In our globalising world, the internet has become a platform on which people can easily access and share information. However, it also creates a mechanism where the easy and rapid spread of messages can be abused to incite violence and attacks from many locations. Examples of social media platforms being used to call for violence give rise to the question of how states can hold people accountable for inciting violence online and how this should be balanced with freedom of expression.
In the fight against incitement speech, many countries have developed frameworks that include the prosecution of incitement speech with the aim of preventing violence. When evaluating accountability and possible prosecution of incitement crimes, it is important to consider what type of speech falls under the prohibitions. Incitement can be understood as convincing, motivating, or encouraging someone through any means of communication to commit a crime. However, when it comes to the prosecution of speech, a well-defined demarcation for the prohibition of incitement is essential in light of the protection of other rights, such as freedom of expression. Regional instruments, such as the Council of Europe Convention on the Prevention of Terrorism, use a “danger” threshold to draw a line between speech that is protected and that which goes further and calls for violence.
STRIKING THE BALANCE—THREE FACTORS TO CONSIDER IN PROSECUTING INCITEMENT TO VIOLENCE
The international community is bound to ensure the protection of human rights in the prosecution of incitement speech. This means that any measure taken to prohibit incitement to violence must comply with all human rights obligations under international law, including the right to freedom of expression. The right to freedom of expression is essential in a democratic society. It allows vibrant opinions and debates, which reflect a healthy society, and includes offensive opinions and ideas that could make people feel uncomfortable.
The internet and social media, however, have brought new and complicated dimensions to discussion surrounding freedom of speech. Where traditionally it was possible to have more control over public speech, the internet now allows a spread of messages with very few limitations. Like most human rights, freedom of expression is not an absolute right and may be restricted under specific conditions of legality, legitimate aim, and proportionality. The first condition for the restriction of freedom of expression is that the prohibition of incitement speech must be prescribed by law. The European Court of Human Rights (ECtHR) has interpreted this to mean that an offence may not be described in vague terms. The criminalisation of “indirect” incitement, such as the glorification or justification of violent acts or groups, then becomes complicated, given that it involves the use of vague terms. This vague criminalisation runs the risk of abuse and suppression of opinions not favoured by the majority. To be human rights compliant, laws infringing upon the right to freedom of expression should be drafted narrowly and precisely.
Secondly, the limitation of freedom of expression must have a legitimate aim. In light of incitement speech, legitimate reasons to interfere with freedom of expression are most likely to be identified as the protection of fundamental rights of others and national security.
The legitimate aim for restricting free speech is not generally where the concern lies in the academic field. Issues more often arise when formulating measures that are proportionate to this aim and will not go in restricting fundamental freedoms than absolutely necessary. This last consideration requires case-by-case balancing. However, the ECtHR has developed some common rules to take into account when it comes to prosecuting incitement to violence. In Sürek and Özdemir v. Turkey, the court found that the conviction of a publisher for mere publication of an interview with a member of a criminal organisation was an unjustified restriction of the right to freedom of expression. In evaluating the necessity of the interference, it had particular regard for the context in which the statements were published. The court found that the published text as a whole could not be considered to incite violence or hatred. The expressions that were used showed a strong resistance against the government, raising concerns for authorities, but it was not inciting violence, since the purpose of the interview was to provide newsworthy content. This shows that there must be a certain illegitimate purpose to incite violence, which should be distinguished from any legitimate purpose.
The intent to provoke criminal conduct is an essential criterion that should be examined. In the recent case Gürbüz and Bayar v. Turkey, the ECtHR found that criminal proceedings against the publisher of statements inciting violence by the leader of a terrorist organisation were not in violation of the right to freedom of expression. The court focused on specific passages of the article such as the statement “should the path of dialogue not develop, 2005 will necessarily be a year of transition to guerrilla warfare, even if this is not what they wish”. It regarded this statement as the public provocation to commit violent offences. In light of the identity of the leader, the violent acts already committed by the organisation, and the fragile context in which the statements were made, the court concluded that these words created an actual threat of possible acts of violence. This case clearly demonstrates how the ECtHR limits the justified prosecution of incitement to those speeches that entail a clear danger for the commission of crimes. The nexus between the inciting speech and the risk of an actual attack taking place seems to be the threshold of evaluation as to whether the prosecution of the speech is acceptable in light of human rights standards.
ONGOING DEBATE
Most scholars and experts agree that criminalisation of incitement to violence should be human rights compliant. The requirement of the causal link between the speech and the likelihood of the harm occurring seem to be widely accepted standards in the legal doctrine. Furthermore, the rejection of severe restrictions of freedom of expression has been strengthened with the argument that a strong restriction of speech can have the effect of marginalising certain groups by labelling their voice as extremist and thus push individuals to embrace violence.
Mari Sewell holds a Master’s degree in International and Transnational Criminal Law from the University of Amsterdam. She currently works as an immigration consultant and does independent research on the rights of minority groups. Prior to this, Mari was a defence intern at the International Residual Mechanism for Criminal Tribunals and a legal intern at the Chambers of the International Criminal Court. She has also focused on researching the use of open-source information in criminal investigations.