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Report No. 267

European Union and United Kingdom

4.9 European Court of Human Rights (hereinafter ECtHR) has contributed immensely in developing jurisprudence on hate speech. Article 1040 of the 'European Convention of Human Rights'41 (hereinafter ECHR) guarantees right to freedom of expression, subject to certain 'formalities, conditions, restrictions or penalties' stipulated in clause 2 of this article.42 Article 17 of the Convention prohibits abuse of rights by 'any State, group or person.'43

4.10 ECtHR while determining cases related to hate speech examines it on the touchstone of the Convention values. If the act in question negates the rights guaranteed under the Convention, it is declared impermissible pursuant to article 17 of the Convention.44 The Council of Europe's Committee of Ministers to Member States on Hate Speech has defined 'Hate Speech' as:

the term "hate speech" shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin. 45

4.11 According to the Council of Europe's Manual on Hate Speech, hate speech involves multiplicity of situations:

Firstly, incitement of racial hatred or in other words, hatred directed against persons or groups of persons on the grounds of belonging to a race; secondly, incitement to hatred on religious grounds, to which may be equated incitement to hatred on the basis of a distinction between believers and non-believers; and lastly, to use the wording of the Recommendation on "hate speech" of the Committee of Ministers of the Council of Europe, incitement to other forms of hatred based on intolerance "expressed by aggressive nationalism and ethnocentrism". 46

4.12 Pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the ECtHR in ascertaining the extent of free speech allowed under the Convention. Speech propagating religious intolerance, negationism, homophobia etc. has been excluded from the ambit of article 10 of ECHR and the importance of responsible speech in a multicultural society has been stressed by the court in several cases.

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