An examination of the interplay between the crime of hate speech and freedom of expression

Abstract

It is by far not an easy task to balance legislation incriminating hate speech and the guarantees of freedom of expression in a democratic society within the same legal framework. This dissertation assesses whether these two opposing forms of legislation can properly coexist in the same body of laws without having one overpower the other. In particular, it analyses the legislative instruments pertaining to both hate speech and freedom of expression, taking into account both Maltese legislation as well as that on a European level in the European Union and the Council of Europe. It sheds light on considerations of freedom of expression, or lack thereof, in the enactment of legislation criminalising hate speech or anything falling under such a wide umbrella term, hence providing a background of hate speech laws. Moreover, these legislative instruments are considered in the way Courts apply them in relevant jurisprudence. While criticising the lack of a universal definition of hate speech in all forms of legislation, jurisprudence is considered where these lacunas are explored, most notably in judgements of the European Court of Human Rights. Following an examination of the main jurisprudence from a plethora of cases, the main elements and considerations are elicited to attain a better conclusion on balancing hate speech with freedom of expression where legislation lacks to provide a clearer answer. This dissertation demonstrates that certain definitions and elements remain missing, and, on this basis, it suggests certain amendments that should be made in legislation both in Malta and on a European level. Therefore, in addition to offering a summary of the Court’s decision-making process regarding applications pertaining to hate speech and free speech that would be helpful to scholars and judges alike, this dissertation also aims to be practically helpful to legislators.