European Commission against Racism and Intolerance (ECRI)

ECRI Expert Seminar on combating racism while respecting freedom of expression

16-17 November 2006
Strasbourg, Human Rights Building
Salle de la Direction

EXPLANATORY NOTE

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Introduction

In the framework of its country monitoring work and its work on general themes, ECRI regularly expresses its concern about the increasingly racist and inflammatory tone of public discourse. This atmosphere of hostility and rejection is fuelled by racist organisations and racist individuals, but also by some representatives of mainstream political parties and of the media, which is most alarming.

In response to this disturbing development, ECRI has elaborated a number of different possible policy responses, including legislative, self-regulatory and structural measures, which will be further explored at this seminar.

In this context, one of the major challenges ECRI has been confronted with is how to strike the right balance between the repression of racist discourse and freedom of expression, which is rightfully considered to be one of the main foundations of democratic societies.

There is no doubt that in today’s multicultural context, striking the right balance is becoming increasingly important, but at the same time more difficult. There is growing evidence that the hostile tone of public debate on issues such as immigration or the integration of minorities is fostering racism and xenophobia in society, thereby putting victims of racism and the social cohesion of our societies seriously at risk.

Recent world events have brought this issue to the forefront of public debate and although there seems to be a consensus on both national and European levels that racist expression in all its different forms, including hate speech, has to be combated, there is less agreement on how to go about it.

The aim of the seminar will therefore be to look at how to combat racism while respecting freedom of expression and which legal and policy measures, in line with existing human rights standards, are the most appropriate to achieve this aim.

Participants

The seminar will bring together governmental representatives (from specialised Council of Europe inter-governmental committees), parliamentarians, journalists and representatives of media self-regulatory bodies, researchers, specialised NGOs, minority representatives and ECRI’s inter-agency co-operation partners (EUMC, ODIHR/OSCE and relevant UN bodies).

All participants are invited to take an active part in the discussions by commenting on interventions and providing examples of legal and policy initiatives in their area of expertise and interest.

Programme and structure of the seminar

The seminar will take place over one and a half days. Beginning with the identification of the main challenges related to combating racism while respecting freedom of expression, the seminar will try to explore how racist discourse and other forms of racist expression operate and how they can foster and perpetuate ideologies of racism and racial discrimination. Thereafter, a closer examination of the international and national legal framework for combating racist expression in a selected number of Council of Europe member States should help to identify basic principles to be respected in legal proceedings when striking the balance between the right to be free from racism and freedom of expression. Finally, special emphasis will be put on exploring possible legal and policy responses for combating racism while respecting freedom of expression to be adopted by governments and other relevant actors in this field, including the implementation and monitoring of legislative measures against racist and discriminatory speech and expression, the empowerment of minorities, training and awareness-raising and self-regulatory measures.

The seminar will therefore be split into the following six sessions:

  • Session 1: Setting the frame
  • Session 2: The destructive power of racist and discriminatory speech and expression: exploring the extent and the context
  • Session 3: Defending freedom of expression and the right to be free from racism and racial discrimination: legal standards
  • Session 4 and 5: Combating racism while respecting freedom of expression: policy responses
  • Session 6: Towards a common strategy

Session 1: Setting the frame

Representatives of important stakeholders in this area will outline the main challenges in this field and how in their view the balance between the right to be free from racism and racial discrimination and freedom of expression can best be struck.

Questions:

  • From your (or your organisation’s) point of view, what are the main challenges in this field?
  • How do you strike the balance between freedom of expression and the right to be free from racism and racial discrimination in your daily work?
  • In your opinion, is your country or Europe as whole well equipped to deal with these challenges?

Session 2: The destructive power of racist and discriminatory speech and expression: exploring the extent and the context

Racist discourse: a powerful tool for fostering and perpetuating ideologies of racism and racial discrimination

Research shows that racist conduct or racial harassment occurs most commonly in the form of speech and writing. Other forms of racist conduct, such as physical attacks or damage to property, as well as cases of discrimination in education, employment or housing only represent the tip of the iceberg.

