|Steering Committee (CDMSI)|
|Bureau of the Committee (CDMSI-BU)|
|Former Steering Committee (CDMC)|
Former Bureau of the Committee
|Committee of Experts on Protection of Journalism and Safety of Journalists (MSI-JO)|
|Committee of Experts on cross-border flow of Internet traffic and Internet freedom (MSI-INT)|
|Legal and Human Rights Capacity Building|
|FORMER GROUPS OF SPECIALISTS|
|Rights of Internet Users|
|Public Service Media Governance|
|Protection Neighbouring Rights of Broadcasting Organisations|
|Public service Media|
Conference Freedom of Expression and Democracy in the Digital Age -
Opportunities, Rights, Responsibilities, Belgrade, 7-8/11/2013
Conference "The Hate factor in political speech - Where do responsibilities lie?", Warsaw18-19 September 2013
|Conference of Ministers, Reykjavik - Iceland, 28-29 May 2009|
|European Dialogue on Internet Governance (EuroDIG)|
|Committee of Ministers texts|
|Parliamentary Assembly texts|
COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
RECOMMENDATION No. R (97) 20
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON "HATE SPEECH"
(Adopted by the Committee of Ministers on 30 October 1997,
at the 607th meeting of the Minister's Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve a greater unity between its members, particularly for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
Recalling the Declaration of the Heads of State and Government of the member states of the Council of Europe, adopted in Vienna on 9 October 1993;
Recalling that the Vienna Declaration highlighted grave concern about the present resurgence of racism, xenophobia and antisemitism and the development of a climate of intolerance, and contained an undertaking to combat all ideologies, policies and practices constituting an incitement to racial hatred, violence and discrimination, as well as any action or language likely to strengthen fears and tensions between groups from different racial, ethnic, national, religious or social backgrounds;
Reaffirming its profound attachment to freedom of expression and information as expressed in the Declaration on the Freedom of Expression and Information of 29 April 1982;
Condemning, in line with the Vienna Declaration and the Declaration on Media in a Democratic Society, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994), all forms of expression which incite to racial hatred, xenophobia, antisemitism and all forms of intolerance, since they undermine democratic security, cultural cohesion and pluralism;
Noting that such forms of expression may have a greater and more damaging impact when disseminated through the media;
Believing that the need to combat such forms of expression is even more urgent in situations of tension and in times of war and other forms of armed conflict;
Believing that it is necessary to lay down guidelines for the governments of the member states on how to address these forms of expression, while recognising that most media cannot be blamed for such forms of expression;
Bearing in mind Article 7, paragraph 1, of the European Convention on Transfrontier Television and the case-law of the organs of the European Convention on Human Rights under Articles 10 and 17 of the latter Convention;
Having regard to the United Nations Convention on the Elimination of All Forms of Racial Discrimination and Resolution (68) 30 of the Committee of Ministers on Measures to be taken against incitement to racial, national and religious hatred;
Noting that not all member states have signed and ratified this Convention and implemented it by means of national legislation;
Aware of the need to reconcile the fight against racism and intolerance with the need to protect freedom of expression so as to avoid the risk of undermining democracy on the grounds of defending it;
Aware also of the need to respect fully the editorial independence and autonomy of the media,
Recommends that the governments of member states:
1. take appropriate steps to combat hate speech on the basis of the principles laid down in this recommendation;
2. ensure that such steps form part of a comprehensive approach to the phenomenon, which also targets its social, economic, political, cultural and other root causes;
3. where they have not done so, sign, ratify and effectively implement in national law the United Nations Convention on the Elimination of All Forms of Racial Discrimination, in accordance with Resolution (68) 30 of the Committee of Ministers on Measures to be taken against incitement to racial, national and religious hatred;
4. review their domestic legislation and practice in order to ensure that they comply with the principles set out in the appendix to this recommendation.
Appendix to Recommendation No. R (97) 20
The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media.
For the purposes of the application of these principles, the term "hate speech" shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.
The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, antisemitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur.
The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.
