Public Comment by UN Special Rapporteur on Minority Issues relating to cases on hate speech and minorities

I welcome the establishment of the Oversight Board as an ambitious initiative to examine the proper balance between the right to freedom of expression and online hate speech. I also note the contributions of Thomas Hughes, Director of the Oversight Board Administration, at the UN Forum on Minority Issues on 'Hate Speech, Social Media and Minorities'. In light of three of the initial cases announced relating to hate speech with some connection to minority issues, please find below some general and case-specific points on the importance of a minority rights approach that correlates with the Board's overarching commitment to protecting vulnerable and marginalised groups, which in most cases are minorities.

Generally, ethnic, religious, linguistic and national minorities as identified under the Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities are the most likely targets of online hate speech. Moreover, hate speech against minorities leads to severer incidences of real-world harm, ultimately culminating in ethnic cleansing and genocide. I would urge the Board to take account of these instruments along with the jurisprudence of the Committee on the Elimination of Racial Discrimination and the reports of the Advisory Committee on the Framework Convention for the Protection of National Minorities on National Minorities. This will be essential to protect the most vulnerable and marginalised groups, who happen to be minorities, thus allowing the Board to apply a comprehensive approach to adjudicating hate speech cases that is not limited to just a consideration of ICCPR Articles 19 and 20, and ECHR Articles 14 and 17. The Guidelines of the OSCE High Commissioner on National Minorities should also be referred to. Lastly and crucially, the definition of hate speech in Facebook's Community Guidelines should incorporate a more extensive and non-exhaustive list of protected characteristics in line with the UN Strategy and Plan of Action on Hate Speech 2019, which states:

"[A]ny kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor."

The UN's detailed guidance elaborates 'identity factor' can include "language; political or other opinion; belief; national or social origin; property; birth or other status, including indigenous origin or identity; caste; disability; health status; migrant or refugee status; place of residence; economic and social situation; marital and family status; sexual orientation; gender identity; intersex status; age; albinism; and HIV status." The UN's detailed guidance also calls for greater "focus on those groups in situations of vulnerability due to entrenched or historic stigmatization, discrimination, long-standing conflicts…and exclusion and marginalization from the political, economic and social life of the society."^[1]

In relation to Case 2020-001-FB-UA, hate speech should not be tolerated towards minorities, nor the situation of minorities be used to justify or advocate hatred or violence against majorities. It is also immaterial whether the quote is rightly attributed to Dr Mahatir Mohamad. However Dr Mohamad's status as a prominent international political personality with a considerable following is of importance. Furthermore, the content of the purported statement, which is an unqualified support of "a right to…kill millions of French people" should be classified as hate speech and potentially an incitement to violence. Despite the absence of intent, the framing of extreme violence as a right given the status of the speaker, reach, and nature of the content posed a serious enough risk of real world harm to justify removal.^[2] It was a user who shared this statement and not the purported speaker. In this regard, I would advise the Board to adopt the principle of deferring to the inherent intent of the reported statement unless the reporter qualifies their post in drawing explicit attention to its reprehensibility.

In relation to Case 2020-002-FB-UA, the plight of one minority should not be used to undermine attention given to the plight of another. Social media is replete with posts that highlight the inconsistency of responses and dangerously oversimplify complex factors and circumstances. Taking of life can never be justified or defended under any circumstances, whether inflicted on those belonging to minorities or by foreign terrorist non-State actors seeking to worsen minority-majority relations through violence against innocent civilians. However, rather than justify terrorist acts, the user is raising the hypocrisy in response to loss of human life. Further, to establish hate speech in accordance with Facebook's Community Standards and the UN Strategy, a group with a protected characteristic must be the target of an attack. Such a protected group is not easily identifiable in this case. The implicit idea behind the post that Muslim lives are worth less than French lives may constitute a flawed and uncomfortable opinion, yet still be within the bounds of the right to freedom of expression.

In relation to Case 2020-003-FB-UA, it is notable that Azerbaijan has a Christian minority amounting to approximately five percent of the population. With regards to context, Armenia and Azerbaijan have just ended a military confrontation with Armenia ceding some territory to Azerbaijan. There have been anxieties by Christians in those territories as to the non-denial "in community with the other members of their group…to profess and practice their own religion". Lastly, the Board should appreciate that the right to have, maintain and use places of religious worship is an established right of those belonging to religious minorities. As such, regardless of the veracity of the claims made in the post relating to the destruction of churches, concern about such actions is within the ambit of legitimate minority concerns. Furthermore, there needs to be a protected group targeted. This post seems to be targeted at the Azerbaijani Government rather than the Azerbaijani people. Ascertaining whether hate speech has occurred in this case hinges on the proper meaning and connotation of the term "т.а.з.и.к.и" and whether this term targets a particular group on the basis of protected characteristics.

Regards,

Dr Fernand de Varennes, UN Special Rapporteur on Minority Issues

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[1] United Nations Strategy and Plan of Action on Hate Speech, Detailed Guidance (2020), p. 11.

[2] See the six-part threshold test in the Rabat Plan of Action (2013).