Besides the obvious personal psychological harm that victims of hate speech suffer, racist discourse can also be a very harmful instrument in fostering and perpetuating ideologies of racism and racial discrimination in society as a whole. This has been very convincingly demonstrated by scholars working in the field of Critical Discourse Analysis (CDA), which views language as a form of social practice that is central for the reproduction of systems of social domination and inequality such as racism. According to CDA, this is due to the fact that minority groups often do not have equal access to linguistic and social resources, which prevents them from fully taking part in the institutionally entrenched elite discourse in politics, media, education or research. Most importantly however, CDA also analyses the different types of discourse, including elite discourse and everyday speech and provides us with useful tools for detecting racist discourse therein.

Racist and discriminatory expression in specific contexts

Not all types of discourse are equally relevant in perpetuating racism. In particular, public discourse in fora such as politics, the media or the internet has a significant impact on the formation of many peoples’ beliefs.

Research has shown that racist discourse is a wide-spread phenomenon in the media, on the internet and in the political sphere. This discourse is sometimes openly racist, but often it only contains certain racist elements, which are much more difficult to detect and challenge.

Politicians, journalists and internet content providers operate in a very diverse and complex environment and in their daily work they are regularly confronted with difficult choices as to how to deal with sensitive issues related to ethnic, cultural and religious relations in society. In this context state and self regulation can be of some guidance, although they cannot substitute the individual judgement of each politician, journalist or internet content provider, as to how they convey their vision of society.

Questions:

  • How present and powerful is racist discourse in our societies?
  • Who are, in your opinion, the most influential actors in this field?
  • Are you confronted with the need to strike a balance between protecting freedom of expression and the risk of promoting racism and xenophobia in your daily work? If yes, how do you deal with such dilemmas?
  • Does the national and international legal framework in this field provide you with some guidance in this respect?
  • How useful do you consider self-regulatory measures (e.g. guidelines or codes of conduct) in this context?

Session 3: Defending freedom of expression and the right to be free from racism and racial discrimination: legal standards

The right to be free from racism and racial discrimination and freedom of expression constitute two of the most important cornerstones of international human rights protection. A number of important international and European human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) or the European Convention on Human Rights (ECHR), protect these two fundamental rights and provide valuable guidance concerning their actual content and scope of application, as well as their relationship with each other.

However, practice has shown that it is not always easy to establish clear rules for striking the right balance between these two human rights. The implementation of criminal provisions against racist expression has proved to be particularly controversial in this context.

International human rights instruments allow certain restrictions to freedom of expression in order to protect, among others, public order or the reputation or the rights of others. Council of Europe member States also maintain certain limits to this fundamental right for the same reasons. However, there is considerable uncertainty concerning where to draw the very fine line between punishable racist discourse or hate speech and permissible offensive expression, which according the European Court of Human Rights falls under the protection of Article 10 of the ECHR1.

Much of the controversy surrounding this issue is undoubtedly due to a lack of clear concepts in this field. The grounds which are covered by the notion of racism are not very clear and vary among Council of Europe member States. ECRI has consistently stressed that such grounds should include: race, colour, language, religion, nationality and national or ethnic origin.

In the light of current world events it is particularly noteworthy that the ground of religion is often not covered by national and international legal instruments for combating racism and racial discrimination. This is a fact that might be linked to another conceptual confusion as to what anti-racism standards actually do protect. Human rights standards in this field do not protect religion or religious beliefs as such, but individual believers, who must not be deprived of their rights on account of their religion. The question as to how to deal with blasphemy2 will therefore be treated separately from racist discourse or hate speech directed against individual members of a particular religious community in this seminar.

The variety of legal remedies which are available to victims of racist expression in the different member States of the Council of Europe also adds to the controversy around this issue. It should be recalled in this context that ECRI’s General Policy Recommendation N 7 covers the following acts when committed intentionally:

    1. Public incitement to violence, hatred or discrimination;
    2. Public insults and defamation or
    3. Threats

against a person or a grouping3 of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin

    4. Public expression, with a racist aim, of an ideology which claims the superiority of, or which depreciates or denigrates, such a grouping of persons
    5. Public denial, trivialisation, justification or condoning, with a racist aim, of crimes of genocide, crimes against humanity or war crimes
    6. Public dissemination or public distribution, or the production or storage aimed at public dissemination or public distribution, with a racist aim, of written, pictorial or other material.

