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WRITTEN OBSERVATIONS ON DRAFT RECOMMENDATION

Freedom is the right to tell people
what they do not want to hear
. -- G. Orwell

Dear members of the Expert Committee and Council of Ministers,

The right to express one’s ideas and convictions is possibly the most fundamental and inalienable right of human participation in society. Any undue limitation of this right must be rejected as tyrannical and oppressive. In its essence the Draft Recommendation (the Recommendation, the Draft, the document, hereafter) seeks to achieve a chilling effect on free speech and even revoke this right in violation of the very Convention[1] whose values and provisions it seeks to uphold.

I write as a long-time human rights lawyer and observer of the trends in society regarding human rights and church-state relations. I am the founder of Freedom for All, a project operating in Bulgaria which has been involved in defending human rights for three decades through court cases, public speaking and events, and publications.

Here we will point out several general trends we see in the philosophy of the document. We also include a more detailed commentary.

We observe that the Recommendation, if followed as drafted, will facilitate the emergence of a tyrannical international and national regime/s that seek/s to impose unrelenting thought and speech control, and even emotional control, to the detriment of individual rights and fundamental human freedoms. The implementation of the Recommendation, as drafted, will most likely result in:

The Recommendation at issue must be fully abandoned as a failed attempt to exert the rule of law through social control and engineering done in drastic violation of individual rights and one of the most fundamental of all – for any free and just society – freedom of thought and speech. In general, the writing of more laws does not make for a better, fairer and more just and free society; legislating feelings, attitudes, thoughts, and expression, as suggested by the draft Recommendation, will only destroy any opportunity for a robust public discourse on issues of importance to society.

In addition, the peoples of the former communist countries are very weary of state directives dictated by one ideological center of thought under the threat of punishment. This Draft suggests nothing much different. The Council of Europe, or its member States, must not resort to divulging directives which will inevitably and drastically limit and largely eradicate one of the most fundamental rights that defines a free society and a democracy. Governments and States have no role in shaping their citizens’ worldviews and ideas. Just the opposite – they have a duty to protect the free flow of information, thoughts, and ideas, and such protections exhaust their role in a free and democratic society.

The Council of Europe was created to defend individual rights from state intrusion, not to fight human rights under the pretext of defending them (see preamble). The limitations on speech have been reasonably defined in art. 10(2) of the Convention and no further demotion of freedom of expression is necessary without threatening the very core philosophy of the ECHR and the purpose of CE.

Further Comments of the Criminalization of Speech

The following is not an exhaustive analysis and such is not necessary. Critiquing the principles in the preamble and a few examples from the rest of the document suffice to expose its anti-democratic nature.

The most concerning parts of the Draft Recommendation is that it seeks to punish as crimes not actions but speech and the dissemination of information.  Item “k” introduces the concept and points 12-17 of the Appendix of the document provide the specifics concerning criminal, administrative and civil prosecution of speech deemed to be “hate speech”. Item 12, found on page 7, criminalizes all speech related to any poignant public debate issue:

Member States should clearly specify in their national criminal law when hate speech is subject to criminal liability, such as incitement to hatred, violence or discrimination, denial, trivialisation, condoning and direct and public incitement to commit genocide, racist, xenophobic, sexist and LGBTI-phobic threats or, under the conditions set out in the Additional Protocol to the Cybercrime Convention, insults, denial of genocide, of crimes against humanity and dissemination of material that contains such expression.

Even if the holding of ideas depicted in the citation may be seen as morally reprehensible by some, the depiction of this broadly construed spectrum of thought, ideas, and expression which will be hunted down and prosecuted by the member States, assisted by the alleged “stakeholders”, and pretty much the whole of society, points to nothing less than draconian measures against freedom. There is no proportionality, legitimate purpose and acceptability in a democratic society which could be reasonably demonstrated by the Experts, in order to justify such a lust for mind control as demonstrated in the citation and the document as a whole. In addition, many European countries already have laws criminalizing behavior and some speech that may fall under the broad definition of “hate speech.”[2]

Comments on the Preamble and the Philosophy of the Draft

In general, the preamble has few recitations of the current protection of freedom of speech under Art. 10 of the European Convention for the Protection of Human Rights (ECHR). In contradiction to these recitals, the rest of the preamble is a forceful defense of a largely totalitarian approach to freedom of thought and speech.

