The Challenge of Criminalising Hate Speech

This commentary was originally published in the Myanmar Times. 

Since Myanmar’s landmark election in November 2015, the National League for Democracy government has publicly condemned the use of so-called hate speech on several occasions and indicated that a new law may be drafted to tackle the problem. The issue is particularly evident in online attacks against Muslims, women and LGBT people. While Muslims receive most of such attacks, women have also received anonymous threats for standing up for women’s rights and for LGBT people targeted for abuse.

Since the government was installed earlier this year, the Ministry of Information (MOI) website has made clear that there is no place for hate speech in Myanmar society. MOI website statements have also urged all Myanmar people to avoid hate speech and to “live in unity within diversity”. The Ministry has called for “retributive action” against those who “make” hate speech.

U Aung Ko, the Minister of Culture and Religious Affairs, recently referred to plans for a new Hate Speech Law – which would criminalise verbal attacks on other religions besides Buddhism – being developed in consultation with 'interfaith groups' comprising members of Myanmar’s various religious communities. Such a law, whose precise contents are not yet known to the public, would empower ordinary citizens to report discriminatory speech.

Article 364 of Myanmar’s 2008 constitution prohibits the “abuse of religion for political purposes” and “any act which is intended or is likely to promote feelings of hatred, enmity or discord between racial or religious communities or sects”. It allows for the “promulgation of laws to punish such activity”.

A former legal adviser to the NLD, U Ko Ni was recently interviewed by the Democratic Voice of Burma (DVB) and suggested that a draft law on hate speech had been circulated in 2013 and that the drafting process could be revived under the new government.

In September 2015, the Myanmar Centre for Responsible Business published an ICT Sector Wide Impact Assessment (SWIA), which featured an extensive analysis of hate speech in the Myanmar context. An important recommendation made in the SWIA was that clear public signals should be sent from the highest level of government and by all political parties that hate speech is unacceptable. That is now happening and is welcome.

However, legislation needs to be carefully considered. Many other countries struggle with legislating against online hate speech because it is not always easy to distinguish where freedom of expression ends and legitimate restriction on expression begins. What is considered hate speech in one country may not be considered hate speech in another; it may be region- or culture-specific, rooted in a country’s history. The lack of an internationally agreed definition of hate speech has made it difficult to clarify how such acts should be dealt with, including in the digital world.

One statement published on the Ministry of Information website defines hate speech according to the definition published on Wikipedia. While we welcome the government’s concern about hate speech, we also call on government officials to draft any future law using international human rights law rather than any other definition.

Freedom of expression is protected under Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The right to freedom of expression and opinion extends to ideas deemed unpopular, shocking, offensive or disturbing.

The former UN special rapporteur on the promotion and protection of freedom of opinion and expression, Frank La Rue, outlines this in a 2012 report:

"The right to freedom of expression implies that it should be possible to scrutinize, openly debate and criticize, even harshly and unreasonably, ideas, opinions, belief systems and institutions, including religious ones, as long as this does not advocate hatred that incites hostility, discrimination or violence against an individual or a group of individuals."

This is the nature of freedom of expression: Someone may express an opinion others disagree with, but they nonetheless have a right to say it, except in certain narrowly defined circumstances. When it comes to determining what speech should be restricted in order to protect the rights of others, international human rights law provides a very high threshold that must be met before the expression can be legitimately restricted or in some cases prohibited.

International human rights law does not use the term 'hate speech'. It has become a vague term that often encompasses both expression that can be restricted under international law, and legitimate expression that cannot, even if it is offensive.

Article 19, paragraph 3, of the ICCPR outlines a basis for legitimate restrictions “as are provided by law and are necessary … (c) for respect of the rights or reputation of others; (d) for the protection of national order (ordre public), or of public health or morals”.

Article 20 of the ICCPR elaborates on these restriction in more depth and prohibits by law “any propaganda for war” and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

In other words, according to Article 20 (2), hatred, by itself, would not be subject to restriction. It is only when advocacy of national, racial or religious hatred constitutes incitement to discrimination, hostility or violence that is prohibited under international law.

Incitement is also recognised as a crime in other international human rights treaties. The UN Convention on the Prevention and Punishment of the Crime of Genocide (1948) criminalises a “direct and public incitement to commit genocide”. The International Convention on Elimination of All Forms of Racial Discrimination (1966) requires states to criminalise the dissemination of ideas based on racial superiority and assisting or financing racist activities.

Therefore the government should avoid vaguely defined terms in any future law such as “hurting religious feelings”, which could be applied too broadly and does not address the real damage of language that incites, discriminates, and is hostile and violent, as outlined in international human rights law.

In addition to considering and consulting widely on appropriate legislation – which should protect all those who are vulnerable to online abuse, including women and LGBT – the government could also support civil society and corporate efforts aimed at what is known as 'counter speech'. This is where users challenge 'hate speech' by exposing false rumours, ideally with the support of the police, and encouraging peaceful expression.

While researching our assessment, interviewees told the MCRB that there was a lack of guidelines across public and private institutions on how to use social media appropriately. Many interviewees also said they did not report online hate speech to website administrators because either they didn’t know how to or the internet connection was too slow. Owners of social media platforms should take note of this and educate their users on how to report abusive behaviour online, while taking into account possible low bandwidth.

Yangon Region Religious Affairs Minister U Tun Nyunt suggested that complaints could be made to police stations. However, police will need training and guidelines on how to deal with complaints, and the government should manage people’s expectations about prosecutions. In 2013, the UK director of public prosecutions issued guidelines for prosecutions involving social media communications to assist both the police and prosecutors in this new area.

The government of Myanmar has the opportunity to lead from the front in tackling hate speech and to present an example of good practice to the world. But it must tread carefully by ensuring that any restrictions on speech do not stifle free expression and are aligned with international human rights law.