A New Threat to Online Speech?

Flemming Rose

There seems to be a growing consensus among legal experts and free speech activists that international human rights law (IHR) should provide the framework for social media’s content moderation. In a new essay titled “But Facebook’s Not a Country,” Dangerous Speech Project founder Susan Benesch joins this growing chorus.

What is IHR? It is a modern phenomena. The Universal Declaration of Human Rights (UDHR) is considered its foundational document. It was adopted by the UN General Assembly in 1948. It has provided the basis for a set of treaties, covenants and conventions signed by UN member states, though governments often exempt themselves from specific obligations. They are intended to promote human rights across borders and create a framework of rules, norms, and standards accepted in relations between sovereign states, free and unfree, democratic and authoritarian.

In our context, the relevant international treaties are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR), though I will focus mainly on the ICERD. Benesch acknowledges that the ICERD’s proscriptions “seem[s] considerably broader than the ICCPR’s hate speech provisions” because it requires “the prohibition of different, and likely much more, speech.”

Indeed, the ICERD’s Article 4 calls for the criminalization of “(D)issemination of ideas based on racial superiority or hatred, incitement to racial discrimination.) (…) including the financing thereof…” The section also requires the prohibition of “organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and (…) participation in such organizations or activities.” This ban would probably include the selling of Hitler’s Mein Kampf and a ban on organizations like the Nation of Islam or the Islamist Hizb‐​ut‐​Tahrir.

Benesch is not overly concerned about this threat to speech. She concludes that the ICCPR and the ICERD have been reconciled because the UN body charged with interpreting the ICERD “seems to have deferred to the ICCPR by accepting the principles of legality, proportionality, and necessity.” This three‐​prong test is embedded in Article 19 of the ICCPR that says that legitimate restrictions on speech need to be “provided by law and necessary.” Benesch posits that this three‐​prong test will doom most speech restrictions required by the ICERD.

Benesch doesn’t explain her reasons for claiming that the ICCPR and the ICERD have been reconciled, but the claim is probably based on General Recommendation No. 35 titled Combating Racist Hate Speech and adopted by the UN Committee on the Elimination of Racial Discrimination in September 2013. The Committee is charged with authoritative interpretations of the ICERD. It says that “the application of criminal sanctions should be governed by the principles of legality, proportionality, and necessity.”

However, the Committee in the same decision also recommends that states criminalize:

Dissemination of ideas based on racial or ethnic superiority or hatred; expressions of insults, ridicule or slander of persons or groups or justification of hatred or contempt when it clearly amounts to incitement to hatred or discrimination; participation in organizations and activities which promote and incite racial discrimination.

The Committee even recommends that “denials or attempts to justify crimes of genocide and crimes against humanity” if they constitute incitement to racial hatred, should be criminalized. At the same time, the Committee stresses that the expression of opinions about historical facts should not be prohibited.

The propositions stated by the Committee in its General recommendation No. 35 seem irreconcilable. On the one hand, they call for applying the test of legality, proportionality, and necessity in a way supporters of IHR would endorse as protecting free speech. On the other they call for speech criminalization that would often fail the three‐​prong test of legality, proportionality, and necessity.

UN case law sets out authoritative interpretations of the ICERD. That case law, contrary to Benesch’s claim, indicates that the principles of legality, proportionality, and necessity do not prevent the body charged with interpreting the ICERD from issuing decisions that go further than the hate speech provisions of most liberal democracies.

Take the case against German politician and author Thilo Sarrazin. In 2009, Sarrazin, a former Social Democratic finance senator for the city‐​state of Berlin, lashed out at Muslim immigrants in an interview with the magazine Lettre International.

Sarrazin said the majority were living off social benefits and did not contribute to the economy beyond the fruit and vegetables trade. He complained about high birth rates among Muslim immigrants and called for a general ban on immigration “except for highly qualified individuals.” Sarrazin’s interview was reported to the police, but the prosecutor refused to charge him for violation of the country’s law against ”hate speech.” The petitioner then complained to the U.N. Committee on the Elimination of Racial Discrimination.

In 2013 the committee reprimanded Germany for not effectively investigating Sarrazin. They concluded that Sarrazin’s statements “amounted to dissemination of ideas based upon racial superiority or hatred and contained elements of incitement to racial discrimination in accordance with article 4 (a), of the Convention.” By not punishing Sarrazin, the German state had violated international human rights law. In spite of the fact that Germany has the toughest laws against ”hate speech” in Western Europe, the committee called on Berlin to impose even stricter limits on speech in order to fulfill Germany’s obligations under article 4 of the Convention.

In this case, the principles of legality, proportionality, and necessity did not constrain an authoritative UN interpretation of the ICERD.

