{"id":90261,"date":"2019-06-12T14:49:29","date_gmt":"2019-06-12T21:49:29","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=90261"},"modified":"2019-06-12T14:49:29","modified_gmt":"2019-06-12T21:49:29","slug":"speech-by-amila-wijesinghe-barrister-at-hate-speech-seminar-at-opa","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/06\/12\/speech-by-amila-wijesinghe-barrister-at-hate-speech-seminar-at-opa\/","title":{"rendered":"Speech by Amila Wijesinghe Barrister at Hate speech seminar at OPA"},"content":{"rendered":"

Amila Wijesinghe <\/em><\/span><\/h2>\n\n\n

We are all painfully\naware of how much tragedy this island has witnessed. And recent events have\nsparked a renewed public interest in the area of speech regulation. Sri Lanka\nalready has some forms of hate speech regulation in the penal code and the\nICCPR act \u2013 and much of the discussion has centred on the greater utilisation\nof these laws\u2013 or bringing in new hate speech laws. <\/p>\n\n\n\n

However, whilst this is\nan entirely understandable reaction to the problems of this country, it is not\nyet clear whether it is the most appropriate. The freedom of speech is\nsomething often taken for granted, because there is a lack of understanding on\nwhy it is such a vital \u2013 yet fragile- principle. So today I will discuss in\nbrief, some of the reasons for safeguarding speech and why we must view with\ngreat caution, any move to curtail expression. <\/p>\n\n\n\n

First of all, what is\nhate speech? As obvious as it may seem at first glance, it is actually a rather\nelusive concept. There is no universally accepted definition of this in\ninternational law. And this reflects the inherent subjectivity of the concept.\nIt\u2019s influenced by a wide spectrum of subjective, regional and societal factors\nwhich means that it is a term that can be applied to a broad number of things,\nby different people and at different times. What is hate in one country, may\nnot be in the next – what was hate a few decades ago, may be the opposite\ntoday. This presents the law with a significant problem because it requires a\nmethod of (at least attempting) to ensure consistency in its application. <\/p>\n\n\n\n

The International Covenant\non Civil and Political Rights prohibits \u2018any advocacy of national, racial, or\nreligious hatred that constitutes incitement to discrimination, hostility or\nviolence\u2019. And this has been incorporated in Sri Lanka through the ICCPR Act\n(2007). The problem with broad definitions like this is that it leaves much\nroom for interpretation. What is hatred? What is hostility? The State or Courts\nwill be the ones who decide on public morality and societal norms which are the\nlens through which these terms are interpreted. \n<\/p>\n\n\n\n

The problems with this\nare twofold. First, social norms are in a constant state of change and very\ndifficult to officiate. History is full of examples of this. Galileo was\nconsidered extreme for claiming that it was the Earth that orbits around the\nSun. The argument against Jewish people in Britain was that their Old Testament\nvalues were incompatible with liberal Western social norms. It was once\nconsidered extreme to suggest that the Bible should be translated into English\nso that common people could understand it. Blasphemy laws were only abolished\nin England as recently as 2008 and Blasphemy laws are still seen around the\nworld today. The punishment for blasphemy in Pakistan or Saudi Arabia is the\ndeath penalty. Clearly social norms change depending on the time and place you\nhappen to be. What was hatred yesterday, may not be so tomorrow. Attempts to\nentrench social norms through law, can run the risk of stultifying the progress\nof societal values. <\/p>\n\n\n\n

Secondly, although hate\nspeech laws are intended to protect minorities, the social norms they are based\non are determined by the majority. It is inevitable that the Governments of the\nday, motivated by majority influence, determine what is acceptable speech \u2013\nthus potentially side-lining minority voices outside of the accepted\nmainstream.  <\/p>\n\n\n\n

