The Widening Definition of Hate Speech – How Well Intended Hate Speech Laws Undermine Democracy and the Rule of Law

Abstract

Liberal European democracies are standing at a crossroads: on the one hand, freedom of speech ought to be protected and cherished, but on the other hand, the importance of protecting vulnerable groups from harm and discrimination cannot be dismissed. Finding a middle ground has turned out to be difficult, but recent trends demonstrate that European liberal democracies have chosen to incorporate more measures to tackle so-called “hate speech”, to better protect minorities and those who are most vulnerable in society. This development has led to a narrowing space for free speech, and it brings into question whether controversial expressions are sufficiently protected on the national and international level in Europe.

In this thesis, especially the case law of the European Court of Human Rights (ECtHR) is examined with the aim to illustrate how the definition of hate speech has widened in terms of its application. A combination of a broadened interpretation of terms such as incitement and the increased number of protected characteristics or groups in hate speech legislation has lowered the threshold of unlawful expression of hatred. The increase of vulnerable groups in need of special protection from hatred by law introduces a dilemma, since it is increasingly difficult to leave out certain groups while granting protection to others. A closer look at the Court’s case law also reveals regular inconsistencies and contradictions in the application of the law, which have led to unforeseeable judgements. This, in turn, has repercussions for legal certainty and the principle of equality, which are fundamental elements of the rule of law.

National legislation and case law as well as initiatives by the European Union (EU) to regulate hate speech are discussed in order to get a better understanding of the latest developments of the subject matter. Through a critical analysis of European jurisprudence and laws, the thesis seeks to demonstrate the unintended consequences and problems that relate to the increasing regulation of freedom of expression. In addition, the risk of possible politicisation of hate speech laws is debated due to the continuously widening interpretation of hate speech. Furthermore, the thesis wishes to shed light on future issues for free speech and democracy in case censorious measures are widely implemented as well as alternatives to the current legislative measures.