We Need to Talk About Hate Speech and Freedom of Expression in Latin America

Maia Levy Daniel is a tech policy and regulation specialist and a research affiliate at the Center of Technology and Society (CETyS) at Universidad de San Andrés in Argentina.

On September 1st, someone tried to murder Cristina Fernández de Kirchner, Argentina's former president and current vice president, in front of her house. Many supporters were present, since they had been protesting a prosecutor's pleading against Fernández. The prosecutor argued that Fernández was the leader of an illicit scheme, and asked the federal court for a prison sentence of 12 years and a ban to prevent her from holding public office for the rest of her life. Fernández is charged with “illicit association aggravated by her quality as leader” and “aggravated fraudulent administration”. Owing to the relevance of Fernández in the Argentine political scenario, the atmosphere was extremely tense over the days that followed the decision, which resulted in a surge of polarization in the country. In that context, the attempted assassination was the climax of the political division between kirchneristas–supporters of the ruling party– and anti-kirchneristas.

After the incident, supporters of the current administration stated that this was the result of hatred spread by the opposition, whereas anti-kirchneristas affirmed that hatred has been originated and spreaded by the ruling party. Argentina’s National Institute Against Discrimination, Xenophobia, and Racism (INADI, its acronym in Spanish) published a statement the day after the incident, highlighting that this was not an isolated event but a "part of a context of raising hatred availed by certain political parties and institutional representatives who have focused their efforts on spreading hatred against the vice president and the interests she represents." In the digital sphere, social media platforms were flooded with discussions around the role of hatred in the country over the past years; and an extremist online forum was shut down by its administrators after users recognized the alleged assassin as a frequent participant.

Ultimately, voices on both sides agreed on one thing: That "hate speech" is somehow responsible for these kind of episodes. And here is exactly where the problem resides.

Many of the discourses highlighted as "hate speech" nowadays are not, in fact, technically hate speech. In fact, the different parties cannot agree on a shared definition of the term. Some consider hate speech merely the opposite of "love"; others think that it applies to any criticism against the current administration. Politicians, representatives, journalists, and specialists were interviewed over the past weeks, but it hasn't been possible to understand what they referred to as hate speech or they didn't even try to explain. In this context–although Argentina already has a discriminatory acts law that criminalizes hate speech– the government even suggested the need for a bill on hate speech. However, the proposal was apparently dropped. Politics aside, this environment can be extremely dangerous for the right to freedom of expression.

First, how can we define 'hate speech'? There isn't a common definition accepted globally. Argentina is part of the Inter-American System of Human Rights, whose American Convention on Human Rights is pretty restrictive with regard to limitations to freedom of expression. Its article 13 on freedom of thought and expression states that "everyone has the right to freedom of thought and expression" and that "any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law." According to the Inter-American Commission on Human Rights, "States are only mandated to prohibit hate speech in certain circumstances, this is, when the speech constitutes 'incitements to lawless violence or to any other similar action against any person or groups of persons on any grounds including those of race, color, religion, language, or national origin." There needs to be "actual, true, objective, and meaningful proof" that shows that the person wasn't just expressing their opinion, but that they had (a) the clear intention of promoting lawless violence or any other similar action against a specific group; and (b) the capacity to achieve this objective and create an actual risk of harm to that group.

Even when this proof is not present, any limitations to the right to freedom of expression need to comply with the three-part test, which involves legality, necessity, and proportionality requirements. Thus, not every criticism, no matter how foul, can qualify as hate speech; in fact, even vitriolic speech can be vital to democratic debate. Laws on hate speech need to be extremely precise in order to avoid affecting the right to freedom of expression. Vague terms could have a chilling effect not only on journalism and the media, but also on individuals.

Naturally, concerns around the definition of hate speech are applicable in the digital environment as well. And precedents from Germany and France–countries mentioned as exemplars of hate speech regulation in an op-ed by INADI's director– have already proven that it's not that easy to regulate online hate speech effectively. In Latin America, as the Center for Studies on Freedom of Expression (CELE) and Derechos Digitales have recently stated, there is a legislative trend towards regulating hate speech and hate crimes. Various countries in the region criminalize the incitement to hatred online and offline, but there isn't an agreed definition of the terms among them, and legislation tends to be pretty broad.

For instance, the Venezuelan "Anti-Hate Law for Peaceful Coexistence and Tolerance" (2017) criminalizes hate speech and imposes prison sentences of up to 20 years for its dissemination. The law requires online platforms to remove content that “constitutes propaganda advocating war or national, racial, religious, political, or any other kind of hatred” within 6 hours after publication–otherwise, the company will be fined and the platform will be blocked, regardless of criminal and civil responsibility. This law has been largely criticized by freedom of expression specialists in the region, since it doesn't comply with the three-part test. According to these examples, the regional trend is worth observing.

In a polarized context like the current one in Argentina, as well as in a few other countries in the region, it is crucial to protect and promote criticism, making sure that everyone–no matter their political affiliation– can speak out, even when what they have to say can be offensive, distasteful, or disturbing for some people as well as for the government. Should Argentina’s lawmakers deem new rules on hate speech necessary–after careful consideration of the particular context and, mainly, the specific definition of the term– the law must be very restrictive in order not to affect, even in indirect ways, the right to freedom of expression, and it needs to be openly discussed. If we are seriously committed to protecting freedom of expression, we must pay particular attention to these trends and developments, and require governments to sincerely discuss with civil society the best way to address hate speech so as to protect public discourse and, ultimately, our democracy.