Hate Speech & Platform Regulation

Korpisaari (ex. Tiilikka), P. (Speaker: Presenter)
Koivukari, K. (Speaker: Presenter)

Activity: Participating in or organising an event types › Organisation and participation in conferences, workshops, courses, seminars

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Organising event with colleaques and speaking at event.

Period	17 Nov 2020 → 19 Feb 2021
Event type	Conference
Degree of Recognition	International

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https://itmor.wordpress.com/
International Online-Workshop “Hatespeech & Platform Regulation”, 17 October 2020 Professor Päivi Korpisaari, Postdoctoral Researcher Kristiina Koivukari Hate speech and targeting individuals online - a new challenge for criminal law Freedom of expression is an essential value in every democratic society and a fundamental right in European law. It includes the freedom to hold opinions as well as to receive and impart information and ideas. It constitutes ‘one of the essential foundations of a democratic society and one of the basic conditions for its progress’.1 Freedom of expression is also a social good, promoting truth, democracy and participation. It can also be regarded as an end in itself, promoting individual self-fulfilment and as an individual good. As well as protecting positive and insignificant (or otherwise neutral) expressions, freedom of expression also applies to expressions that offend, shock or disturb. Another important right is the right to a private life. This covers the physical, psychological and moral integrity of a person, as well as the right to establish and develop relationships with other human beings. The right to a private life guarantees dignity and autonomy since revealing private matters without consent takes away an individual's control and can deprive them of their dignity or reputation in the eyes of others. The right to a private life may also cover protecting reputation and honour. The Internet makes it possible to express oneself without the restrictions imposed by traditional media. Like the ECtHR stated in Delfi, “user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression”.2 Possibilities to express oneself anonymously encourage free speech, expression of various ideas and revealing grievances and abuses. In addition to the right to expression, the Internet and search engines also play a major role in obtaining information and ideas. As a space for open communication, social media and the Internet enable formation of online cultures (and countercultures) where individuals express their ideas and opinions quickly and world-wide to large groups of people. Unfortunately, the potential created by social media is not always used for the common good, with the result that social networking sites have become platforms for both information and disinformation. In addition, the speed of communication in social media and the ability to express oneself anonymously has increased the number of obscene insults towards individuals and ethnic, religious or other groups of people. As ECtHR put it in Delfi, “Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online.”3 Targeting in the context of cyberhate or online harassing is a rather new phenomenon, and there is no legal or official definition of it (in Finland at least). It refers to a complex of hateful expressions in which someone sparks off a hate campaign against another, usually on social media or another online platform, but the campaign can of course happen or be initiated in numerous different ways and environments. One censorious, derogatory or mocking remark made by someone who reaches a wide audience, for instance, on social media can generate a 1 European Court of Human Rights (ECtHR), for example Barthold v Germany (1985) 7 EHRR 383; Handyside v the United Kingdom (1979–80) 1 EHRR 737; Zana v Turkey (1999) 27 EHRR 667 (GC); Von Hannover v Germany (No. 2) (2012) 55 EHRR 15; Axel Springer AG v Germany (2012) 55 EHRR 6 (GC); Gillberg v Sweden App. No. 41723/06 (ECtHR, 3 April 2012). 2 Delfi, § 110. 3 Delfi, § 110. flood of hateful comments by other people against the individual chosen as the target. The comments can be anything from mocking to threatening or they can include, for instance, dissemination of information that violates personal privacy. In addition, the acts of targeting can lead to different types of harassment also beyond the online environment: “physical threat”, malicious accusations, groundless complaints, stalking, etc. The phenomenon of targeting discussed here is close to virtual mobbing or flaming, but in targeting someone actively and intentionally initiates the process, whereas in virtual mobbing the process is perhaps more spontaneous. The acts of targeting resemble or might even constitute an offence already criminalised (in Finland). However, the acts of targeting differ from offences such as defamation or dissemination of information violating personal privacy in that the complex of targeting always consists of several, even tens or hundreds of separate acts. Moreover, they differ from the offence of stalking by always being committed by several people. On the other hand, as hate speech is usually understood as expressions of hate against a person or a group based on group characteristics (such as race, sex, sexual orientation, religion etc.), in targeting, the trigger for the expressions of hate can be basically anything, for instance, the target’s opinions, work or position of trust. As the instances of targeting are severely disturbing to the target, even a risk of winding up as a target might affect the willingness of some people to participate in public discussions in general or in certain subject areas, or it might affect the way they want to discuss in public. In the most alarming cases the threat of targeting affects the issues that, for instance, journalists are willing to bring up or researchers are willing study. Thus, along with causing serious mental pain or even psychological illness to the “victim”, targeting