Svoboda projevu v kontextu hate speech

Mgr. Lucie Zapletalová

Master's thesis

Freedom of expression in hate speech context

Abstract:

Práce je zaměřena na svobodu projevu v mezinárodním právu v kontextu "hate speech". První část je zaměřena na zakotvení svobody projevu v různých mezinárodních smlouvách. Druhá část se zabývá interpretací a aplikací. Zdrojem poznání jsou rozsudky Evropského soudu pro lidská práva a také Mezinárodního trestního tribunálu pro Rwandu a případu "media case".

Abstract:

Freedom of expression is one of the basic human rights that gives us the possibility to express our ideas, opinions and share the information with other people. States have positive obligation to protect this right because if we want to live in democratic society then freedom of expression is a prerrogative for it. Democratic societies respect the pluralism of ideas and it can be a driving force for its developement and evolution. Everytime the society has a lack of freedom of expressions it tends to become totalitarian and starts to restrict other human rights. On the other hand this right is not absolute, it is a right which has certain boundaries - and behind them, there are rights of others. As Universal declaration of human rights says: " the exercise of rights and freedoms may be subject to such limitations as are determined by the law solely for the purpose of securing due recognition and respect of rights of others and of meeting the just requirements of morality, public order and general welfare in democratic society."1 This work is focused on freedom of expression in context of hate speech, which is the expression that meets the requirement that rights of others have to be protected. Hate speech incites or advocates racial or ethnic hatred, discrimination and finally it can lead to violence. Nevertheless hate speech isn´t an international crime, international conventions oblige the states to take measures against it in their domestic laws. International conventions on human rights are analyzed in first part - namely Universal declaration on human rights, International covenant on civil and political rights, International convention on elimination of all forms of discrimination and European convention on human rights. The first one is not binding for the states, it has an importance of being the first universal catalogue of basic human rights and being the starting point for binding international conventions. These were (and are) the Covenant and Convention which both contain the provisions on freedom of expression as well as hate speech. "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."2As we can see, it is a provision for the parties to legislate the laws that prohibit hate speech. Convention is even broader when it says that such expression (and also organizations that tend to be racial and promote discrimination) shall be declared an offence punishable by law. European convention has no provision dealing with hate speech but by interpretation of article 10 and also 17 we find out that this Convention permits to restrict certain types of expression. One of them is the case of hate speech - if a state fulfills conditions contained in article 10/2, then the speech can be restricted. These conditions are : the restriction has to (i) be prescribed by law, (ii) have the legitimate aim (eg. protection of rights of others, national security, for the prevention of disorder and crime.., (iii) finally it has to be necessary in democratic society. If all of them are fulfilled, then the restriction, formality or condition imposed is justified. In second part I deal with practical application and intepretation of the Covenant and European convention. It is the case law that is able to show us how these provisions work in practice. European court for human rights is a supervisor that controls how the states follow the Convention, also it interprets particular articles in its judgements. Case law informs us how the court ´s ruling is developping through an evolutive interpretation. Another important concept is the doctrine of margin of appreciation which provides to states certain boundaries in which they are allowed to decide whether it is necessary to restrict some expression. Europe is multicultural, 47 states are parties of the Conventions, political, social and cultural situation varies greatly from state to state. Interpr

Abstract:

etation of the Covenant is on the Commitee of human rights that also accepts the application from the citizens of the parties of the Covenant. The problem is that its judgements are not binding. The last chapter of this work is focused on the international crime of genocide. I dealt with the case of genocide in Rwanda, the "media case" concerning the role of media in genocide. I tried to explain the difference between "hate speech" and public and direct incitement to genocide. The International criminal tribunal for Rwanda didn´t interpret this correctly when it confused both of these expression, according to it hate speech should be also an international crime against humanity. This view is incorrect - public and direct incitement to genocide is internationally considered as a crime against humanity and punished by international tribunals. Public and direct incitement is a form of hate speech, this expression is a serious crime that every state has to punish. Task of this work was to find out if hate speech is universally restricted this conclusion was not proved. Although many conventions bind the states to restrict hate speech, it is not an international custom binding all states. But if we say that hate speech as a form of racial discrimination is prohibited by the custom denying racial discrimination. Public and direct incitement is a form of hate speech, this expression is a serious crime that every state has to punish. Hate speech isn´t included in the right of freedom of expression.

Keywords

Svoboda projevu v mezinárodním právu, "hate speech", mezinárodní úmluvy o lidských právech, Evropský soud pro lidská práva, přímé a veřejné podněcování ke genocidě, Mezinárodní trestní tribunál pro Rwandu

Language used: Czech

Date on which the thesis was submitted / produced: 22. 5. 2008

Thesis defence

• Date of defence: 10. 9. 2008
• Supervisor: Mgr. Kateřina Uhlířová, Ph.D.

Masaryk University

Faculty of Law

Master programme / field:
Law and Legal Science / Law