It is certainly a positive development that nearly all national legal systems in Europe prohibit – to a more or less far-reaching extent – racist expression. At the same time it should be welcomed that restrictions to freedom of expression are in general limited to a strict minimum in order to prevent the potential misuse of hate speech standards at the same time.

As the law does not always strike the balance between these two rights, even in the abstract, it is up to the courts to find the right balance between the competing interests in each specific case. This gives the judiciary an extremely important role and makes it even more regrettable that in some Council of Europe member States, the prosecution authorities seem to be very reluctant to take up cases involving hate speech.

Finally, when looking at the elements and factors which are taken into account by independent human rights monitoring bodies and national courts for examining allegations of racist expression or hate speech, the concrete content and context of a hateful or disturbing statement regularly play a decisive role. Likewise proof of the racist intent takes a central place in a court’s deliberations in this field, as illustrated by the famous Jersild case4. Other important elements which are sometimes taken into account - in particular in cases of incitement to racial hatred – include the type of incited action (incitement to hatred, discrimination or violence), the causal link between a statement and the incited action and finally, the public nature, tone and style, as well as the truthfulness of the statement.

A thorough analysis of these different elements and factors should help to identify basic principles to be observed when weighing the right of freedom of expression against the right to be free from racism.

Questions:

  • Do you consider hate speech regulation to be an undue restriction of your freedom of speech or do you think that racist expression should be regulated by law?
  • In your opinion, does the international and European legislative framework for combating racist discourse provide useful guidance for balancing freedom of expression and the right to be free from racism and racial discrimination?
  • Are there specific provisions against racist expression in your domestic legislation?
  • If yes, what kind of conduct is prohibited?
  • Do they cover all of the acts outlined in ECRI’s General Policy Recommendation N 7?
  • How does your domestic legal framework deal with extremist racist groups?
  • How, in your opinion, can a non-discriminatory application of provisions against racist expression be ensured?
  • Does your domestic legislation distinguish between incitement to racial and religious hatred?
  • Do you think that it is important to have provisions prohibiting blasphemy in addition to provisions on incitement against religious hatred?
  • How do you think it can be ensured that the boundaries between incitement to racial hatred and blasphemy are not blurred?
  • From a conceptual point of view, do you think that it would be useful to distinguish between expression targeting ideas, including offensive expression, which is protected, and abusive expression which targets human beings, which may not be protected?
  • What do you think are the main obstacles to bringing cases against racist discourse before the courts?
  • In your opinion, are the authorities somewhat reluctant to prosecute hate speech or hate crimes in general in your country?
  • Is there any established jurisprudence concerning racist expression or hate speech in your country?
  • Which elements and factors are taken into account by your national courts for evaluating instances of alleged racist expression?
  • To which extent are the content and context of the statement taken into account in this respect?
  • Do the criminal provisions for combating racist expression in your country require intentional conduct?
  • Do the tone and style, as well as the truthfulness of the statement play a role in this context?
  • What is the personal scope of protection against racist expression (e.g. individuals, groups, or groupings of persons)?
  • Is it necessary for the statement to be followed by the incited act and for a causal relationship to be established between the two?

Session 4 and 5: Combating racism while respecting freedom of expression: policy responses

Legal provisions against racism and racial discrimination, including provisions against racist expression, play a central role in ECRI’s work, but they are only part of a broader strategy developed by ECRI for preventing racist expression and promoting tolerance. This strategy includes monitoring the implementation of provisions against racist expression and a number of self-regulatory and structural measures that it considers should be adopted by the different actors in society.

