This article is part of a Public Spirit series on Religious Discrimination and Hatred.
The issue of how to legislate against religious hatred has been a controversial topic for lawyers. The offence of incitement to racial hatred was created by the Public Order Act 1986. However, this law proved problematic because although ‘race’ has been interpreted to include Sikhs and Jews, it has not included other religious groups such as Christians, Hindus and Muslims. This anomaly existed since the 1980’s, but it began to attract greater criticism when people started to fear that there might be a backlash against the Muslim community after the 9/11 attacks.
In response to this, there was an attempt in 2001 to extend the Public Order Act offences to religion, but the House of Lords disapproved of the proposed legislation believing the issue required greater debate before any new laws should be introduced. A House of Lords Select Committee investigation followed, but the draft provisions which ensued were criticised by a number of diverse groups such as Christian Evangelicals, the Muslim community and even comedians such as Rowan Atkinson. These groups feared that the new provisions would create an illegitimate incursion on free speech by stifling genuine debate and discussion of religion. They were also concerned that the new laws would have a ‘chilling effect’ on speech whereby people (including comedians) might tone down what they have to say for fear of falling foul of the law. This would, they argued, mean that society would lose out on all the benefits that flow from free speech. Parliament took these concerns into account and eventually extended protection to religion under the Racial and Religious Hatred Act 2006. The provisions in relation to religion were much narrower in scope than those under the Public Order Act for race by requiring a much stricter threshold to be passed before speech on religion could be considered to incite hatred.
Although the narrow focus of the new offences was a partial triumph for those groups opposed to their creation, it was also a source of criticism for some academics who believed that the limited nature of the provisions would make them virtually impossible to prosecute. Given that the broader offences on race are rarely used, some academics argued that the inclusion of even narrower provisions on religion was purely a symbolic gesture – a way in which the Muslim community could be assuaged without any real prospect of the law being used as an effective tool against hatred. Several years on, it is clear that these concerns seem largely justified, and the offences are not used very much. As a result, there is very little reported case law on this which means that we do not have a clear idea of how the law has been interpreted in practice.
“the under-use of religious hatred laws should ring alarm bells”
Whilst the concern that many campaign groups had in relation to the free speech aspects of these laws were legitimate, the under-use of these laws should ring alarm bells. This is particularly the case as the amount of hate speech which takes places online appears to be increasing. More worrying is the fact that existing provisions (including those on hate speech) are ineffective at tackling online hate speech. This latter point emerged during the Law Commission’s recent consultation process on hate crime more generally (of which provisions against hate speech form a part).
“our traditional notions of ‘harm’ contained in current legislation are not able to deal effectively with the new phenomenon of online hate speech.”
The essential problem lies in the fact that our traditional notions of ‘harm’ contained in current legislation are not able to deal effectively with the new phenomenon of online hate speech. Our existing laws are designed to deal with the incitement of hatred against a group (under the Racial and Religious Hatred Act 2006) or where hate speech is threatening and targeted at a particular individual (such as for example the Protection from Harassment Act 1998). However, our laws are not able to deal with the more general harm which online hate speech can cause. For example, Jeremy Waldron, a prominent legal philosopher, recently likened hate speech to pollution which poisons the atmosphere and causes fear and insecurity in the targeted groups. Barbara Perry and Patrik Olsen, both leading criminologists, have argued that the internet provides those who belong to groups we might broadly define as ones peddling ‘hate’ with the opportunity to transform themselves into worthwhile causes and allows them to establish a collective identity. This means that the harm in hate speech over the internet goes beyond the issue of public order or personal injury, and is about the spreading of hate over the internet which can bolster and intensify certain hate movements. These articulations of ‘harm’ are not covered by our existing law.
“the time has come for us to re-conceptualise our idea of what ‘harm’ should be encompassed by our legislation”
This suggests that the time has come for us to re-conceptualise our idea of what ‘harm’ should be encompassed by our legislation. This will also require us to consider carefully whether the boundaries between legitimate and illegitimate free-speech need to be reassessed in light of the harm caused by hate speech on the internet. The lack of use of the offences against religious hatred at a time when online hatred is increasing is a good example of why the balance between free speech on the one hand and the existence of effective legislation to tackle hate speech on the other is currently out of kilter insofar as the internet is concerned.
“the virtual world of the internet enables the consolidation, organisation and dissemination of hate speech in a way not possible in other arenas”
Although it is clear that we need to do something about the fact that the virtual world of the internet enables the consolidation, organisation and dissemination of hate speech in a way not possible in other arenas, this is going to be a very difficult task for legislators. As well as the questions over freedom of speech, there will also be some basic technical matters that will need to be resolved, such as how we persuade internet service providers to help the authorities locate the physical position of perpetrators. We also need to consider to what extent internet service providers and owners of websites should themselves be responsible for any hate speech which appears on their platforms. Any new legislation will need to be framed in such a way that a more nuanced approach is taken with regard to the level of protection afforded depending on where the hate speech appears. For instance, we might enforce a higher standard on speech which appears in the comments sections of free online newspapers than we would on a discussion board which takes place behind a pay wall. By far the biggest issue in relation to the regulation of hate speech over the internet is the need to establish an international consensus on norm-setting. This is particularly problematic given that any effective approach will need to include the US which traditionally is very reluctant to impose any limits on free speech. However, it is difficult to envisage any real progress being made without the cooperation of the US. In this respect, it might prove to be the case that collaboration with some of the big internet service providers such as Google might prove more fruitful than trying to persuade the American government to adopt a more European style stance on freedom of expression.
Clearly the task ahead is not an easy one. However, many of the issues that this area of the law touches on are central to the broader question of how to regulate the internet and are therefore concerns that cannot be ignored. The first step is to recognise that there is a problem so that we can begin to find ways of solving it.
Chara Bakalis is Senior Lecturer in Law at Oxford Brookes University. Her main research interest is in Criminal Law, with a particular focus on the interaction of law and religion. Currently she is working on various projects in the area of hate crime and hate speech. Her latest publication is: ‘The Religion of the Offender and the Concept of Equality in the Sentencing Process’, Oxford Journal of Law and Religion, (2013) 2 (2): 440-461.