Report No. 267
Tests for determining hate speech:
4.13 Three tests have been adopted by the courts while recognising whether a speech amounts to hate speech or not. Once it has been established that there has been an interference with freedom of expression, the courts resort to a three-fold analysis to determine the legitimacy of such interference:47
(a) Is the interference prescribed by law?
The law that allows limitation of article 10 of ECHR must be prescribed by the statute and must be precise so that the citizens can regulate their conduct in accordance with the law and foresee the consequences of the impermissible conduct.48
(b) Is the interference proportionate to the legitimate aim pursued?
It has been opined by the court in Handyside v. United Kingdom,49 that the restrictions imposed by the State under article 10(2) on freedom of expression must be 'proportionate to the legitimate aim pursued.'
(c) Is the interference necessary in a democratic society?
This test requires a careful examination of the fact to determine whether the freedom was limited in pursuance of a legitimate social need and in order to protect the principles and values underlying ECHR.50
4.14 In Handyside,51 the court remarked that every restriction on article 10 must be carefully scrutinised as every offensive speech is not illegitimate. This neutrality approach that puts all kinds of speech on the same platform is an extension of the liberal view of free speech.
4.15 However, in recent years, ECtHR has moved away from this strictly neutral approach. The interference with freedom of expression is not solely judged on the 'legitimate aim' test but also whether such interference was necessary in a democratic society. One of the criticisms of free speech doctrine is that in an unequal society free speech often conflicts with the commitment to non-discrimination. Affording protection to all kinds of speech, even offensive ones, many times vilifies the cause of equality. European Human Rights jurisprudence has been making an attempt to harmonise these two principles.
4.16 The 'European Commission against Racism and Intolerance' in its Recommendation No. 7 expressly stipulates that exercise of freedom of expression 'may be restricted with a view to combating racism.'52 Any such restrictions should be in conformity with the ECHR. The European Commission for Democracy Law constituted to review laws of European country remarked that every religious insult cannot be penalized until and unless it has an 'element of incitement to hatred as an essential component'.53 In recent years a shift from neutrality principle towards 'responsible speech' has been discernible in the ECtHR decisions. Though hate speech has not been defined by ECtHR, it has been undoubtedly established54 by the Court that such a speech is not protected under article 10.55
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