Special considerations for hate speech

Hate speech does not have a universally agreed upon definition under international law, meaning that UNHCR cannot rely on an internationally accepted definition. Rather, hate speech is an umbrella term that covers a wide range of speech and can as such not be considered a clear category of speech.

Notwithstanding, according to the working definition in the United Nations Strategy and Plan of Action on Hate Speech, it is “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor”.

According to the United Nations Strategy on Hate Speech three components must be present for speech to be defined as “hate speech”:

1. Any kind of communication, whether in the form of speech, writing or behaviour. This can include images, cartoons, memes, art objects, gestures and symbols. It can be disseminated online or offline. It necessarily involves expression;
2. Attacks or uses pejorative or discriminatory language. Hate speech is communication that is biased, bigoted, intolerant or prejudiced (discriminatory) or contemptuous or demeaning (pejorative) of an individual or group based on their identity; and
3. Makes reference to an identity factor (although the harm may be increased where two or more identity factors are referenced). These include migrant or refugee status, amongst other identity characteristics.

The United Nations Strategy on Hate Speech directs that its implementation should be in line with the right to freedom of opinion and expression. This means primarily that not all forms of hate speech can be restricted – much will be protected under the right to freedom of expression, even if it is deeply offensive. In addition, under international human rights law, restrictions on hate speech must comply with the general requirements for restrictions on hate speech (legality, legitimacy, necessity and proportionality) which are explained below in further detail. The United Nations Strategy on Hate Speech also promotes more speech, not less, as the key means to address hate speech. 

Hate speech is perhaps best understood as a kind of high-level heading that encompasses several different kinds of speech. The United Nations Strategy on Hate Speech divides hate speech into three levels of severity. While operations may not be required or need to undertake a full legal analysis of cases of hate speech, determining whether a specific incident may be top, intermediate, or bottom level can inform the potential severity of harm to help to an appropriate response.

Top Level

This level includes kinds of hate speech which require prohibition by the law according to international law, and sometimes, but not always, through criminal law. The kinds of hate speech that require prohibition under international law include:

• Propaganda for war, established under article 20(1) of the ICCPR
• Incitement to discrimination, hostility or violence: “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, as defined in Article 20 (2) of the International Covenant on Civil and Political Rights, and as interpreted by the Human Rights Committee in General Comment 34.
  • The terms ‘hatred’ and ‘hostility’ refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group.
  • The term ‘advocacy’ is to be understood as requiring an intention to promote hatred publicly towards the target group.
  • The term ‘incitement’ refers to statements about national, racial or religious groups, which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups.
• Incitement to racial discrimination: “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin”, as defined in Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination and as interpreted by the Committee on the Elimination of All Forms of Racial Discrimination in General Comment 35.
• In addition, at the level of individual criminal responsibility, the Convention on the Prevention and Punishment of the Crime of Genocide (Article 3 (c) ) and the Rome Statute of the International Criminal Court (Articles 6 and 25(3) (e) establish that “direct and public incitement to commit genocide”, is a crime under international law and shall be punishable.

Intermediate Level

This level outlines certain forms of hate speech that may be restricted under specific circumstances.

Restrictions on freedom of speech may be imposed, where the speech does not meet the threshold of incitement, if the three conditions from the International Covenant on Civil and Political Rights (ICCPR) Article 19(3) are met. Any limitations must:

• Be provided by law;
• Pursue a legitimate aim as exhaustively listed in the provision, such as the respect of the rights or reputation of others, the protection of national security or public order, or the protection of public health or morals; and
• Be necessary and proportionate for the purpose of achieving the legitimate aim.

It is important to note that each element of this three-part test also has to be complied with in the case of “top level” hate speech, namely direct and public incitement to genocide and any advocacy of discriminatory hatred that constitutes incitement to discrimination, hostility or violence as provided by Article 20 paragraph 2 of the ICCPR.

Bottom Level

This level is the least severe forms of hate speech which must not be subject to legal restrictions as it is protected under international law.

As highlighted by the Human Rights Committee in its General Comment, the scope of the right to freedom of expression embraces expression that may be regarded as deeply offensive. As the Committee has noted, prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with international human rights law, except in the specific circumstances envisaged in article 20(2) and complying with articles 19(3), 2, 5, 17, 18 and 26. Similarly, the mere criticism of religious leaders or commentary on religious doctrine and tenets of faith cannot be prohibited. The Committee has further established that the ICCPR does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.