New European Commission Proposal on Hate speech: a Threat to Fundamental Freedoms?

On Friday 4^th of March, the Justice and Home Affairs Council will meet to discuss and vote on the European Commission’s proposal to include hate speech and hate crime onto the list of EU crimes of Article 83 of the Treaty on the Functioning of the European Union (TFEU). 

This might seem as a noble act on behalf of the Commission. However, in its current form, the proposal poses a threat to fundamental freedoms. The proposal neglects to define hate speech and hate crime in a clear-cut manner. This could have serious implications on the freedom of speech and freedom of religion. It also potentially harms society, and the Christian community in particular. We urge the Council members not to accept the initiative in its current form.

We will explore what the proposal is about, why the EC wants to add hate speech and hate crime to the EU crimes list; and why this proposal is not a good idea in its current form.

SETTING THE SCENE: WHAT IS PROPOSED?

As mentioned above, the aim of the proposal is to include hate speech and hate crimes in the list of EU crimes as laid down in article 83 of the TFEU. To this moment, the list consist of terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime. Article 83 does not only provide the abovementioned list of areas of crime. It also provides the Council and European Parliament to adopt other areas of crime with a cross-border dimension and to establish minimum rules concerning the definition of the criminal offences and sanctions. The proposal aims at just that.

Current EU law does not have a legal definition of hate speech. The proposal borrows its definition of hate speech from the 2008 Framework Decision on Combating Racism and Xenophobia: “the public incitement to violence or hatred directed against a group or a member of such a group sharing a protected characteristic.” It further characterizes hate speech by ‘bias motivation’ meaning that victims are selected by the perpetrator based on the (perceived) association or connection to a community or group with a shared protected characteristic, and hatred being an intrinsic feature.

Hate crimes are defined as any criminal offence, other than hate speech, committed with a bias motivation with hatred being an intrinsic feature.

EUROPEAN COMMISSION'S MOTIVATIONS: HATE IS HATE

The communication of the initiative starts with a quote of EC President Ursula von der Leyen from her State of the European Union address in September 2020: “Hate is hate – and no one should have to put up with it.” This indicates the matter’s importance to the Commission. The commissioners come up with several reasons why hate speech and hate crime should be identified as EU crimes.

First of all, the Commission considers hate speech and hate crime as an ‘area of crime’ compatible to article 83 of the TFEU given the special feature by with the both are characterized, namely, hatred targeting persons or groups (perceived as) sharing protected characteristics.

Secondly, hate speech and hate crime are particularly serious crimes because they undermine the Union’s common values and rights as enshrined in Article 2 and Article 6 of the Treaty on the European Union and in the Charter of Fundamental Rights of the European Union (the Charter). Hate speech and hate crime violate these values and rights and have harmful impacts on individuals, their communities and society itself.

Thirdly, according to the Commission, hate speech and hate crime have a cross-border dimension. The internet is cross-border and it is evident that hate speech is committed online. It spreads fast and is widely accessible to everybody at all times. Hate speech and hate crime ideologies can develop internationally and can be shared online rapidly. Cross-border network members can commit hate crimes in several countries. As cross-border crime is part of the provision of article 83 of the TFEU, hate crime and hate speech should be on the crime list, argues the EC.

Finally, the EC points out that there has been an increase hate crimes, particularly during the pandemic. Several member states have criminalized hate speech and hate crime but to a varying degree. Only the extension of the list of EU crimes can enable an effective and comprehensive criminal law approach at EU level, along with a consistent protection of the victims.

The initiative can also contribute to other EU policies as it is supportive or complementary to the EU anti-racism action plan 2020-2025, the strategy on combating antisemitism and fostering Jewish life in the EU, the LGBTIQ Equality Strategy 2020-2025, the upcoming Directive to combat and prevent violence against women and domestic violence, the strategy for the Rights of Persons with Disabilities 2021-2030, the strategy on victims’ rights 2020-2025 and the Victims’ Rights Directive.

