Hate speech vs offensive expressions

There is a fine line between what can and cannot be considered to be hate speech. While offensive statements or content might be easy to recognize, determining whether it can be considered to be hate speech might be difficult.

Expressions which are merely offensive cannot automatically be considered to be hate speech. Indeed, freedom of expression is applicable not only to statements or content that is well received or regarded as inoffensive or neutral. It also applies to those that offend, shock or disturb. There exist indeed a right to caricature and mockery, such as in political cartoons, that is not hate speech. Therefore, it is important to carefully distinguish hate speech from other insulting, unpopular or extreme views and expressions. 

example A statement can be contrary to the majority’s opinion, considered offensive and feel hateful, but not exactly incite hatred or violence.

According to French law, hate speech will be characterised only if the expression in question induces, incites, or urges the public to commit a particular behaviour that is harmful to others i.e., incite the public to hate, discriminate against, or act violent towards certain persons because of their origin, nationality, race, ethnicity, religion, sex, gender identity, disability and sexual orientation. The aim of this offence is not to punish all offensive opinions but only those that incite hatred, violence, and discrimination. 

example Making fun of a religion, its beliefs, symbols and rituals does not constitute a hate speech, even in the case of obscenity, because such expression does not incite hostility, violence or discrimination towards the believers of the religion themselves.

There is also a distinction in French law between hate speech and defamation or public insults that are based on people’s race, origin, religion, sex, gender identity, sexual orientation, disability etc. This type of defamation and public insult is more severely punished than a basic defamation or insult but it is less severely punished than hate speech because it does not incite a particular illegal behaviour. Learn more about defamation and insult. 

Hate speech should also be distinguished from other types of speech that also incite illegal behaviours and that are punished under French law: 

Principles

To distinguish hate speech from legitimate public debate, it is necessary to consider the following principles:

  • the content of the particular expressions
  • the context in which they have been expressed
  • the aim of the author of these expressions
  • the way the audience has perceived these expressions

example A militant action to boycott products from Israel was considered hate speech by the French court of cassation in 2015 because it provoked discrimination against products coming from Israel, inciting customers not to buy certain products because of the origin of the producers and suppliers. On the other side, the European Court of Human Rights condemned this approach and considered that the call for boycott should have been protected because it was a political expression concerning a subject of general interest and was part of a contemporary debate on the human rights situation in the occupied Palestinian territories.

Reporting on hate speech

While reporting on issues of racism or in broadcasting a public debate, the press and the media might openly show examples of hate speech. However, mere reporting on issues of public interest should not be confused with endorsing the expressions themselves.

example A journalist may publish an interview with a racist youth organization during which members of the organization express their openly racist slogan. The journalist and publisher cannot be held liable for these slogans if he/she has clearly disassociated himself from these views and they were only published to inform the public about racism as a current and much debated social issue.

Resources

Last updated 12/11/2023