The Challenge Of Balancing; Hate Speech Laws With The Freedom Of Expression
By Lukman Harees –December 17, 2015
Lukman Harees
“Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the European Convention on Human Rights], it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition ’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.” (Handyside v. the United Kingdom judgment of 7 December 1976, § 49).
“… [T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.” (Erbakan v. Turkeyjudgment of 6 July 2006, § 56)
President Ford conceived a country for the American people as a place where they can disagree without being disagreeable or distasteful. This sums up the essence of balancing the freedom of expression with the need to prevent all forms of expression which spread ,incite ,promote or justify hatred based on intolerance. Hate speech is speech that offends, threatens, or insults groups, based on race, colour, religion, national origin, sexual orientation, disability, or other traits. Should hate speech be discouraged? The answer is easy—of course! However, developing such policies runs the risk of limiting an individual’s ability to exercise free speech. When a conflict arises about which is more important—protecting community interests or safeguarding the rights of the individual—a balance must be found that protects the civil rights of all without limiting the civil liberties of the speaker.
We all saw the ill-consequences of hate speech in Sri Lanka during the post-War MR Regime when some extremist hate groups posing off as champions of Sinhala Buddhist people, raising majoritarian cries, initiated and launched a highly destructive well-orchestrated hate campaign against the minorities particularly against the Muslims. The Mini 1983 styled ‘Aluthgama’ communal attacks against the Muslims was one such result, which arose directly and indirectly from Ven. Gnanassara’s venomous hate speech. Unfortunately the obvious offenders were allowed to let go scot free while their patron saints in the MR regime attempted to label the victims as perpetrators, even at the Geneva HR Forum. Thus, the intellectual civil community raised concern about allowing these hate groups to spread communal venom without fear or sanction and faulted the government and law enforcement authorities for failing to use even the available legal remedies to act against the offenders. Minister Vasudeva was instrumental in attempting to ban hate speech and was seen to take measures to introduce specific laws in this regard, however with no success. In this scenario, an imperative need was felt to introduce more specific laws to ban hate speech , in the best interest of communal harmony and to avoid repetitions of the enormous damage done by groups like BBS. Thus, this became one of the key promises of Maithripala Sirisena, the challenger to the mighty MR at the January 8th Elections.Read More
