The devil’s advocate: serious threats to freedom of speech

Serious and unjustifiable discourtesy towards others contains no constructive contribution to social debate on generally important questions. The same goes for insults and crude mockery or even abuse. As expected, this occurs most frequently when people can express their opinion anonymously. Such spoken or written communication is a criminal offence. The insulted individuals can demand legal protection of their identity and dignity, as well as damages. When such acts are committed by anonymous writers on internet forums, the forum administrator must take legal responsibility. (Note 1)

However, every infelicitous, unconstructive, unjustifiable, distressing, offensive, ignorant or ethically inappropriate way of expression is not unlawful. Nor is it a criminal offence. Legal protection in a democratic society includes protection against offensive statements which can upset or shock individuals, groups or the general public. The same applies to statements which seem or are, in fact, offensive, but are not unlawful. Especially not when they are based on facts or uttered in situations where freedom of speech is more important than the actual meaning of the spoken or written words ­and the harm they can cause, for example to public officials. When determining whether certain statements which at first glance seem offensive, upsetting or shocking are legally acceptable, many criteria need to be taken into account, not just their usual linguistic meaning. We must consider the author, the target and purpose of the statement.

Theoretical and conceptual findings regarding whether certain types of expression are legally acceptable are often disregarded, even by lawyers or those in judicial positions. There are all too frequent cases where proper understanding of historical developments in the legal protection of freedom of speech slips through their fingers. And when their judgments concern the question of whether harsh personal criticism of a political figure is a criminal offence, it leaves the door wide open for other politicians and public officials: through criminal charges and civil actions, as if hacking at weeds with a machete, they silence active, critical and responsible citizens who dare contribute to the democratic monitoring of the actions of decision-makers and influential figures. The level of threat to the freedom of speech becomes alarming when civil actions taken by offended politicians against either legitimately critical citizens or justifiably critical journalists become a regular social practice. This is also happening in Slovenia. Very often, civil actions will be taken even by politicians who themselves have an underdeveloped sense of communication.

The other social problem with free speech is the fact that a system which would prevent the unjustifiably insulting and often abusive rhetoric of anonymous users directed at people other than public officials has still not been implemented. Herein lies an extraordinary paradox. On the one hand, we have anonymous internet users expressing their opinion in a highly offensive way, but still enjoying complete freedom (as we can see if we simply search through internet forums, even those of influential Slovene newspapers). But on the other hand, our public space is overflowing with talk of hate speech, even though the majority of cases presented by the media as hate speech or even aggressive speech or incitement to violence have been false alarms: there was no evidence of any of these.

These are all concepts which have specific definitions in the legal literature. (Note 2) It is impossible to have a clear and constructive discussion about these issues. Content involving the word “hate” is not necessarily hate speech. The same goes for content involving the words “violence”, “force”, “attack” or other such expressions, which directly or indirectly denote violence. The mere use of these words does not necessarily represent incitement or instigation to violence or the encouragement of hatred. The same applies to simply advocating the “idea” of violence – this is not a legally prohibited.

These constitutional concepts are not as simple as one may think. We cannot draw legally significant conclusions based on a word-by-word interpretation of this type of content. Many other factors apply – we must carefully determine the social position and influence of the individual making the statement, the susceptibility of the statement’s target audience, whether the link between the speaker and the addressee is direct or indirect, the social position of the people who are directly affected by the statement, the level of threat of illegal behaviour and so on.

Even statements including “serious accusations and strong prejudice” can be considered offences, though they might not be linked to any hate-induced actions. The European Court of Human Rights decided that “incitement to violence” is not directly linked to violence or committing an illegal action. Simply insulting, mocking or slandering can be considered an attack on someone. This is a sufficient reason for public authorities to encourage the fight against “racist speech” through the use of punitive mechanisms. Discrimination based on sexual orientation is as serious as discrimination based on race, nationality or skin colour. However, this does not mean that expressing grave accusations, strong prejudices, or serious or ungrounded insults should be immediately considered hate speech. It just means that this sort of expression can be prohibited and punished.

