Hate Speech Revisited A Comparative and Historical Perspective on Hate Speech Law in the Netherlands and England & Wales

by van Noorloos, Marloes

• ISBN13: 9781780680323
• ISBN10: 1780680325
• Edition: 1st
• Format: Paperback
• Copyright: 2011-12-17
• Publisher: Intersentia

Summary

Criminal law on hate speech has become a hotly debated topic in the past decade. In the Netherlands and in England and Wales legislative changes and proposals abound, while cases such as the prosecution of MP Geert Wilders have received considerable attention. How to deal with hate speech in an increasingly pluralist society has become a pressing question. Moreover, with the attacks in New York, London and Madrid and the appearance of radical groups and individuals, such as Abu Hamza Al-Masri in England and the Hofstadgroep in the Netherlands, public debate has been dominated by the problems of terrorism and radicalisation. As a result, extreme speech - presumed to encourage radicalisation and terrorism - is a major issue.

Table of Contents

Introduction	p. 1
Introduction	p. 1
Research goals and research question	p. 2
Delineation	p. 4
Methodology	p. 5
Relevance	p. 6
Readers' guide	p. 7
Theoretical framework	p. 9
Introduction	p. 9
General theoretical framework	p. 9
Liberalism, neutrality, toleration	p. 9
Democracy and fundamental rights	p. 12
Conceptions of democracy and the role of fundamental rights	p. 12
Majority decision-making v. the interests of minorities	p. 12
Democracy v. fundamental rights	p. 14
The democratic paradox	p. 15
Terrorism, democracy and fundamental rights	p. 17
Extreme politics v. rational politics and public discourse	p. 20
Fundamental rights: liberty and equality	p. 22
Equality: vulnerable groups and identity politics	p. 24
Changing modes of discrimination	p. 26
Limitations to liberty	p. 28
Freedom of expression and the restriction of hate speech	p. 32
Freedom of expression: justifications	p. 33
The marketplace of ideas	p. 33
Democracy and free speech	p. 36
Free speech and autonomy of the individual	p. 37
Free speech, toleration and civic virtues	p. 38
Instrumental arguments against regulating expressions	p. 39
Justifications for restrictions of speech	p. 39
Harm to public order	p. 39
Subversive speech, public order, national security	p. 41
Public order and hatred between groups	p. 43
Civility and decency	p. 44
Negative imaging and discrimination	p. 45
The effects of hate speech bans on victims and defendants	p. 49
Equality	p. 50
Mental harm to individuals	p. 51
Offence	p. 53
Distinguishing truth from lie	p. 54
Conclusion	p. 55
The European Convention on Human Rights	p. 57
Introduction	p. 57
Article 10 ECHR: general framework	p. 57
Theoretical rationales for freedom of speech under the ECHR	p. 59
The argument from democracy	p. 60
The argument from individual autonomy	p. 61
A special role for freedom of speech?	p. 63
Hate speech	p. 63
Article 17 ECHR in hate speech cases	p. 65
Holocaust denial	p. 66
Article 17-immigration and integration	p. 70
Hate speech under article 10	p. 71
Towards positive obligations in hate speech cases?	p. 76
Conclusion	p. 77
Blasphemy and defamation of religion	p. 79
Restrictions of article 10: Otto-Preminger-Institot, Wingrove and I. A.	p. 79
Violations of article 10: Giniewski v. France, Tatlav v. Turkey	p. 84
Positive obligations in the field of article 9 v. article 10	p. 86
Conclusion	p. 87
Religiously motivated hate speech	p. 90
Anti-secular political parties: Refah Partisi and others v. Turkey	p. 90
Anti-secular speech	p. 94
Conclusion	p. 97
Extreme speech	p. 100
Zana, Yalçiner and Incal v. Turkey: political speech	p. 101
Sürek v. Turkey (1)	p. 102
Öztürk and other glorification cases	p. 104
Hogefeld v. Germany	p. 106
The media and terrorism	p. 107
Leroy v. France and Vajnai v. Hungary	p. 107
Article 15 ECHR: derogation in times of emergency	p. 110
Subversive political parties	p. 111
Conclusion	p. 115
Overall conclusion	p. 118
The European Union and the Council of Europe	p. 121
Introduction	p. 121
Hate speech	p. 121
CoE Committee of Ministers Recommendation (97)20 on "hate speech"	p. 121
Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems	p. 123
Blasphemy and religious hatred: Resolutions and Recommendations by the CoE Parliamentary Assembly	p. 125
EU: the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law	p. 128
Extreme speech: incitement to terrorism	p. 132
Council of Europe Convention on the Prevention of Terrorism	p. 132
EU: the Framework Decision amending Framework Decision 2002/475/JHA on Combating Terrorism	p. 135
Conclusion	p. 138
International law	p. 141
Introduction	p. 141
The Universal Declaration of Human Rights	p. 141
The International Covenant on Civil and Political Rights	p. 142
Article 19 ICCPR	p. 143
Defamation of religions in the UN	p. 147
Article 5 ICCPR	p. 150
Article 20 ICCPR	p. 151
Article 20(1): War propaganda	p. 152
Advocacy of hatred (article 20(2))	p. 153
The relationship between articles 19 and 20	p. 155
Individual petitions: Holocaust denial	p. 157
Individual petitions: extreme speech and terrorism	p. 160