To this end, governments of member states should examine ways and means to:
- stimulate and co-ordinate research on the effectiveness of existing legislation and legal practice;
- review the existing legal framework in order to ensure that it applies in an adequate manner to the various new media and communications services and networks;
- develop a co-ordinated prosecution policy based on national guidelines respecting the principles set out in this recommendation;
- add community service orders to the range of possible penal sanctions;
- enhance the possibilities to combat hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction;
- provide the public and media professionals with information on legal provisions which apply to hate speech.
The governments of the member states should ensure that in the legal framework referred to in Principle 2 interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of or interference with freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.
National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.
National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.
National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyse and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas.
To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech on the one hand and any responsibility of the media and media professionals contributing to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.
In furtherance of principle 6, national law and practice should take account of the fact that:
- reporting on racism, xenophobia, antisemitism or other forms of intolerance is fully protected by Article 10, paragraph 1, of the European Convention on Human Rights and may only be interfered with under the conditions set out in paragraph 2 of that provision;
- the standards applied by national authorities for assessing the necessity of restricting freedom of expression must be in conformity with the principles embodied in Article 10 as established in the case law of the Convention's organs, having regard, inter alia, to the manner, contents, context and purpose of the reporting;
- respect for journalistic freedoms also implies that it is not for the courts or the public authorities to impose their views on the media as to the types of reporting techniques to be adopted by journalists.
* * *
1. This recommendation, along with Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance, is one of the concrete results of the Council of Europe's intergovernmental work in the media sector in the years 1995-1996.
2. Tolerance and respect for the equal dignity of all human beings are the very basis of a democratic and pluralist society. This explains why the Council of Europe has always attached the greatest importance to safeguarding and realising these ideals and principles.
3. At the Summit of Heads of State and Government of the Council of Europe member States, held in Vienna from 8-9 October 1993, alarm was expressed over the resurgence of racism, xenophobia and antisemitism, the development of a climate of intolerance, the increase in acts of violence, notably against migrants and people of immigrant origin, and the development of new expressions of xenophobia in the form of aggressive nationalism and ethnocentrism. The Heads of State and Government expressed their conviction that these manifestations of intolerance threatened democratic societies and their fundamental values.
4. At the Vienna Summit, a Plan of Action on combating racism, xenophobia, antisemitism and intolerance was adopted. The Plan of Action set out a broad range of measures to mobilise the public and improve and effectively implement guarantees and policies aimed at combating these phenomena. One of the various sectors covered by the Plan of Action was the media sector. In paragraph 5 of the Plan, the media professions were requested "to report and comment on acts of racism and intolerance factually and responsibly, and to continue to develop professional codes of ethics which reflect these requirements".
5. The relevance of the media to the fight against racism and intolerance was also stressed in Parliamentary Assembly Recommendation 1277 (1995) on migrants, ethnic minorities and media. Paragraph 2 of this recommendation states: "Media presentation of subjects connected with immigrants and ethnic minorities has a significant impact on public opinion. Although the media constitute an important means of combating racist and xenophobic views, prejudices and preconceived ideas, they can also have a role in the emergence or strengthening of such views".
6. In a Message to Steering Committees and ad hoc Committees on the fight against racism, xenophobia, antisemitism and intolerance (January 1994), the Committee of Ministers invited these Committees to take account, when discharging their terms of reference, of paragraphs 4 and 5 of the Plan of Action and, accordingly, to step up or adjust their current activities in the areas mentioned or to propose new activities.
7. At the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994), the Ministers of the participating States condemned, in their Declaration on media in a democratic society, all forms of expression which incite to racial hatred, xenophobia, antisemitism and all forms of intolerance, since they undermined democratic security, cultural cohesion and pluralism. Furthermore, the Action Plan setting out strategies for the promotion of media in a democratic society which the Ministers addressed to the Committee of Ministers of the Council of Europe, requested the latter to "study, in close consultation with media professionals and regulatory authorities, possible guidelines which could assist media professionals in addressing intolerance in all its forms" (item 6 of the Action Plan).
