Convergence & Conflict: Reflections on Global and Regional Human Rights Standards on Hate Speech

Abstract

Hate speech is a hot topic globally, stubbornly persistent on online platforms just as those platforms, not to mention governments and international organizations, seek guidance from international human rights law in dealing with it. But what is hate speech? And how do key adjudicators – especially states, United Nations (UN) human rights mechanisms, and regional human rights bodies – interpret the law governing freedom of expression and hate speech? This Article seeks to illuminate two countervailing and under-reported trends: on the one hand, a growing consensus among UN experts and treaty bodies concerning interpretations of “hate speech” prohibitions in international law; and on the other, a failure of several regional human rights systems to develop approaches to hate speech that are consistent with the UN’s universal standards.

The Article begins by analyzing the UN’s approach to freedom of expression and hate speech and examining how, in the last decade, various UN expert bodies have converged on an approach to hate speech and freedom of expression. The Article next compares this global standard with key developments in the Inter-American, European, African, Arab, Islamic, and Southeast Asian human rights systems. This comparative analysis reveals that, while certain systems converge with the UN’s approach, others diverge, sometimes marginally, sometimes significantly. For example, the European Court of Human Rights frequently lessens or removes the burden on governments to show hate speech restrictions are properly imposed, allows for the imposition of hate speech restrictions for reasons not accepted at the global level, and does not assess whether restrictions on speech are the least intrusive means to achieving legitimate public interest objectives.

After analyzing this landscape of regional norms in convergence and conflict with UN standards, the Article provides several key observations on this complex state of affairs. The Article concludes by urging human rights defenders throughout the world to be cognizant of the areas in which regional human rights systems conflict with UN standards and to tackle this trend through proposed strategies to protect universal minimum standards for freedom of expression.