A/HRC/44/49/Add.1
31.
The Hate Speech and Disinformation Prevention and Suppression Proclamation
adopted in March 2020 is touted by many as a solution to hateful online posts. However,
the Special Rapporteur is seriously concerned that too often these laws fall short of
international standards and are misused by authorities.
32.
International law provides that States have the obligation to prohibit advocacy of
national, racial and religious hatred that constitutes incitement to discrimination, hostility
and violence (art. 20 of the International Covenant on Civil and Political Rights), not
necessarily to criminalize it. The Special Rapporteur is concerned that the Hate Speech and
Disinformation Prevention and Suppression Proclamation criminalizes the dissemination of
disinformation. Such restrictions could therefore undermine public debate and the free flow
of information, which is protected by international human rights law. Further, the Special
Rapporteur notes that, too often, investigation and prosecution for “hate speech” or
“disinformation” provides a new platform for speakers to restate their hateful expression
and pretend to be at the mercy of State-run justice, thus amplifying their hateful message.
The Special Rapporteur is convinced that numerous other steps – especially regular public
messages from high-level officials and community leaders about the danger of hate speech,
media literacy, professional training and self-regulation, and implementation of existing
criminal provisions on incitement to violence – could be taken to confront these problems.
The newly created Ministry of Peace, which works collaboratively with elders and
community and religious leaders, could also play a role in promoting societal dialogue and
a culture based on knowledge, tolerance and mutual understanding.
33.
The Special Rapporteur is concerned that the Hate Speech and Disinformation
Prevention and Suppression Proclamation does not provide the structured guidance
necessary to limit its application to expressions prohibited by article 20 of the International
Covenant on Civil and Political Rights. This law defines hate speech in its article 2 (2) as
“speech that deliberately promotes hatred, discrimination or attack against a person or a
discernible group of identity, based on ethnicity, religion, race, gender or disability”. The
Special Rapporteur is concerned that this definition is overbroad, does not meet the
requirements of article 20 of the Covenant and goes beyond the limitations on restrictions
required under article 19 (3) of the Covenant. There is a high risk that its application will
result in arbitrary interpretation, with dire consequences for legitimate expression.
34.
In particular, the Hate Speech and Disinformation Prevention and Suppression
Proclamation could lead to penalties being imposed on those who merely repost or
otherwise share content deemed to be “hate speech” or “disinformation”. The scope of such
an approach could be enormous, which is particularly concerning as the problem of hate
speech is often not merely the content but its virality and the ease by which it may be
shared by hundreds or thousands of people. This is also concerning given that the law
carries penalties of Br 50,000 to 100,000 (about $1,500 to $3,000), in addition to providing
for a maximum prison sentence of three years, which appear to be very significant sanctions.
However, the Special Rapporteur welcomes the fact that forms of punishment other than
financial penalties and imprisonment are provided for in the law. Second, the law’s
excessive vagueness means that officials at the federal and regional levels would have
practically unbounded discretion to determine whom to investigate and prosecute, resulting
almost certainly in enforcement leading to a wave of arbitrary arrests and prosecutions.
Third, there is a serious risk that the law may be used to silence critics. Given the ethnic
representation within political parties and within general governance at the national and
regional levels, numerous individuals whom the Special Rapporteur met shared their fear
that political debate and minority voices might be penalized under the new law.
35.
The Special Rapporteur would like to encourage consideration of an approach to
“hate speech” that is rooted in applicable international human rights standards. While
article 20 (2) of the International Covenant on Civil and Political Rights obligates States to
prohibit advocacy of hatred that constitutes incitement, the State also remains constrained
by the standards of legality, necessity and proportionality, and legitimacy, under article 19
(3) of the Covenant.12 In his most recent report to the General Assembly on online hate
speech (A/74/486), the Special Rapporteur referred extensively to Human Rights Council
12
10
See Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and
expression.
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