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Incitement to Hatred

In November 2020, BitChute came under European Union-wide regulation as a video-sharing platform (VSP). VSPs are a type of online video service allowing users to upload and share videos with the public. Part of the regulation requires us to moderate incitement to hatred in the United Kingdom and European Union and associated territories. To understand incitement to hatred and why people have different opinions about it, it's necessary to understand its history and the offence and harm principles that form how people understand free speech today.

I could begin in the 17th century with the publication of John Milton's Areopagitica. Instead, I will include a short video to explain.

The Harm and Offence Principles

Thanks to Callum of The Lotus Eaters for creating this video and allowing us to use it.

The International Covenant on Civil and Political Rights

The United Nation's Universal Declaration of Human Rights (UDHR) is a statement of guidance towards the observance of human rights, meaning it's not legally enforceable. In contrast, the International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations in 1966 as legally binding. The ICCPR now includes 173 parties, although some have included reservations. Notably, the United States made the reservation that none of the articles should restrict the right of free speech, and by that, they mean based on the harm principle in alignment with the First Amendment of the United States Constitution. Articles 19 and 20 of the ICCPR include caveats to freedom of expression based on the offence principle. Article 20 says, 

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

The European Convention on Human Rights

The European Convention on Human Rights (ECHR) is a European convention to protect human rights in Europe. It came into force in 1953 under the Council of Europe. Its Articles 10 and 14 also include words that may limit freedom of expression. Article 14 reads: 

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

European Union Directive 89/552

The term “incitement to hatred” appeared in European Union Directive 89/552 which was a precursor to the Audio Media Services Directive (AVMSD), and was considered by the European Court of Justice in the case of Mesopotamia Broadcast A/S METV v Germany C-244/10 and C-245/10. The Court commented that incitement to hatred must be understood by considering the usual meaning in everyday language of the terms used, while also taking into account the context in which they occur and the purposes of the rules of which they are part. It commented that “inciting” is to be interpreted as requiring “an action intended to direct specific behaviour”. “Hatred” is “a feeling of animosity or rejection with regard to a group of persons”.

The Rabat Plan of Action

In 2012 the Office of the United Nations High Commissioner for Human Rights (OHCHR) convened in Rabat, Morocco, and adopted the Rabat Plan of Action. The plan of action's goal is to prevent incitement to discrimination, hostility, and violence, as outlined in article 20 of the ICCPR. The plan of action is not legally binding. Still, it does offer guidance on how regulations could be written, including protections for freedom of expression based on context, intent, extent, and likelihood to cause harm.

United States Supreme Court Update (2017)

Meanwhile in the United States in a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the United States government may not discriminate against speech on the basis of the speaker's viewpoint. This reaffirms that the United States remains committed to the harm principle.

Audio Media Services Directive (AVMSD)

In 2018 the European Union adopted the AVMSD. AVMSD governs European Union-wide coordination of national legislation on all audiovisual media; despite the United Kingdom leaving the European Union at the end of 2020 this also includes the United Kingdom as it had been adopted in time to do so. AVMSD says that the authorities in every European Union country must ensure that audiovisual media services do not contain any incitement to hatred based on race, sex, religion, or nationality. As with all European Union directives, it's up to each member state to interpret the AVMSD for themselves.

In the United Kingdom, AVMSD is regulated by Ofcom and this came into effect on the 1st of November 2020 via the Audio-Visual Media Services Regulations 2020, with the incitement to hatred definition being applied via modifications to the Communications Act. The specific part on incitement to hatred reads: 

violence or hatred against a group of persons or a member of a group of persons based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union.

European Court of Human Rights Case Law

Understanding how the relevant law in the European Union is applied is a matter of understanding case law. This is not an exhaustive list of important cases, but it should give you some idea of what a VSP needs to consider in applying its rules.

Norwood v UK (2004)

The applicant displayed in the window of his first-floor flat a large poster depicting the Twin Towers in flame, with the words "Islam out of Britain, Protect the British People." The applicant was charged with an aggravated offense under section 5 of the Public Order Act 1986 of displaying a message with hostility towards a racial or religious group. After exhausting appeals in the United Kingdom legal system, the applicant appealed to the European Court of Human Rights (“ECtHR”), claiming a violation of Article 10 European Convention on Human Rights. The European Court of Human Rights held that a clear and vehement attack on a particular group would suffice to constitute a violation of Article 17 of the European Convention on Human Rights. The general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated by the Convention. The ECtHR, found in particular that the freedom of expression guaranteed under Article 10 of the Convention may not be invoked in a sense contrary to Article 17. 

Pavel Ivanov v Russia (2007)

The European Court of Human Rights determined that an individual’s anti-Semitic journalistic publications may not benefit from the protection of the right to freedom of expression under Article 10 of the European Convention on Human Rights. A Russian national, Pavel Petrovich Ivanov, called for the exclusion of Jews from social life and protrayed the Jewish ethinic group as the source of all evils in his newspaper Russkoye Veche.

Vejdeland and Others v. Sweden (2012)

The European Court of Human Rights affirmed the decision of the Supreme Court of Sweden, finding that a conviction of the applicants for the distribution of leaflets which disseminated homophobic propaganda was not a violation of Article 10 of the European Convention on Human Rights, which protects freedom of expression.

M’Bala M’Bala v France (2015)

French comedian Dieudonné M’Bala M’Bala hosted a show in which he invited an academic who had denied the existence of gas chambers in concentration camps. At the end of the show, M’Bala M’Bala gave a prize to Faurisson by an actor wearing a garment that resembled the clothing worn by Jewish deportees. The prize named for ” unfrequentability and insolence,” was a three-branched candlestick with an apple crowning each branch. In March 2009, the public prosecutor charged M’Bala M’Bala with committing public insult against persons of Jewish origin or faith. In October 2009, a court of first instant in Paris convicted the comedian of the charge and sentenced him to a fine of 10,000 euros. In April 2013, M’Bala M’Bala filed an application in the European Court of Human Rights, arguing, inter alia, that the judgment violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. The Court held that while satirical speech falls within the protection of the Convention, M’bala M’bala’s show did not merit the protection of Article 10 because it went beyond a performance for entertainment; its overall context amounted to a demonstration of hatred and anti-Semitism and support for Holocaust denial. Accordingly, the Court dismissed the application under Article 17 (prohibition of abuse of rights) of the Convention.

Lilliendahl v Iceland (2020)

Carl Johann Lilliendahl was convicted by Icelandic courts for publicly making "serious, severely hurtful and prejudicial" comments regarding sexual orientation and gender identity. On appeal the European Court of Human Rights found that the conviction and penalization of the applicant for homophobic comments posted underneath an online news article did not amount to a breach of his freedom of expression under Article 10 of the European Convention of Human Rights.

Legal Standards v Platform Rules

When it comes to judging incitement to hatred, it is quite right that the legal standard is a high barrier beyond a reasonable doubt. However, platforms also have legal obligations that require rules against incitement to hatred and that must encompass the legal requirements. It should be understood that platform rules are based on platform standards. Even though we may try to align ours with the legal requirements, we do not guarantee that is the case, and acts of moderation should never be assumed to be an accusation of guilt of any crime. Everyone is innocent until proven guilty by a legal system, never by a platform.

Online Harms Bill (2021)

The Online Harms Bill (of which a draft has been published called the Online Safety Bill) will encompass new online regulations. We'll update this as things become clear.


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