Freedom of Expression and the Combat of Hate Speech in Europe

Michael O'Flaherty
Freedom of expression enables many other fundamental rights but there exists challenges to upholding this right. At a time when support for promoting and protecting of human rights appears to be weakening in some parts of Europe, FRA's Director delivered a speech at a conference on 'Freedom of Expression in the Contemporary World' hosted by the Polish Council of Attorneys at Law in Warsaw on 1 December. ** CHECK AGAINST DELIVERY **

Chairperson, distinguished participants,

Thank you for affording me the opportunity to address you at this important conference. I am honoured to be here.

Before turning to our theme allow me to explain the role of my institution and the purpose of my visit to Poland. The European Union Fundamental Rights Agency (FRA) is the body tasked with delivering independent data, analysis and advice to the EU institutions, as well as its Member States, to support them in being compliant with the fundamental rights standards of the Union.

From our base in Vienna, we do our work through the undertaking of surveys, analysis of pressing human rights challenges - including by giving voice to rights-holders - delivery of legal opinions and support for the embedding of a culture of human and fundamental rights, also at the local level across EU Member States.

In that spirit, in my role as Director of the Agency, I periodically visit our 28 Member States in order to engage in dialogue with all human rights actors at the national level – government, human rights and equality bodies and civil society; as well as to see how the Agency can provide better support to national efforts for the protection of human and fundamental rights. This is my first visit to Poland in this capacity.

Dear colleagues,

As I stand before you, I am deeply aware of the extent of the contribution to the global human rights movement by great Poles.

While being schooled in law I came across the work of the Polish jurist, Rafael Lemkin. His conceptualisation of the crime of genocide has been of inestimable importance for the development of international criminal law – and his contribution was again vindicated with last week’s delivery of a guilty verdict in the Mladic case.

In 1979 I was in the crowd that welcomed Pope John Paul II to my home town in Ireland. A few days later I watched as he left from a nearby airport to travel to the United Nations in New York. There he delivered a tour-de-force address on the importance of respect for human rights. That speech should be read and re-read for its reasoned and impassioned defence of rule of law-based and value-driven societies.

Some year later I had the honour of being one of the United Nations staff members supporting the mandate of the then UN Special Rapporteur on the situation of human rights in the Former Yugoslavia, Tadeusz Mazowiecki - your first post-communist democratically appointed Prime Minister. I travelled with him in the field many times and witnessed his humanity, honour, courage and passion for justice.

Also in the 1990s, I witnessed ground-breaking Polish diplomacy for the strengthening of the international human rights system, including successful advocacy for establishment of the post of United Nations High Commissioner for Human Rights.

Polish human rights leadership remains impressive today. Adam Bodnar, who is here with us today, is deeply respected across Europe as a human rights defender. And of course I applaud such recent human rights achievements as the notable reduction in Poland’s child poverty levels.

These are challenging times for the promotion and protection of human rights, including here in Europe. Levels of violation are high in many places. Political commitment to uphold the human rights standards is sometimes low. Some political leaders even repudiate the very fundamentals of the human rights legal systems. And parts of our general population do not seem to value these systems or to appreciate how they benefit them.

All of these points can easily be illustrated by focussing on the human right that you are addressing in this conference – freedom of expression.

Let me take just one aspect of the right – the freedom of the media. Here we see worrying patterns across Europe.

Just a few weeks ago we were appalled by the assassination of the brave Maltese journalist, Daphne Caruana Galizia. Hers was a dreadful reminder of how media voices in many places are challenged, muzzled and silenced. Reports of FRA map these pressures and draw particular attention to the phenomenon of online intimidation of journalists. We notice that such attacks are disproportionally targeted against women.

Another indication of pressure on journalistic free speech is the extent of monopolistic tendencies in the media market. This problem has reached so serious a level that an EU-funded monitoring project – the European Media Pluralism Monitor – identifies what it describes as “high risk” in 19 out of 30 countries that it observes. Poland is one of them – as indeed is my own home country, Ireland.

