How do we prevent hate speech? First, we don't spread it

The main goal behind hate speech is to dehumanize those to whom it is intended. On the Spletno Oko hotline page it also says that the aim of hate speech is to humiliate, scare and encourage violence. Foto: BoBo

Hate speech is based on the conviction that others are less worthy because, due to personal circumstances, they belong to a certain group. Those personal circumstances can be: nationality, race or ethnic origin, religious or other affiliation, sex, health condition, language, sexual orientation, disability, age, financial state, education, social status and others. Source: Spletno Oko

Words which have the intention to humiliate, dehumanize, take away dignity and put somebody in an inferior position, influence those towards whom they are intended. They influence their status in society, how they will live, how other people will treat them, and last but not least, how they will see themselves. Hate speech can be regarded as a social act, as it can brutally determine the social position of others. Foto: MMC RTV SLO

Considering the many different ways of understanding it, hate speech can also be expressed in many different ways. But all forms of expression are not necessarily punishable.

In its legal standpoint on the prosecution of the criminal offence known as “Public encouragement of hatred, violence and intolerance”, defined in Article 297 of the Criminal Code of the Republic of Slovenia, Slovenia's State Prosecutor's Office sees these acts as a social occurrence, which go beyond their own limits. It also adds: "Hate speech, the spreading of prejudice or discrimination, are unconstitutional according to the first paragraph in Article 63 of the Constitution of the Republic of Slovenia. However it is not necessary that every registered case of hate speech, prejudice or discrimination, fulfils the conditions for it to be punishable".

Hate speech cannot be punishable if doesn't harm or threaten the public peace and order. For it to be punishable there should be a probable cause and likelihood (the presence of abstract danger is not enough), that its expression would lead to the disruption of public peace and order. Apart from that, for hate speech to be punishable it must also have the characteristics of a speech which threatens to harm the subject of protection (public peace and order, or social groups). The prosecution office stresses that criminal prosecution should the last resort for eliminating such occurrences in society.

However for constitutional law expert, Andraž Teršek, the issue is clear: "Hate speech is a constitutionally legal concept and is legally punishable. In law theories and especially in the court practices of the U.S. Supreme Court and the Court in Strasbourg, there are enough clear definitions and descriptions of it. We can find the same in scientific law literature," is what Mr. Teršek told MMC.

"In Slovenia speech is often labeled as hate speech, when in fact it's not even close to being hate speech. What is hate speech? The definition is very clear in law literature, law theories and in the practices of some of the most respected courts. The problem occurs when those without proper knowledge on the issue start talking and writing about it. Problems also arise when judges, without the adequate knowledge and understanding of hate speech, decide on such matters. I checked the web portal of Slovenia's courts to find out how many times the courts cited existing literature on the freedom of expression when dealing with such cases. I found only three examples! That's a fact that says a lot," critically assessed Teršek, who is also an author of a number of articles and books dealing with the issue of understanding hate speech.

Teršek is convinced that insults are (very) often mistaken for hate speech, which he sees as something horrible. Teršek says: "In all the public cases of hate speech we've had in this country, I can't remember, not even one case, where there really was hate speech. We can't even talk about hate speech on web forums, because there have to be certain conditions for it to exist." He sees the reasons for not understanding the definition of hate speech in ignorance and a lack of study effort, taking into account all the available literature.

However we cannot deny the fact that in practice, the understanding of hate speech goes beyond its definition. "The problem is that those who publicly use the phrase, even in good faith, either haven’t studied the concept of hate speech, or don't understand the explanations and logics. So there is quite a lot of talk and writing on hate speech, a lot of simplified and unprofessional talk, and too little studies and competent debates on the issue," added Mr. Teršek.

Many registered cases, a little number of reports, even less court hearings
The Spletno Oko Hotline (works as part of the Safer Internet Center) focuses on registering and preventing hate speech on the Internet. We can see how many times hate speech has been registered in Slovenia by the number of reports the Spletno Oko (Web Eye) hotline receives every year. In 2012 there were 4.707 registered cases of hate speech online. Out of all those cases only 92 were forwarded to the police. The police treated 58 of those cases as violations of Article 297 of the Criminal Code of the Republic of Slovenia. 26 resulted in the filing of criminal complaints with the State Prosecutor's Office. The prosecutor's office otherwise concluded a total of 77 cases of violations of the above-mentioned article in 2012. According to the Statistics Office, 13 of the cases ended with convictions.

According to Lija Mihelič from Spletno Oko, a specially trained person goes through all the reports in order to "recognize" real cases of hate speech. That person has been trained in the frameworks of the police and state prosecution, and also takes part in education activities abroad. The main criteria for recognizing hate speech is the above-mentioned article from the Criminal Code.

Those reports which contain no elements of a criminal act according to Article 297 of the Criminal Code, are rejected. When the case is on the border line between being regarded as a criminal act or not, the hotline then notifies the editors of the web portal where the act took place. "When defining a criminal act of hate speech we rely on Article 297 of the Criminal Code and on the legal stance of the State Prosecutor's Office. Apart from the obvious signs of a hate speech - being accessible and intended for the wider public and aimed towards a particular protected group - we also look into the potential danger it has in disrupting public peace and order," explained Lija Mihelič to MMC.

Reports of hate speech also arrive at the address of the Human Rights Ombudsman. The office doesn't keep special records on all the reports that come in, however according to deputy ombudsman, Jernej Rovšek, as part of the Ethics of public statement language field of work, they dealt with 183 reports in 2013, 89 reports last year, and so far his year they have only received one report. The Ombudsman office otherwise doesn't decide on the existence of elements of hate speech in certain cases, but leaves the matter to the police or prosecution.

What am I allowed to say and how?
Do hate speech prevention activities collide with the right to freedom of speech? Lija Mihelič is convinced that they do not. "It is my opinion that preventing hate speech can never collide with the freedom of speech. Every opinion can be expressed in different ways, so why not choose a way which won't spread intolerance? I could never understand how some people regard the spreading of intolerance, towards those who look different and think different, as a right to freedom of speech. I really don't understand why someone would need an unlimited right for expressing hatred towards others," said Mihelič.

Deputy ombudsman Rovšek says that in each such case one should also weigh the freedom of expression with the other constitutional rights (a ban on inequality or discrimination, minority rights, personal rights etc.). "For every intrusion into the freedom of expression, which is one of the most important human and constitutional rights, there have to be really good reasons for it."

Preventing hate speech
Whether we consider its strictly legal (and criminally punishable) definition or see it as an insult, rude remark, or other similar inadequate and unacceptable form of hurting others, hate speech should not be tolerated. Even when it formally isn't hate speech. However, according to Mr. Rovšek, there is no clear recipe on how to limit or prevent such occurrences. "What is needed is a combination of more activities, especially focused on raising the awareness and promoting the issue. Initiating a criminal process against the perpetrators should be a last resort, only if we're unable to achieve our goal with 'softer' approaches," said Mr. Rovšek.

Lija Mihelič is convinced that "we are all" responsible for, and called on, limiting and preventing hate speech. The first thing we can do is "not spread it. Then, we should warn others when we notice them doing it. In cases of hate speech online we can also inform the administrator of the web page. Hate speech can also be reported to the police, to the Spletno Oko hotline, or to the Council for Responding to Hate Speech."