Hate speech publicly promotes hatred, discrimination or violence against individuals or groups, based on certain attributes, and can be lawfully punished. However, a distinction should be made between hate speech and hate crimes.
Distinction between hate speech and hate crimes
Almost any criminal offence established in French law could be considered a “hate crime”, if it has the two elements needed – it must be recognized by law as an offence (crime or misdemeanour) and it must have a biased motive. This biased motive is an aggravating circumstance which justifies a more severe punishment than the original offence.
Hate crime is not a criminal offence as such but French Criminal Law provides that when a crime or misdemeanour is preceded, accompanied, or followed by hate speech or when it is established that the crime or misdemeanour was committed for reasons linked to the victim’s characteristics (gender, race, origin, religion etc.), it is an aggravating circumstance.
Hate speech, on the contrary, is a specific type of offence. It is a public expression which, incites, promotes or provokes hate, discrimination or violence towards an individual or group of people, based on certain attributes such as, for example, race, ethnicity, nationality, gender, sexual orientation, beliefs or health condition, with the motive of undermining their dignity. Unlike hate crime, hate speech does not have the element of the “base offence”. This means that if the hate speech does not contain the biased or intolerant motive, there would be no criminal offence to be punished. It is only an expression by a person. This means that hate crime, as a concept, is much broader than hate speech.
important Hate speech and hate crimes have certain similar characteristics, namely, both are motivated by hatred or intolerance against individuals or groups based on certain attributes. Also, these two notions are linked to each other because the definition of “hate crime” includes hate speech. Indeed, a hate crime will be qualified as such when, during a criminal offence, the perpetrator publicly expresses hate or violence based on the victim’s ethnicity, religion or other characteristics.
In France, hate speech is a criminal offence called a misdemeanour (an offence less serious than a crime), as laid down in the Law on the Freedom of the Press. Hate speech is not protected by freedom of expression.
Read more about hate speech.
Elements of hate speech in hate crimes
Elements of hate speech can sometimes be noticed before, during or after the commitment of a crime and the state has an obligation to include such elements in the investigation.
example If witnesses say that they heard the perpetrator shouting homophobic slurs before attacking a gay couple, this should be considered during the investigation and further actions.
If the perpetrator possesses such items as books, music or posters that suggest bias or prejudice, this also should be considered during the investigation.
example If, during a search, the police find xenophobic posters in the perpetrator’ residence after the perpetrator’s attack on a group of foreigners, this should be taken into account.