Hate Speech Based on Religion

Introduction

  In the legal system of the Republic of Armenia, hate speech is defined only by the criminal legislation specified in the RA Criminal Code. There are no norms of hate speech in administrative and civil legislation. Thus, the legal framework for protection against hate speech and harassment is incomplete. In other civil and administrative spheres, legal protection against hate speech may be called for through alternative norms which will be discussed in this article.

Criminal Legislation on Hate Speech

Article 226 of the RA Criminal Code  

 The model of hate speech in criminal law is defined in Article 226 of the RA Criminal Code adopted on April 18, 2003, which provides the following:

Article 226. Inciting national, racial or religious hatred.

    1. Actions aimed at the incitement of national, racial or religious hatred, at racial superiority or humiliation of national dignity, are punished with a fine in the amount of 200 to 500 minimal salaries, or with imprisonment for the term of 2-4 years.
    1. The actions defined in part 1 of this Article committed:

1) publicly or by mass media,

2) with violence or threat of violence;

3) by abuse of official position;

4) by an organized group,

are punished with imprisonment for the term of 3 to 6 years.

The article defines the elements of hate speech crime by the three personal characteristics (protected characteristics), one of which is religion. It provides a supportive legal framework for effective protection against hate speech on grounds of religion.

Article 63 of the RA Criminal Code defines religious hatred and religious fanatism among the qualitative feature of crime. This implies that any crime defined by the RA Code acquires a qualitative feature, that is, a legal basis for aggravating liability and punishment if the crime was committed for religious reasons or religious fanatism, as a subjective element of crime. This applies, for example, to actions that may have common features of hate speech, such as public calls to unleash an aggressive war (Article 385), public incitement to genocide (Article 393.1) or genocide and denial, mitigation, approval or justification of crimes against the peace and security of mankind (Article 397.1).  Nevertheless, manifestations of hate speech in the Republic of Armenia more often occur on the bases of Article 226.

However, it should be noted that the elements of crime of hate speech defined in Article 226 of the RA Criminal Code are incomplete and do not meet the international standards on the issue of hate speech. This article only defines the criminal action of inciting hatred but it does not define the criminal actions of inciting violence and discrimination. Moreover, the Code does not distinguish between "incitement" and "dissemination", which are separate actions and one is not absorbed by the other. For example, the dissemination of materials containing hate speech on Internet platforms using digital technologies can be carried out without expressing any hostile, hateful thoughts, even silently, while such actions can be equated to the action of "inciting" only by virtue of interpretation, to make Article 226 applicable. Thus, the elements of crime of disseminating hate speech as well as of inciting violence and discrimination are missing in the article.

In this case, within the scopes of legal practice or a specific case and with appropriate grounds, it is recommended to raise the issue of the absence of the aforementioned substantive grounds and challenge this norm in the context of incompatibility with the content of guarantees defined by Articles 29, 41, 77 and 79 of the RA Constitution.

Article 226.2 of the RA Criminal Code

Article 226.2 of the RA Criminal Code defines the features of crime of incitement to public violence on discriminatory grounds. The article, in particular, defines the following:

Article 226.2 Public call for violence, including such acts as publicly justifying or advocating violence

    1. the public call for violence against a person or group of persons based on sex, race, colour, ethnic or social origin, genetic characteristics, language, religion, ideology, political or other views, affiliation to national minority, property status, origin, disability, age or other personal or social ground, including such acts as publicly justifying or advocating such violence in the absence of elements of crimes defined under Part 4 of the Articles 225, 226, 226.1, 301, 385, 397.1 of this Criminal Code are punished with a fine in the amount of 50 to 150 minimal salaries, or with arrest for the term up to 2 months or with imprisonment for the term up to 1 year.
    2. The actions defined in part 1 of this Article committed:

1) by a group of individuals with prior agreement,

2) by abuse of official position;

are punished with a fine in the amount of 150 to 300 minimal salaries or with arrest for the term of 2-3 months or with imprisonment for the term of 1-2 years with prohibition to hold certain posts or practice certain professions for the term of 1-3 years or without it.

The importance of this article lies in the fact that there are not only three features protected by the prohibition of discrimination, as defined in Article 262, but numerous, even up to the general prohibition of discrimination, which is defined in the last sentence with the phrase "other personal or social circumstances".  Nonetheless, religion is enshrined in the article as a separate feature and the last phrase can be applied to cases of any personal or social nature, in any way related to a person's religious beliefs, even without being explicitly regulated by the Code. For example, Article 385 which defines public calls for aggressive war does not define religion as a separate motive or objective feature of crime, therefore, public calls for aggressive war on the basis of religion can be regulated by Article 226.2 to emphasize the discriminatory motive of crime and prejudice against religion.

The article also criminalizes justification or incitement to violence, which is something new in criminal law.

