Prosecutor general: Hate speech bill would create more legal chaos

Andres Parmas.
Andres Parmas. Source: Ken Mürk/ERR

Prosecutor General Andres Parmas has proposed an alternative phrasing for hate speech legislation in Estonia. He also finds that penal law is not an appropriate tool for preventing social aggression.

Hate speech legislation by the Ministry of Justice prescribes punishments for those who openly incite hatred, violence or discrimination in a manner that poses a risk to public order. What risks does this kind of phrasing pose?

First, the concept of public order already exists in the Penal Code and penal law. And it exists in a different meaning than what the hate speech provisions would prescribe. It creates confusion per se when an identical term is used, inside the same legal branch no less, in two completely different meanings. It could be avoided.

The fact that section 150, subsection 4 of the Penal Code is meant to include a definition of what public order means in this context does nothing to change our position. [Ways that can threaten public order are to be understood, for the purposes of this section, as ways that can lead to acts of violence or seriously jeopardize public safety – ed.] It would still add to legal chaos.

But what's the harm? The bill's explanatory memo includes a lengthy description of what is meant by public order and how the additional provision should be interpreted.

The same term used in different capacity creates confusion. That there is an explanatory memo or that the law provides a different legal definition for a particular concept of public order is of little help. It will inevitably lead to disputes.

Penal law as a legal branch benefits from a high level of clarity as citizens need to know what they are and aren't allowed to do. This will not be the result in this case, rather it will be the opposite. For the citizen, the situation will become more confusing and complicated.

It will be difficult to navigate the waters of punishable and non-punishable behavior. We must also keep in mind that the necessary elements of a hate speech violation infringe on freedom of speech. And limitations to free speech must be as clear as possible.

The Justice Ministry suggests that is precisely what the court needs to decide. That court practice will determine what's permitted and what isn't. Is that not enough?

No, it is not enough. We believe this vagueness can be avoided through an alternative wording. We have proposed an alternative phrasing that would serve legal clarity better than the current version.

The prosecution's wording would only make it possible to punish people inciting hatred if there is reason to believe an act of violence and serious danger to public safety will follow. But isn't this phrasing a little vague as well, because how should a person know whether what they said threatens public safety?

That is just the problem that defining these hate speech provisions and expanding them entails considerable risk.

That is one reason Estonia has refrained from expanding these provisions until now, one reason why the prosecution and yours truly have perceived it as problematic. Attempts to bridle free speech through criminal law are complicated and entail risks.

We have proposed an alternative. We're not saying it's an ideal solution, while the Prosecutor's Office feels it at least helps manage some of those risks. It is a matter of public and parliamentary debate to what extent these elements need to be expanded.

But how to gauge threat to public safety?

It is another aspect that needs to be populated with facts. If a corresponding suspicion is brought, the case detective and the prosecutor are expected to show why a public call for hatred, violence or discrimination might jeopardize public safety, for example, spark mass unrest or lead to concrete steps against groups in society.

It is not an ideal solution. It is very difficult to come up with an ideal phrasing. Whereas this one [the prosecution's version] is also quite abstract and needs to be concretized in court practice. But it includes one fewer layer of confusion. It does not use the same term [public order] in two different meanings inside the same legal branch.

What would you say if the legislator asked you whether the definition needs expanding in the first place?

We believe it entails considerable risks. It is a matter of debate.

But could expanding the definition help reduce certain dangers, prevent acts that might be of concern?

Uncouth language or people voicing mean or unreasonably hostile positions or opinions in the public sphere is a matter of debate culture, which cannot be solved through penal law.

Instead, it is necessary to reduce public aggressiveness and promote tolerance toward different ideas. Penal law is not a suitable way of combating aggressive sentiment in society.


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Editor: Marcus Turovski

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