or a risk of it potentially affects and distorts public discussion and the public’s right to obtaining information. So, from the victim’s perspective, and in order to enable and encourage public discussion also on delicate or controversial issues, something definitely should be done. The complex of targeting often consists of separate acts of which some do not constitute any offence, but some of the acts do. However, the range of potentially applicable offences is rather wide, and in addition, the rules on complicity might apply too. Similarly, because of the complicated nature of the targeting and the rather scattered criminal law provisions applicable, in practice, the cases of targeting are difficult to get hold of and investigate. Another problem with the current legislation is that even if the acts of targeting constitute offences, the crimes committed do not appear very serious seen separately and not as a whole. This means that the Police might not consider the crimes worth investigating also taking into account that the crimes taking place online are difficult to investigate, and there are no effective investigating methods available for the minor offences. Ýet, as the separate acts in targeting nevertheless often constitute offences even according to the current criminal law, it is not clear whether we need a new criminalisation for targeting. Not anything can be criminalised; criminalising principles that are tightly connected to the general principles and doctrines of criminal law guide and even restrict the possibilities of a legislator in designing new offences. There might be some interesting questions regarding most if not all of the criminalising principles in the context of targeting, but the most problematic are the questions of liability and principle of legality, or maximum certainty, to be precise. As a starting point, the Latin terms of actus reus and mens rea established in English criminal law illustrate the questions well. To put it simply, actus reus refers to guilty act whereas mens rea refers to guilty mind. In order to punish someone, the offender must have committed an offence defined as a criminal act in the criminal code, and she must have done so (in most cases) intentionally. So, from the perspective of criminalising targeting, we should first be able to define clearly the acts that are punishable, but it should be done so that it is possible to evaluate later in every case whether (and prove that) the offender acted intentionally. Further, according to the principle of maximum certainty, “an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision ... what acts and omissions will make him liable.”4 Hence, people should be given a fair warning, and it should not be too difficult to draw a line between the acts that constitute a punishable offence and those that do not. Now, if we think about a provision that would define targeting a criminal offence, we should first define the act that initiates the hate campaign. The act should be defined as direct or indirect incitement to somehow disturb the target. However, as the incitement could be also indirect, a critical or mocking remark made with no purpose of initiating a hate campaign would constitute an offence if other people were provoked to send disturbing messages to the person criticised. Intent is therefore a central element of defining the offence, so if the offender anticipated the incitement leading to reactions of numerous people and the target finding these reactions severely disturbing, she would be guilty of intentional targeting. Yet, it is almost impossible to evaluate these circumstances and the state of mind of the potential offender objectively and to prove that she committed the crime intentionally, at least if we at the same time do not want to criminalise most of critical remarks referring to someone personally and made so that the remark reaches a large audience. As we cannot know the actual motivation for the initiator, the only possibility is to try to define the circumstances indicating that the act was intentional targeting. Let us assume one criterion would be the size of the audience in the media or the site where the criticism was published, and another would be the previous activity of the initiator. So, for instance, if a journalist or a researcher criticised someone’s opinion on a politically sensitive or heated issue, and this would provoke disturbing reactions to the subject of the criticism, the initial critical comment could be evaluated as an offence of targeting. If we also suppose that the critical remark was made on social media, it was not the first time the journalist or the researcher in question criticised the same person, and she had many followers, the circumstances surely could be interpreted as intentional targeting. The example illustrates the difficulty of criminalising targeting so that the harassing behaviour could be comprehensively criminalised while leaving out the criticism that should be allowed as everyone’s right to freedom of expression. It is also difficult to restrict the criminalisation to the actual deeds of people and not the way they live, think and express themselves in general (i.e. for instance how they in general comment other people in social media and whether that indicates a reprehensible attitude or not). The rules on freedom of expression must be clear in order not to have a chilling effect on public discussion; everyone must be able to make critical remarks without fear of other people being provoked into sending hateful messages, and this leading to an accusation of targeting. On the other hand, everyone should be able to discuss publicly without fear of being targeted. Despite being severely disturbing to the target and harmful for public discussion, it is difficult to criminalise the acts of targeting comprehensively without excessively restricting freedom of expression. 4 Kokkinakis v Greece (1994) 17 EHRR 397, para. 52.

Hate Speech & Platform Regulation

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