Tarlach McGonagle explains the Council of Europe’s approach to hate speech.
Tarlach McGonagle is a scholar of international human rights law based at the Institute of Information Law at the University of Amsterdam. He has written numerous reports for the Council of Europe. Cherian George interviewed him in Amsterdam on 28 June 2012.
Europe has a number of different mechanisms to deal with hate speech, ranging from legally binding treaties to more advisory statements and so on. What are the merits of this broad range of methods?
The diversity of mechanisms means that on the one hand you can achieve a certain amount of legal certainty through the binding instruments – but, if you take the European Court of Human Rights, for example, it’s bound to considering the facts of the cases that come before it, so it doesn’t have a policy making role as such; it cannot anticipate relevant developments; it is very limited in the creative legal solutions that it may recommend.
So, in order to fill that gap there can be an important complementary role for politically binding statements adopted by various bodies of the Council of Europe. The Committee of Ministers, for example, which is the executive organ of the Council of Europe, has pretty much a free hand in the priority issues it addresses in its standard-setting work. And if you look at other bodies such as the European Commission Against Racism and Intolerance, they have a very clear mandate, but within that mandate there’s an awful lot of scope for exploring a very broad range of issues that are relevant to hate speech. And that’s another advantage of the non-binding, standard-setting or monitoring work, namely that they can really prise open different aspects of the subject matter and explore it in a very minute and meticulous way.
Of course, the big criticism of these political standards or policy guidance documents is that they are not really enforceable from a legal point of view. They are very much contingent on the goodwill of the member states of the Council of Europe. So, they have a limited impact, but certainly when the goodwill is there on the part of states, they certainly provide some guidance or orientation in terms of how problems can be dealt with.
Council of Europe
Can you say a little more about how standard setting is meant to work?
The Council of Europe’s 47 member states send their representatives to Strasbourg to sit in the Committee of Ministers. They would typically be ambassadors. They would be liaising with their national authorities, and any issues coming up, they would be seeking instructions from headquarters back home, and then they reach decisions.
In terms of standard setting, if you look at freedom of expression or freedom of the media field, what you see is that for different political reasons, issues may arise. Hate speech is one, regulation of the internet in another, or media pluralism would be another. For different reasons, these may achieve a high level of prominence on national and European political agendas. So, there comes a collective feeling that something should be done about relevant issues, and then they seek to involve different bodies of the Council of Europe and where appropriate reach out to recognised experts in the field to provide advice or input.
And then through a variety of processes they would come up with policy documents, the purpose of which can be either to describe the lay of the land and the status quo, and what’s appropriate from a human rights point of view, from a democratic point of view, and from a rule of law point of view; or they could be examining emerging issues and suggesting possible approaches.
What kinds of advice have different bodies in Europe given to the media, in terms of handling hate speech?
The consistent line stems from two recommendations adopted by the Committee of Ministers in 1997, one on hate speech and one on the role of the media in promoting a culture of tolerance.
The project was initially conceived of as one text, but during the drafting process the experts involved very quickly realised that they were dealing with two different things. First of all, you had the goal of combatting hate speech. Insofar as hate speech overlaps with types of expression that are prohibited by law, there was an opportunity to insist on very clear standards for the media. If it’s prohibited by law, then the media, to put it bluntly, have no business promoting it or disseminating it directly. So there are prescriptive measures.
On the other hand, however, in light of the principle of journalistic and media independence and autonomy, it’s considerably more difficult to proscribe particular courses of action such as the promotion of tolerance or the promotion of intercultural dialogue and understanding. That concerns measures that should be undertaken voluntarily by the media.
That’s why there were two recommendations. And that’s the dual central reference point. Various other standard-setting bodies have taken their cue from the key message of those two texts.
There’s no clear consensus even among Western democracies, so some of what the Council of Europe is doing would probably be anathema to Americans who hold the First Amendment sacred – the very idea of politicians even gently advising the media what to do is sacrilegious.
Yes, two excellent examinations of what’s oftentimes called the Atlantic Ocean of difference that separates approaches in the US and Europe traditionally have been provided by the late Professor Kevin Boyle in a lecture that he gave a number of years ago, and Fred Schauer, a leading First Amendment scholar. One way of explaining it – and here I’m just borrowing from Professor Boyle – is that maybe it has something to do with the particular historical and cultural circumstances that have obtained in the US.
He described it as a tabula rasa society, whereas in Europe the weight of history – and certainly very recent history – had a much bigger influence on the way in which human rights were articulated and enshrined, but also on the cautionary note that runs through the European approach to human rights protection, namely the so-called prohibition of abuse of rights clause. That’s to prevent anybody with intentions or ambitions that go against the grain of human rights to prevent them from misusing or abusing the European Convention of Human Rights for their own purposes.
That’s the Article 17 provision?
Yes, exactly. So it’s a much more cautious and circumspect approach than the American approach. Although, you’ll see that in some scholarly analysis that, when you really get down to it, the differences are perhaps less pronounced in practice than what they may seem at first hand.
Critics of what is still basically a defence of free media in Europe would say that these advisories, ultimately being toothless, really don’t do enough to protect minorities from racial abuse and so on. Do you see any evidence that these standard setting statements have in fact been taken seriously the media?
