ILGA Europe Annual Conference 18 October 2012, Dublin, Ireland Andrew Smith, Legal Officer, ARTICLE 19

 KAOS GL v TURKEY amicus briefamicus brief  The Camden Principles: on the relationship between freedom of expression and equality The Camden Principles  Freedom of Peaceful Assembly and “anti- propaganda” laws Freedom of Peaceful Assembly and “anti- propaganda” laws  UN Human Rights Council UN Human Rights Council  Protection of human rights defenders Protection of human rights defenders

 Equality and expression: mutually reinforcing  What is ‘hate speech’? ◦ Defining and distinguishing hate speech ◦ Case studies to consider  Restricting speech: the 3 part test  Obligation to prohibit incitement ◦ ICCPR ◦ ECHR  Three prong response to hate speech: positive measures, civil/administrative sanctions, criminal sanctions.  The threshold for incitement: 6 factors

 The rights to freedom of expression and equality are mutually reinforcing rights: Camden PrinciplesCamden Principles  The 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 v Australia 1994), Article 14 and Protocol No. 12, Article 19(1) TFEU.  Self-censorship employed by LGBTI people as a mechanism of self-protection. Furthers vulnerability to rights violations and deprives all people of access to information.

 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 intolerance ◦ Committee of Ministers, Council of Europe Rec  “Stereotyping of ethnicity combined with its denigration” ◦ ICTR, in Nahimana, Barayagwiza and Ngeze, 2003  No internationally agreed definition ◦ No regional or international treaty definition ◦ No consistent application of a definition by international courts  Divergence in domestic responses to hate speech

 “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 law ◦ Various positive measures to address prejudice that hate speech is symptomatic of

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

 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: i) provided by law, ii) pursue a legitimate aim,  the respect of the rights or privacy of others;  for the protection of national security or of public order, or of public health or morals. iii) be necessary and proportionate

 ICCPR Article 20 (2): “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”  Requires states to prohibit certain forms of speech. Distinct from Article 19(3) which concerns permissible restrictions  HR Committee General Comment 34 and Concluding Observations

 Three cases on Article 20 (2) ICCPR  Ross 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 isolation  Intent: 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 violation  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.”

 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 17 ◦ Article 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

 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”.

 Majority judgment doesn’t clarify the “threshold” for legitimate prohibitions  Two concurring opinions agreed with the outcome and use of Article 10 (2), but stressed the Court should have considered: ◦ Intent of the proponent ◦ Content of the expression ◦ Context  Proportionality: fines of Euro 200 – 2,000. Custodial sentences up to 2 years available but not considered.

 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 March 2010.

 Positive policy measures  Redress through administrative and civil laws  Criminal sanctions for the advocacy of hatred that constitutes incitement ◦ Article 20 (2) ICCPR

 Camden Principles on FOE and Equality  Comprehensive freedom of expression and anti- discrimination legislation and implementation  Comprehensive public policy approach  Building institutional knowledge  Public education and information campaigns  Responsibilities of public officials and mobilisation of influential actors and institutional alliances  Role of an independent, pluralistic, and self- regulated media

 Explicit recognition of Article 20 (2) ICCPR. “Advocacy of hatred constituting incitement to discrimination, hostility, or violence.”  Guarantee the right to freedom of expression  Definitions: Definitions ◦ Hatred: state of mind characterised as “intense intense and irrational emotions of opprobrium, enmity and detestation towards the target group ◦ Discrimination: 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 intent  Severity test: 6 factors  Necessity and proportionality

 Context: 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.  Content: 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;  Likelihood of harm, including imminence: probability of discrimination, hostility or violence as a result of the expression.

 Comprehensive anti-discrimination legislation  Allow victims to seek redress independently  Need to mechanisms to support victims (including legal aid)  Getting the victims voices heard

 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.

 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.

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