Contending for Both Freedom of Speech and its Revocation (Rec. I; App. Item 17). Item “a” of the Preamble notes that human rights enshrined in the convention are indivisible, universal, and inter-dependent. Yet in item “c” the text reduces freedom of expression to a concept subject to severe limitations by redefining it. Adding the adjective “hate” to the right to free speech, the document turns one of the most fundamental human rights into a perceived threat to human rights. Speech is protected by the ECHR for that very reason for which it is being attacked in the document – it becomes a target to be stifled if it protects dissenting speech. The court case precedents of the European Court of Human Rights abound with examples along these lines.

Imposition of a Dominant Ideology by Coercion. Point “d” of the Preamble points to certain troubling aspects of social engineering trends in the document. It speaks of “understanding the root causes” and asserts that “countering hate speech is an important aspect of protection of human rights.” The document fallaciously asserts that somehow member States have the right to define ideas, thoughts and expression including by deciding which content of speech should be approved, tolerated, pushed forward and which not (see also Appendix point 8, page 6).

Lack of Definition. There is no clear, well-constructed, and dependable definition of “hate speech” yet it will be a criminal offense. In the draft hate speech is described as a “phenomenon” which has to be “combated” and also “tackled”. A definition is attempted no earlier than in items 3 and 12-17, of the Appendix of the Recommendation. The definition in 3 is broad and all-inclusive so no speech, respectively no “harmful” idea, seems to be left out of its scope (“all kinds of expression”). There is not even a need for the speech to result in violence to be criminalized, per this broad definition. “Incitement to violence” which should be criminalized, is not the same as “incitement to discrimination,” used in the definition and which is a broader and more fluid concept. It is also sufficient that an expressed opinion “justifies prejudice” in order to meet the broad criteria of a “hate speech crime.” One can imagine the intellectual sterility of a society where only allowed thoughts are being thought due to the impeding threat of being criminally prosecuted for an unapproved opinion.  

If we accept that “hate speech” is offensive, disturbing and shocking speech, it is then protected under ECtHR precedent (Handyside v. United Kingdom, 1976). If we accept that “hate speech” is some speech which is so drastically outrageous that that it is beyond offensive, disturbing, and shocking, and it has to be limited, then it could be limited under the rules of art. 10, sec. 2 of the ECHR. In such a case, each member state has already been given clear guidance under the ECHR as to how to tread this sensitive ground. A broad restriction on speech, as discussed here, will never be a legitimate purpose in a democratic society.[3] Yet the Draft clearly introduces a new category of speech which is still speech, but which must be limited beyond the exhaustively listed measures in Art. 10 (2) of the Convention, to the point of criminal prosecution.

The fluidity of the definition of “hate speech” is seen in item “j” of the Preamble. The call for unified terminology actually stems from the very fact that it is almost impossible to agree on the definition of “hate speech” as well as on how scrutiny should be applied without quickly descending into repealing the right to free expression. Maybe exactly because of the different understandings at “national and international levels” there should be no attempt to develop a common understanding of the concept. Developing such a “common understanding” is in fact an attempt to overcome an impossible hurdle in a strictly bureaucratic fashion. 

Violating human rights to protect human rights. In effect item “d” is targeting a fundamental human right (freedom of conscience and expression) in order to “protect” human rights. This targeting uses a rather militant language “combat” and later on “tackle” (j). This is a drastic departure of the principles of the Convention, which protects individual rights from undue State intrusion. Through the Draft Recommendation the State becomes an active actor in suppression of speech.

Freedom of religion and conscience will also be severely curtailed and trampled on. It is known that currently the protection of certain minorities allows for government attacks against men and women in their public expression of religious views, only because their religious views do not conform to the state-endorsed ideology (The case of Päivi Maria Räsänen of Finland, prosecuted for publicly sharing her biblical view of marriage is only one example). The tenets of many religions, and those of the Bible, will inevitably be seen and treated as contradicting a state-imposed “emerging morality” of same sex marriage and its introduction into the legal definitions of marriage in certain countries. Following the Recommendation any disapproval and disagreement with such policies, which are to be perceived as equality-driven, will result in persecution against Christians and other religious groups.

The very philosophy of the ECHR is to protect human rights from government interference. In a stark departure from this principle, the Draft seeks to reword, limit, and deny the exercise of a human right to the point where the governments of member States have to criminalize that fundamental right (see “h”). The idea presented in item “e” is that a right interferes with another right, therefore, the exercise of the former has to be limited.

Item “I” introduces privileges based on perceived victimhood. The mentioned “special protection” is in essence establishing privileges. The rights of certain minorities can be defended and protected efficiently under the current legal systems of member States with actions against libel, in tort law, and anti-discrimination administrative procedures. Prosecuting criminally speech on a large scale, even if it is hateful (as per whose perception and standards?), is a totalitarian approach to human rights. The rule of law requires equality under the law and such is not afforded here.