The recording and monitoring of racist expression

If a comprehensive legislative framework for combating racist expression is put in place, data on its implementation can provide very valuable information on the situation of victims of racism and racial discrimination in a given country. This kind of data can also be a good indicator of whether or not existing policies for combating racist expression are having a positive effect.
In the framework of its country-by-country monitoring, ECRI therefore consistently recommends that the following information be recorded: the number of complaints, details of any investigations carried out, prosecutions initiated and the outcomes of such complaints in terms of any decisions rendered and/or redress or compensation awarded.

However, this kind of information is only very unevenly collected in Council of Europe member States. As a recent report5 of the European Monitoring Centre on Racism and Xenophobia (EUMC) demonstrates, this lack of reliable data can have serious repercussions on the combat against racism and xenophobia as a whole.

Questions:

  • Is racist expression or hate speech monitored in your country?
  • If yes, what type of data on racist expression is collected in your country?
  • Which institutions are involved in monitoring racist expression?
  • Do you think that the monitoring system for racist expression provides an accurate picture of the situation in your country?
  • Is this data used to inform legal and policy decisions in this field?
  • What should be done, in your opinion, to improve data collection concerning racist expression?

Education and Training

By concentrating at this seminar on education and training measures in the media, ECRI recognises the media’s unique position in society. The way in which they create and disseminate common cultural references has an important influence on people’s attitudes. Media representations of the different groups in society, the way journalists portray relationships between these groups and the way in which they report incidents, may, in some cases, fuel stereotypes, prejudices and racist discourse rather than combating these phenomena.

This is due on the one hand to a lack of awareness of these issues among many journalists and on the other hand to the under-representation of minority groups in the mainstream media.

Questions:

  • In your opinion, are media professionals sufficiently aware of the sensitivities related to reporting on ethnic, cultural and religious relations in society?
  • What do you think should and should not be done in terms of media reporting on these sensitive issues?
  • Do you think that it would be important to make “reporting diversity” part of the obligatory curriculum of journalism studies?
  • How, in your opinion, can the representation of minorities in the main-stream media be improved?
  • What have been the main obstacles so far to increased minority representation in the media?

Self-regulation

Self-regulatory measures in the form of codes of conduct adopted, for example, by media professionals or political parties enjoy growing popularity. This is a very positive devolvement, which is also openly encouraged by ECRI.

Codes of conduct in the media can - in full respect of the editorial independence of the media - significantly contribute to preventing the negative stereotyping of minority groups and the sensationalising of conflict between different groups. As often underlined by ECRI, they can also put an end to the bad practice of highlighting the racial or ethnic background of persons accused or convicted of criminal offences where this factor is irrelevant.

Among codes of conduct in the political sphere, the Charter of European Political Parties for a Non-Racist Society, which has been signed since its adoption in 1997 by an important number of political parties from all over Europe is especially noteworthy. This document, which is actively promoted by ECRI, encourages a responsible attitude towards problems of racism, whether it concerns the actual organisation of parties, or their activities in the political arena.

There is no doubt that self-regulatory measures can be a valuable tool for combating racist expression or hate speech. However it still remains to be seen how they are implemented in practice and if as a result a change in the portrayal of certain minority groups in these fora can be observed.

Questions:

  • What is your personal experience with professional codes of conduct?
  • Who should be involved in the preparation of codes of conduct?
  • Are they usually respected by their adherents?
  • What kind of sanctions could/should be imposed for their violation?
  • Which role do self-regulatory bodies play in the implementation of codes of conduct?
  • In your opinion, have self-regulatory measures in the media or the political sphere proved to be successful?

Documentation


1 see, for example, Handyside v. United Kingdom, judgement of 7 December 1976, Application No. 5493/72.

2 The aim of blasphemy laws is not to guard against hatred, but to ensure respect for deeply held beliefs of religious adherents.

3 ECRI uses the wider term “grouping of persons” instead of “group of persons”. In this way, expressions aimed at larger groupings of persons, as for example “asylum seekers” or “foreigners in general” are also covered.

4 see Jersild v. Denmark, judgement of 23 September 1994 of the European Court of Human Rights, Application No. 15890/89.

5 EUMC, Report on ”Racist violence in 15 EU member States”, April 2005.