In light of the ongoing debate on the limits of freedom of speech in society and the Riigikogu (Estonian Parliament), it is pertinent to ask whether and why regulating hate speech is reasonable for Estonian society. In modern democratic countries, there is a generally accepted understanding that restricting hate speech is essential to prevent human rights violations of vulnerable individuals, including discrimination, exclusion, and hate-motivated crimes.
The treatment of hate speech is based on the Estonian Constitution, international human rights norms, the European Union framework decision on combating racism and xenophobia, Council of Europe guidelines on hate speech, and the case law of the European Court of Human Rights.
Hate speech is always context-dependent, influenced by the surrounding environment, the speaker, and the audience. To define hate speech, various components must be considered, including the content of the expression (written or spoken), tone, (individual and collective) targets, and potential consequences or impact.
There is a significant difference between an individual using offensive language randomly on the street towards a passerby and a mass gathering where an agitator incites violence against refugees when this topic is particularly heated in society.
Therefore, regulating hate speech should be viewed in a broader context rather than as a challenge to absolute freedom of expression. Human dignity is the foundational value of human rights, and safeguarding it necessitates considering human rights as a whole, as they are interdependent and interconnected.
As with any other matter, balance is crucial in human rights because treating one right, such as freedom of speech, as absolute inevitably encroaches on the rights of others.
Estonia is not in the process of creating a hate speech law; it is merely amending the existing Penal Code to enhance limitations. Contrary to the arguments of opponents of the draft, there is a societal demand for regulating hate speech, and it is not merely a directive from the European Union. In a 2023 survey conducted by Turu-uuringute AS, 76% of respondents expressed the view that the dissemination of hate speech should be punished.
The fear that the draft may jeopardize freedom of speech is understandable. To alleviate this concern, it is worthwhile to examine the practices of other countries. In most European Union countries, hate speech is criminalized. Those countries that have adopted the EU framework decision on hate speech have not seen declines in press freedom or similar rankings. Why should we assume that the Estonian state cannot manage it equally effectively?
From Blissful Ignorance to Deliberate Fear-Mongering
Opponents of more substantive regulation of hate speech intentionally use the term “hate speech” to spread misconceptions in society. Hate speech does not simply refer to angry, abusive, false, offensive, vulgar, or other outrageous statements. Such expressions are not covered by the hate speech draft, and they will remain a matter of cultural norms or lack thereof.
Regulating hate speech will not alter our upbringing at home or limit our freedom of expression towards people with different worldviews. Regulating hate speech will not help journalists who face harassment, surveillance, or intimidation due to their work or beliefs, as these activities are subject to other legal norms.
Hate speech encompasses expressions aimed at demeaning and devaluing individuals because they belong to a vulnerable minority within society, not because of their actions.
The draft aims to restrict particularly dangerous hate speech, which has consistently led to the silencing of voices from less protected groups. A clarified prohibition on hate speech can encourage people who have been hesitant to express their opinions to participate in public discussions. This approach promotes broader and more inclusive public debates.
Addressing hate speech prevents crimes
Former Minister of Justice Lea Danilson-Järg argued in an op-ed published in Eesti Päevaleht that clearer regulation of hate speech is unnecessary for Estonia, as we already have a clear and understandable section (§ 151) in the Penal Code regarding incitement to hatred. It appears that the former minister does not understand or does not want to acknowledge the importance of crime prevention. In the case of the mentioned provision, it may seem that the offender has to hold an axe over a person’s head to classify an act as hate speech and attract police attention.
Both the Estonian Human Rights Centre and other civil society organizations have been approached by victims who are disillusioned with the current lack of adequate regulation, making it impossible for the police to initiate proceedings. Consequently, we lack relevant statistics on the prevalence of hate speech. A few registered cases do not provide an accurate overview of the actual scope of the problem.
The state must protect people by ensuring that human rights are upheld for all. Therefore, when manifestations of hate speech are observed, it is essential to respond to the situation before it escalates into actual acts. This is why a clearer, yet sufficiently considerate regulation is needed.
Criticism has been voiced that the draft grants too much discretion to law enforcement authorities to determine which expressions pose a significant threat to societal security and which do not. Such wording, however, contributes to the overall goal of limiting hate speech, ensuring that each expression is assessed individually to avoid excessive limitations on freedom of speech.
At times, it appears that opponents of the draft are using the banner of freedom of speech to find grounds for objection, all the while ignoring their own predisposition towards outright hostility to minorities.
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