UN Security Council Resolution 1624 (2005)	p. 162
The Convention on the Elimination of all forms of Racial Discrimination	p. 163
Article 4 CERD	p. 163
Scope of "racial discrimination"	p. 165
Background	p. 168
The "due regard" clause	p. 168
Positive obligations and prosecutorial discretion	p. 170
The 1948 Genocide Convention and the international crime of "incitement to genocide"	p. 174
Conclusion	p. 178
The Netherlands	p. 181
Introduction	p. 181
Developments in hate speech law and rationales after 2001	p. 181
Legislative proposals: "glorifying terrorism"	p. 18 5
Legislative proposals: genocide denial	p. 188
Legislative proposals: abolition of the law on blasphemy?	p. 189
Legislative proposals: abolishing articles 137c-d	p. 190
Developments in prosecution policy	p. 190
Socio-political background	p. 192
Hate speech and freedom of expression up to the 1940s	p. 195
The Constitution: freedom of expression	p. 195
New speech offences in the 1930s: group insult (article 137c)	p. 197
New speech offences in the 1930s: blasphemy (article 147)	p. 199
Freedom of expression and public debate around the 1930s	p. 200
Militant democracy in the 1930s	p. 202
After the war: the 1950s	p. 204
Militant democracy	p. 204
Public debate and minorities after the war	p. 206
The 1960s/70s	p. 207
Depillarisation and polarisation	p. 207
The debate about immigration	p. 208
Changes in the law: articles 137c/d	p. 210
Changing rationale	p. 211
The scope of article 137c	p. 211
Groups protected	p. 212
Effective use of articles 137c/d	p. 212
Interpretation by the courts	p. 213
Party proscriptions	p. 214
Militant democracy and the Constitution	p. 215
Freedom of expression	p. 215
Blasphemy	p. 217
The 1980s/1990s	p. 218
Changes in the law: articles 137c/d	p. 218
Rationale	p. 219
Non-discrimination and freedom of expression in the Constitution	p. 220
Proposal for a "freedom of expression clause"	p. 221
Effective use of hate speech bans	p. 221
Interpretation by the courts	p. 223
Political discourse about immigration and multiculturalism in the 1980s/1990s	p. 223
Columns and satire	p. 224
Indirect insult; harm v. offence	p. 225
Political parties & militant democracy	p. 225
The debate on immigration	p. 228
After 2001 - revisited	p. 229
Interpretation by the courts	p. 229
Article 10 ECHR	p. 230
Religious motivation & contextual interpretation	p. 231
Case law on the debate about immigration	p. 233
Indirect insult and indirect incitement on the grounds of religion	p. 235
Article 137d: indirect incitement and speech-consequences	p. 236
The prosecution of Geert Wilders	p. 237
Radicalisation, extreme speech and hate speech: the Hofstadgroep	p. 244
Wider developments: public debate and political culture	p. 246
Conflicting visions on freedom of expression and hate speech	p. 247
The political system and "media logic"	p. 249
England and Wales	p. 253
Introduction	p. 253
Developments in hate speech law after 2001	p. 253
Stirring up religious hatred - part 3A Public Order Act 1986	p. 253
Civil liberties and human rights	p. 259
Prosecutions for stirring up racial and religious hatred after 2001	p. 260
Stirring up hatred on the grounds of sexual orientation	p. 262
Blasphemous libel	p. 265
Seditious libel	p. 268
Encouragement of terrorism: the Terrorism Act 2006	p. 269
Prosecutions for encouragement of terrorism	p. 272
Discussion on section 5 Public Order Act 1986	p. 273
Proposals for amendment of section 5 POA'86	p. 277
Hate speech since 9/11: wider background	p. 278
Historical/constitutional framework	p. 280
Freedom of expression and its restrictions before the Human Rights Act 1998	p. 280
Civil liberties and Parliamentary Sovereignty	p. 282
Restricting speech against the mainstream: seditious libel and blasphemous libel	p. 285
The 1930s-1950s: the Public Order Act 1936	p. 286
The 1960s-1970s: Race relations	p. 287
Race relations: politics and the media in the 1960s-1970s	p. 292
The 1980s: public order & national security	p. 295
The 1990s: the Human Rights Act 1998, changes in media landscape	p. 298
Racism, the media and society in the 1990s	p. 299
4 After 2001 revisited	p. 300
Synthesis	p. 303
Introduction	p. 303
The law on hate speech and extreme speech	p. 303
The courts and freedom of expression	p. 304
International influences	p. 306
European law	p. 307
Hate speech: race, religion and the boundaries of public debate	p. 309
Prosecution for hate speech	p. 311
Rationales	p. 312
Public order and negative imaging	p. 312
Social cohesion and common values	p. 314
Blasphemy and religious hatred: offence and legal moralism	p. 314
Protection of the majority and minorities	p. 316
The blurring of hate speech and extreme speech	p. 316
Hate speech bans and majority interests	p. 317
"Glorifying terrorism" and majority interests	p. 317
Religiously motivated speech	p. 318
Background: militant democracy	p. 319
Freedom of expression in political culture	p. 322
Shifts in public debate, politics and the media after 2001	p. 325
Freedom of expression as a "trump card"	p. 327
Afterword	p. 329
Samenvatting	p. 331
Bibliography	p. 341
Curriculum vitae	p. 367
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