A clear example which shows how the constitutional concept of “hate speech” is not correctly understood is the case of a theatre actor who chose his words badly when he ironically spoke of “throwing people in St. Barbara cave” on a morning talk show. He immediately explained that he was merely being satirical, but his words were taken out of context and his explanation was erased from the public domain. In the end, a criminal charge on the grounds of hate speech was filed against him. Another example was the internet user who wrote a comment on a voting forum after the elections – he wrote of a polling station in the Nove Fužine quarter of Ljubljana (known for the large number of immigrants from southern ex-Yugoslavian countries), where the voters supposedly came dressed in tracksuits, spoke in a non-Slovene accent, and had the number of their candidate written on their hand so they would not forget. This is also far from hate speech as a legal concept. The same applies to the case of the artist, poet and writer who publicly spoke out against the church. In an interview, she said she hated the church and that it is the “duty of every citizen to hate the church”. She clearly, convincingly and objectively justified her statement immediately after making it. But, again, the reaction of a large part of the public and many Slovene lawyers, church representatives, religious people, some journalists and some public officials was typical: her words were taken out of context and interpreted literally. The conclusion about the legal boundaries of this sort of statement seemed obvious and self-evident to many legally uninformed and inattentive commentators: “’Hate speech’ happens when someone uses the word ‘hate’!” But this is of course not hate speech. It is concerning that even the Slovene Human Rights Ombudsman, Vlasta Nussdorfer, and the Information Commissioner, Mojca Prelesnik, were involved in these conceptually inaccurate judgements.

We must be careful when we attempt to extend the boundaries of hate speech regardless of conceptual definitions and theoretical findings concerning the freedom of speech in the legal sphere. For example, we could use wider and more “sociological definitions” instead of “legal definitions”. (Note 3) When attempting to raise the level of public discourse, today’s constitutional democracy should not be based on the legal persecution of people because of mere content and the words used to express their opinions. Statements should not be considered an offence based on content and words only. Until it becomes necessary to introduce legal sanctions for those who use hate speech, we must persist in taking non-punitive steps against words that are offensive, upsetting, shocking etc. This involves strict and vocal rejection, or even (and this is often a much better solution) complete silence. We must stop looking for sensationalist quotes on internet forums, taking them out of context and shining the spotlight onto anonymous comments which would remain overlooked and ignored if it was not for the media. We should not give weight to their words by giving them more attention than they deserve and then demanding punishment.

However, there does not seem to be any insurmountable legal obstacle to prevent website and forum administrators from immediately enforcing stricter conditions for communication on forums. They could ban anonymity for active participants and prevent the publication of unjustifiable or serious accusations against individuals, ungrounded insults, and especially mockery and abuse.


Note 1 – The European Court of Human Rights has recently closed the case of Delfi AS v. Estonia.

Note 2 More information on this can be found in three books where I deal with freedom of speech: Pičman Štefančič, Teršek: Svoboda javnega komuniciranja, v., Preludij demokracije: civilna družba in svoboda javnega komuniciranja, Manet, Pravna fakulteta v Ljubljani, 2005; Teršek: Svoboda izražanja, Informacijsko dokumentacijski center Sveta Evrope, Ljubljana 2007; poglavje Svoboda izražanja in (pravna) popustljivost do nestrpnosti, v knjigi Ustavna demokracija in vladavina prava, UP FAMNIT, Koper, 2009.

Note 3 – It is important not to overlook cases where legal findings concerning the legal protection of freedom of speech were ignored or manipulated by social studies academics. Lawyers should be especially shocked at the justifications and conclusions of Karmen Erjavec and Melita Poler Kovačič – both professors at the Faculty of Social Sciences in Ljubljana – made public in an interview on national television. The authors of the study on (supposed) hate speech based their work on discussions with some of the authors of upsetting website comments. As examples of hate speech, they used words and expressions which clearly were not hate speech! They simply ignored the constitutional and legal criteria for determining the boundaries of freedom of speech with the idea of a new “scientific” (?), “original” (?), and, in their opinion, politically significant (?) “sociological definition” of hate speech. The study even received an award from the Slovenian Research Agency (ARRS) for outstanding scientific achievements. It also received much attention from the media. I would consider it an abuse of scientific research methods and an example of expert ignorance.


Author: Andraž Teršek, expert on constitutional law, university professor of Law, Ethics, Political Science, Education, Psychology, and Actively Critical Citizenship. He is a representative of the legal avant-garde and an active public speaker.


Cover photo: Jeff Sheldon


Translated by: Ernest Alilović.


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