The Bulgarian Community for Liberal Democracy (BOLD) is an association of citizens that aims to increase public support for democracy, human rights and fundamental freedoms, and to help consolidate liberal democracy in Bulgaria. With this position, BOLD participates in the formation of public attitudes and public policies in the field of hate speech. This is an area of conflicting legitimate interests in which international standards are underdeveloped. The problem has been particularly acute in Bulgaria in recent years, in where hate speech against various vulnerable groups has risen sharply amid growing nationalist, xenophobic, extremely conservative and populist attitudes. Hate speech is used particularly intensely for political mobilization during elections. Bulgarian legislation and law enforcement related to hate speech has serious deficits. Due to all this, the liberal-democratic community in Bulgaria needs to clarify its attitude to this complex phenomenon and its manifestations in Bulgaria, as well as to formulate recommendations on public policies.
In recent years, Bulgaria has been repeatedly criticized by a number of international human rights bodies and institutions for the widespread and unpunished commission of crimes motivated by prejudice, also known as hate crimes, as well as for the unjustified tolerance of hate speech affecting various vulnerable groups in Bulgarian society. According to one of the findings in the most recent report on Bulgaria of the European Commission against Racism and Intolerance (ECRI) from 2014:
“Racist and intolerant hate speech in political discourse is increasing; now its main target is refugees. Manifestations of racism and xenophobia against foreigners, Turks and Muslims are common in the media and on the Internet; the same is true of offensive language in respect to Roma. There is also a significant amount of hate speech related to sexual orientation. There are more and more ultranationalist/fascist groups and political parties in Bulgaria.”
Similarly, in its concluding observations following the November 2018 review of Bulgaria’s obligations under the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated:
“The Committee is concerned about reports of increased acts of hate speech and hate crimes, particularly against the Roma community, members of religious minorities, lesbian, gay, bisexual, transgender and intersex persons, migrants and asylum seekers, including racist, xenophobic and intolerant speech on television, the media and on the Internet, from persons at the highest levels of government and in election campaigns.”
These grim findings are complemented by several studies conducted by the Open Society Institute, dedicated specifically to the prevalence, objects and effects of hate speech in Bulgaria. They show high levels of hate speech and a tendency for it to increase until 2016, with a slight decrease in 2018. Its targets are mainly Roma, LGBTI, Turks, Muslims and foreigners. In 2018, negative speech towards women, as well as towards people of different sexual orientations, intensified in the context of the campaign against the ratification of the Istanbul Convention.
A number of international treaties, practices and recommendations of international bodies and organizations require states to combat hate speech, in some cases by means of criminal law, as it constitutes an encroachment on human dignity, democratic rule of law and the right to privacy of the persons affected by it. Some international legal acts even require the criminalization of some of its forms. This struggle generally involves restricting the right to freedom of expression, another fundamental human right that is highly respected in the liberal-democratic community. How to balance these two important interests? This is a question to which the international human rights community, including the European Court of Human Rights, has not yet offered a clear answer.
The most up-to-date and perhaps most comprehensive definition of hate speech at the international level is given in the Explanatory Memorandum to General Policy Recommendation № 15 of ECRI:
“Hate speech […] entails the use of one or more particular forms of expression – namely, the advocacy, promotion or incitement of the denigration, hatred or vilification of a person or group of persons, as well any harassment, insult, negative stereotyping, stigmatization or threat of such person or persons and any justification of all these forms of expression – that is based on a non-exhaustive list of personal characteristics or status that includes “race”, colour, language, religion or belief, nationality or national or ethnic origin, as well as descent, age, disability, sex, gender, gender identity and sexual orientation.”
The definition covers a wide range of forms of expression. They must be understood not only from a functional point of view, as what they cause, but also from a formal point of view – as covering both expressive forms directly related to words and those related to gestures, images, music and more. Many personal characteristics are included in the definition. This in itself raises a number of questions related to the equality of forms and the hierarchy of characteristics. Adding to the criminalization obligations, these issues become even more so.
Liberal democracy, a system of government based on ideological and political pluralism, majority rule and the guarantee of fundamental human rights and freedoms, recognizes the detrimental effect of hate speech and allows the restriction of other fundamental rights, such as freedom of expression, peaceful assembly, association and religion in order to limit these effects on the person and their free development. No one’s freedom can be exercised at the expense of the freedom of others. The victim of hate speech, even when not mentioned in person, should have the right to be constituted as a victim in criminal proceedings, as well as to make an individual complaint in other types of proceedings against persons or groups that are the authors of hate speech. In all cases, the victim should be entitled to an effective domestic remedy to protect their infringed rights.
At the same time, recognizing the detrimental effects of hate speech on personal dignity and the right to privacy, as well as the discriminatory nature of hate speech, a mature democracy, with its inherent tolerance, breadth of views and respect for all human rights requires a differentiation of forms of social control over all kinds of deviant behavior, including hate speech. Where a necessary and sufficient response to such behavior is to ignore it or to reply back, there is no need to resort to formal social control, much less to criminal sanctions. For example, this could be the case when in the company of Bulgarians only, someone refers to “Gypsies’ inclination to steal”. International standards for combating hate speech require formal sanctions only where it affects the key identity of the victim and when hate speech is particularly harsh and virulent, e.g., when a party leader said from the parliamentary rostrum in a live broadcast on national television that Roma women had “the instincts of a street bitch” and called for their child benefits to be stopped. The choice of an appropriate means of combating hate speech should be subject to the assessment of any sanction or restriction in the light of a number of factors, such as:
- The nature of the statements made – whether they raise in some form, however, rough, issues of legitimate public interest, or do not go beyond the humiliating labeling and stereotyping of groups of people because of a certain characteristic;
- The extent to which the statements affect the dignity and rights of the referenced group, including, inter alia, a realistic assessment of the group’s social status, vulnerability, the history of persecution and discrimination against individual members, or of the group as a whole;
- The status of the speaker in society – whether they are, for example, a marginal public figure whose speeches are usually the object of ridicule, or a person who attracts a certain public trust and whose words are spread among a wide audience;
- The scope of hate speech – whether the affected audience is relatively limited due to the forms and means by which hate speech is expressed, or it is wide because it is spread by popular media, or is spoken from the parliamentary rostrum so that the affected person or a group cannot miss it;
- The nature and severity of the punishment that the law provides as a reaction to certain forms of hate speech. It should always be borne in mind that a punishment that is disproportionate in severity may constitute a violation of the right to freedom of expression and, where it is excessively mild, leave hate speech victims of a particular group and the public with a sense of underestimating its harm.