8. Subsequently, the Steering Committee on the Mass Media (CDMM) instructed a Group of Specialists on media and intolerance (MM-S-IN) to examine, inter alia, the role which the media may play in propagating racism, xenophobia, antisemitism and intolerance, as well as the contribution they may make to combating these phenomena.
9. In analysing these issues, the MM-S-IN took into account existing provisions in international legal instruments (in particular the United Nations Convention on the Elimination of All Forms of Racial Discrimination and the European Convention on Human Rights and the case-law of the organs of the latter Convention) as well as in the legislation of the member States of the Council of Europe. As regards the latter, the MM-S-IN's work benefited greatly from a study prepared under the auspices of the European Commission against Racism and Intolerance (ECRI) by the Swiss Institute of Comparative Law (Legal measures to combat racism and intolerance in the member States of the Council of Europe, Strasbourg, 2 March 1995, document CRI (95) 2).
10. In addition, the MM-S-IN commissioned a comparative study on codes of ethics dealing with media and intolerance from the Department of Journalism and Mass Communication of the University of Tampere in Finland (document MM-S-IN (95) 21; also published as: Kolehmainen/Pietilšinen, Comparative Study on Codes of Ethics Dealing with Media and Intolerance, in: Kaarle Nordenstreng (ed.), Reports on Media Ethics in Europe, University of Tampere Series B 41, 1995).
11. In the course of its work, the MM-S-IN reached the conclusion that it would not be advisable to prepare legally binding instruments on the question of media and intolerance in addition to the current international legal framework (the most relevant components of which are referred to in the preamble to this recommendation). Given the special situation of the media and the crucial importance of media freedom and the principles of editorial independence and autonomy, it was considered both preferable and more effective to concentrate on non-binding legal instruments containing, for example, principles which the Committee of Ministers of the Council of Europe could recommend to governments of member States as a basis for their legislative and other measures or policies in this field.
12. Furthermore, the MM-S-IN felt that, in carrying out its work, it was crucial to distinguish between: (1) the role which the media may play in propagating racism, xenophobia, antisemitism and intolerance, and (2) the contribution which the media may make to combating these phenomena. This distinction was considered necessary since the scope and justification for imposing legally binding measures differ greatly for each of these two areas. As concerns the propagation of racism and intolerance there is, in principle, scope for imposing legally binding standards without violating freedom of expression and the principle of editorial independence. However, as concerns the promotion of a positive contribution by the media, great care needs to be taken so as not to interfere with these principles. This area calls for measures of encouragement rather than legal measures.
13. For this reason, the MM-S-IN and the CDMM decided to prepare two distinct recommendations: the present one on "hate speech" and another on the media and the promotion of a culture of tolerance (see Recommendation No. R (97) 21).
14. At different stages of the drafting of these recommendations, the MM-S-IN consulted various representative organisations in the media sector as well as interested non- governmental organisations so as to obtain their comments on the texts under preparation. These comments had a substantial bearing on the content of the two instruments.
15. The text of the present recommendation was transmitted to the Committee of Ministers which, at the 607th meeting of the Ministers' Deputies on 30 October 1997, adopted the recommendation and authorised publication of the explanatory memorandum.
Operative part of the recommendation
16. Paragraphs 1 and 2 reflect an awareness that, although steps should be taken to combat hate speech through legal measures (see paragraph 12 above), legal measures alone will not be sufficient to combat this evil having regard to the need for a global approach and to the limits which the freedom of expression and editorial independence place on state action. The ultimate goal of national measures against hate speech should be the eradication of racism and other forms of intolerance from society. This cannot be achieved by merely focusing on hate speech. In this respect, hate speech may be considered as only one type of manifestation of intolerance amongst others (for example, racially motivated crime, discriminatory practices, etc.). Furthermore, these are manifestations of a phenomenon (intolerance) which has deeper roots and is linked to a variety of social, economic, cultural, historical and other factors. This does not mean that measures against hate speech can be dispensed with, but it illustrates the need to integrate such measures into a more comprehensive policy approach which incorporates not only legal measures, but also policy measures - for example in the field of education and awareness-raising, culture, social policy, research, etc.
