Minority vilification: Redress for community members
Balancing the right to be free from hate speech with a right to… hate speech?
By Margarita Ilieva
On 16 February 2021, the European Court of Human Rights (Court) delivered landmark judgments against Bulgaria regarding ethnic minority berating: Behar and Gutman; Budinova and Chaprazov. The domestic courts had failed in their positive duties to afford minority members redress for anti-Roma/anti-Semitic speech attacking their communities. This blog summarises the cases’ backgrounds, the Court’s judgments, and their significance as precedence, and includes two points of criticism and caution as well.
Why are the judgments landmark?
The Court set a precedent, finding violations of private life rights together with non-discrimination rights even though the individuals were not personally targeted. They were ('only') affected as much as any other community member, due to their ethnic group identity. The applicants adduced evidence before the domestic courts that the hate propaganda distressed them, but only the kind that any other minority individual could adduce. Nothing in their personal circumstances made them more of a target, or resulted in any particular impact, that would not be present for another community member.
For the first time, the Court articulated principled criteria to assess if negative community stereotyping is ‘capable of impacting on the sense of identity of [the] group and on the feelings of self-worth and self-confidence of the group’s members to the point of triggering the application of Article 8 of the [European Convention on Human Rights]’. These criteria include (not limited to):
- target group traits (size, homogeneity, vulnerability/stigmatisation history, social position),
- impugned content (capacity to stereotype negatively a group; the stereotype’s essence);
- form and context of the expression, reach, author position/ status, ability to affect a core aspect of the attacked identity/ the community members’ dignity; and
- overall socio-political context.
No factor takes precedence; their interplay indicates if the required severity level is reached (respectively, paragraph (§)67; §63 of the judgments).
These criteria are quite an important advance as they provide the basis for coherence and integrity of the analysis in similar future cases.
Both cases concern a politician/journalist’s anti-minority propaganda, which the Court termed extremely virulent, meant to vilify Roma/Jews and to stir up hatred (§69, 71, 104; §65). A well-known leader of an ascendant parliamentary party, ‘Attack’-- who shortly after came in second in a presidential race -- used multiple channels to disseminate his views: television, radio, books, election campaign/parliamentary speeches. Virulent anti-Romaism was at his party’s core (also, Panayotova and Others v. Bulgaria). (§66-67)
Case genesis at the domestic level
The cases stem from a collective actio popularis this blog’s author built – the first hate speech case in Bulgaria – to enforce freedom from verbal minority abuse as a rule of law matter. The claimant group, ‘Citizens Against Hatred’, included minority individuals (Jewish, Turkish, Roma, non-targeted ethnic groups, LGBT) and 68 NGOs. It took the author months of social mobilising to build this coalition. We campaigned hard beyond the courtroom to keep the litigation publicly visible and impactful. We argued anti-minority propaganda negatively affected each claimant regardless of specific identity/ethos, as well as the public interest. Dehumanization of an(y) identity impaired the dignity of all.
The Bulgarian court divided the collective lawsuit into individual claims by identity. They were heard as separate cases. A judge upheld the Armenian minority claim: the statements – not even mentioning Armenians specifically among the other minorities – constituted harassment and incitement to discrimination, infringing minority individuals’ rights and the public interest. An(y) ethnic minority person had standing. The politician was to abort/ refrain from such statements.
The appeals court upheld the Turkish minority claim: the statements constituted harassment; Siderov was to abstain. The lower court had erred holding the claimant needed to prove dignity impairment; standing opened up.
Citizens against hatred had made their mark.
This high-profile case - media camera crews present in court - empowered many litigants, including many unrepresented individuals, to challenge hate speech. To date, there are dozens of such decisions rendered yearly by the equality body and the courts.
