CELE Director Agustina Del Campo's presentation at the UN Forum on Minority Issues, Nov. 19 & 20
Thursday, the 19th, 13th session of the UN Forum on Minority Issues. This year, the Forum brings together representatives of States, civil society, experts, and academics to discuss hate speech against minorities on social media. Our Director, Agustina Del Campo, was invited to join the panel on the regulatory and institutional framework to combat hate speech targeting minorities. Our panel was asked to address the complementarity between Articles 19 and 20 of the ICCPR, as well as other conventions against discrimination; legislative and institutional frameworks that may contribute to accountability and the fight against impunity; and possible solutions to the disturbing trend of rising hate speech, particularly against minorities, and especially on social media. I will attempt to follow this order in my presentation, highlighting a few key issues within each section that I find particularly relevant to this discussion. These are neither exclusive nor exhaustive.
Thursday, the 19th, 13th session of the UN Forum on Minority Issues. This year, the Forum brings together representatives of states, civil society, experts, and academics to discuss hate speech against minorities on social media. Our Director, Agustina Del Campo, was invited to join the panel on the regulatory and institutional framework to combat hate speech against minorities. Thank you, Madam President. Good afternoon, Your Excellencies, ladies and gentlemen. I would first like to thank the UN Special Rapporteur on Minority Issues and the Office of the High Commissioner for Human Rights for the invitation. I would also like to thank the representatives from governments, civil society, and academia who are participating in or following this timely forum on hate speech, social media, and minorities. Our panel was asked to address the complementarity between Articles 19 and 20 of the ICCPR, as well as other conventions against discrimination; legislative and institutional frameworks that may contribute to accountability and the fight against impunity; and possible solutions to the disturbing trend of rising hate speech, particularly against minorities, and especially on social media. I will attempt to follow this order in my presentation, highlighting a few key issues within each section that I find particularly relevant to this discussion. These are neither exclusive nor exhaustive. On the first point: The issue of hate speech and the current challenges facing the international legal framework in addressing this type of speech have been extensively addressed in recent literature. There is international consensus that Article 20 should be interpreted in conjunction with Article 19 and serve as a “lex specialis.” The prohibition of hate speech involving incitement is the only mandated prohibition on speech under the ICCPR, and this provision is also found in regional conventions such as the European and American Conventions on Human Rights. Even in the absence of incitement, discriminatory speech can also be regulated and prohibited—ideally not through criminal law but through civil and administrative law—as long as the restrictions meet the requirements set forth in Article 19 of the Covenant. Nevertheless, and despite existing efforts such as the Rabat Plan, the lack of a clear and unambiguous definition of hate speech constitutes one of the main challenges to the complementarity that should exist between Articles 19 and 20 of the ICCPR. As David Kaye highlighted in his 2019 report, current trends in the use and abuse of the term “hate speech” threaten the legality requirement set forth in Article 19, putting political speech, dissent, and minority speech at risk. There is a growing risk of watering down the concept beyond recognition—a risk that all stakeholders, particularly States, should be mindful of. These attempts undermine effective prohibition, prosecution, and accountability. Additionally, we should also be mindful of the relationship between intermediary liability law and international human rights law. Intermediary liability law, which establishes the level of liability that internet companies bear for content posted or shared by third parties, must reflect and acknowledge the existing complementarities among the various conventions mentioned, both in defining the speech for which companies will be liable and in establishing the duties of these companies with respect to such content. Certain state initiatives—such as those promoting the implementation of upload filters, the use of automated detection and removal of infringing content, or the continued pressure on companies to adopt content moderation standards that the state itself cannot implement—pose significant challenges to a sound interpretation of the legality of Article 19, necessity and proportionality tests, and may indirectly create new challenges for counter-speech, minority speech, and legitimate speech in general. Second: Legislative and Institutional Frameworks: International human rights bodies have proposed various mechanisms to address hate speech. There is agreement that criminal liability for hate speech must be an exception reserved for instances involving incitement. For other forms of discriminatory speech, civil or administrative measures may be appropriate. Additionally, the international community has consistently recommended education, awareness campaigns, counter-speech, and access to information as the least restrictive and most effective means of combating discrimination. Clear domestic legislative and institutional frameworks are essential to ensure accountability for hate speech, promote equality, and respect freedom of speech and expression. States not only have a duty to respect but also a duty to guarantee human rights to the people under their jurisdiction. Identifying the appropriate measures and means to combat discrimination and promote equality must be a democratic, public process that cannot and should not be delegated to third parties or privatized. Two trends in legislation addressing online hate speech are particularly worrisome globally:
Increasing legislative efforts to make companies the arbiters of hate speech—a trend that David Kaye had already identified and warned against.
A widespread belief rooted in a form of “technosolutionism” that suggests regulating social media can resolve all social issues related to online spaces. Further research and study are needed on the responsibilities that should be assigned to each stakeholder in this debate, particularly social media companies; 2) To do so, there is a need to clarify key terms and best practices regarding the regulation of intermediary liability; 3) Additionally, internet platforms’ transparency regarding their understanding, their practices, their analysis of this phenomenon, their rules, and the implementation of such rules is key to better understanding and addressing the specific characteristics of this type of hate speech. Finally, Potential Solutions: Online hate speech is a type of hate speech defined by how it is disseminated. Those who disseminate it have duties and responsibilities. However, particularly in light of some of the trends we have witnessed this year in different regions—as highlighted by various authorities this morning—much remains to be done to address discriminatory speech offline that could translate into and significantly impact online trends. I would like to focus on two points:
Hate speech and discriminatory speech by public officials—It is a well-established principle, supported by extensive case law, that government officials have special duties regarding their public speech. The Inter-American Court, in Perozo v. Venezuela, while analyzing Venezuela’s responsibility for the damages and violence inflicted on journalists from an opposition media conglomerate by private parties, held that government officials have heightened duties regarding their speech due to their credibility, their large audience, and the potential effects of their speech. It found the government internationally liable for failing to adequately align its speech with its duties and for failing to effectively condemn acts of violence against opposition media companies. Although there appears to be some consensus that these duties exist, such restrictions on discriminatory speech by public officials do not seem to have been incorporated into local legislation. After witnessing a year of heightened hate speech and discriminatory speech from government officials in various countries, this may be an interesting area for future work.
Distinguish and regulate, in accordance with the conditions set forth in Article 19, speech within specific contexts that lend themselves to regulation and are prone to sparking hate speech: political campaigning, electoral processes, and crisis management are particularly relevant to our topic. Some of these contexts are more heavily regulated than others, and legislation varies from one State to another. Still, more could be done to translate existing obligations into actionable measures: namely, the State’s obligation to produce and disseminate public information pertaining to minority groups, capable of informing the public and effectively countering discriminatory speech as it surges in certain contexts. Both approaches are firmly grounded in existing literature, including the Rabat Plan and international case law, and hold great potential for positive impact on a number of fronts, including accountability, publicly addressing impunity, and education. I look forward to questions, comments, and feedback from forum members. Thank you. Agustina Del Campo. Photo Credit: 13th session of the Forum on Minority Issues, UN http://webtv.un.org/live-now/watch/13th-session-of-forum-on-minority-issues/5708657554001