By Capital Law Chambers & Corporate Consultants
Background: Today, the whole world is fighting an unprecedented war against the COVID-19 virus, a disease so virulent that it has shaken the world to its foundations. While governments, together with their health authorities and security institutions are fighting the virus with all of their resources, hate speech is raising its head in some quarters of the media, especially on social media. At a time when media must rise above everything to provide accurate and timely information to protect the population without discrimination, hate speech is a distraction that Sri Lanka can do without especially at the present time. The purpose of the following brief discussion is to understand the definitions of hate speech, how restrictions on speech can be balanced with freedom of expression, international practices on curbing hate speech, Sri Lankan legal and regulatory framework with regard to the subject, and some suggestions on a multi-pronged approach to manage hate speech in Sri Lanka.
Hate Speech is defined as public speech that expresses hate or encourages violence towards a person or group based on race, religion, sex, or sexual orientation and usually includes communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation. Hate speech can include speech, gestures, conduct, writing, or displays that incite violence or prejudicial actions against a group or individuals on the basis of their membership in the group. In some countries, hate speech is not a legal term and in others, a victim of hate speech may seek redress under civil law, criminal law, or both. According to Article 20 of the International Covenant on Civil and Political Rights, speech that motivates discrimination, hostility or violence for a person or group based on their ethnicity, religion, sexual orientation, disability etc., is considered hate speech. However, this definition obscures the variety of utterances that can very subtly breed hatred. Hate speech is a broad and contested term. Multi-stakeholders processes (e.g. the Rabat Plan of Action) have been initiated to bring greater clarity and suggest mechanisms to identify hateful messages. And yet, hate speech continues largely to be used in everyday discourse as a generic term, mixing concrete threats to individuals’ and groups’ security with cases in which people may be simply venting their anger against authority.
Hate speech vs. freedom of speech is an ongoing debate involving freedom of speech, hate speech and hate speech legislation. Freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights (UDHR) and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR) which recognizes that everyone shall have the right to hold opinions without interference. However, the right to freedom of expression is subject to respect for the rights or reputation of others or the protection of national security or of public order, or of public health or morals.
Freedom of speech and expression, therefore, may not be recognized as being absolute, and common limitations or boundaries to freedom of speech relate to the do no harm principle typically interpreted to mean that your actions should not cause injury or injustice to people. The idea of the “offense principle” is also used in the justification of speech limitations, describing the restriction on forms of expression deemed offensive to society, considering factors such as extent, duration, motives of the speaker, and ease with which it could be avoided.
Hate speech laws across the world are enshrined in constitutions, general procedural laws and in specific laws with punishment varying from fines to imprisonment. Among commonwealth countries, Australia’s hate speech laws seek especially to prevent victimisation on account of race. New Zealand prohibits hate speech under the Human Rights Act and makes it unlawful to publish or distribute matter or words that might create hostility on the ground of colour, race, or ethnic or national origins of that group of persons. The Constitution of Ireland guarantees Irish citizens the right to freedom of expression subject to certain limitations on hate speech and provisions of the Prohibition of Incitement to Hatred Act 1989. In Canada, advocating genocide against any “identifiable group” is an indictable offence under the Criminal Code. In India, Freedom of speech and expression are protected by the constitution but “reasonable restrictions” can be imposed on freedom of speech and expression in specific cases. In Malta, the criminal code prohibits in substance hate speech comprehensively. In the United Kingdom, several statutes criminalize hate speech against all categories of people and forbid communication that is hateful, threatening, or abusive, and targets a person on account of disability, ethnic or national origin, nationality, race, religion, sexual orientation, or skin colour.
European countries also have extensive legislation including specific laws and provisions in the constitution as well as general laws such as the Penal Code with an effort to strike a balance between freedom of speech and hate speech. There are examples from Croatia, Denmark, Finland, France, Germany, Netherlands, Norway, Poland, Romania, Serbia, Spain, Sweden, Switzerland and Ukraine among other countries to deal with hate speech, fake news, and related on-line offences.
