The frontier between freedom of speech and dignity of social groups in selected European criminal laws: Hate speech
Branislav Ristivojević · Zbornik radova Pravnog fakulteta Novi Sad · 2008
The European countries experience a general tendency toward increased number of criminal law limitations of the right of speech in favor of the protection of right to honor and dignity of social groups. The number of criminal acts that are considered to be hate speech has increased and they cover larger areas. There are several general characteristics of this procedure. Only the public hate speech is punishable. The hate speech that remains in the private sphere is not dangerous enough to threaten public order or constitutional order, which are the most often protected values in these criminal acts. European countries have different approach to the concept of publicity. Some of them have a more formal approach and find that public speech is enough while the others require that public speech was really able to upset the public; we consider this as a material approach to the concept of publicity. As far as the conduct of these criminal acts is concerned, there are two conducts that are predominant and closely linked. The first one is encouraging the hate. The others are assaults on honor and dignity in all the forms: insult, defamation, humiliation, disgrace etc. Although strictly speaking encouraging the hate can be differentiated from assault or defamation, they will most often appear together. Most often the hate will be expressed through assault or defamation. In other words the hate speech will be considered as propaganda from the perspective of form, and it will be considered as an attack to dignity from the material aspect. In smaller number of cases propaganda and assault can be separated, so the legislators who are clearly making a distinction between them and who are classifying them into two conducts are right. The most important characteristic of the hate speech is its passive subject. The social groups that are subject to the criminal act of hate speech are what differentiate hate speech from ordinary attacks on dignity and honor of individuals or people. The passive subject is deprived of personal identity, it is depersonalized. It does not have a personality, but collectively belongs to a certain group of people. The most significant problem comes from this most important characteristic of the hate speech: determination of the category of social groups that deserve protection. Majority of legislators make the list of social groups that deserve protection but by doing this they always omit certain groups, usually the weakest one. Such a social group is incapable to transform its social interest into the legal protection. An individual is irrelevant in these criminal acts as a passive subject. There is a problem in differentiating the hate speech from the ordinary assault or defamation. The problem is especially evident in case of assault or defamation of more than one person which was triggered by offender's hate. Each individual in this group is protected through the protection of the social group, and thus there is no need for protection of the individual. Through the criminal acts that correspond to the hate speech the states are protecting two values: peace and public order on one hand and constitutional order on the other hand. This clearly speaks about two levels in which the legislators are placing the danger from damaged relations between different religious groups, nations, race and other social groups. The countries of the South-Eastern Europe value more the interethnic harmony than the North-West of the continent. Certain disagreement between proclaimed significance of the value and its real protection is especially interesting. Austrian and British legislators protect public order through the hate speech, and they set forth more severe punishments than Serbian and Romanian ones, which are protecting the constitutional order. The right balance between the right to equality of certain social groups and freedom of speech can solve the problems of criminal law protection of the harmonious relations in the society and eliminate all the doubts related to the hate speech. It can be predicted, with certain level of certainty that the tendency toward increased number and scope of ban of the freedom of speech will increase in Europe. Attempts to introduce the prohibition of denying of Holocaust confirm this. The European countries enter here one rather unexplored and quite aloof area. It must be said that by multiplying the various limitations to the freedom of speech, the above mentioned balance is being broken, damaging one of the most important freedoms of people - freedom of speech.