This just highlights the\nsubjectivity involved in determining hate speech. It is why it is important to\nhave a high threshold for culpability for a speech crime and to ensure that\npeople are aware of what speech is prohibited. If the academics are unsure of\nwhat hate speech actually means, and we legislate against uncertain abstract\nconcepts, then how can we expect a layperson to know what he can say? Ambiguity\nsurrounding this would lead to self-censorship and a chilling effect on speech.\n<\/p>\n\n\n\n

Next, why is free speech\nso important? Why defend speech that we consider odious and distasteful?\nFreedom of speech is one of the most important rights. Without it, other rights\nsuch as the right to vote, freedom of association, freedom of religion, to\nmanifest one\u2019s religion \u2013 make little sense. It is a critical element of a true\ndemocracy. This is why the famous American legal philosopher Ronald Dworkin\nsaid that \u2018Free speech is a condition of legitimate government. Laws and policies\nare not legitimate unless they have been adopted through a democratic process,\nand a process is not democratic if government has prevented anyone from\nexpressing his convictions about what those laws and policies should be\u2019. This\nis why political speech is so important and why it can be dangerous to allow\nthe State to decide what constitutes political speech. The most important\nissues also tend to be the most controversial \u2013 whether it be religion,\nimmigration, national security etc. \u2013 and so opinions on this will often be\nexpressed with much hyperbole and passion. We all seem to love our free speech\n\u2013 but it\u2019s the speech of other people, with different views, that seems to make\npeople anxious. <\/p>\n\n\n\n

Often, it\u2019s the ideas\nthat make us feel uncomfortable, that are the most useful in broadening our\nperspectives. It is through the collision of contrasting ideas, that the truth\nis revealed. Even if our ideas are entirely correct, if we only indoctrinate society\nwithout allowing them to be challenged by competing viewpoints, they will not\nhave true conviction, and will crumble in the real world. <\/p>\n\n\n\n

The dicta in the judgment\nof the much cited Handyside case in the European Courts (1979) (which was about\nan offensive publication), stated a right \u2018to shock, offend and disturb\u2019 as\nintegral to the freedom of expression. In the case of Boos v Barry (1988) in\nthe United States (where protestors held signs critical of foreign countries\noutside their embassies), the Supreme Court held that \u2018in public\ndebate\u2026citizens must tolerate insulting and even outrageous speech\u2019. These\ncases reflect a recognition of offence as an unacceptable basis for restricting\nspeech. Offence, by its very nature, is about as subjective as it can get \u2013\nespecially in the sphere of politics and religion. It\u2019s certainly possible for\nsome adherents to one sect of Islam to find the views of another sect\noffensive. Similarly, there are literally thousands of denominations of\nChristianity and people from one may well be offended by the other. The views\nof an atheist in particular, would probably be deeply offensive to many people\nfrom every religion. What is offensive to me, may be entertaining to you, or\neven enlightening to someone else. If offensiveness was accepted as a metric\nfor regulating speech, we would constantly have to yield to the least tolerant\nin society. This would be an imposition of unpredictable standards on\nindividuals, who would have to constantly evaluate what might be offensive today,\nand this could particularly affect minority voices whose views are outside of\nthe accepted orthodoxy. <\/p>\n\n\n\n

The main reason behind\nrecent calls for stronger hate speech regulation has been the issue of national\nsecurity and public order. When approaching these issues, we should distinguish\nbetween offensive (or hateful) speech and incitement to violence or terrorism.\nWhile we should be cautious in silencing ideas \u2013 speech that intentionally and\nforeseeably incites to violence is clearly engaging in criminal behaviour that\nseeks to infringe upon the rights of others. <\/p>\n\n\n\n

The spread of extremist\nideological material has become a widespread threat. Terrorist groups have\nshown themselves to be highly effective at utilizing the internet and digital\nresources to promote their ideologies. In 2014, ISIS was able to recruit more\nthan 6000 new members over the internet in just one month. But this isn\u2019t just\nlimited to digital mediums. In a UK report, it was found that around 30% of\nthose involved in terrorist plots were graduates. A significant number of\nterrorist offenders had been radicalised at their university Islamic societies.\nGroups such as ISIS have targeted University Islamic societies because of the\nvulnerability of students, which makes it easier for them to radicalise them.\nWe know that these extremists target the weak in society, and therefore there\nis a duty to be vigilant. <\/p>\n\n\n\n

