Prior to 2006, Estonia outlawed all types of incitement to hatred. The scope of the law was then limited by the Reform Party, the Center Party and EKRE coalition. Only the incitement that threatens life, health or property of others can be punished according to the present wording.

Former Minister of Justice Maris Lauri (Reform) proposed a measure that would have eliminated a decades-old restriction, but the Riigikogu rejected it. There were allegations at the time that freedom of expression would be at risk.

A revised draft of the law was sent out for approval on Thursday. It allows the punishment of those who instigate public hatred, violence or discrimination in a manner that threatens public order. Markus Kärner, deputy secretary general for the criminal policy at the ministry of justice, said that the notion of "public order" is a crucial aspect of the proposal. This does not imply any "ordinary sense of public order" that can be threatened by intoxicated street brawls.

"Here it is understood that an action which is likely to threaten public order is one which gives rise to a fear that such incitement may be followed by an act of violence or which may pose a significant threat to the security of society," Kärner explained, adding that a similarly worded clarification was also added to the draft.

An influential speaker has more to answer for

However, the draft does not specify the relationship between incitement to violence and societal safety. The draft's explanatory memorandum states that such public provocation threatens the security of society because it is likely to result in a variety of crimes, including vandalism or property destruction, as well as systematic intimidation, persecution, discrimination or humiliation of people.

"The mere fact that someone feels offended or discriminated against does not pose a significant threat to the safety of a society as a whole. We are, rather, discussing the fundamental security of society and how safe people feel in it," Kärner explained.

To evaluate such an impact, he said, we have to consider more than what was said: "It has to be evaluated using a combination of factors: who said it, where it was said and to whom it was directed are all relevant considerations. In this way, it is possible to exclude trivial offensive comments, ill-considered social media postings or rudeness," Kärner said, adding that it is also important to assess the influence factor of the speaker.

Simply put, the authorities and courts must determine whether the mayor's word conveys more weight than that of some other person. "If someone merely posts a comment on a news website calling for violence against a group of people or stating that they are not decent and should be denied rights, for example, it is difficult to say that such an anonymous post has a significant effect on social processes," he said.

However, the situation may be different when a rallying cry for like-minded individuals on stage incites violence or discrimination, particularly if it is made by an authoritative figure or when hatred is systematically incited.

"These are all factors that must be though about," Kärner said.

The draft's scope for use is rather limited

But what do you do in a situation where a well-known person repeats from the podium a phrase that has become part of Estonian political folklore, "If (they're) black, show the door?"

"On the basis of a single out-of-context sentence, I would rather not see it as a way to have a significant impact on the security of society," Kärner replied. "But when used in a different context, in a kind of inflammatory speech, then yes, it could [account for an act of incitement to hatred]," he added.

The draft's explanatory note adds that incitement to hatred must be motivated by extreme intolerance rather than fury or irritation. Furthermore, the proposed legislation makes it illegal to incite discrimination in public. "This is a form of hate speech consisting of unjustified calls to restrict the rights of individuals based on their membership in a protected group," the memorandum states.

Following the legalization of same-sex marriages in a number of countries, there have been demands for officials and notaries to refrain from registering marriages between two men or two women. Others claim these couples should be barred from renting reception halls or ordering wedding cakes. And they are usually well-known and influential individuals. In this case, how would the government react?

"It is essentially an incitement to discrimination, but it is questionable whether it poses a significant threat to the security of society," Kärner said. "We see a significant threat to the fundamental liberties of these people. However, the aspect of [societal] security extends beyond protecting all fundamental liberties. This criterion may not be met."

According to the draft's explanatory memorandum, calls do not always have to be clearly expressed as calls, and incitement to hatred might also come from the context of the statement. According to the explanatory note, "Incitement need not only be verbal; it can also occur through the public dissemination or distribution of writings, images or other material."

The draft also does not prohibit religious views or the presentation of religious materials. According to the explanatory memorandum, "The fact that people who are said to adhere to a mistaken belief or live, according to another person's belief, in a sin may be offended or humiliated by such a message does not render its dissemination an act not protected by freedom of expression."

Referring to EU law, the explanatory memorandum adds that incitement may also consist of denial of aggression, genocide or war crimes, or extreme incitement. Kärner points out that denying the Holocaust or the Armenian genocide, for example, would not in itself constitute a crime.

"It is possible to incite hatred in this way as well, but the denial must include some inciting rhetoric. It is not simply that a person doubts that such a historical event occurred and questions its veracity, even if they lack arguments to do so," Kärner clarified.

What if, however, someone claims that what the Turks did in Armenia could be repeated?

"Then it is a matter of debate to whom it is addressed and whether it can be regarded as an incitement but there is indeed the possibility of incitement here," Kärner replied, adding that another criterion must be taken into account, namely, "whether it has been said in a way that threatens public order, or whether there is reason to fear that a violent act will be committed."

Reinsalu criticized the draft

Urmas Reinsalu (Isamaa) said that both public order and security of society are not defined as legal concepts. "The use of such abstract concepts in criminal law is certainly unacceptable, and piling up such empty concepts reminds me of Russia's anti-extremism law," Reinsalu said.

Reinsalu said that it is not helpful that the law's explanatory memorandum clarifies messages affecting the security of society and refers to acts that may result in discrimination, humiliation or violence.

"These are just a few examples and if you type "community safety" into a Google search you will get a wide variety of results you will get a wide variety of hits," Reinsalu said, adding that security is primarily an emotional issue. Also, he emphasized that, whereas the current legislation addresses risks to individuals, the proposed addresses societal security.

"Security is the equivalent of safety. The National defense committee worked also during the occupation and defined its operational perimeter in a very holistic way," Reinsalu said. In his view, by contrast, the law should describe as precisely as possible what can be punished.

"The Penal Code, which is going to define the limits of freedom of expression in society and the limits of human freedom, cannot be built on the hope that maybe nothing will happen in practice and maybe we will get over the hurdle," he said.

European Court of Human Rights' threshold lower than draft

The deputy secretary of the Ministry of Justice, Kärner, has no qualms about leaving hate speech to the courts. "Courts interpret on a daily basis the punishment norms established by the Riigikogu, and the Supreme Court has repeatedly advocated a restrictive interpretation of criminal provisions, i.e. in case of ambiguity, the law is interpreted more narrowly," Kärner said.

Some cases may proceed from the Supreme Court to the European Court of Human Rights. "This proposal seeks to criminalize the most extreme forms of hate speech. And the European Court of Human Rights has determined that punishments for expressions well below this threshold are consistent with the Convention," he explained.

"Rather, it is very unlikely that if someone here were to be punished for incitement to hatred, the human rights court could say that their freedom of expression has been excessively restricted," Kärner added.

So far, the incitement to hatred section has rarely been used. Until 2002-2005, when any form of incitement to hatred was still punishable, six sentences were handed down for felonies and five for misdemeanors. Since then, since 2006, no one has been convicted of a hate crime. There have been 14 misdemeanor penalties. Six of these date back to last year, when the same section was used to deal with public aggressors.

The impact assessment does not assess how often the renewed clause will be used. Kärner hopes it will not be needed at all. "It would be ideal if nobody committed these acts because everyone would have the same understanding of what constitutes normal freedom of expression and what does not." Kärner says it is difficult to predict the exact number. "Given how narrowly this statute is worded, I am sure that we are not talking about a large number of possible offenses. The number will be very small, if any," Kärner said.

Several pages of the explanatory memorandum are devoted to an impact analysis of the draft proposal. It states, among other things, that amendments "will promote social cohesion and awareness. This will affect both public and private relations (including employment relations and service provision)."

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