Of course, none of this means I endorse Thilo Sarrazin’s opinions, but that’s not the point. It is about defining the limits of legitimate public debate, especially on contested political issues like immigration. In a liberal democracy, speech should be free up to incitement to violence or to other criminal activity, i.e. the famous “emergency principle”. IHR justifies many more restrictions on speech.

Another example involves the Danish politician Pia Kjaersgaard who is a member of parliament and former leader of the Danish People’s Party. In 2003, in a letter to the editor of the newspaper Kristeligt Dagblad Kjaersgaard called on the government to ban female circumcision. She complained that the Danish‐​Somali Association had been consulted about the forthcoming law. She wrote: “To me this corresponds to asking the association of pedophiles whether they have any objections against child sex or asking rapists whether they have any objections to a tougher sentence for rape.” A petitioner reported Kjaersgaard to the police for having compared individuals of Somali origin to pedophiles and rapists. The Danish public prosecutor refused to press charges.

The petitioner complained to the U.N. Committee on the Elimination of Racial Discrimination. In 2006, the Committee concluded that Denmark had violated Article 4 of the ICERD by not prosecuting Kjaersgaard for hate speech. Once again, the three‐​prong test embedded in international human rights law didn’t protect speech that would be considered legal in democracies with hate speech laws.

If one adds the UN Human Rights Council’s Universal Periodic Reviews (UPR) of member states as authoritative interpreters of the ICERD, then it becomes clear that the support for further restrictions on hate speech is widespread within the UN‐​system.

The UPRs were introduced in 2006. They are conducted by a working group which consists of the 47 member states of the Council. Information for the reviews is provided by the states, human rights experts and groups, NGO’s, and the U.N. treaty bodies like the Committee on the Elimination of Racial Discrimination. The reviews assess the extent to which states respect their human rights obligations set out in the human rights treaties like the ICERD, and they contain recommendations for improvement. Usually, the UPRs express little or no concern with freedom of expression. Recommendations from the Committee on the Elimination of Racial Discrimination, for example, recently called for tougher and broader hate speech laws in Denmark and the U.K.

During Denmark’s Universal Periodic Review in 2016 the U.N. Committee on the Elimination of Racial Discrimination made specific recommendations to criminalize more speech. For example:

”The Committee on the Elimination of Racial Discrimination encouraged Denmark to amend its Criminal Code to bring it fully into line with the provisions of ICERD.” And the U.N. committee said, ”(i)t was concerned about the low number of court cases on hate crimes and the lack of an explicit prohibition in the Criminal Code of organizations that promoted racial discrimination.”

And the UPR for the United Kingdom of Britain and Northern Ireland (2017) recommends among other things, that the U.K. “incorporate the Convention on the Elimination of All Forms of Racism into the domestic law to ensure direct and full application of the principles and provisions of the Convention.” This is a call for broader controls on speech.

Benesch and other supporters of IHR point to the so‐​called Rabat Plan of Action as an insurance policy against overly broad interpretations of the hate speech provisions of IHR. The Rabat Plan of Action was adopted by the U.N. High Commissioner for Human Rights in 2013. Its goal is to draw the proper line between freedom of expression and illegal “hate speech”. In order to narrow the scope of legitimate bans of ”hate speech”, the plan defines a six‐​part threshold test for forms of speech that are prohibited under criminal law. The test takes into consideration: the context of incitement to hatred, the speaker, intent, content, extent of the speech, and likelihood of causing harm. According to the plan, any limitations to freedom of speech “must remain within strictly defined parameters flowing from the international human rights instruments, in particular the International Covenant on Civil and Political Rights and the International Convention on the Elimination of Racial Discrimination.” The plan reiterates that restrictions need to be assessed by the test of legality, proportionality, and necessity laid down in Article 19 of the ICCPR.

I agree with Benesch and others that this is a welcome development, but I am less sure that the consequences are as positive for free speech as the supporters of IHR claim. The Sarrazin case described above supports my doubts. It was decided after the adoption of the Rabat Plan of Action. In any case, it won’t meet a First Amendment standard of emergency and viewpoint neutrality. For a proper evaluation of the three‐​prong test of legality, proportionality, and necessity it would be important to find out if the Committee on the Elimination of Racial Discrimination is ignoring the test in its decisions or applying it in a way that is different from the understanding of the proponents of IHR who favors free speech.

In spite of the progress made by the Rabat Plan of Action to define and narrow the concept of hate speech, we should not ignore the inherent instability, vagueness, and arbitrariness of the hate speech provisions of IHR. Having gained new ways of speaking on social media, we should think hard before adopting IHR as a limit on our newly won powers.