C 323/86
EN
Official Journal of the European Union
26.8.2022
3.5.
The EESC finds it relevant to consider hate speech and hate crime as an area of crime having a common ‘substance’ based on a bias motivation of hatred targeting persons or groups.
This leads to the requirement to consider hate speech and hate crime in a holistic way, and to avoid a silo approach to different forms or targets of hatred, especially in regard to differences between the Member States.
It also calls for considering hate speech and hate crime in relation to EU values and fundamental rights as a whole.
Moreover, it calls for identifying the linkages of hate speech and hate crime with existing EU crimes.
In this context, information sharing between law enforcement agencies and governments should be stepped up.
3.6.
The EESC looks forward to creating a definition of hate speech and hate crime as a next step and is willing to contribute to the inter-institutional consultation.
This definition is crucial for the sake of legal certainty, but also for the protection of fundamental rights and ensuring solid general communication.
The Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law provides a relevant starting point for developing a definition that could be applied in this wider context, while also making use of the definitions used by the Council of Europe.
3.7.
The definitions of hate speech and hate crime should cover all relevant protected characteristics grounded in EU fundamental rights, including sex/gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation, but also ideological and conscience related beliefs.
While the protected characteristics differ from each other, the definition should address the various characteristics according to the same principles.
One should also avoid a fragmented approach to various minorities and groups and instead use general expressions applicable to the whole spectrum of the protected characteristic in question.
Moreover, the definition should be inclusive enough to respond to new kinds of societal phenomena emerging over time.
3.8.
The definitions should cover any form of action and expression, whether oral or written, irrespective of where the expression or action takes place, i.e. whether it is in the context of work, public manifestations, or accessing private or public services etc.
It should also cover both online and offline expressions.
3.9.
While the definitions should be comprehensive, they cannot be unambiguously perfect, and should always require judgement, based on evidence placed in the relevant context when implemented.
Common guidance on factors to be considered here would be one means of enhancing the uniform implementation of the definitions and rules.
3.10.
It is also important to ensure that the definitions and rules do not work against their purpose.
For example, one should not stigmatise words that have been traditionally used in a neutral way.
This is also related to the objective of developing common rules for protecting any groups rather than pointing the finger at certain groups.
3.11.
In defining hate speech and crime, and the respective sanctions, it is important to clarify their relationship with fundamental rights as a whole.
This is particularly relevant with respect to freedom of expression and information, including the conditions that justify limiting the freedom of expression of individuals and the media.
Correspondingly, there might be a need for clarification with respect to other fundamental rights as well.
3.12.
While hate speech and hate crime can be considered as an area of crime in its own right, they also entail some overlapping with existing EU crimes.
Existing EU crimes do not however cover all hate speech and crime, due to the various forms and diverse content of this area of crime.
This is also well illustrated by the ‘pyramid of hate’ that starts from bias-motivated speech and moves, via discrimination, to physical violence and even terrorism.
3.13.
As stated in the Communication, addressing hate speech and hate crime is not only a matter of substance but also of procedure.
Due attention must therefore be paid to issues related to access to information, justice and remedies.
Even though hate crime and hate speech is recognised and regulated at national level there are lots of gaps in implementation/reporting/investigation.
If not reported and properly investigated as bias crimes, data on the prevalence of those crimes at MS at EU level is unreliable.
3.14.
Having hate crime and hate speech listed as an EU crime list is essential in terms of the protection of victims’ rights.
If the grounds of hate incidents are not recognised, for example disability, then the rule of the EU Directive on victims’ rights (covering victims of crime) would not necessarily apply.
Facing an increasing number of incidents, more attention should be dedicated to the protection of victims.
Therefore, victims’ access to information and to the special protection measures given to the most vulnerable victims of crime under the Victims’ Rights Directive should be properly guaranteed.