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Report No. 267

Manner of Regulation - Respecting dissent and non-majoritarian speech

5.10 Any attempt to regulate hate speech need not shrink the space for criticism and dissent, which are covered by the human right of a person to free speech and expression. As a consequence, not all hate speech can legitimately be made the subject of legal prohibition.109At the least, the elements of intent and incitement to violence must be included in any formulation of hate speech legislation. Incitement of violence and immediacy of the threat is also considered a relevant factor in determining whether such speech should be prohibited.110

5.11 Broadly, international human rights law requires that measures which limit or restrain the freedom of speech and expression may do so only where the 'three-part test'111 is satisfied. This standard requires that the measure by which a human right is being curtailed, must satisfy the following requirements:

  • The measure must by prescribed by law. This requirement is satisfied where the right is curtailed by means of a law passed through the appropriate procedures and through provisions worded in explicit and unambiguous language. [Prescription by law]
  • The measure must directly satisfy a legitimate aim. [Legitimate aims]
  • The measure must be necessary to achieve its stated aim and must be proportionate to the harm that it attempts to prevent or redress. The standard of proportionality in this context has also been understood to include a requirement for minimum impairment of the right being restricted, i.e., the restriction must not do any more damage to the right than is absolutely necessary to meet its aim. [Necessity and proportionality]

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