The Court’s judgments
In its judgments, the Court accepted that Articles 8 (private life) and 14 (non-discrimination) applied: the expression was sufficiently malignant, clearly racist. Exercising European supervision as an international court, the Court had to decide if the domestic civil courts (in discrimination cases) had met the positive duty to protect the applicants. The domestic courts needed to balance protection of ‘private life’ with freedom of expression (Article 10). Key was the relative weight of each competing right – in principle, entitled to equal respect – in the circumstances. The considerations the national courts were under a duty to integrate in their analysis: journalists/Members of Parliament/politicians have strong protection for expression on public interest matters. However, promotion of hatred normally has none. Serious criminal sanctions for hate speech by journalists/ politicians are justifiable; expression at odds with Convention values is unprotected (§100-101; §89-90).
The statements were ‘prima facie’ discriminatory in intent: the duty to combat discrimination was to inform the balancing act (§102; §91).
The Court found the domestic courts had downplayed the statements’ capacities to stigmatise, arouse hatred and abuse. They had focused on the speaker’s freedom of expression but failed to recognize the restrictions such racist content merits. Article 8 together with Article 14 was breached as a result of the Bulgarian courts’ flawed analysis. (§104; §93)
The judgments constitute seminal recognition of the justice that community ‘othering victims’ are owed. These are the first successful cases, before the Court, brought by victims of sweeping hate speech not targeting specific individuals, in which violations were found.
Certain of the Court’s approaches are questionable.
1. As the Court recognized in the judgments, in line with its established case law, sweeping community attacks have little/no protection as free expression under Article 10. In a number of previous cases, the Court has discarded hate speakers’ complaints as an abuse of right under Article 17 of the Convention (§105; §94). The statements, the Court found, were deliberately extremely virulent.
Why then, in the Court’s analysis, was Article 10 applicable to them? Why was the speaker’s right to (hate) expression entitled to compete with the victims’ dignity rights? The Court reiterated that hate speech is unprotected but, at the same time, required the courts to treat it as a right comparable to the right not to be subjected to such speech. The Court established a threshold for Article 8 to apply to victims’ rights not to suffer identity abuse – the speech has to reach a certain severity level - but did not apply a symmetrical threshold requirement for Article 10 to apply to such abuse, i.e., a minimum of non-toxicity for speech to claim competing protection.
2. The Court termed the impugned expression ‘extreme’ and ‘meant’ to vilify minorities yet it, contradictorily, also qualified it as ‘prima facie discriminatory in intent’, i.e., apparently intentional in terms of discriminating. ‘Prima facie’ is a legal concept that indicates an inference, a refutable presumption, and not an established fact. If ‘extreme’ content ‘meant’ to vilify minorities is only sufficient for an inference of discriminatory intent, what kind of toxic language is necessary and sufficient to establish as a fact (rather than merely infer) discriminatory intent?
It is hard to see how the statements’ discriminatory intent could be refuted. Given their content and context, as discussed by the Court, it is not realistic that their intent could be any different from discriminatory. ‘Prima facie’ is a concept in direct discrimination law that helps establish covert bias, i.e., tacit discriminatory treatment, one which does not explicate its causal link to the identity in question – ethnic or otherwise. Applying this concept to the blatant bias in these cases of extreme hate speech was arguably unhelpful. It amounts to a devaluation of the concept of ‘prima facie’, which is intended to help victims of discrimination access protection in cases where there are difficulties showing the impugned conduct was based on race/ethnicity (or another protected characteristic).
It remains to be seen how future cases will fare against this background. It is to be hoped that the precedents do not set an exceedingly high standard in terms of proving that general hate speech affects minority individuals’ rights to identity and dignity to a point where they are entitled to ‘private life’ and non-discrimination protection under Article 8 and 14 of the Convention. Such protection should be available in cases of less extreme and toxic anti-minority expression as well.
 A version of this blog originally appeared at the Oxford Human Rights Hub: http://ohrh.law.ox.ac.uk/minority-vilification-redress-for-community-members/.
Margarita Ilieva is a strategic equality and human rights litigator, consulting for various international law organisations. She litigated domestically the Behar and Gutman, Budinova and Chaprazova, and Panayotova and Others cases, and lodged them with the Court during her tenure as Bulgarian Helsinki Committee Legal Director (2007 - December 2017). Other landmark cases she has litigated include Yordanova and Others and Karaahmed.