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Estonia puts new hate speech law to the test after Sunday demonstration

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"Sound Off: Solidarity with Palestine" protest at Tallinn's Freedom Square on Sunday. November 5, 2023. Source: Abdullah Al-Mujahid/Private library

Five protesters in Tallinn's Freedom Square were taken to a police station on Sunday to be questioned over the banner "From the river to the sea, Palestine will be free." PPA claims, "there is a limit to freedom of expression," but journalists and attorneys disagree.

After the Sunday demonstration, which commemorated people killed in Gaza and expressed support for Palestine, the authorities brought misdemeanor proceedings against five people under the Penal Code section on offenses against humanity and international security (§ 151-1 Incitement of Hatred).

"The participants of the demonstration had been informed through the media as well as through the organizers that the justification of aggression and the use of material promoting anti-Semitism were forbidden, so the police removed five people from the demonstration and started misdemeanor proceedings against them on the basis of the article of the Penal Code on supporting and justifying international crime," Inna Toater, head of the investigation department of the Ida-Harju police station, told ERR.

Toater explained that all five incidents involved the use of the phrase "From the river to the sea, Palestine will be free" on a poster or verbally, which could be interpreted as a public display of an offense against humanity that calls for the end of the existence of the State of Israel. It is an anti-Semitic slogan," she said.

"There was no direct threat to anyone's property or life, but let's be mindful about the slogan itself. This paragraph (§ 151-1 "Incitement to Hatred" - ed.) does not require that anyone's health or life be directly in danger, it is precisely directed against the justification of international crime," Toater said.

"Sound Off: Solidarity with Palestine" protest at Tallinn's Freedom Square on Sunday. November 5, 2023. Source: Ahmed Al Madani/Private library

Estonia's new hate speech law

The incitement to hatred paragraph (§ 151-1) of the Estonian Penal Code was revised in 2023 to remove the clause "...if this [hate speech] results in danger to the life, health, or property of a person, is punishable by a fine or by detention." The new law makes the incitement to hatred applicable much more generally: if it threatens the existing "public order," rather than a single person. The new law makes inciting hatred also punishable through imprisonment.

"Activities which publicly incite to hatred, violence or discrimination on the basis of nationality, race, color, sex, language, origin, religion, sexual orientation, political opinion, or financial or social status in a manner likely to threaten public order, shall be punishable by a fine or up to one year's imprisonment." (§ 151-1)

Minister of Justice Kalle Laanet (Reform) explained the amendment by drawing a distinction between direct harm to one person and a more dangerous "abstract" threat to public order. "The crime of incitement to hatred is precisely the creation of an abstract threat and a background of hatred, thus not a concrete threat situation," he said.

The minister explained at the time that the proposal does not intend to make critical or even shocking opinions a crime, and that the amendment does not prohibit people from expressing their opinions, even if they may offend certain groups in society.

"But everyone must be protected against hate speech. /.../ The criminal law lever should be applied as a last resort when hate speech goes beyond the expression of an opinion protected by freedom of expression and poses a real threat to the security of society," Laanet said.

While the new law is more restrictive (has wider application), what is permitted and what is not is ultimately going to be determined by case law, namely how the Estonian courts will be interpreting the real risk and influence on public order of each individual act, the ministry explained.

Kalle Laanet (Reform). Source: Ken Mürk/ERR

"The mere fact that someone feels offended or discriminated against does not threaten society's safety," Markus Kärner, undersecretary for the criminal policy at the ministry of justice, explained the notion of "public order." What matters here is "society's fundamental security and how safe people feel in themselves," he said. 

Kärner said that "petty insulting comments, ill-thought social media posts and rudeness can be excluded, but the speaker's influence must be weighted in." So context of the speech or deed matters most. While a post on social media might have little effect on social processes, "a stage rallying cry for like-minded people that incites to hatred, especially by an authoritative figure or when hatred is systematically incited, this may be different," he said.

Thus, authorities and ultimately courts, will have to assess whether the law was broken, Kärner said.

PPA's understanding of the case: There is a limit to freedom of expression

"Not all the phrases are written down in the Penal Code, so the police investigated what stands behind this phrase." Toeter, the head of the investigation department, went on to explain the Sunday detentions.

"Yes, merely saying 'from the river to the sea...' does not mean much, but there is a deeper meaning there and hence the rationale why those proceedings were launched. There is a limit to freedom of expression. It cannot be used to break the law. This phrase was used in contravention of Section 151-1 of the Penal Code," Toater said.

She told "Aktuaalne kaamera" that the police warned the organizers of Sunday's demonstration in advance precisely against using this slogan. "In fact, the organizer had been informed that this particular slogan was prohibited, that it should not be used. And during the demonstration we also reminded the organizer, who then corrected the crowd and the chanting of the slogan stopped."

