An opinion piece by Daron Tan, ICJ Associate International Legal Adviser, Asia and the Pacific Programme.
18 June 2022 marks the inaugural International Day for Countering Hate Speech, as proclaimed by the UN General Assembly in Resolution 75/309. This day coincidentally falls in the middle of Pride Month, which serves as a sobering reminder of the violence, harassment and discrimination that lesbian, gay, bisexual, transgender and intersex (LGBTI) people continue to face, including, in particular, in the digital sphere.
Queerphobic hate speech is an everyday reality for LGBTI individuals in Southeast Asia while navigating online spaces. This disturbing state of affairs is especially entrenched in legally repressive landscapes that discriminate against LGBTI individuals. With respect to this, five countries in Southeast Asia still retain some form of criminal sanctions for consensual same-sex sexual relations, namely Brunei, Indonesia, Malaysia, Myanmar, and Singapore.
In addition, during the COVID-19 pandemic, online hate speech and violence against LGBTI people have increased, including in Malaysia and Indonesia. Further, lesbian, bisexual and transgender women are at greater risk and “may experience particularly severe forms of online violence”, as has been reported in Singapore.
Against this background, how should States protect LGBTI individuals against an increasing proliferation of online hate speech? What qualifies as “hate speech”? What forms of hate speech should States prohibit? What manner should prohibitions take? This contribution seeks to address these questions and lay out a blueprint for State responses to different forms of online hate speech. While international human rights law enumerates the answers to these questions, addressing them in practice may be tricky, especially in Southeast Asia, where there is a conspicuous absence of anti-discrimination legislative protections for LGBTI individuals, and where States are often the source of the hate speech.
Identifying and Categorizing Hate Speech
The first step is to identify what hate speech is. The UN Strategy and Plan of Action on Hate Speech defines it as “any kind of communication in speech, writing or behavior, that attacks or uses pejorative or discriminatory language” against individuals based on a protected identity factor.
While useful as a starting point, it is immediately apparent that what may constitute communication that “attacks or uses pejorative or discriminatory language” is remarkably broad, and can cover a wide spectrum of speech of varying severity. More specificity is thus required on the forms of hate speech that should attract different levels of State intervention.
It may be useful to conceptualize the different manifestations of hate speech as lying along a sliding scale, arranged sequentially according to their severity. This proposed categorization is synthesized from a range of sources, including the Rabat Plan of Action and ARTICLE 19’s literature on hate speech, with some adjustments. At its most severe end of this scale lies speech that inflicts or threatens violence against LGBTI individuals (Category 1). Right next to this would be speech that incites violence, hostility or discrimination against LGBTI persons (Category 2). Somewhere in the middle of this scale would be speech that threatens the rights or reputations of others, or threatens national security, public order, public health or morals (Category 3). At the opposite, least severe end of the scale would be hate speech that does not fall in any of the above-mentioned categories (Category 4).
While ARTICLE 19 has envisioned this categorization of hate speech as a pyramid, a sliding scale may be a more precise visualization and avoids the impression that the least severe form of hate speech (Category 4 above) is more common than its more severe and harmful manifestations.
Countering Queerphobic Hate Speech
The corollary of the aforementioned scale is that States should respond differently to hate speech of varying severities targeting LGBTI individuals. State responses may take a myriad of forms, ranging from legislative restrictions to positive policy measures. Attempts to protect LGBTI individuals from online harms and violence must be carried out in a manner that upholds the mutually reinforcing rights to freedom of expression and to equality and non-discrimination.
In Southeast Asia, along a lack of general anti-discrimination laws, there is a conspicuous absence of laws protecting LGBTI individuals from harmful expressions, including a total lack of LGBTI-specific hate crime laws and laws that criminally sanction expression inciting violence, hostility or discrimination.
In a region where vague and overbroad laws are often enforced to arbitrarily restrict freedom of expression, caution in countering online hate speech must be exercised to avoid State overreach through countermeasures that may be too heavy-handed, even if well-intentioned.
Underpinning all State responses to online hate speech is article 19 of the International Covenant on Civil and Political Rights (ICCPR), guaranteeing the right to freedom of expression. This right may be restricted only if the restriction is provided by law and necessary for respect of the rights or reputations of others; or for the protection of national security or of public order, or of public health or morals. The Human Rights Committee, the body of independent experts who authoritatively interprets the ICCPR, has made clear in General Comment No. 34 that these principles are also applicable to restrictions on the kinds of expression prohibited under article 20(2) of the ICCPR, which requires States to prohibit by law any advocacy of hatred that constitutes incitement to violence, hostility or discrimination. These standards also apply online, as affirmed by the consensus resolution adopted by the UN Human Rights Council in July 2018.
Category 1 Speech: Hate Speech that Inflicts Violence or Directly Threatens Violence
Category 1 speech should be criminalized under domestic laws, pursuant to international human rights law. These forms of hate speech inflicting or directly threatening violence are sometimes classified as “hate crimes”, which has been defined by OHCHR as a “prejudice-motivated crime which occurs when a perpetrator targets a victim because of their membership (or perceived membership) of a certain social group”. The base crimes for such bias-motivated offences include threats of violence; assault (the reasonable apprehension of imminent injury or offensive contact); or harassment (sustained verbal or non-verbal attacks of intimidation). This violence can manifest not only physically, but also mentally and psychologically.
Human rights law is clear that, wherever evidence so warrants, perpetrators of such violence or threats must be investigated, prosecuted and if convicted, punished with appropriate sanctions. The UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity has recommended that States “enact legislation on hate crimes that defines homophobia, misogyny, biphobia and transphobia as aggravating factors for the purposes of sentencing.”