Spying and control over citizens in violation of their freedoms (Rec. iv). The Draft Recommendation requires “continuous and systematic monitoring” of “multiple threats” posed by perceived “hate” speech online and offline (Recommendation iv, p. 3 of the document). This is an open door for nothing less than establishing a police state which will be probing and possibly prosecuting people for holding the wrong view. The “right view” of course will be expounded by the State and the “stakeholders.”

State control over so-called Internet Intermediaries (Rec. iii; Ch. 3 of Appendix, Key Actors). The Internet has become the most essential publishing platform in the last decades. Controlling the internet, as suggested, will deprive members of the public of their right and ability to freely engage in exchange of information and public debate. As it currently stands, the Draft devotes significant attention to online “hate speech” and the responsibility of internet companies and Member States to deal with this “phenomenon.” There seems to be no substantive analysis of how freedom of expression is negatively impacted by the use of hate speech laws (freedom of expression as secured by Article 10 of the ECHR is only mentioned in a formulaic way in the draft report’s opening recitals). In fact, this push for member States to legislate and control Internet companies to ensure their full compliance with the so-called “hate speech” laws in fact turns the Internet companies into a policing extension of the State. Thus, the State thought police will effectuate private companies to become agents of such tyrannical policing of opinions and exchange of information.

States are prompted to “educate, raise awareness, and combat the dangers of “hate speech” (Ch. 4 of Appendix). In general, this approach is the State promoting a certain ideology. Even if such efforts on behalf of the state are construed as movement toward peace and harmony it does represent a totalitarian push toward state control and imposition of ideology through state power. Such developments are detrimental to a free and democratic society.

Politicized and Unnecessary. To introduce crimes based on how one feels about someone else, or to promote a right “not to be offended” where such a right merely does not exist, is clearly intrusive, unjust, and untypical of any free society. Criminalizing speech with a broad sweep will deprive the individual from the needed protection of their views, convictions, and dignity. To attempt to qualify expression as “hateful” requires the use of subjective, and often politicized criteria, which further threatens the due administration of justice and intrudes into the consciences and souls of people. However, the Draft Recommendation go even further – it establishes a mandate to turn emotions into crimes (hate); judgements of events, trends and people (trivialization), possibly including limiting scholarly research; even “insults” and the “denial of genocide” are crimes. Generally, the state (government) punishes actions, not thought: this is an essential principle in any free, just and democratic law-making legislature. Also, many member States already have existing national laws that criminalize to various extents speech that is deemed offensive and may fall into categories similar to “hate speech”.[4]

Legal Framework mentioned in Chapter 4, points 9-11. This is the most restrained appeal to the law and reason. Unfortunately, at the backdrop of the radical nature of the rest of the document these three points remain only wishful thinking.

In conclusion

The draft Recommendation may be well intentioned. It formally signifies the importance of freedom of expression under the Convention, but it is so imbalanced that in the end, the Draft Recommendation will have a chilling effect on one of the most fundamental human rights the Convention enshrines – freedom of expression. Any implementation of the Recommendation as drafted will be detrimental to any free and democratic society and will lead to the establishment of tyranny. Therefore, the Recommendation should be withdrawn.

Respectfully submitted,
Viktor Kostov

 

[1] The Convention for the Protection of Human Rights and Fundamental Freedoms. Also referred to as the European Convention on Human Rights, and ECHR.

[2] See a list of countries in note 4.

[3] However, it is noteworthy that in the case of Vejdeland and Others v. Sweden app. No. 1813/07 the European Court of Human rights stepped back from its generally consistent protection of freedom of expression and found that no violation of Art. 10 of ECHR was committed by the criminal conviction of Vejdeland under Swedish national law. The court held that “insulting, holding up to ridicule or slandering certain groups of the population” could be considered “attacks on persons” thus equating speech with incitement to violence. This means that the prevailing ideology backed by political power will decide what speech is protected and what is to be criminalized. Thus humor, satire, critique, research, opinion, etc. may become, if not criminal, then borderline “criminal” speech. The result will be self-censored, censorship by third parties in order not to face criminal charges and investigation and deterioration of public debate and stymieing of intellectual and spiritual achievements. The cited decision by the ECtHR contradicts its broader minded decisions as in Handyside v. UK.

[4] Such nations in Europe are Austria, Belgium, Bulgaria, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom.

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Note

The above text was submitted on Aug. 8, 2021. You can view the page of the counsultation at the Council of Europe web portal:

https://www.coe.int/en/web/committee-on-combatting-hate-speech/adi-msi-dis-working-documents