17. Paragraph 3 recommends that those governments of member States which have not yet done so, sign, ratify (or accede to) and implement effectively the United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD). In fact, a number of member States of the Council of Europe are not yet Party to this Convention.
18. The CERD contains several provisions which are directly relevant to racist speech and incitement to racial hatred. In particular, Article 4 inter alia obliges the States Parties to "declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof". This obligation is, however, qualified in that States Parties should have "due regard" to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the CERD. The fundamental right to freedom of expression is one of these rights, which is also recognised in Article 19 of the Universal Declaration.
19. The need to reconcile the fight against racism and intolerance with the need to protect other fundamental rights was also stressed in Resolution (68) 30 of the Committee of Ministers on measures to be taken against incitement to racial, national and religious hatred, to which reference is made in paragraph 3 of the recommendation. More explicitly, the European Court of Human Rights, in its judgment in the case of Jersild v. Denmark of 23 September 1994 (Series A vol. 298, paragraph 30), considered that the respondent's obligations under Article 10 of the European Convention on Human Rights (freedom of expression) must be interpreted, as far as possible, so as to be reconcilable with its obligations under the CERD.
Appendix to the recommendation
20. This section defines, for the purposes of this recommendation, the term "hate speech". It also makes clear that this recommendation applies to hate speech generally. However, a number of the principles which follow deal more particularly with hate speech disseminated through the media (cf. principles 1, 6 and 7). It should be stressed that the recommendation does not seek to create special legal obligations for the media.
21. The reason for putting a degree of emphasis on hate speech disseminated via the media as opposed to other types of expression is not that the media are particularly guilty on this point. In fact, as stated in the preamble, most media cannot be accused of disseminating such forms of expression although training initiatives for media professionals are useful so as to avoid involuntary expressions of intolerance. Rather, the principles dealing more particularly with expressions of hate speech through the media reflect the awareness that messages of hate, when transmitted through the media, may be amplified and engender greater harm given the impact of the media on public opinion, which is much greater than that of other, individual, forms of expression (cf. principle 1). In this respect, it can be said that local or smaller media with a low degree of professionalism more frequently transmit intolerant messages. The potential harm occasioned by messages of hate in the media is perhaps greatest in situations of tension or even (armed) conflict. This is why the preamble stresses the urgent need to combat these forms of expression in such situations. In addition, and equally importantly, the principles aim to protect media freedom, especially as far as reporting on racism and other forms of intolerance is concerned (cf. principles 6 and 7).
22. The notion of intolerance, in principle, covers a very wide range of attitudes and opinions relating to a wide range of grounds on which human beings may be distinguished or indeed discriminated against. However, it has to be borne in mind that this recommendation must be understood against the background of the aforementioned Vienna Declaration. The Declaration on combating racism, xenophobia, antisemitism and intolerance provides some useful pointers in this regard. These were taken up in the definition of hate speech contained in this section. It was considered necessary to avoid losing the focus of the text by covering all forms of intolerance (e.g. intolerance on grounds of sex, sexual orientation, age, handicap, etc.). It might also be noted that, as far as the media are concerned, intolerance specifically on grounds of sex has been addressed in Recommendation No. R (84) 17 on equality between women and men in the media, which was adopted by the Committee of Ministers on 25 September 1984.
23. Finally, the recommendation contains many safeguards aimed at protecting freedom of expression, which may create the impression that the main aim of this text is not to fight hate speech or to help eradicate racism and intolerance, but rather to promote freedom of expression. However, as is made clear in the preamble, both fighting racism and intolerance and protecting freedom of expression are essential in a democratic society and it would be unacceptable to give, in a general fashion, precedence to either one at the expense of the other. Furthermore, the argument that too draconian a protection against intolerant speech might not only be dangerous but also counterproductive, also carries weight. The recommendation aims at providing elements which can help strike a proper balance, both by the legislature and by the administrative authorities as well as the courts in the member States.
24. Principle 1 reflects the special responsibility of public authorities and institutions at all levels of the State to refrain from expressions in oral or written statements or otherwise, in particular to the media, which may legitimise, spread or promote racial hatred, xenophobia, antisemitism or other forms of discrimination or hatred based on intolerance. It is first and foremost the duty of the State itself to ensure that its organs and officials do not contribute to the spread of hatred. Articles 2, paragraph 1, and 4, paragraph c, of the CERD contain explicit legal obligations in this regard.
