On Tuesday the European Commission and various major Internet companies announced a new Code of Conduct on illegal online hate speech. Facebook, Microsoft, Twitter and YouTube have agreed to clarify on their terms of usage that they will prohibit illegal incitement to hatred. Moreover, they have agreed to put in place clear and effective processes to review and remove or disable access to such content within 24 hours.
For those who find themselves the subject of incitement to hatred, this is surely a welcome move. It also demonstrates the fact that Internet companies have extraordinary technical ability to control content, despite their sometimes claiming otherwise as a means of abdicated their responsibility for helping to make the Internet a safer place.
However, this new agreement only covers illegal incitement to hatred as defined by the Council of the European Union Framework Decision on Combating Racism and Xenophobia by Means of Criminal Law 2008/913/JHA, of 28 November 2008. And it only refers to 'race, colour, religion, descent or national or ethnic origin.'
That leaves out, amongst others, gays and lesbians, people with disabilities, transgender identities, and women.
Paradoxically, the current community standards published on the websites of Facebook (www.facebook.com/communitystandards#) and YouTube (www.youtube.com/yt/policyandsafety/en-GB/communityguidelines.html) both explicitly include these other groups when defining hate speech.
UK incitement to hatred law offers similarly piecemeal protections, covering only race, religion, and sexual orientation.
In 2014 the Law Commission recommended against an extension to cover disability and transgender partly because it was not convinced that a problem really existed and partly because it believed that any likely threshold for prosecution would be so high as to result in few prosecutions.
In January of this year, however, the House of Commons Women and Equalities Committee published a similar report that did recommend extension, also based on extensive consultation with experts.
Here is why I think the Women and Equalities Committee got it right.
- Art. 10(2) of the European Convention on Human Rights (ECHR) permits restrictions on free speech that are 'necessary in a democratic society'. If the stirring up of hatred against people on grounds of disability or transgender identity makes people feel less secure to contribute to public discourse, then this would be one grounds of necessity.
- It is true that there is an evidence gap in this area. So we can't say for sure there is such a problem. But we also can't say for certain that there is no such problem.
- The lack of available evidence might reflect a lack of concern for these issues, which is part of the very problem these groups face.
- It can be rational to take a precuationary approach in this area.
- The symbolism of extension is great − it says that people with disabilities or transgender identities deserve parity of protection because they are not second-class citizens.
- In the case of sexual orientation nobody seriously suggested that the UK was on the brink of a kind of sexual orientation war, hetero v. home. What matters is not public disorder in the literal sense of race riots. That certain groups can be left feeling insecure as a result of incitement to hatred may be enough.