Administrative Legislation on Hate Speech

Administrative legislation consists of the RA Law on Fundamentals of Administration and Administrative Proceedings as well as the RA Code on Administrative Violations. Both of these two legislation acts do not stipulate any provision regarding hate speech.  The question arises, whether such regulation is legitimate and whether it complies with the constitutional guarantees of citizens.

Administrative law can play an effective role in limiting the spread of hate speech, where the severity and public danger of hate speech do not reach the minimum threshold of criminal law, but where there is still a general need to regulate that speech in the interests of public order and peace. Administrative liability measures are also less onerous and stigmatizing than those meted out in the Criminal Code, and so, can help when trying to undertake the delicate balancing act between freedom of expression and the protection of society against hate speech. There are cases in practice when the unrestrained release of offensive statements and outrageous remarks against a person or a religious union on social networks does not require the intervention of criminal law due to their seriousness and degree of public danger, therefore, they require public intervention in order to regulate such behavior. The purpose of administrative law is mainly regulation rather than punishment and for some public actions an administrative response would be more appropriate than criminal punishment. Administrative regulation provides more delicate and effective balance of conflicting legitimate rights, especially when one of these is the right to freedom of expression.

In addition to those mentioned above, there is another feature in administrative law that criminal law is lacking. In general, the administrative procedures and judiciary reactions are more rapid and legal consequences thereon have a faster action than the criminal ones.  If, for example, a person repeatedly publishes abusive or otherwise outrageous remarks against a religious organization on his or her social media page, then one can first attempt imposing measures of public administration, and only afterwards, if necessary, criminal coercive measures. Administrative response methods take from several days to several weeks, while criminal response methods last for months and years with the use of larger resources.  

Recommendation 8 of the European Commission Against Racism and Intolerance (ECRI) of General Policy Recommendation No.15, establishes civil and administrative liability mechanisms in relation to hate speech, recommending to the governments of member States in accordance with their legislation to:

<<clarify the scope and applicability of responsibility under civil and administrative law for the use of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those who are targeted by it while respecting the right to freedom of expression and opinion>>.

It follows from the interpretation of Recommendation 8 (given in explanatory memorandum accompanying GPR No.15), that in order to ensure the compatibility of legislation with the right to freedom of expression, the liability needs to focus more on the possible harm of hate speech, rather than on the content thereof. Thus, criminal legislation should be aimed at regulating such uses of hate speech, which are intended to incite acts of violence, intimidation, hostility or discrimination[1], or which can reasonably be expected to cause public or personal harm[2]. Therefore, it is preferable to regulate by administrative law the type of hate speech that is most likely to disrupt public order rather than cause harm. In that case, it would be easier to balance such regulation with the right to freedom of expression or the public interest in receiving information. In the same context, it should also be noted that in the case of administrative regulation, it would be possible to apply lighter and more dynamic regulations of legal protection, such as the imposition of an administrative fine, the adoption of an administrative act on the removal or blocking of publication, including expedited proceedings for imposing sanctions and other restraining orders by court decision.

Thus, it is recommended to make the aforementioned legal gap and its compliance with constitutional guarantees a subject of discussion. It is recommended to initiate a strategic litigation regarding cases, when words of religious intolerance are said on social media or any other public platform towards a religious organization or a person, which, in addition to being of a kind that interferes with the individual rights of an organization or a person, will also represent a statement endangering the public order (publicly acceptable moral norms, public peace and tranquility, rules of public coexistence, etc.).

[1] ECRI General Policy Recommendation No.15 (GPR No.15), paragraph 148.

[2] GPR No.15, paragraph 152.

Civil Law Regulations on Hate Speech

As in the case of the RA Code on Administrative Violations, the RA Civil Code also lacks any provision on hate speech as an object protected by civil law. Moreover, there is no norm regarding non-discrimination in the Code either. This is also a major gap in the legislation.

The fact that the RA Civil Code defines the norms of insult and defamation (Article 1087.1) does not change anything, because hate speech has different substantial legal grounds than insult and defamation, and if in some cases hate speech is presented as an insult or defamation (for example, the case of trolling), for the most part these norms cannot be the basis for effective legal protection.

Because of the mentioned legal gap, when applying to court for disputes involving hate speech, citizens often rely on Article 1087.1 seeking protection from speech inciting discrimination and intolerance. Such proceedings don't get the desired result, because the substantial legal grounds of insult or defamation are different from the substantial legal grounds of hate speech. Therefore, the RA Civil Code should define the prohibition of hate speech as an independent object of civil law relationships. Or, otherwise, an independent, separate and substantive law stipulating the prohibition of discrimination should be adopted.  

Thus, it is recommended to raise the issue of the absence of a relevant legal norm defining and prohibiting discrimination or hate speech in the RA Civil Code in the course of the relevant legal proceedings.  

Regulation of Hate Speech in the Sphere of Audiovisual Media

The RA Law on Audiovisual Media was adopted in August 2020, replacing the RA Law օn Television and Radio Broadcasting, which had been in force since 2000. This law does not regulate the Internet domain. Therefore, the audiovisual media programs that are broadcasted on YouTube and other Internet platforms are outside the scope of this law.