25. Although this principle may seem self-evident, there have been recent examples in European countries which, unfortunately, show that the dangers of violation of this principle remain.
26. The text is silent as to the nature of the sanctions which should be available and applied in cases of violation of this principle. Reference is made to Principles 2 and 5. In this particular case, disciplinary sanctions may be appropriate, either alone or in combination with other sanctions. As public officials are entitled to the full protection of their freedom of expression as guaranteed by Article 10 ECHR, any interferences with this freedom must be in conformity with the requirements set out in Article 10, paragraph 2, ECHR. Principles 2 to 5 give further guidance on the matter.
27. Principle 2 stresses the need, in fighting racism and intolerance in concrete cases, to reconcile freedom of expression with the respect for human dignity and the protection of the reputation or the rights of others. Article 10 ECHR provides the basic framework for this. The relevant case-law of the organs of the Convention shows that the question of whether, in a given case, a restriction on freedom of expression is "necessary in a democratic society" can only be answered with reference to all the concrete circumstances of the case in question. Although such determinations cannot be made in the abstract, it is incumbent on the national legislature to ensure that an appropriate legal framework exists which enables domestic courts and administrative authorities to assess, with due regard to all the circumstances of each case, the "necessity" of interfering with freedom of expression and the proportionality between the "formalities, conditions, restrictions or penalties" which are being considered or have been imposed on the one hand, and the legitimate aim pursued on the other. Principles 4 and 7 provide further guidance on the factors which should be taken into account when assessing the necessity of such interferences.
28. While national law should therefore leave sufficient room for balancing freedom of expression and the protection of other rights, it should not give unlimited discretion to authorities called upon to apply the law. This would run counter to the principle of legal certainty and, more specifically, the requirement laid down in Article 10, paragraph 2, ECHR that restrictions on the exercise of freedom of expression be "prescribed by law". This means, inter alia, that the restriction must have a basis in national law, that the law must be sufficiently accessible and be formulated in clear and precise terms ("foreseeability"). The commentary on Principle 4 provides additional information in this respect. These requirements take on a special significance where restrictions on freedom of expression by the media are concerned since the media should not be discouraged, for fear of criminal or other sanctions, from imparting information and opinions on issues of public concern. Possibilities for restricting freedom of expression which are couched in vague or broad terms may easily produce a chilling effect on media freedom.
29. These considerations are all the more important where criminal sanctions may be imposed in light of the nullum crimen, nulla poena sine lege principle as well as the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. These principles form part of the guarantee of Article 7 ECHR and it thus follows that an offence must be clearly defined in law (see for example European Court of Human Rights, S.W. v. United Kingdom judgment of 22 November 1995, Series A No. 335-B, paras. 34-36).
30. Principle 2 expressly mentions the respect for human dignity and the protection of the reputation or the rights of others as legitimate aims for restricting freedom of expression in the area of hate speech. This is in line with the above-mentioned Jersild judgment. The "rights of others" include the right to physical and psychological integrity of the individual. However, such restrictions may, in special cases, also pursue other aims which Article 10, paragraph 2, ECHR recognises as legitimate. The case-law of the European Commission on Human Rights shows that, depending on the facts of the case, the prevention of disorder or crime may also be of relevance.
31. Principle 2 also enumerates measures which are recommended for examination by governments of member States. Most of these are self-explanatory.
32. The measure indicated in the second indent is a response to recent examples in several member States which, unfortunately, have shown that hate messages may also be carried by the new media, services and networks. Any legislative response must be adequate, that is take due account of the various characteristics of such media, services and networks as well as the different ways in which they may be used by the public: the different types of access by the public (free access/subscription, encrypted/in clear, etc.); their use for private or public communications, etc. These questions are currently being considered by the Council of Europe in a perspective which is wider than that of the present recommendation.
