Exercice de la profession | 15.12.2022

Hate speech

We encounter various types of hate speech almost every day.

However, hate speech which is spread in a very simple way on social networks and is accessible to a considerable number of people requires particular attention.
By now, we probably got used to it and in fact do not devote particular attention to the same, which is completely wrong because in addition to having serious consequences, it equally represents a violation of fundamental human rights. The liberalisation of public space, i.e. the fact that social networks and portals become one of the main channels of public information, has made hate speech spread through social networks, different profiles and groups, and therefore it become an integral part of everyday life and a regular way of expression.

Hate speech has various definitions, but no matter which definition of hate speech we choose, we will recognise it very easily due to the fact that hate speech represents any public expression that promotes, incites, spreads and even justifies hatred and hostility towards any social group, creating an environment suitable for various forms of discrimination. Looking from the legal point of view, Bosnia and Herzegovina adopted a series of regulations regulating hate speech and in addition established institutions with the task of suppressing this phenomenon, but what makes it particularly difficult to suppress as well as regulate this phenomenon is the prevalence of hate speech on the Internet, where it spreads and projects quite easily, often under the complete anonymity of its creators.

Although hate speech is very noticeable in practice, statistical data, stated in the Special Report on Hate Speech in Bosnia and Herzegovina, prepared on the initiative of the Council of Europe Office, show that the Institution of the Ombudsman for Human Rights in BiH has registered a small number of cases of hate speech, i.e. an average of two or three cases per year, opened ex-officio. The situation is almost identical in the judiciary, and there are almost no practices and decisions regarding hate speech in either criminal or civil proceeding. However, it is necessary to distinguish hate speech from criminal acts committed out of hatred.

If we talk about the regulatory framework for suppressing hate speech, we will find the basis of it in international documents such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, as well as the indispensable European Convention on Human Rights and other recommendations and protocols that clearly and unambiguously define the concept of hate speech, the prohibition of hate speech, but also the relationship of hate speech in connection with freedom of expression as a fundamental human right guaranteed by the Universal Declaration of Human Rights.

Last year, the UN General Assembly recognised the importance of preventing hate speech, and accordingly called on all countries to strengthen their engagement in this phenomenon, by adopting a Resolution aimed at combating discrimination, xenophobia and hate speech, and declared June 18 as the International Day Against Hate Speech, which is being celebrated this year for the first time. When it comes to the domestic regulatory framework, it is noticeable that neither the Constitution of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republic of Srpska, nor the Statute of Brčko have provisions expressly prohibiting hate speech, but given that they contain provisions guaranteeing fundamental human rights and freedoms, as well as the very principle of prohibition of discrimination, it is considered that there is a basis for the legal regulation of hate speech, as well as criminal acts committed out of hatred on the territory of Bosnia and Herzegovina. If we take into account the definition of hate speech from the beginning of this text, as well as the fact that discrimination is also expressed through hate speech, then we can also say that hate speech is in some way regulated by the Law on Gender Equality of BiH, the Law on Prohibition of Discrimination, as well as the Law on freedom of religion and the legal position of churches and religious communities in Bosnia and Herzegovina.

Namely, the Law on the Prohibition of Discrimination was adopted in 2009, and thus the prohibition of discrimination in almost all areas of life and work was established in Bosnia and Herzegovina. If we consider the criminal law, we can conclude that in Bosnia and Herzegovina, crimes committed out of hatred are regulated in all four criminal laws (BiH, RS, FBIH, Brčko District). Therefore, it is necessary to distinguish between criminal acts committed out of hatred and those related to hate speech, with the fact that hate speech most often precedes or follows criminal acts committed out of hate. Through these laws, Bosnia and Herzegovina introduced the concept of hatred as an aggravating circumstance, however, criminal protection against hate speech is regulated in a much more comprehensive manner only by the Criminal Code of the RS, which in Article 359 prescribes a special criminal offense called - Public incitement and encouraging of violence and hatred, while the same was not done in FBIH and Brčko District. The Republic of Srpska continued to regulate hate speech through other regulations and areas, so relevant provisions can be also found in the Law on Sports of the Republic of Srpska.

In addition to the law, Bosnia and Herzegovina tries to regulate this issue with numerous bans on the spread of hate speech by electronic and print media, as well as establishing various by-laws, codes, instructions and recommendations. Likewise, most digital platforms and online communities have their own special rules and guidelines to ensure users are protected from harassment, insults and hate speech on their platforms, so in accordance with the guidelines any communication, contrary to this, can be reported to administrators and moderators who can ban or remove the same. Due to the fact that hate speech can cause emotional, social, psychological, and even physical consequences for the health of an individual exposed to this phenomenon in any way, the state must still establish protection mechanisms against this phenomenon, and a special challenge represent the use of technology in these purposes.

According to data from the Human Rights Ombudsman Institution, until 2019, complaints involving hate speech were registered as other forms of discrimination, while only from January 1, 2019, hate speech has been registered as a special category, but a very small number of complaints have been received so far. Although the number of recorded hate speeches is quite small, and the number of those that are sanctioned is even smaller, it is still extremely important to note that every word carries its own weight, i.e. the consequences and responsibility for what is said. We can state that people who spread hate speech, regardless of age, quite consciously use words and sentences that we characterise as hate speech, without taking into account the consequences they cause. Therefore, it is necessary to continuously work on establishing protection mechanisms, as well as prevention and education about ways of expression. This implies a clear limit should be set to the extent to which the right to freedom of expression excludes the type of expression that incites hatred and abuse of freedom of expression.

By Tijana Tatić Milačić
Law firm Sajić
Bosnia and Herzegovina