"The Obligation to Prohibit Incitement": Peter Molnar, Sejal Parmar at the OSCE Human Dimension Implementation Meeting

On Tuesday 24 September, Peter Molnar, a Research Fellow at the CMCS, and Sejal Parmar, Assistant Professor at the CEU Department of Legal Studies, convened a side event on the subject of incitement in international law at the 2013 OSCE Human Dimension Meeting in Warsaw. The side event was moderated by Andrey Rikhter, Director of the Office of the OSCE Special Representative on Freedom of the Media, and included presentations by Parmar, Molnar as well as by Alexander Verkhovsky, the director of the prominent Moscow-based Centre for Information and Analysis.

The event followed up on the public seminar the CMCS hosted on May 30, Would You Ban "Hate Speech"? Examining content-based restrictions and speech leading to imminent danger, which was convened by Peter Molnar and featured panels with John Shattuck, Rector and President of CEU; Dunja Mijatovic, OSCE Special Representative on Freedom of the Media; Molnar, Richter and Parmar, as well as other experts.

In her presentation, Parmar explored the legal and non-legal policy implications of the Rabat Plan of Action, which resulted from a series of workshops organized by the UN Office for the High Commissioner for Human Rights on the prohibition, in international law, of “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility and violence”. She showed that the Rabat Plan, which was adopted by experts in October 2012, envisages a holistic approach to the implementation of states’ international obligations, encompassing criminal, civil and administrative sanctions and anti-discrimination legislation, as well as policies and practices to promote mutual respect and understanding. She also explained the implications of the Rabat Plan’s six-part test, which establishes a high threshold for determining when speech should be criminalised as incitement. Parmar argued that because of the participatory nature of the process of the OHCHR workshops that led to its adoption, as well as its substantive content, the Rabat Plan of Action and its recommendations deserved to be taken seriously by states, the media, intergovernmental organisations and civil society.

Molnar argued that the six-part test of the Rabat Plan of Action focuses on the context of incitement to hatred, except the part about content. He welcomed this focus on context, and also argued that drawing the line between speech that cannot be banned by criminal law on the one hand, and incitement to hatred that must be criminalized on the other, is less up for abuse if the line being drawn is focused on the context rather than content of speech, the interpretation of which is very subjective. Molnar highlighted that this choice is presented in the title and chapters of the book he co-edited, The Content and Context of Hate Speech – Rethinking Regulation and Responses (eds. Herz-Molnar, Cambridge University Press 2012*), and that this broadly comparative volume can be helpful in understanding and implementing the Rabat Plan of Action as well.

Photo: Thomas O. Melia (U.S. Deputy Assistant Secretary of State), Peter Molnar, Andrey Rikhter, Dunja Mijatovic and Sejal Parmar at the OSCE's Human Dimension Meeting

Molnar expressed disagreement with the intent part of the six-part test, quoting something which Nadine Strossen, the former long-time president of the American Civil Liberties Union, said in an interview with him for the book: the threshold is “recklessness (…) more than negligence and less than specific intent” (p. 396.). Molnar stressed what he calls the paradox of content-based regulation of “hate speech”: the more a society is rife with prejudices and would seem to need such regulation, the less the chance that such subjective regulation is applied fairly, rather than being abused against the very minorities that are already discriminated against.

Alexander Verkhovsky discussed Russian legislation as an example of bad practice in legislating so-called “hate-speech”. The basis of that legislation is the law “On the Counteraction of Extremist Activities”. The word “extremism” is associated with serious danger, but the vague definition in the law encompasses a much broader range of speech. Verkhovsky argued that the gap between the natural meaning of the word and the way it is defined in the law is misleading for public debate, for law enforcement officials and for the interpretation of the legislation more generally. Moreover, the law has been enforced extremely inconsistently and selectively, to the extent that it has almost completely discredited the idea that, in certain limited circumstances, freedom of expression may be restricted. As a result, political groups have no way of understanding where the “red line” is that delineates protected speech and "hate speech”. Verkhovsky also discussed principles of proportionality of punishment for “hate speech”, very specific relevant Russian legal tools, the list of banned extremist materials and the lack of non-punitive responses.

Following the presentations, there was a lively discussion on the subject of freedom of expression and its limits, a topic which was a dominant issue in the first three days of the two-week OSCE conference.

* The book can now be ordered with a 20% discount promotion at the Cambridge University Press website