Report No. 267
An Overview of International Legal Regime on Hate Speech
4.6 The working of the free speech doctrine very often points to the failure of this freedom in addressing the discriminatory, hostile and offending attitudes of some individuals and some small strata of the society. It was this viewpoint that led to the prohibition of 'advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence'35 under article 20(2) of the International Covenant on Civil and Political Right, 1966 (hereinafter ICCPR)36.
Similarly, articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (hereinafter ICERD)37 prohibits 'dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin' and mandates the signatory states to provide effective remedies and protection against such actions.
4.7 The issue of hate speech has assumed greater significance in the era of internet, since the accessibility of internet allows offensive speeches to affect a larger audience in a short span of time. Recognising this issue, the Human Rights Council's 'Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression'38 on content regulation on internet, expressed that freedom of expression can be restricted on the following grounds39, namely:
- child pornography (to protect the rights of children),
- hate speech (to protect the rights of affected communities)
- defamation (to protect the rights and reputation of others against unwarranted attacks)
- direct and public incitement to commit genocide (to protect the rights of others)
- advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).
4.8 The analysis of hate speech in different countries suggests that despite not having a general definition, it has been recognised as an exception to free speech by international institutions and municipal courts.