Among Asian countries, Indonesia has been a signatory to the International Covenant on Civil and Political Rights since 2006, but has not promulgated comprehensive legislation against hate-speech crimes although there are calls for a comprehensive anti-hate speech law and associated educational program. Japan is a member of the UN International Convention on the Elimination of All Forms of Racial Discrimination but has only passed a law as late as 2016 dealing with hate speech but does not ban it and sets no penalty for committing it. Singapore has passed numerous laws that prohibit speech that causes disharmony among various religious groups including in its penal code.
In many middle-eastern countries, certain types of hate speech are not tolerated and offenders have been jailed, deported or have their nationality revoked. The media is also censored and it does not publish news which might portray a negative picture. Jordan has passed laws that seek to prevent the publication or dissemination of material that could provoke strife or hatred including its Audiovisual Media Act No. 71 of 2002, Printing and Publications Act No. 8 of 1998 amended in 1993. Countries in Africa and South America also have hate speech laws enshrined in their constitutions and specific laws in South Africa such as the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 and the Hate Crimes Bill of 2016.
The exception is found in the United States of America, where much of what falls under the category of “hate speech” is constitutionally protected. Hate speech in the United States is not regulated, in contrast to that of most other liberal democracies, due to the robust right to free speech found in the American Constitution. However, there are several categories of speech that are not protected by the First Amendment, such as speech that calls for imminent violence upon a person or group.
Online hate speech can be defined as conversations that takes place on social media or the internet to attack a person or a group on the basis of race, religion, ethnic origin, sexual orientation, disability, gender or political beliefs. Dealing with intolerance and hate speech online is an emerging and critical issue. The Internet’s speed and reach makes it difficult for governments to enforce national legislation in the virtual world and organizations that facilitate online communications, such as Yahoo, Facebook, Twitter, Google and YouTube have developed a set of rules to control hate speech and fake news on their websites including loss of membership, removal of material, and complaining to government regulatory bodies where such laws exist. However, these organizations have a difficult task in balancing the rights of their users to express themselves on line vs. hurting other members and groups. These organizations have made partnerships with government organizations in monitoring and reporting on hate speech on line. For example, during the last presidential elections in Sri Lanka, Facebook and Twitter partnered with the Elections Commission and civil society election monitoring bodies to remove offensive posts that qualified as hate speech.
With regard to on line hate speech, self-regulation is recommended than government restriction. The danger here is regulations relating to on line hate speech can be used for undue censorship and repression of society. For example, the Golden Shield Project, an initiative by Chinese government’s Ministry of Public Security filters potentially unfavourable data from foreign countries. In Sri Lanka, after Easter Sunday terror attacks in April 2019, the President ordered a social media ban lasting nine days, from April 21-30 to stem the flow of fake news and hate speech that could incite violence following communal violence in Negombo and in the North Western Province. Before that, a social media ban was imposed in the country after anti-Muslim violence in the Central Province in 2018. A total ban on social media is harmful since social media has become increasingly essential for personal and business interactions and even during the ban, most social media sites could be easily accessed using a virtual private network (VPN) and as such the ban was circumvented by several users making it largely ineffective. Containing hate speech involves a fine balancing act, as harsh regulations can easily stifle freedom of expression guaranteed by Article 14 in the Sri Lankan Constitution. As full censorship is a threat to this freedom, a more informed and nuanced approach to identifying and limiting hate speech, while still allowing room for criticism, debate and dissent is recommended. Especially at a time such as the present when information regarding the spread of COVID-19 needs to be freely and quickly available, restrictions on social media can be counter-productive as on line platforms are essential for sharing of information and to enable people to stay in touch with friends and family during curfew.