The state of the media freedom and freedom of expression more broadly in Poland was subject to commentary just last year by the United Nations Human Rights Committee – the oversight body under the International Covenant on Civil and Political Rights (of which I am a former member). The Committee criticised the Polish authorities for what it described as:

  • Regressive laws regarding independence of public radio and TV services;
  • Excessive penal penalties for defamation;
  • Maintenance of criminal offences of insulting State symbols, senior officials and religion.

Of course freedom of expression is not – cannot be- absolute. The public good requires its limitation. Such limitation must, however, comply with the applicable legal restraints. As the FRA repeatedly points out – it is necessary to respect such principles as legality, necessity, proportionality and non-discrimination. A useful tool in identifying how such principles apply in practice is the UN Human Rights Committee’ General Comment 34 on Freedom of Opinion and Expression – a text for which I had the honour to serve as rapporteur.

One very important and necessary restraint on freedom of expression is the legal requirement to prohibit certain forms of extreme hate speech. Here we need to do a much better job across Europe. FRA studies, research and surveys offer compelling evidence of unacceptable and growing patterns of extreme hatred and vilification targeted against groups including migrants – especially Muslim migrants, Jews, Roma, LGBTI persons, people of different ethnicity to majority populations and even civil society.

Again, as evidenced in our research, Poland is not exempt from these patterns. And, I refer to the commentary of the UN Human Rights Committee. In its views directed to the Polish authorities last year it indicated “concern about a reported increase in number of incidents of violence, hate speech and discrimination based on: race, nationality; ethnicity; religion, and sexual orientation”. It furthermore expressed concern regarding the “insufficient responses by the authorities”.

And so then, what to do? What must be the response of governments and others? When it comes to freedom of expression and combatting hate speech the elements of the necessary actions are easy to indicate – they can be found across the views published by the regional and international monitoring bodies, as well as in the opinions of FRA. These call for law reform, law enforcement, promotion of responsible journalism on and off line, investing in public awareness efforts and school curricula indicating the value of free speech.

However, such efforts need to be located in a broader context – they need to be part of a wide-ranging commitment to and investment in a thriving rule of law society – a society that has human rights values at its heart – a society that invests in equality; that cherishes diversity; that delivers fair and independent justice.

As you know, the European Union – in particular the Commission and the European Parliament - have expressed concern regarding the state of health of the rule of law in Poland. This is the context for the current infringement proceedings, the dialogue the Commission opened with the Polish Government in January 2016 under its Rule of Law Framework and recent resolutions of the Parliament.

Today I can add little to the authoritative analysis by the Commission and Parliament, as well as by the Council of Europe’s Venice Commission and other regional and UN instances. Instead I would ask you to study the critiques carefully and encourage the authorities to take the necessary action to address the concerns expressed. If these necessary actions are indeed taken the benefit will be for all of the people of Europe - they would constitute important acts of leadership in defence of the Europe of values that we cherish.

By way of closing remarks I would urge you to play your own role to protect and strengthen the very infrastructure on which is built any State’s commitment to human rights. I have in mind here not only well resourced independent courts but also strong national human rights institutions – such as your Commissioner for Human Rights.

And, of course, civil society needs to be cherished. For instance, a thriving community of non-governmental organisations– which by definition is an awkward and challenging community – is an essential element of the life blood of a healthy society. I might add in this regard that my agency is concerned about the situation across the EU and in coming weeks we will publish a report on what we are describing as the “shrinking space” for civil society.

Dear colleagues, my final suggestion is made to you lawyer to lawyer. By virtue of our profession we have been charged with the task of being the primary guardians of the human rights legal system. We must defend it, promote it, be vigilant for any threats and seek to develop it to keep pace with changing societies. In taking on that role we must never doubt our potential influence. It is no accident that some recent and significant achievements for the strengthening of the rule of law worldwide have been as a result of the concerted action of lawyers and judges,

As we consider such matters and the state of human rights in Poland and across the EU we do well to keep in mind words from that 1979 speech by Pope John Paul II:

“Although each person lives in a particular concrete social and historical context, every human being is endowed with a dignity that must never be lessened, impaired or destroyed but must instead be respected and safeguarded”.

Thank you.