In all cases where there is a need to sanction hate speech, an assessment is needed in the light of the specific context. In addition to the above factors, the personal characteristic affected by hate speech should also be assessed. Current international legal standards limit criminal sanctioning of hate speech to nationality, race, ethnicity, religion and birth. These are the characteristics that the international community has, on the one hand, presumed to be elements of the key identity of the person or group that are particularly sensitive, on the other hand, accepted that they are a basis which, when affected by in a particularly aggressive and virulent way, can lead to serious breaches of public order, violence and even mass killings, as the recent history of Europe and the world has repeatedly demonstrated in the last century. Notably, genocide, the most serious among the crimes defined by criminal justice systems, is limited to these characteristics.
Today, however, this approach is outdated. The list of characteristics that should be presumed to affect a person’s key identity needs to be expanded. There is no reason to exclude, for example, gender, sexual orientation or gender identity. Moreover, whether an identity is key or not should be assessed in the light of the specific circumstances of the case. One cannot a priori rule out the possibility that even political beliefs, a characteristic in view of which international law generally allows sharp and offensive verbal attacks, in some cases constitute a key identity of a particular person or group of people as important as religious beliefs or even ethnicity. Legislation governing the sanctioning of hate speech should, therefore, take a flexible approach to the definition and provision of remedies.
Bulgarian legislation contains a number of deficits in the regulation of criminal sanctions for hate crimes and hate speech. On the one hand, it makes it possible to impose such sanctions even when hate speech is not made public. On the other hand, it limits the grounds on the basis of which such speech can be sanctioned only to race, nationality, ethnicity and religion. There is no possibility of a criminal sanction for hate speech based on other features related to key identities. Administrative and civil remedies allow such protection on much broader grounds, as set out in the Protection against Discrimination Act. But even there, some characteristics, e.g. gender identity and professional affiliation, are missing. The Bulgarian criminal law doctrine treats crimes related to hate speech as “formal crimes”, which are prosecuted only by the state, thus not allowing the victim to be a party to the case.
An even more serious problem is law enforcement. The practice of both criminal justice and the protection against discrimination have failed to recognize hate speech, tolerated aggressive racist, xenophobic and homophobic incitements, applied a double standard to minorities and the majority and thus contributed to maintaining a toxic environment for vulnerable groups in Bulgarian society. Media regulation of hate speech is weak, extremely rare and almost never applied against people in power. In violation of Article 4a of the International Convention on the Elimination of All Forms of Racial Discrimination, the Bulgarian state funds political parties that systematically incite racial/ethnic hatred and discrimination.
Law enforcement issues affect the media environment, which, free from the threat of sanctions and restrictions, often provides a platform for messages inciting hostility, discrimination and violence on various grounds. This is particularly concerning in respect to multiple Internet-based platforms, which provide anonymous individuals with almost unlimited freedom of hate speech. Such a social environment severely limits the ability of liberal civil society to resist prejudice and incitement. Moreover, its representatives are often insulted and stigmatized, and in some cases even subjected, with impunity, to physical aggression.
As a liberal community, we are convinced of the need to strike a balance in upholding two groups of fundamental human rights in a democratic society – the right to freedom of expression, on the one hand, and the right to protection from discrimination, privacy, honor and dignity, on the other. Recognizing that a developed democracy based on the values of tolerance, breadth of views and respect for all human rights requires the differentiation of forms of social and institutional control over all forms of aggression against these values, including hate speech, we make the following recommendations for combating hate speech at the civil and institutional level:
RECOMMENDATIONS FOR COMBATING HATE SPEECH
- Introduce legislative amendments to expand the list of protected characteristics in sanctioning of hate speech under criminal, administrative and civil procedure, while differentiating the sanctions according to the nature of protected characteristics and the degree to which these have been relevant;
- Take effective criminal measures against the public use of hate speech that constitutes incitement to violence, threats, hostility or discrimination, provided that no other, less restrictive measure has proved effective, while respecting the right to freedom of expression;
- Provide effective domestic remedies for victims of hate speech in all types of proceedings, including by constituting them as victims in criminal proceedings;
- Ensure effective implementation of provisions related to the sanctioning of hate speech in the media by the media regulators and promote mechanisms for self-regulation of the media;
- Support victims of hate speech by expressing solidarity, counseling and legal assistance;
- Take measures to inform the public about the harms of hate speech, by promoting intercultural dialogue and combating misinformation;
- Develop specific education programs for children and youth aimed at intercultural communication, tolerance and combating prejudice;
- Terminate financial support by the state to political parties and organizations that use hate speech or are unable to impose sanctions for its use by their members;
- Ratify the Additional Protocol to the Council of Europe Convention on Cybercrime, as well as Protocol № 12 to the European Convention on Human Rights related to the right to non-discrimination;
- Establish a system for collecting data on hate speech that would not be limited to the criminal justice system.