Lavly Perling: Hate speech law a threat to democracy

Lavly Perling.
Lavly Perling. Source: Siim Lõvi /ERR

With additional regulation of hate speech, the government is set to curb freedom of speech, add to confusion and continue splitting society. The Estonian people are smart and know the difference between what is permitted and what isn't if you talk to them, former Prosecutor General Lavly Perling writes.

Hate speech is not part of freedom of speech. People can already be held responsible for publicly inciting hatred, violence or discrimination based on nationality, race, skin color, gender, language, background, religious beliefs, sexual orientation, political convictions, financial or social status if it poses a threat to a person's life, health or property. Therefore, claims that current regulation is unconstitutional simply aren't true.

The fact that it is difficult for attorneys to prove an acute threat should not serve as an excuse to dial back free speech. More so in a situation where the provision in question has been amended so often in the last 30 years as to not allow judicial practice to develop. And yet, it is judicial practice, not European directives, which should populate legal norms with content in terms of what is a good fit for our culture and gives people certainty of right and wrong.

The proposal to replace threat with the phrasing, "in a way that might jeopardize public order" is an obvious free speech limitation. This phrasing makes it unclear for the ordinary person what is permitted and what isn't.

The wording "that might jeopardize" is especially dangerous because it means that acts must not absolutely jeopardize public order and it is enough if they "might jeopardize" it. Since no one knows exactly what that means, no one knows what kind of acts will be prohibited moving forward.

Clear legislation serves as a foundation of the rule of law. More so in the case of penal law, which holds the severest consequences for the person. That this aspect remains unclear also for the authors of the bill is reflected in the fact that they have deemed it important to provide a separate description of it but still leave the interpretation up to judicial practice.

Legal confusion following the adoption of the European directive in this manner would be widespread. Penal law has traditionally been the purview of Member States. With crime globalizing, international law is inevitably having an increasingly profound effect on penal law, while this influence should be contained mostly to international crime.

Regulation of crimes associated with local culture and historical legal environment should remain a domestic matter, and adoption of directives needs to consider terms and language, as well as historical and social peculiarities.

In the case of the directive in question, it is clear that the term "public order" is so widely interpretable that adopting the directive's term, which has a different significance in Estonian judicial practice, would create an extremely high rate of uncertainty in terms of whether something is considered a crime or not. This works to limit free speech to an even greater degree.

The result is less pluralism and different opinions in society because, and let's be honest here, law abiding citizens will simply keep their opinions to themselves in light of this bill, while the loud crowd will still be every bit as rowdy. At the same time, we already can and should hold brawlers and hate speakers responsible, with free speech intact and hate speech instigators punished.

What we need to do on the political level is send the message that hate speech is punishable in our society, instead of continuing to sow confusion and persistently trying to regulate that which requires no further regulation and doing it the wrong way.

Vulnerable groups that often find themselves targets of hate speech need protection, not additional regulations. Protection means knowing justice and holding violators responsible, not reducing the entire society's rate of free speech. The solution also resides in political proficiency, clear messages and argumentation in Europe in terms of why our regulation already is in compliance with EU law and expecting officials involved in relevant deliberations to do the same.

Constant political confusion surrounding the hate speech provision and the desire to regulate that which needs no regulation has led to the polarization of the Estonian society also in this matter. The Estonian people are smart and know the difference between what is permitted and what isn't if you talk to them.

Vulnerable groups can be best protected through the execution of existing and suitable provisions, instead of adopting confusing and unsuitable provisions. I'm sure there is a small group of people who would like to expand the current limits of free speech, as well as those who will forever talk about hate speech as part of free speech.

It is clear that free speech is not absolute, and if words are used to commit crimes, punishments must follow. Having a clear line the crossing of which results in a punishment is the best way to deal with criminals. The rest of society should retain their freedom of speech as a social value the importance of which cannot be overstated. Attempts to move in the opposite direction pose a threat to democracy.


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Editor: Marcus Turovski

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