«Нate speech» – discrimination or restriction of freedom of speech? (Analytical intelligence)
Journal Title: Альманах права - Year 2018, Vol 9, Issue 9
Abstract
The article deals with the problems of defining the concept of «hate speech» and the problems of its application. It is noted that this term is quite new in legal discourse. Studying the criteria for recognizing this phenomenon, attention is drawn to the existing dilemma of its identification, which consists in the fact that some consider the legislative consolidation of «hate speech» as a violation of freedom of speech, and others – the protection of a person from manifestations of enmity and discrimination. In particular, attention is drawn to the content of the notion of discrimination. Given this, international and Ukrainian legislation and practice of «hate speech» are analyzed, and its distinctive criteria are also proposed. The purpose of the article is to analyze the concept of «hate speech» and determine the criteria for its application in the field of human rights (as protection against discrimination, and not violation of freedom of speech). In Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms states that everyone has the right to freedom of expression. In this case, there is the question of limiting the freedom of speech, which is associated with their offensive, humiliating dignity, character. As you know, there is no single definition of the term «language of hatred» in international law. However, a number of international legal instruments define certain criteria for recognizing «hate speech». The question arises where is the boundary between freedom of expression, the language of hostility, insult, slander, and the right to non-discrimination? In the aspect of freedom of speech, it is emphasized that even true, objective knowledge and reality in relation to another person must be construed in terms of its honor and dignity, to the extent that certain statements will not have the character of obvious insult and humiliation. Restrictions on freedom of expression are possible only if the statement does not just seem to be discriminatory, which may be a subjective opinion, but contributes to the restriction of the recognition, exercise or exercise of rights and freedoms. The data of human rights and freedoms should not be arbitrary or desirable, and regulated by the relevant normative and legal acts. In the process of studying national and international law and practice of its application, as well as legal doctrine, the author as a conclusion, sets out the following criteria for «hate speech»: the criterion of truth or slander; criterion of image or humiliation of the person’s dignity (as manifested in the form of gestures or utterances); a criterion for aggression, physical violence, or an obvious incentive for such action; safety criterion, protection of law and order, health, public morals, etc.; a criterion for limiting or impeding the use of rights and interests envisaged by law.
Authors and Affiliations
Olena Lvova
Keywords
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