Striking a balance between the offence of incitement to racial hatred and the right to freedom of expression : recent European developments and their likely impact on the Maltese jurisdiction

Abstract

The offence of incitement to racial hatred was introduced by means of Act III of 2002 and is thus relatively new to our Criminal Code. Previously, acts which are now governed by this provision used to be regulated by different pieces of legislation which are still operative nowadays and which will also be examined in this thesis. At first glance it is immediately clear that the creation of this offence of incitement to racial hatred hinders the exercise of an unrestricted right to freedom of expression. However, upon examination of the right to freedom of expression, it is apparent that it carries with its duties and responsibilities. In the name of such duties and responsibilities, it is permissible for certain restrictions to be imposed upon the exercise of this right, provided that the restrictions are done in the manner provided for in the law, which will be examined in this thesis. Keeping this in mind, a discussion will be entered into to establish whether the offence of incitement to racial hatred is a permissible restriction. Moreover, if it is accepted that this is the case, there is nonetheless a balancing exercise that must be made with regard to actual alleged offences of incitement to racial hatred. These acts must be examined with regard to whether they fall within the category of permissible restrictions to freedom of expression, and therefore may be culpable in terms of Art. 82A2 of the Criminal Code, or whether, instead, they deserve the protection of the right to freedom of expression and must thus be allowed. In this thesis the above two issues will be examined, leading to a conclusion that, in the light of various judgements of the European Court of Human Rights, the restriction to freedom of expression imposed by the offence of incitement to racial hatred is indeed permissible. This thesis will also seek to create a framework for the examination of alleged offences of incitement to racial hatred so that it may be determined whether such acts should be protected by the right to freedom of expression or whetherthey overstep the boundary and therefore there should be a conviction of the offence of incitement to racial hatred. Since this offence is so new to the Maltese legislation, and thus our case-law on the matter is sparse, I will look at European developments on the matter, both in the legislation as well as the case-law, which will be used as a guide for the examination of the position at Maltese law and how it is likely to be interpreted by the Maltese Courts.