Litigating anti-Roma hate speech poses huge challenges
Can comments that make a politician more electable also leave him open to being sued?
A common complaint among minorities, in Ireland and around Europe, is that discrimination is hard to spot. People from minority groups complain they no longer face a slammed door but a revolving one. Individuals and families spend time analysing cryptic remarks for evidence of something sinister, leaving them feeling uncertain whether they should be offended. Roma are yet to reach even this difficult stage. Anti-Roma racism is everywhere and is unmistakable. Among other things, it takes the form of a cacophony of slurs and bullying, punctuated by regular attacks from high-level politicians. One of the most recent cases saw a French politician say, “maybe Hitler didn’t kill enough” of them. There are countless other examples.
This barrage of anti-Roma insult is more common elsewhere in Europe than in Ireland, but the increasingly hateful rhetoric in mainstream political life has the potential to affect all of Europe, even countries that consider themselves tolerant.
At the European Roma Rights Centre (ERRC) we monitor hate speech against Roma and are committed to forcing the authorities to combat it. We have only begun to litigate the issue, and it poses enormous challenges. The Law Society’s choice this year, at its annual human rights conference on October 12th, to focus on using the law to challenge hate speech gave us a unique opportunity to reflect on how we can use litigation to protect Roma from statements rooted in a racist, anti-Roma ideology. The discussion with human rights lawyers in Ireland helped us pinpoint three challenges.
The first is to do with the definition of hate speech (ie speech that can give rise to a legal claim by those the speaker has targeted) and the usefulness of challenging it through litigation. When the French interior minister said a few weeks ago Roma were incapable of integrating and should return to Romania and Bulgaria, many Roma in France will have felt this was an incitement to hatred against them. Many others in France simply saw a politician trying to make himself more electable. There is case law from both the European Court of Human Rights (Baczkowski v Poland) and the Court of Justice of the European Union (Case C-81/12, ACCEPT) suggesting that statements by politicians or other influential figures can make them (or the state) liable under anti-discrimination laws if their statements are connected to other discriminatory conduct. In the French case (which the ERRC has no plans to litigate), the minister’s statements accompany an ongoing wave of attempts to evict Roma from their homes and expel them from French territory. But can comments that make a politician more electable at national level also leave him (or the state) open to being sued? If so, what does that say about the state of democracy, and how much more damage might it do to Roma to litigate such a case?
The second challenge is about how to define the authorities’ responsibilities. In a rare step, the ERRC’s human rights lawyers made arguments before the European Court of Human Rights that the court should not conclude there was a human rights violation. The case (Vona v Hungary) was brought by the chairman of a registered association which supported militaristic, anti-Roma marches in towns with significant Roma populations. He complained his freedom of association had been violated because the Hungarian authorities had dissolved the association. The European Court, in line with the ERRC’s arguments, found no violation: the authorities were justified in restricting the applicant’s freedom of association. So states have the power to deal with associations that promote hate by dissolving them, which seems to imply powers to deal with hate speech. But is there ever an obligation to use that power? Should the ERRC litigate when states fail to take action?
The third challenge for the ERRC is about the nature of hate speech itself and the tools used to spread it. As the Vona case shows, hate speech does not fit into the ERRC’s normal model of litigation. Usually the ERRC litigates cases against public authorities, for example when a local authority evicts Roma from their homes or when police assault Roma in detention. In cases of hate speech, the ERRC will sometimes find itself challenging public authorities (such as ministers) who engage in hate speech, but may also find itself supporting state authorities when they punish those who spread racist ideas.
Another shift – towards private law – would be required if the ERRC were to attack hate speech systematically: the way to do it would be to support Roma in bringing challenges against private individuals who incite people to hatred in public spaces or who publish messages of hate on the internet. A very recent judgment of the European Court of Human Rights (AS Delfi v Estonia) indicates that internet portals that allow users to post comments can themselves be sued (where national law allows it) for publishing hate speech. Should the ERRC be looking to sue private individuals, or large internet media and social networking companies?
The ERRC does not yet have the answer to these questions. Fewer than 2 per cent of our cases currently involve direct challenges to hate speech. With inspiration from Ireland’s human rights legal community a few weeks ago, we are now a bit closer to a strategy.
Adam Weiss is the legal director of the European Roma Rights Centre. This article, written before the controversy over the taking into State care of two Roma children, is based on a paper delivered at the conference, ‘Human Rights Challenges for 21st Century Ireland’, hosted by the Irish Human Rights Commission and the Law Society.