Regulatory environment for hate speech in Sri Lanka. The Constitution of Sri Lanka, while granting citizens the right to freedom of speech, specifically states that this freedom shall be subject to “such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”
Sri Lanka is a signatory to the International Covenant on Civil and Political Rights, and Article 20 of the ICPR states speech that motivates discrimination, hostility or violence for a person or group based on their ethnicity, religion, sexual orientation, disability etc. is considered hate speech. Article 20 (2) of the ICCPR that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” is re-iterated in Section 3 of the ICCPR Act of Sri Lanka as “No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
There are also other laws in Sri Lanka that covers hate speech. The issue, therefore, may not be one of new legislation, but enforcement of existing ones. Section 291A of the Penal Code provides that “Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of the person, or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” Other provisions in the Penal Code under Chapter XV tend to address the offences relating to religion. They prohibit the acts of defiling a place of worship or insulting a religion in a place of worship and even causing a disturbance to a religious assembly. Section 291B of the Penal Code also prohibits deliberate and malicious attempts to outrage the religious feelings of any class of persons with intention to do so. Such insults can be in the form of words, writing or even mere visible representations. It is therefore very clear that the Penal Code, not only prohibits the act of insulting other religions, but also makes them all convictable.
However, arresting on such grounds requires a warrant from a court of law, and the process of finding evidence of intention and of the offence can be a time consuming task. Section 79 (2) of the Police Ordinance, reads as “Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour which is intended to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence under this section.” Therefore, the Police is permitted to intervene in a situation where insulting words or hate speech are used in a public meeting or place.
Defamation was a criminal offence in Sri Lanka and provided for a two-year jail term under the Penal Code until 2002, when it was repealed. Sri Lanka is the first and only country in the South Asian region to have done away with the law of criminal defamation. Now the tort of defamation is part of Sri Lankan civil law defined as intentionally communicating a false message that harms another’s reputation and can also place a limitation on hate speech including posts on social media. Defamation is a ‘tort’ – which is an umbrella term used to describe the laws governing civil responsibilities that people have to one another, as opposed to those responsibilities laid out in contracts. Torts are not necessarily part of written law, like acts or statutes of parliament, but legal constructs which are enforceable in civil courts. Defamation can be divided into Libel – defamatory statement expressed in a fixed medium or Slander – defamatory statements made verbally. Defences for defamation include truth and justification of the report; fair comment; and innocent dissemination. Additionally, certain individuals are immune from defamation due to their position such as members of parliament speaking in parliamentary debates. While defamation seems like a tool to curtail the right to freedom of expression, Sri Lankan media has fought such suits to safeguard media freedom and freedom of speech.
The question of hate speech legislation has been revived in Sri Lanka following recent communal tensions in the country following the Easter bombings in April of 2019. In June 2019, cabinet approval was granted to amend the Penal Code and the Criminal Procedure Code to take action against false news distribution, extremist statements and any statement that could be harmful to the national security and harmful to harmony between the different ethnicities. The Bill to amend the Criminal Procedure Code intended to introduce a two-year prison sentence for anyone guilty of “causing or instigating acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility by the use of words spoken, written or intended to be read, or by signs, or by visible representation or otherwise.” Further, the proposed amendments in the draft bills also stipulated that a warrant would not be required to arrest persons violating these laws.
Sections of Sri Lanka’s civil society, the Human Rights Commission of Sri Lanka and the main opposition party in Parliament immediately opposed the two new Bills. The campaigners argued that, like the Prevention of Terrorism Act of 1979, the new laws would be used to target critics of government rather than hate speech offenders. Petitions challenging the constitutionality of the Bills were then filed in the Sri Lankan Supreme Court and the government abandoned the Bills. Civil society in Sri Lanka must now turn its attention to the more important question of enforcing the ICCPR Act. Such enforcement is vital to advancing justice and preventing future religious violence.
To quote from Antonio Guterres, Secretary General, United Nations “ ..at this juncture where Sri Lanka is contemplating the direction of its policy towards speech laws, it is worthwhile to consider the fundamentals of what hate speech is and why is the freedom of speech is such an important concept…… Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law. We need to treat hate speech as we treat every malicious act: by condemning it, refusing to amplify it, countering it with the truth, and encouraging the perpetrators to change their behavior”.