The RA Law on Audiovisual Media stipulates a provision on prohibition of hate speech.  The provision defining the prohibition of hate speech is point 7 of Article 9, which defines the prohibition of hate speech with four protected characteristics: national, racial, religious and gender.

ARTICLE 9

Prohibiting abuse of audiovisual programs

…

It is prohibited to use audiovisual programs that are intended to incite national, racial, religious and gender discrimination or spread conflicts, or contain information pursuing such intention.

Religious characteristics is defined as an objective characteristics of action, which is a favorable approach. The article provides a basis to the national regulatory body, i.e. the Commission on TV and Radio of Armenia (CTR), having the force of law to monitor television and radio programs, under Article 32 of the Law, to inspect the implementation of the conditions stated in the broadcaster’s license and of the requirements of this Law, as well as to determine the compliance of the audiovisual programs with the requirements of the legislation, the license and the aforementioned Article, using a selective audio/video-based observation research. Based on the application of the mentioned jurisdiction and on Article 55 of the Law, the Commission has the right to initiate legal proceedings in cases of <<violating the provisions of the legislation regulating audiovisual media>>.  

The audiovisual media sphere is also regulated by the RA Law on Licensing, according to which for violating the requirements of the same law, in compliance with Article 55 the CTR has the right to apply the following measures of responsibility:

1) written notice,

2) fine,

3) suspension of authorization or license validity,

4) termination of authorization or license validity.

For example, on the basis of part 1, clause 2 of Article 22 of the former RA Law on Television and Radio, in June 2019 CTR has imposed an administrative fine in the amount of 500.000 AMD on «Tsayg» TV for dissemination of content containing religious hatred/racism. Thus, CTR has the right to apply the aforementioned measures of responsibility for dissemination of religious discrimination, hostility, and hatred also in accordance with the new law in force.

As for the RA Law on Licensing, according to Article 35 of this Law, CTR, as a state regulatory authority, has the right to suspend the broadcaster's license, if the licensee commits violations of law, licensing procedures or licensing conditions and requirements which directly threaten the national security and public safety, public order, the life of persons, health or morals of the public, the rights and freedoms of others or their honor or reputation. Although this article is very extensive, strictly theoretical and vague, nevertheless this may be the basis for requesting legal protection, in order to suspend the license of a media broadcaster that broadcasts programs inciting religious discrimination and hostility. Of course, in such cases, CRT would primarily prefer to impose an administrative fine, as the applicability of the principle of proportionality, although as provided in Article 55, it has the right to suspend or even terminate the broadcasting license.

In addition to the mentioned above, the law obliges public broadcasters <<to provide programs to consumers aimed at overcoming stereotypes based on national, racial, religious or gender discrimination>> (Article 22, part 6, point 3, subpoint c). This regulation expresses a positive obligation for a state to ensure that companies providing audiovisual services would take measures towards overcoming stereotypes based on religious discrimination. This may also include a positive obligation to take non-legal steps, such as actions and decisions aimed at awareness-raising, advisory and guiding, that will help combat hate speech.

It is recommended to conduct regular monitoring of radio and television companies and to initiate administrative proceedings in relation to radio and television programs that initiate, promote and disseminate religious hatred, enmity, intolerance; and also to require from CTR to adopt an administrative act establishing the administrative responsibility of the broadcasting entity concerned. In case of failure to adopt a favorable administrative act, the decision of CTR can be appealed through an administrative or judicial procedure.

Soft laws

Soft laws are established by self-regulatory bodies to regulate such legal relations that the authorities deem most suitable for autonomous regulation, without state intervention. In this regard, a number of media companies have adopted codes of conduct for journalists, which in particular, contain provisions prohibiting hate speech. Given the public nature of media activities, the prohibition of such norms is one of the public significance.

47 media outlets of Armenia have jointly adopted the Code of Ethics for the Armenian Media and Journalists, on ethical principles pertaining to their activities. Article 5 of the Code stipulates the following:

ARTICLE 5

Respect for Representatives of Different Groups and for Universal Values

 5.2. Not to promote in any way ethnic or religious hatred and intolerance, or any discrimination on political, social, sexual, and language grounds, exclude hate speech.

A dispute resolving the <<Observatory>> Body has been established in order to coordinate the application of the Code. It is a representative body that conducts investigations on the basis of the submitted applications and makes decisions on the presence or absence of violations of the provisions of the Code of Ethics and issues relevant decisions. The Observatory Body is an authoritative body in the journalistic community. The media outlets that adopted the Code, usually take notice of the decision issued by the Observatory Body, trying not to break the norms of behavior provided by the Code, adapting their activities to the norms of the Code of Ethics. In a number of cases, the decisions of the Observatory Body were also presented by the trial participants during dispute resolution processes.

Thus, it is recommended to initiate legal proceedings of hate speech incidents before the Observatory Body, on the platform of 47 media outlets that have adopted the Code or by journalists on their personal platforms.