Category 2 Speech: Speech Advocating Hatred Inciting Violence, Hostility or Discrimination
For Category 2 speech, article 20(2) of the ICCPR is unequivocal that advocacy of “hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
It must be emphasized that this requirement to prohibit by law does not require States to criminalize such incitement. On the contrary, criminalization should be reserved only for the most severe forms of incitement. This severity should be assessed under the six-part test identified in the Rabat Plan of Action, which looks at the: (i) social and political context; (ii) status of the speaker; (iii) intent to incite the audience against a target group; (iv) content and form of the speech; (v) extent of its dissemination; and (vi) likelihood of harm. As an example: under this test, a viral Facebook post by a celebrity of great influence that intentionally encourages others to beat up transgender women is likely to meet the high threshold required for criminalization.
The appropriateness of criminal sanctions to Category 1 speech and egregious forms of Category 2 speech has also been encapsulated in Principle 5 of the Yogyakarta Principles, which requires States to “impose appropriate criminal penalties for violence, threats of violence, incitement to violence and related harassment, based on the sexual orientation or gender identity of any person.”
While some Category 2 speech should be criminalized, other less severe forms of Category 2 speech must nevertheless still be prohibited. Such prohibitions can take the form of administrative or civil sanctions, in line with the requirement under article 19(3) for State restrictions to be the “least intrusive instrument” and “proportionate to the interest to be protected”. For instance, States should enact comprehensive anti-discrimination frameworks that explicitly include sexual orientation, gender identity and gender expression as protected characteristics, and provide for the right to an effective remedy for LGBTI persons who have suffered actual damages as a result of online hate speech, including a civil remedy for damages.
Category 3 Speech: Hate Speech that Threatens the Rights or Reputations of Others, or Threatens National Security, Public Order, Public Health or Morals
While Category 1 and 2 speech must be prohibited by law, through criminal, administrative or civil sanctions, Category 3 speech may be restricted, provided the restrictions meet the strict test under article 19(3) of the ICCPR, as explained above. Any restriction of such speech must comply with the principles of legitimate purpose, legality, necessity and proportionality under international human rights law. For instance, civil defamation laws may be used to target defamatory hate speech.
In particular, the principle of legality is likely to be demanding for States seeking to enact legislative responses to Category 3 speech. The principle of legality requires laws to be “formulated with sufficient precision to enable an individual to regulate his or her conduct” and not to “confer unfettered discretion for the restriction of freedom of expression on those charged with its execution”. However, “hate speech” is notoriously difficult to define. Even the definition of hate speech promulgated in the UN Strategy and Plan of Action on Hate Speech is unlikely to pass muster under the principle of legality, as has been noted by the former Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
Category 4 Speech: All Other Forms of Hate Speech
Category 4 contains all other forms of hate speech that are not captured by the previous categories. Under international human rights law, Category 4 forms of hate speech, even if offensive and rooted in queerphobia, should not be restricted.
In fact, albeit offensive and controversial, the censorship of these less severe forms of hate speech may be counterproductive. Restrictions only serve to remove the symptoms of intolerance. Instead, “openness and contest is the antidote to hate speech, rather than state intervention”. The public discourse generated by queerphobic hate speech may be more effective in countering stigma, prejudice and discrimination. For instance, in Singapore, an influencer who appeared in an Instagram video linking gay people to Satan later apologized after receiving criticisms for the homophobic sentiments perpetuated by her statements. This episode generated much discussion online, including on Reddit, which contributes to the shaping of the narratives on social media pushing back against homophobia.
This does not mean that States should sit idly in the face of Category 4 hate speech. Instead, States should adopt positive policy measures, in line with the Rabat Plan of Action, to address the prejudice underlying such hate speech. As recommended by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, such public policy measures to “end the spiral of discrimination, marginalization and exclusion” of LGBTI persons can include, inter alia, public education campaigns; education policies addressing harmful social and cultural bias, misconceptions and prejudice; and addressing negative or stereotypical portrayals of LGBTI persons in the media.
The adoption of positive policy measures may be hard to imagine in Southeast Asia, where the State is often the source of hateful, queerphobic speech. For instance, it has been reported how politicians in Indonesia have accused LGBTI persons of being “dangerous criminals and disease spreaders”. In July 2020, Malaysia’s Religious Affairs Minister published a Facebook post giving “full license” to Islamic authorities to arrest and “educate” transgender persons. It goes without saying that the State, including politicians and public officials, must refrain from making hateful statements rooted in anti-LGBTI stigma.
States in Southeast Asia must overcome their inertia and do more to address the endemic spread of queerphobic hate speech both online and offline. The framework elucidated here seeks to provide a clear and coherent roadmap to how States should begin countering such hateful narratives in a manner grounded in international human rights law. Social media companies, while not the subject of this discussion, should also ensure that their content moderation policies align with international human rights law and standards, in line with the UN Guiding Principles on Business and Human Rights.
In summary, States should be cautious to apply the criminal law to curtail hate speech. Generally, all restrictions on hate speech must be carried out in line with the principles of legitimate purpose, legality, necessity, and proportionality. Category 1 and serious forms of Category 2 hate speech should be criminalized, while less serious forms of Category 2 hate speech should be prohibited through administrative or civil penalties. Category 3 hate speech may be restricted if in line with the principles of legitimate purpose, legality, necessity and proportionality. Due to the various nuances and complexities of categorizing forms of hate speech, any restrictions through legal enforcement on hate speech should be undertaken by an impartial and independent judicial authority.
Finally, States themselves must always refrain from hate speech against the LGBTI community, and should instead deploy positive policy measures aimed at addressing the root causes of the stigma and prejudice against LGBTI persons in the country.
First published on Opinio Juris here.NewsOp-eds