act manifesting hatred.

Violence – intentional physical force/power that results in or has a high likelihood of resulting in injury, death, psychological harm,

maldevelopment, or deprivation. Specific intentSeverity test: 6 factorsNecessity and proportionalitySlide19


of the expression in broader societal context of the speech.Intent:

of the speaker to incite to discrimination, hostility or violence;Position and role of the speaker:

in a position of authority and exercising that authority.


: form and subject matter of expression, tone and style.

Extent of the expression


public nature of the expression; the means of the dissemination; magnitude of the expression;


of harm, including imminence:

probability of discrimination, hostility or violence as a result of the expression.

17. Six Threshold FactorsSlide20

18. Civil remedies

Comprehensive anti-discrimination legislation

Allow victims to seek redress independently

Need to mechanisms to support victims (including legal aid)

Getting the victims voices heardSlide21

Formal codes of conduct for politicians, public officials and civil servants (including teachers): public officials at all levels should avoid as far as possible making statements that promote discrimination or undermine

equality. An order to issue a public apology or correction Public service

broadcasters: a framework for administrative sanctions may support the obligation to avoid negative stereotypes of individuals and groups. Require

obligation to issue an apology, correction or to provide a right of reply; to allocate broadcasting time to advertising the outcome of an administrative decision; or the imposition of fines.

19. Administrative remediesSlide22

Must be considered as a last resort and only for the

most severe forms of incitement.The principles of necessity and proportionality must guide decision to prosecute and sentencing.There must be training on incitement standards, particularly among the judiciary

and law enforcement.20. Criminal measuresSlide23


Twitter: @access2smith; @article19law

Thank you

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