"Sound Off: Solidarity with Palestine" protest at Tallinn's Freedom Square on Sunday. November 5, 2023. Source: Ahmed Al Madani/Private library

Jaan Ginter, a legal scholar: People simply need to be better educated about the situation

Jaan Ginter, a legal scholar and professor of criminology at the University of Tartu, told ERR that if the slogan "From the river to the sea, Palestine will be free" is interpreted in the way it is interpreted internationally, it means a threat to people's lives and health. "The utterance of this phrase means that the other side can start reacting very strongly," Ginter said. "The police did the right thing by reacting. We don't want Estonia to be seen in the international media as a country that does not respond to this slogan," the legal scholar said.

Ginter said it was most likely that the people who were removed from the demonstration for using these words did not understand the meaning of them themselves and chanted them without thinking them through. "I don't think they should be punished," he said.

"It was reasonable for the police to take notice of it because, well, people simply need to be better educated about the situation and recognize that it is not acceptable for us, in Estonia, to use this slogan. The question at hand is whether it is judicious to start this procedure with serious intention and impose penalties, or whether it would be wiser to restrict ourselves to merely improving people's knowledge on the issue," Ginter told "Aktuaalne kaamera."

Minister of the Interior Lauri Läänemets (SDE) said that it is important that public debates are conducted in a peaceful and reasonable manner and it is important to avoid provocative situations. For example, the police must act earlier and not only when a risk situation has already arisen.

Social Democratic Party (SDE) chair Lauri Läänemets. Source: Priit Mürk/ERR

"The police must intervene to prevent all types of scenarios from arising, while this topic is very much on the agenda everywhere in European countries as well," he said.

Journalist Krister Paris: I also wish, for example, that Russia in its present form did not exist on our doorstep

Journalist Krister Paris wrote in the daily Eesti Päevaleht that the removal of protesters by the police is no small matter. "Deprivation of liberty is the ultimate deprivation of fundamental rights and should be considered only in extreme cases. Rhymes of doubtful interpretation are not among them. Who did they directly threaten? Did they unequivocally call for the killing of Jews? If not, then freedom of speech should be paramount. Even if the demonstrators wished for the disintegration of a country, what's wrong with that? I also wish, for example, that Russia in its present form did not exist on our doorstep," Paris wrote.

Kelly Grossthal, a human rights lawyer: Very brutal messages sometimes directed at destroying the LGBT community, nothing happens to the perpetrators

A free speech lawyer who spoke to ERR about the case said that if the state wants to criminalize speech, why don't we, for example, ban all Soviet symbols associated with crimes against humanity in public spaces?

Estonian Human Rights Center head of strategic litigation Kelly Grossthal told Delfi portal on Wednesday that "the fact that people are being taken there in police busses for questioning is a very, very big intrusion." Semioticians and historians should debate the message "so that it would not become the decision of a single prosecutor," she added.

The outlet reported that the human rights lawyer pointed out the importance of equal consideration for all cases: "We ourselves monitor social media, where there is a lot of hate speech, especially against the LGBT community and refugees," she said, "we have seen people at demonstrations who have given very brutal messages directly aimed at destroying the LGBT community and nothing has happened to them."

Kelly Grossthal Autor/allikas: Erakogu

Leore Klõšeiko, one of the detainees: When I went to the protest, I didn't know that this phrase was banned

Delfi talked to one of the detainees, Leore Klõšeiko: "I told them (the police –ed.) that I came to support Palestinian civilians, but they kept asking me the same question over and over again, wondering how Estonia could help. It was frustrating to have to explain what the meaning of demonstration is," she recalled.

Delfi reported that after police pointed out to Klõšeiko that some people could interpret "From the river to the sea" differently on her banner Klõšeiko was taken to a police station, where she was detained for several hours and told that her case would be further investigated to establish all the facts (so no fast-track procedure).

The portal wrote that Klõšeiko could face a fine up to €1,200 or be detained for 30 days if accused.

"When I went to the protest, I didn't know that this phrase was banned," Klõšeiko told Delfi, reiterating that in her eyes it meant a free Palestine, not the destruction of Israel.

The organizer of the protest told Delfi that the police were calm, but it was hard for them to explain why people were taken away: "I got the impression that the police themselves didn't know exactly why they were taking these people to the station because of that sentence, while there were also others who shouted 'kill all Palestinians!' and other violent slogans."

The phrase in English about Palestinian freedom from the Jordan River to the Mediterranean Sea has become a talking point in other European countries as well.

Five people were removed from a demonstration in support of Palestine in Tallinn last week. The event commemorated those killed in Gaza and expressed support for Palestine.

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Editor: Mari Peegel, Mait Ots, Kristina Kersa

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