There are two problems with these standards. The first one is awareness, and the second one is credibility or street-cred if you like.
First of all, a great number of standard setting instruments have been adopted but they haven’t achieved the necessary traction at the national level where it really matters, and that to a large extent is explainable by a lack of awareness. Journalists, even very good journalists, wouldn’t necessarily be aware of the existence of these documents, never mind their content.
The second is their street-cred. What I mean by that is that they have something of an image problem, in that they are perceived as being ineffective or irrelevant. That’s perhaps related to an extent to the lack of awareness about their actual content. So what can be done to overcome this? Well, you can maybe think of more concerted and more targeted awareness-raising campaigns by the Council of Europe, through its contacts with the member states…
And with professional bodies as well?
Professional bodies in particular, because this is crucial – to get them involved to create a sense of identification with and if possible ownership of these standards, so that they would be more likely to implement them in practice.
Something that is taking place increasingly, but again not to a hugely significant extent yet, is that the European Court of Human Rights in its case law increasingly refers to these standards where relevant. There is a particular section that has become pretty much standard in the Court’s judgments on Article 10 of the European Convention on Human Rights, and that is “relevant international law”.
That gives the Court the flexibility to refer to either non-binding standards or other treaties adopted by the Council of Europe, or indeed UN standards or other relevant materials. It doesn’t oblige them to implement the standards it names in any way, but it can be useful in terms of comprehensiveness or in terms of acknowledging what the broader international status quo is. You can give guidance without binding them to that guidance.
The more that the Court does that, the more that they create a kind of feedback loop which elevates the status of these standards in legal terms. So the Court has done this on a number of occasions for the 1997 recommendations, certainly for the one on hate speech.
Also, the Committee of Ministers adopted a declaration a few years ago, which acknowledged the complementary role of standard setting for the Court’s case law concerning Article 10 of the Convention.
One problem you’ve written about is the lack of a consistent definition of hate speech. Do you have an ideal definition in mind?
I suppose the problem that arises from the absence of an authoritative, widely accepted, legally binding definition is that we’re not too sure what we’re dealing with. Hate speech is a term that has great appeal in terms of political rhetoric, but it’s very much a shorthand expression that describes a great complexity and a great range of different types of noxious or objectionable and often illegal types of expression.
But, within that range there are very clear distinctions that can be made. At one end of the spectrum you may have negative stereotyping, which is morally objectionable but it wouldn’t trigger existing international legal standards or prohibitions.
At the other end of the spectrum, you can have incitement to hatred on various grounds – race or whatever – and that would typically be considered prohibited types of expression under existing European and international legal frameworks.
You are not going to come up with a one-size-fits-all remedy, because there is such great differentiation between the different types of expression involved. I would favour unpacking the notion.
So, abandoning the term “hate speech” and instead use more precise terms?
More precise terms, yes. Because the regulatory consequences are so serious that we need that differentiation.
You’re based in the Netherlands, where the iconic case is that of Wilders and his Fitnah video. On the one hand you have this extremely controversial incident, and on the other hand you have this large body of reasonable discourse about how to handle hate speech in its various forms. Do you see the public response to what happened in any way enlightened by the larger discourse at the European level? Do you see the Dutch media, for example, learning from this incident?
It is very difficult to gauge. One thing that is very relevant to the whole discussion – and it is just as relevant at the European level as it is at the national level – is this whole question of duties and responsibilities.
Article 10 of the European Convention on Human Rights says that the exercise of the right of the freedom of expression goes hand in hand with duties and responsibilities. That term, duties and responsibilities, has a central position in the most formal guarantee for freedom of expression at the European level. But it’s a term that hasn’t really been explored by the Court in a comprehensive or systematic way.
When we’re dealing with politicians or journalists, that notion of duties and responsibilities really comes into its own. Because besides the freedom that’s recognised for the benefit of those kinds of actors in a democratic society, there has to be a bit of clearsightedness as regards the duties and responsibilities that they would be expected to exercise.
I don’t mean that as a way of restricting their freedom necessarily, but just as responsible exercise of rights. The right and the freedom come first, but accompanied by the responsibility, and not the other way.
One would like to think that when an event like this happens, it is a learning moment; that societies will clarify in their own minds this balance between freedom and responsibility. Do you feel that that’s happening in the Netherlands?
One thing that these defining moments trigger in a more long-term or on-going way is that they ignite discussion in broader societal terms and they focus public attention on particular issues. And that’s one of the more ambitious and more long-term objectives of the Council of Europe’s approach to these questions.
You need a quick legal fix for the most egregious types of hate speech, in the here and now, they have to be prohibited. But if you’re talking about things like very negative stereotypes of groups, that’s an on-going process. There is no quick fix for that, except a kind of faith that you would place in the dynamics of intercultural, intergroup, interethnic engagement, interaction, discussion; and the hope that ultimately that would lead to a better level of understanding and tolerance in society.
It’s a hope, it’s a faith, it’s a belief, it’s an ambition – but what’s the alternative? I haven’t got the answer to that, so I think it’s worth the effort even though the results aren’t necessarily immediate or even tangible. It’s a firm commitment to and belief in a certain procedural approach to these deeper societal questions and I think that’s very much in line with the broader democratic objectives of organisations such as the Council of Europe.
Human Rights Convention
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.