Although dealing with the COVID-19 crisis is a sensitive and urgent matter, it is not the time to introduce any hasty legislation on reporting and discussing the subject on print and electronic media as well as on line platforms, but for all stakeholders to exercise good decision and right thinking in how public media and platforms are used to write and speak about the virus and other matters.
Multi-pronged Approach is essential to create awareness, empathy, and protection of all people in Sri Lanka and to strike a balance between freedom of speech and expression, right to information with protection from hate speech and fake news especially during the current crisis with regard to COVID-19. A robust legal and regulatory framework that protects freedom of speech and expression through print, audio, and on line platforms, must also protect the multi-ethnic, multi-religious society of Sri Lanka from hate speech and fake news and create a democratic environment for all to live with respect and dignity.
Such a framework must be anchored within a well- informed and sensitized society with broad minded cultural values. In Sri Lanka’s culture and society today, sadly it is common to refer to a human being by race, religion, disability, and physical characteristics often in derogatory terms and this is sadly considered as normal parlance. Mindsets must be changed from childhood and Sri Lanka needs to refrain from using racist colloquialism that is part of daily language when referring to different people. Starting from good practices with regard to language respectful of those who are different, teachers must encourage students to respect diversity whether included in the curricula or not.
The role of civil society involvement is critical as was evident during monitoring and observation hate speech and fake news at the last presidential elections. The complaints made by citizens and observers through national and international civil society groups were successfully dealt with by the NEC proving the importance of independent government institutions to fight hate speech and fake news. The private sector and the media all have important roles to play in respecting the dignity of all segments of the population while safeguarding the right to freedom of expression and reporting. Especially private media in Sri Lanka need to practice journalistic ethics in reporting events in a manner that is factual and does not result in fanning ethnic or religious tensions.
Political and religious leaders have a special responsibility to promote peaceful coexistence without resorting to inflammatory statements that amounts to hate speech and spreading of fake news. In this regard, it is important for CSOs to pressurize political parties to develop codes of ethics for their candidates and members that prevent them from practicing hate speech of spreading fake news, with penalties for those who violate the code. The NEC also could take an active role in this regard, and punish political party members who violate the code especially when having discussions on the upcoming parliamentary elections in the aftermath of COVID-19.
Role of lawyers and Judiciary in implementing laws relating to freedom of expression and violations with regard to hate speech must be learned, consistent and exemplary. In this regard, updating of curriculum with regard to hate speech in institutions teaching law, and continuous professional development of lawyers and judges with regard to Sri Lankan regulatory framework and international best examples are also important. As discussed earlier, the introduction of new laws is not necessary if the current framework is efficiently implemented.
On a final note, as discussed above, Sri Lanka and the world are now facing an unprecedented catastrophe with the spread of the COVID-19 virus. Even at such a time, sadly, there are incidences of hate speech on internet sites such as Facebook with regard to deeply sensitive issues such as burial practices by different religious groups. This is unacceptable and common decency requires Sri Lankans to practice sensitivity and empathy not to violate rights of freedom of expression and speech. Media must use the opportunity to lead the spread of knowledge and information on COVID-19 in a fair and unbiased manner, and online sites must be used with prudence so that Sri Lanka is not having to fight the virus of hate speech when all resources must focus on fighting the virus of COVID-19.
 http://ohrh.law.ox.ac.uk/hate-speech-in-sri-lanka-how-a-new-ban-could-perpetuate-impunity/ – Hate Speech in Sri Lanka: How a New Ban Could Perpetuate Impunity, Gehan Gunatilleke – 11th January 2016 OxHRH
 https://www.lk.undp.org/content/srilanka/en/home/blog/2019/06/25062019.html – Wildfire of Hate Speech by Antonio Guterres, Secretary General, United Nations