CRITICISM: THREATS TO FUNDAMENTAL FREEDOMS

Critics of the European Commission’s initiative have raised several concerns on its content. Most of the criticism is on hate speech as it can have severe consequences on the freedom of speech.

Firstly, making hate speech an EU crime can have a negative impact on the freedom of speech of EU citizens. Freedom of expression is one of the – if not the most – important democratic freedoms and it is assured to EU citizens in the Charter and in the European Convention on Human Rights. Limiting free speech is contrary to these declarations. The European Court of Human Rights (ECtHR) has a long-standing interpretation of freedom of expression: not only inoffensive speech is protected but also speech which disturbs, shocks, provokes, hurts and displeases. Although, freedom of expression is not absolute, limits on speech should be exceptional and narrowly construed, well-defined and proportionate, safeguarding the free exchange of ideas and opinions. Hate speech laws are loosely worded and consequently highly subjective. Therefore, hate speech laws potentially harm the freedom of expression.

Secondly, the European Commission does not provide a sufficient definition of what it wants to criminalize. In their proposal, hate speech is characterized by bias motivation and hatred as intrinsic feature. However, these terms remain vague, largely undefined and deeply subjective. Who defines hatred if the law does not defines it properly? What does hatred mean if it is subjective? This causes a slippery slope: everyday normal speech can be labelled as hate speech and thereby a criminal offence.

UNESCO and the United Nations Strategy and Plan of Action on Hate Speech already pointed out that an universal definition of hate speech in unlikely to be found. What is hateful is disputed and controversial. National cultural and legal traditions are different; hate speech and hate crime are understood differently across the EU. Therefore, legal harmonization in this field is not to be expected.

Thirdly, criminalizing hate speech clashes with freedom of religion. EU member states differ significantly to what extend certain characteristics are protected or not. The European Commission might find itself in a difficult situation finding consensus on what category to protect, particularly categories of sex and sexuality. These are complicated categories for hate speech, since Christianity, Islam and Judaism – the three main religions in Europe – all have holy scriptures which might be considered hateful on topics as marriage, binary sex, gender self-identification, or sexual orientation by some people. Particularly for Christians, this is an dangerous issue. Recently, a Finnish politician was on trial for quoting the Bible. Legislation based on this proposal could mean these situations will occur more often.

Fourthly, the large majority of hate crimes relate to relative small offences with relatively little consequences. This should not be taken as a downplay of hate crime offences and the implications they can have on victims. However, in terms of objective harm, criminal intention, causation, prosecutorial evidence, and sentencing, they are on a different level compared to current EU crimes of terrorism, sexual and drug trafficking, and corruption. Consequently, hate speech and hate crime do not meet the requirements to be added to the list of EU crimes.

Additionally, if hate speech and hate crime were to be added to the list of Article 83, does this mean that people suspected of hate speech will have the same treatment as terrorists and human traffickers? Will every country have the possibility to prosecute them? The proposal of the European Commission lacks an explanation on these questions.

CONCLUSION

After consideration of the European Commission’s proposal to extend the list of EU crimes with hate speech and hate crime (article 83 TFEU) and taking into account the criticism this proposal meets, this proposal is not acceptable in its current form and the Justice and Home Affairs Council should block the initiative on their meeting on Friday, March 4^th.

Although the aim of the Commission is noble, and their intentions are probably sincere, the proposal insufficiently defines hate speech and hate crime. As recognized by the Charter, the European Convention on Human Rights and many – if not all – member states’ constitutions, the freedom of expression is a fundamental right, crucial for democracy and the spread of ideas and opinions, protected by law and, therefore, limitations should remain to a minimum. Freedom of religion is of major importance to individuals, groups and to our societies. Both fundamental freedoms cannot be guaranteed with the current proposal and thus threatened.

If speech is to be limited, its limitations should be narrowly construed, well-defined and proportionate. The current proposal does not meet these criteria as the definition of the two phenomena remains vague, subjective and undefined. Agreement on the current proposal could mean disproportionate impact on the fundamental freedoms of the European citizenry.

(This article was made with help of Koen Strijk and Lefteris Kaloterakis)