33. The measure indicated in the 4th indent is inspired by the awareness that sentencing a person convicted of hate speech to a fine or a term of imprisonment may, in many cases, be ineffective in changing that person's views and ideas. The sanction of community service, which can be tailored to the specific nature of the crime (for instance, by carrying out work for or within the community insulted) may have an educational aspect which is more likely to change the sentenced person's attitude and perceptions by bringing about a better understanding of and respect for the group or groups concerned.
34. The measures indicated in the 5th indent are aimed at mobilising civil society and the victims of hate speech to help combat this phenomenon. These measures suggest a number of legal tools to enhance the possibilities available under civil law. As stated in paragraph 38 below, criminal law may not always be suited to deal with particular instances of hate speech, and civil law generally offers greater flexibility in this regard. Domestic law permitting, organisations representing the victims of hate speech should be entitled to undertake civil law actions.
35. Principle 3 stresses the role of the courts in providing effective and independent control over interferences by executive authorities with an individual's right to freedom of expression. This reflects the demands of the rule of law, which constitutes a fundamental principle of a democratic society (cf. European Court of Human Rights, Klass and Others v. Germany judgment of 6 September 1978, Series A vol. 28, paragraph 55, pp. 25-26). It also follows from the "prescribed by law" requirement and the necessity requirement of Article 10, paragraph 2, ECHR that national law must provide legal protection against arbitrary interferences and adequate safeguards against abuse. Especially where human dignity and fundamental rights such as freedom of expression are at stake, the courts form the appropriate forum, at least in the last resort, for taking decisions on the basis of a careful assessment of the various rights, values and interests.
36. Principle 4 reflects the case-law of the organs of the ECHR on Articles 10 and 17 of the Convention.
37. Principle 5 stresses that particular caution must be exercised by (criminal) prosecution authorities in dealing with hate speech cases. Practice in several European countries has shown that it may be very difficult to attain the level of proof required under criminal law. Rather than lowering this level, which could seriously limit the exercise of freedom of expression, it is suggested that these authorities give careful consideration to ascertaining whether sufficient evidence has been collected before a prosecution is ordered. This, of course, depends on whether or not the prosecuting authorities in the member States have a certain degree of discretion in this respect. It might be advisable to concentrate efforts on strong cases where prosecution is likely to result in a conviction. In the area of hate speech, there is a real danger that suspects present themselves to the public as "martyrs" or "victims" or, in the event of an acquittal, that they present the outcome of the case as a victory for their views. It is recommended that national guidelines be established which could serve as a basis for a co-ordinated prosecution policy in this field (see Principle 2, 3rd indent). Criminal sanctions in this sphere should strictly respect the principle of proportionality, not only as a general principle of law governing any imposition of sanctions, but also as a requirement flowing from Article 10, paragraph 2, ECHR. In particular, prison sentences for hate speech should remain the exception.
38. Principle 6, which is based on the Jersild judgment (paragraph 31), is generally self-explanatory. Where, for example, a person's statements amounting to hate speech are described or even quoted in reports or editorial comments in the media, the legal responsibility of the media professional is entirely different from that of the author of the statements. While the author must bear direct responsibility for the content of his statements regardless of their dissemination by the media, it would unduly hamper the role of the media if the mere fact that they assisted in the dissemination of the statements engaged their legal responsibility or that of the media professional concerned. There are additional requirements which must be met before such responsibility can be engaged without violating the right to freedom of expression. These requirements are set out in principle 7.
39. This does not mean that the media and media professionals should not exercise due care when reporting on hate speech or intolerance generally. There is a risk that their work might be interpreted by their audience as an expression of support for objectionable views. This, however, is a question of professionalism, in particular professional ethics, which should be addressed by media and media professionals themselves and not by public authorities. The observance of professional rules and principles by the media in itself is not a matter which member States should regulate since this would pose serious risks for freedom of expression and editorial independence and autonomy. The fact that certain provisions of national law which lawfully restrict freedom of expression may correspond to certain rules of conduct adopted by media professionals is another matter.
