This article was originally published on the Article19‘s website.
The report investigates the legal and regulatory framework in which ‘hate speech’ has been dealt with, especially in the media sector, in the United Kingdom (UK), with a focus on England and Wales.
The problem of ‘hate speech’ is not new in the UK; however, recent events and technological innovation have thrown the issue of ‘hate speech’ in the UK into sharper focus. The debate surrounding Britain’s exit from the European Union (Brexit), the murder of the Member of Parliament Jo Cox by a right wing extremist in June 2016, and the prevalence of ‘hate speech’ on social media have prompted a renewed interest in the challenge of balancing free expression and the protection of robust social and political discourse with the need to promote respect for the dignity and autonomy of others.
The legal framework governing ‘hate speech’ in the UK has evolved over many centuries, with some acceleration in the last fifty years due to the development of antidiscrimination legislation and human rights law. This legal framework has developed on a piecemeal basis into its current state, creating a complex web of criminal sanctions, civil causes of action, and regulatory codes.
The UK has no written constitution, and English criminal law has no governing instrument such as a penal code. The criminal restrictions reflect the UK’s piecemeal legal structure. The most important (and controversial) criminal laws in this area involve ‘incitement to hatred’ on the grounds of race or of religious or sexual orientation. Harassment may also amount to a criminal offence, and if motivated by hatred towards those on the basis of a protected characteristic, the offence will be aggravated and attract a more severe sentence.
The report finds that the police and the Crown Prosecution Service are equipped (subject to funding constraints) to prosecute individuals engaging in ‘hate speech’ of sufficient gravity that it should be criminalised, and that they do bring such prosecutions under one or several of the array of laws that exist to tackle these crimes. However, the report has found that the criminal law has not been used against a media outlet for many years, and never for engaging in ‘hate speech’ in relation to any person or group of persons on the basis of a protected characteristic. In terms of the regulatory environment, whilst individuals may bring complaints against the self-regulated media, such complaints are limited in scope, uncertain in outcome, and are not always easy to access. Furthermore, there is no mechanism by which the very powerful British print media may be held to account for the disparagement of a group of persons on the basis of a protected characteristic.
There are a number of civil actions that might arise in the case of the commission of ‘hate speech.’ Those include harassment, defamation, misuse of private information, or private actions under the Equality Act 2010. Generally, the bringing of a civil action in relation to an incident involving ‘hate speech’ is cumbersome and expensive, and the report has identified only limited examples.
The regulatory environment is also in a state of development, although there is no coherent government policy guiding this. In relation to broadcast media, the position is relatively settled. However, in relation to print media, the outlook is very uncertain. Recent events and the proliferation of online ‘hate speech’ have led to calls to reform the current legal landscape. There are also real questions over the extent – if any – to which the government may seek to regulate online media. Whilst much has recently been said on this matter, little concrete action has been proposed.
Summary of recommendations
- All relevant legislation – in particular the criminal law provisions – should be revised for their compliance with international human rights standards applicable to ‘hate speech’.
- The provisions on incitement to hatred should be reviewed with a view to making them more effective and usable.
- The advocacy of discriminatory hatred that constitutes incitement to hostility, discrimination, or violence should be prohibited in line with Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights (ICCPR), establishing a high threshold for limitations on free expression as set out in the Rabat Plan of Action, as well as prohibitions on direct and public incitement to genocide and incitement to crimes against humanity.
- The protective scope of any measures to address ‘hate speech’ should encompass all protected characteristics recognised under international human rights law. In particular, the list of protected characteristics should be revised in light of the right to non-discrimination as provided under Article 2(1) and Article 26 of the ICCPR.
- The UK Government should develop a comprehensive plan for the implementation of the Rabat Plan of Action. In particular, it should adopt and implement a comprehensive plan for training law enforcement authorities, the judiciary, and those involved in the administration of justice on issues concerning the prohibition of incitement to hatred and ‘hate speech.’ A multi-stakeholder strategy to counter ‘hate speech’ in all its forms and in line with international human rights obligations should be discussed and adopted in partnership by all relevant stakeholders, including state institutions, civil society organisations, broadcast and print media, as well as Internet platforms and operators.
- Civil law remedies should be strengthened and made fully accessible to provide stronger remedies for victims of ‘hate speech.’ The government should also remove practical obstacles to ensure that victims of ‘hate speech’ and discrimination can rely on civil law to seek protection of their rights. In particular, it should ensure that changes to the legal aid system do not undermine the right of access to courts and effective remedy for victims of ‘hate speech.’
- Ofcom, the UK’s communications regulator, should continue its constructive review of ‘hate speech’ in the broadcast media and continue to develop policy guidance for the media.
- Self-regulatory bodies for print media should increase their internal diversity and in particular ensure that their membership includes members from minorities and other groups subject to discrimination. They should also develop further guidelines on reporting on groups subject to discrimination, and streamline the complaint process to prevent individuals being discouraged from bringing claims. Effective measures should be taken to address violation of self-regulatory bodies’ codes of conduct. Self-regulatory bodies should also organise regular training courses and updates for professional and trainee journalists on the internationally binding human rights standards on ‘hate speech’ and freedom of expression, and on the relevant ethical codes of conduct.
- Public officials, including politicians, should acknowledge that they play a leading role in recognising and promptly speaking out against intolerance and discrimination, including instances of ‘hate speech’. This requires recognising and rejecting the conduct itself, as well as the prejudices of which it is symptomatic; expressing sympathy and support to the targeted individuals or groups; and framing such incidents as harmful to the whole of society. These interventions are particularly important when intercommunal tensions are high, or are susceptible to being escalated, and when political stakes are also high, such as in the run-up to elections.
- Media organisations and media outlets should recognise that they play an important role in combatting ‘hate speech’ and intolerance and prejudices in the media. They should intensify their efforts to provide adequate responses. They should ensure that they fully respect relevant ethical codes and ensure that ethical codes of conduct on ‘hate speech’ are effectively implemented and that effective measures are undertaken to address any violations. The ethical codes should be internalised by journalists and media outlets in order to ensure a full compliance with them.