In 2023, the Grand Chamber of the European Court of Human Rights issued its ruling in the case of Sanchez v France. The case revolved around the conviction of the applicant, a politician, for inciting hatred or violence against people due to their religious affiliation. What makes this case unique among hate speech cases before the Strasbourg Court was that the applicant’s conviction did not stem from his own words but rather from his alleged failure to promptly remove commends made (...) by others under one of his (non-offensive) Facebook posts. This case has prompted a myriad of significant questions, the main one being, how an earth did we reach a point where imposing a criminal penalty on an internet user for someone else’s speech and how does such a penalty align with the principles of necessity and proportionality outlined in Article 10 of the European Convention on Human Rights (freedom of expression)? This paper aims to address this question by examining the Court’s approach to hate speech, particularly in the realm of politics, how to the Court situates politicians within the scope of Article 10 and how the gradual expansion of ‘duties and responsibilities’ incorporated in Article 10 to engulf those who are not the actual speakers (namely internet intermediaries and, with Sanchez individual politicians). It concludes that Sanchez constitutes a worrying term for the very worst of hate speech and free speech jurisprudence as individuals (at the moment just politicians) have a duty to be vigilant of what others say on the former’s social media pages. If they are not, criminal penalties are deemed to be justified and legitimate by Strasbourg. (shrink)

This paper assesses the extent to which enhancing a penalty for hate crimes is a necessity. It conducts its analysis by looking at the theoretical justifications for and against such enhancement and also the impact of hate crimes on their victims, their groups and society, in comparison to non-bias crimes. It recognizes the particularly damaging effect of hate crimes on these three levels but argues that care must be taken to ensure a high threshold framework and a clear vision in (...) terms of protected characteristics. It argues that if penalty enhancements are to be any use, victims should be empowered to access the criminal justice system whilst the right to freedom of expression must be preserved. The paper commences with a definitional and conceptual framework of hate crimes, proceeds with the theoretical argumentations for and against hate crime legislation, conducts a legislative analysis of hate crimes, using examples from around the world as well as an assessment of the approach of the European Court of Human Rights to hate crime. (shrink)

The freedom of expression is ‘the great bulwark of liberty’ and a ‘cornerstone upon which the very existence of a democratic society rests.’ It constitutes one of the ‘basic conditions for [a democratic society’s] progress,’ encapsulating ideas that may even ‘offend, shock or disturb.’ In his Rhetoric, Aristotle argues that free speech is of paramount importance, particularly in the form of a ‘robust public discourse as a means to promote citizen awareness and vigilance.’ To this end, freedom of expression is (...) a central tenet of democratic checks and balances as it allows for an ‘informed consent of the governed.’ Despite the recognition of this freedom since classical times, and the repeated proclamations of support by a variety of institutions, such as the Council of Europe, what is demonstrated, hereinafter, is that the freedom of expression is in a state of severe recession (regardless of the ‘openness’ of a society). This has resulted from a set of interrelated challenges, namely, the stark demise of Internet freedom within the general ambit of a widening conceptualization of hate, and the systematic strategy of moderating ‘hateful’ content. Whilst these challenges are inextricably interconnected with the technological revolution of our times, the authors hold that the fragile positioning of the freedom of expression in the framework of the Council of Europe and, particularly, the approach adopted by the major regional human rights court of the world, the European Court of Human Rights (ECtHR), has facilitated the systematic erosion of the central agora of expression, namely, the Internet and its fora. It is argued that the current _status quo_, as described hereinafter, is marked by a corrosion of _parrhesia_ or free speech itself and, also, of _isigoria,_ namely, the equal right of all to free speech. In light of the above, and for purposes of extrapolating on the challenges to this fundamental freedom, this paper will commence with a normative assessment of the legitimacy and impact of restricting the freedom of expression, followed by an overview of its position in the Council of Europe, with a focus on the concept of hate. Further, and emanating from the ECtHR’S position in _Delfi v Estonia,_ on the liability of Internet intermediaries, it will conduct an analysis of the status of speech online, extrapolating on the issue of ‘hate speech’ and the horizontalization of responsibility _vis-à-vis_ content moderation through the structural juxtaposition of private, profit-making companies deciphering on issues of freedom of expression through, inter alia (yet increasingly) the use of Artificial Intelligence. (shrink)