WASHINGTON, USA – The Office of the Special Rapporteur for Freedom of Expression (SRFOE) of the Inter-American Commission on Human Rights (IACHR) publishes its thematic report “Hate speech in the American Convention on Human Rights: scope of Article 13.5 and recommendations.”
The document examines the content and scope of this provision within the framework of the inter-American human rights system, as well as the obligations of states. These include both the prohibition and punishment of speech that incites violence or other similar illegal actions against persons or groups of persons for discriminatory reasons, and the adoption of positive measures aimed at preventing such speech.
The thematic report is based on the recognition of the central role of freedom of expression in democracies, as well as its role in combating discrimination, intolerance, and violence directed at groups that have historically faced discrimination or are in situations of vulnerability. It also stresses that freedom of expression and the principle of non-discrimination are mutually reinforcing treaty rights. In this regard, it warns that speech with discriminatory content or characteristics can restrict or discourage the effective exercise of freedom of expression by groups that have historically faced discrimination or are in situations of vulnerability, as well as the enjoyment of other human rights
In relation to the term “hate speech”, the document recognises that it is a concept that lacks a uniform definition in international law. This poses challenges in addressing certain phenomena that exacerbate situations of discrimination, exclusion and intolerance. In the inter-American context, and despite the developments made by the IACHR in this area, the panorama is characterised by the absence of specific jurisprudence both in the Commission’s petition and case system and in the Inter-American Court. Likewise, there is a limited elaboration of thematic studies on the subject.
Although the term “hate speech” is used in a variety of ways in different settings, the report specifically addresses those speeches that shall be prohibited and punished under the American Convention, and therefore must meet the threshold of advocacy of hatred that constitutes incitement to violence or incitement to any other similar illegal action, against any person or group, for reasons such as race, color, religion, language, or national origin.
Based on a comprehensive review of the current legal framework, the preparatory work of the American Convention, and a harmonized interpretation of the texts in their different versions in accordance with the provisions of international law, the Office of the Special Rapporteur for Freedom of Expression identified the elements that define “hate speech” under Article 13.5, and established criteria and indicators that can facilitate their evaluation in specific cases. This analysis considers the specific rules of the inter-American system on freedom of expression, such as the prohibition of prior restraints, the existence of specially protected speech, and the minimum intervention of criminal law.
This report also details the obligations arising from Article 13(5) of the American Convention. First, the prohibition and punishment of the speeches framed in this provision. Secondly, the reinforced obligation to adopt complementary measures aimed at preventing and combating those speeches. While the report recognises that states have a duty to adopt preventive, non-punitive measures even with respect to speech that does not meet the threshold established in Article 13.5, this duty is particularly heightened in such cases. These measures include addressing hate speech in public debate, promoting counter-discourse practices, providing education on human rights, and training justice operators. It also includes the implementation of effective instruments for those who exercise public functions or political leadership to attend to their differentiated responsibilities when speaking publicly.
The Office of the Rapporteur is grateful for the contributions received from various member states of the Organization of American States (OAS) and from sectors of civil society during the consultations opened for the preparation of this report.
This study seeks to support states in fulfilling their obligations under Article 13.5 of the American Convention on Human Rights, as well as to provide the various stakeholders with useful input to strengthen the fight against discrimination in the Americas. In this way, RELE reaffirms its conviction that an in-depth analysis of Article 13.5 can have a positive impact on promoting public debate and contributing to the development of more inclusive societies and the strengthening of democracy.
To access the full report, click here.
The Office of the Special Rapporteur for Freedom of Expression is an office created by the Inter-American Commission on Human Rights (IACHR) to encourage the hemispheric defense of the right to freedom of thought and expression, considering its fundamental role in the consolidation and development of the democratic system.
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