Comparative Examples From Other Countries
The EU does not provide the same safeguards to hate speech as the United States. A recent, comprehensive study17 of hate crime and hate speech across the European Union notes that unlike the United States, where hate speech is given wide constitutional protection, in other Western democracies such as Canada, Germany, and the United Kingdom, it is largely prohibited and subjected to criminal sanctions.
In its section on the United Kingdom, the report notes that the Criminal Justice Act (2003) includes provisions for the sentence enhancements when racial or religious hatred is shown to be a motivation for the crime. The Public Order Act (1986) includes provisions such as Section 4.1, which punishes “insulting words and behavior” and “distribution or display of signs or writing” that is “threatening, abusive, or insulting,” or leads a person to believe that “unlawful violence will be used against him,” or is designed to “provoke” unlawful acts or violence. Section 5.1 of the same act goes on to create the criminal offenses of harassment, alarm, or distress, which hold a person guilty if using “threatening, abusive, or insulting words or behavior, or disorderly behavior, or (b) displays any writing, sign or other visible representation which is threatening, abusive, or insulting.” Finally, the Malicious Communications Act (1988) criminalizes the delivery of letters that contain threatening or abusive messages. In the civil realm,18 The Equality Act of 2010, which brings together 116 different pieces of equal rights measures, provides a number of civil remedies to the use of hate speech.
Beyond the United Kingdom, EU countries have all ratified the Council of Europe’s Convention on Cybercrime (2008). An additional protocol to the Convention that has been signed without reservation by most of the EU member states criminalizes acts of a racial or xenophobic nature that are committed through a computer. At the time that the comprehensive report was produced, the additional protocol was pending at the Chamber of Deputies prior to being put into effect. Beyond this EU-wide bill, which deals particularly with incitement to hatred and xenophobia in cyberspace, individual EU member states have passed legislation that further criminalizes incitement to hatred, racial discrimination, and cybercrime.
On the counter-terror end, the United Kingdom’s statute dealing with counter-terror prosecutions does not make mention of “foreign” in its definition of terrorism under the Terrorism Act 2000 (TACT). British counter terror legislation has been amended several times since its initial passage to increase the reach of surveillance and criminal acts including under its purview. This difference in definition in turn has implications for the sorts of cases that are being prosecuted by British counter-terror. In the cases that were prosecuted in 2015, at least three cases involve prosecutions of individuals who are not connected with foreign terror organizations. R v. Satinderbir Singh involved Facebook posts that threatened violence against Muslims, and R v. Joshua Bonehill-Paine involved actions and threats against Jews. In one case, R v. Malcolm Hodges, the target of the intended acts was unclear. Like the United States, several cases either only, or significantly, involved online activity such as tweeting, re-posting, downloading terror-related materials.
It would be useful to conduct a wider investigation of EU member states to discern the relationship between their counter-terror and hate crime legislation and see how it compares to the United Kingdom and the United States. It would be particularly helpful to examine if, as in the case of the United Kingdom, a broader definition of terrorism permits for the prosecution, and monitoring not simply those individuals who seem interested in foreign terror organizations, but also those who have domestic origins. In this way, the justification for pre-emptive policing could be the prevention of all hatred, rather than the prevention of hatred against a non-Muslim majority and a convenient denial when it comes to hatred against minorities.
One likely reason for this difference could well be the particular history of nations that constitute the European Union and their longstanding experience with domestic terror groups--often with nationalist (like the IRA or ETA) or extremist political views (such as the Red Army Faction), as well as a strong history, post-WWII, of criminalizing anti-Semitic speech. It is, nevertheless, important to note, and it serves a valuable example for constructing more egalitarian legislation.