Finally, I\u2019m going to\ntalk about whether or not hate speech laws work. The answer to this is not\nclear. The United States is seen as an exception because of its propensity to\nfavour the freedom of expression over any viewpoint based restriction. It\u2019s\nhistory of constitutional free speech guarantees has seen its approach develop,\nfrom a time when the argument that speech should be restricted to prevent a\nrisk of harm resulted in injustices such as pacifists being arrested for\nspeaking out against war and Presidential candidate Eugene Deb being convicted\nfor 10 years and disenfranchised for life, for speaking out against the\nmandatory draft \u2013 to the current day where even neo-Nazi speech is permitted,\nas long as there is not an imminent threat to violence. <\/p>\n\n\n\n

Most European countries\ntake a much more restrictive approach to speech. This is possibly reflective of\nsome guilt in regards to its past. But there is no conclusive evidence of this\nbeing the best response to extreme speech. In fact there are certain merits to\nthe argument that it can be counter-productive in some cases. <\/p>\n\n\n\n

One example were the\nracial incitement and sedition laws implemented in the British Empire. While\nthese were advertised as a response to prevent Hindu\/Muslim tensions in India \u2013\nin practice they were used to silence criticism of Colonial rule. <\/p>\n\n\n\n

Another important example\nwas in the Weimar Republic of Germany, during the rise of the Nazis, where\nthere were established hate speech laws in place. Some of the most prominent\nNazis such as Joseph Goebbels and Julius Streicher were prosecuted for\nanti-Semitic speech. The effect of this was that they received the kind of\npublic platform and attention that they may not have otherwise. It ended up\nreinvigorating their supporters. Sometimes, attempts to silence speech ends up\nbackfiring and allows speakers to claim victimhood and martyrize themselves in\nthe eyes of their supporters. <\/p>\n\n\n\n

It is a somewhat myopic\nview, to believe that the pyrrhic victory in silencing a speaker will guarantee\nthe effective removal of an idea from society. Such action can send these ideas\nunderground, where they fester, and eventually manifest in violence. <\/p>\n\n\n\n

What about Sri Lanka? Did\nthe ban on social media make you feel safer? Or did it perpetuate the climate\nof uncertainty \u2013 especially considering the lacklustre response of the\ngovernment and its reticent attitude to informing the public of the situation.\nSocial media is fast changing how societies interact, and its difficult to know\nexactly what its impact is. But the fact that we didn\u2019t have social media in\nthe riots of 1915, the 1950\u2019s, 1970\u2019s ad 1980\u2019s \u2013 suggests that there\u2019s more to\nthe picture. It is not clear whether hate speech is causal or symptomatic of\nunderlying issues. The best way to combat bad ideas, is through better ideas. <\/p>\n\n\n\n

Speech laws grant an\nincredible amount of power to the State \u2013 and are therefore always open to\nabuse.  Sri Lanka\u2019s existing hate speech\nlaws have been used selectively, and therein lies the risk when granting power\nover ideas to the State. There is fair debate to be had on the merits and\nutility of hate speech laws \u2013 but as Sri Lanka now stands at a pivotal juncture\nin terms of how it will address the issue of extremism and National Security \u2013\nlet us be cautious towards attempts to curtail speech. And aware of why we\nshould safeguard free speech. <\/p>\n","protected":false},"excerpt":{"rendered":"

Amila Wijesinghe We are all painfully aware of how much tragedy this island has witnessed. And recent events have sparked a renewed public interest in the area of speech regulation. Sri Lanka already has some forms of hate speech regulation in the penal code and the ICCPR act \u2013 and much of the discussion has […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":["post-90261","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90261","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=90261"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90261\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=90261"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=90261"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=90261"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}