40. In this respect, reference may be made to the study mentioned in paragraph 10 above. According to this recent survey of codes of ethics adopted by media professionals in European countries, "the prohibition of discrimination on the basis of race or nationality is one of the most widespread features of professional codes of ethics". Of the 31 codes currently in force, 26 contain such a prohibition. In addition, the code of the International Federation of Journalists (adopted in 1954 and revised in 1986) states in Article 7 that "journalists shall be aware of the danger of discrimination being furthered by the media and shall do their utmost to avoid facilitating such discrimination based on, amongst other things, race, sex, sexual orientation, language, religion, political or other opinions, and national or social origins".
41. Of course, the above considerations concerning the distinct responsibility of the media vis-ŗ-vis hate speech as compared to that of the author of such expressions do not apply insofar as hate speech emanates directly from the media or media professionals themselves (that is, other than reporting or commenting on hate speech originating from others). In such cases, the media or media professional must be considered as the author of the hate message within the meaning of Principle 6. It could be argued that the same is true where the media professional unreservedly and actively supports statements amounting to hate speech made by another person, but it may not always be easy to establish this. Even more difficult are situations where the media professional's attitude may be open to criticism for not having disapproved of, or counterbalanced, expressis verbis the statements reported. Since there is a scale of different possible attitudes, it is considered preferable to examine these in the light of Principle 7 which sets out the main test for determining the liability of the media professional.
42. Principle 7 of the recommendation elaborates on Principle 6 by summing up key elements which national authorities, in particular the courts, should take into account when dealing with hate speech disseminated through the media. These elements are mainly based on the Jersild judgment (in particular paragraph 31).
43. The text in the first indent is a reminder that Article 17 ECHR should play no role as concerns the legal approach to journalistic reporting on racism and intolerance, including possible reports and quotations of remarks amounting to hate speech made by other persons (see the commentary to Principles 4 and 6).
44. The conditions set by Article 10, paragraph 2, ECHR for any interference with freedom of expression, as interpreted in the case-law of the organs of the Convention, can be summed up as follows.
Any such interference must:
a. be foreseen in the complete and exhaustive list of restrictions set out in Article 10, paragraph 2, ECHR which must be narrowly interpreted;
b. be laid down by law and formulated in clear and precise terms;
c. be necessary in a democratic society and respond to a pressing social need;
d. be proportional to the aim pursued.
45. According to the relevant case-law of the Court, the "necessity" of interfering with media freedom must be convincingly established.
46. The text in the second indent lists a number of factors which must be taken into account by national authorities, in particular the courts, when assessing whether interference with freedom of expression in this area is "necessary in a democratic society". These factors need not always be laid down expressly in written law, provided that they should be applied in concrete cases. The content of national legislation in this area should ensure that administrative authorities and the courts are able to apply standards which are in conformity with the principles embodied in Article 10 ECHR. In the case of media reporting on racism and intolerance, whether in the form of interviews or otherwise, a key factor in evaluating the "necessity" of an interference with freedom of expression is whether, considered as a whole, the media report had, from an objective point of view, the purpose of propagating racist or intolerant views and ideas. Among the relevant factors identified by the Court in the Jersild judgment, mention may be made of:
- the manner in which the media report was prepared;
- the contents of the report;
- the context of the report (for example the type of media or programme; the length of the report and the nature of the audience for which it was intended);
- the purpose of the report (for example informing the audience about a matter of public interest, such as the phenomenon or scale of intolerance, or, on the contrary, providing a platform for hate speech).
47. As to the purpose of the report, this should be assessed, as indicated above, essentially on an objective basis. Nonetheless, where there is no doubt that the subjective purpose of the media professional responsible for the report was not racist or intolerant, this will constitute a relevant factor.
48. The nature of the sanction which may be imposed is a further relevant factor for determining the proportionality of interferences with media freedom. In particular criminal law sanctions are generally likely to have deterrent effects and may thereby risk discouraging the media from discussing matters of public interest. The application of such sanctions must therefore be treated cautiously.
49. The text in the third indent stresses that freedom of journalistic expression also covers the form in which information or ideas are conveyed. Media professionals should be allowed to exercise discretion in this regard, not only as concerns the manner in which a report is presented, but also the assessment of its news or information value.