Andrei Svištš: leaving the interpretation of hate speech to the courts would be repeating old mistakes
In his article for Estonian daily Eesti Päevaleht, RASK’s attorney-at-law Andrei Svištš discusses the difficult aspects of legislating against hate speech, which boil down to the need to distinguish and strike a balance between restricting freedom of speech and ensuring public order.
“The biggest stumbling block in the emotion-packed issue of hate speech currently lies in hesitant legislative drafting, which creates the perfect starting point for ambiguity in criminal responsibility and the blurring of the separation of powers,” Andrei writes in his opinion piece. Looking at the debate so far, Estonia has done well in not rushing to implement the EU framework decision on incitement to hatred, which has been criticised for potentially excessively restricting freedom of speech and burdening the authorities, as well as for its ambiguous definition of hate speech.
The main problem,
according to Andrei, arises when legislative amendments are made without
providing a clear definition of hate speech. In practice, this would mean
delegating legislative power to the executive and judicial branches. “If the
elements of the offence that need to be detailed for the protection of human
rights become vague, and the actions deserving of punishment are no longer
clearly defined, the social contract will be left to the devices of the
prosecutor’s office. When that happens, one can only hope that the judiciary
will act as the voice of reason and limit the prosecutor’s trial and error
methods,” Andrei explains in the article. We have already witnessed a similar
situation with the incomplete definition of the concept of “official position”;
during the last decade, interpreting this term has been left to the courts,
mainly because there was never a sufficient parliamentary debate on the matter.
Andrei Svištš’ full article on anti-hate speech legislation was published on 22 March in Eesti Päevaleht.