Chapter 3 makes the case for classifying five grey area examples as hate speech in the ordinary sense of the term based on the global resemblance test. We also argue that Facebook’s community standard on hate speech is ambiguous, inconsistent, and incomplete in relation to these examples, and so recommend specific reforms. Section 3.2 looks at hybrid attacks, which, like personal insults, target specific individuals, but, like prototypical hate speech, also attack the groups to which targeted individuals belong and, go beyond standard protected characteristics. Section 3.3 investigates selective attacks, which are derogatory or insulting words that refer to only a subset of a group or else to an amalgamated set of people who belong to multiple groups. Section 3.4 scrutinises reverse attacks, which involve words used by members of groups typically perceived as victims against groups more usually considered perpetrators. Section 3.5 examines righteous attacks, which we associate with attacks in pursuit of some righteous cause. Finally, Section 3.6 assesses indirect attacks, wherein the speaker intentionally uses a derogatory word to address or target someone whom the speaker knows or presumes to be not a member of the group referred to by the word under its literal or primary meaning.

Chapter 8 pulls together the various analyses and practical recommendations we have made concerning the two concepts of hate speech and deals with potential objections and lingering worries. Section 8.2 focuses on the ordinary concept hate speech and confronts possible objections to our normative conceptualisation. This section also summarises the many recommendations we made concerning how Meta (Facebook, Instagram) should amend and revise its community standard and authoritative internal policy on hate speech, and tries to allay residual doubts the company might have about these recommendations. Section 8.3 turns to consider the legal concept hate speech and deals with potential objections to our limited formal definition of the concept and our analyses of grey area laws including those that appear to fall between hate speech laws and hate crime provisions, and also denialism laws. In addition, we reiterate our guidance on how states can develop a coherent body of hate speech laws in the light of both national perspectives and international norms against hate speech, and offer some reasons why states should place special weight on the latter.

Chapter 7 argues that denialist speech can, and should, be classified as a sui generis form of hate speech in the legal sense of the term. Section 7.2 looks at the many faces of denialist speech, including forms of synchronous denialism that are often overlooked in these debates. Sections 7.3 and 7.4 address the thorny problem of classification and attempt to explain why it matters. In Sections 7.5 and 7.6 we turn to examine in more detail the spread of denialism laws at the domestic level and try to uncover the many different functions or purposes served by such laws. Finally, in Section 7.7 we address two sceptical challenges to our main thesis. First, if denialist speech is rightly classifiable as hate speech, then why were denialism provisions absent from the early landmark international laws dealing with incitement to genocide and hate speech in general? And second, if denialist speech can be considered hate speech despite its absence from landmark international laws, then what about other things, such as defamation of religion, and what prevents our characterisation of hate speech in the legal sense from becoming absurdly capacious?

Chapter 6 explores the distinction between the legal concepts of hate speech and hate crime. Our purpose is not only to shed light on but also to resolve the ambiguity, as well as to further illustrate and stress test our analyses. Sections 6.2 and 6.3 propose that the legal concept hate speech, formally speaking, only refers to laws which create bespoke crimes or other sorts of offences that do not have corresponding or parallel basic or base versions, whereas the legal concept hate crime only refers to laws which identify aggravated crimes that do have corresponding or parallel basic or base versions. Section 6.4 makes several key comparisons and contrasts between the concepts, beyond the merely formal analysis, while Section 6.5 develops an account of why the distinction between hate speech and hate crime matters legally speaking, both for victims and defendants. Finally, Section 6.6 discusses four potential grey areas of hate speech law, namely using threatening words or behaviour to stir up hatred; incitement to commit genocide; incitement to discrimination or violence; and torts and delicts involving racist abuse.

Chapter 1 establishes the context of our project and defends its theoretical and practical importance. Section 1.2 outlines the basic conceptual framework employed in the book, including the distinction between two concepts of hate speech and our twin-track approach to analysing them. We also highlight some of the pay-offs that flow from this conceptual framework. Section 1.3 explains what we mean by ‘grey areas of hate speech’ including identifying three underlying reasons or explanations why certain phenomena might end up falling into these areas, namely moral, semantic, and conceptual. We also try to motivate the significance and value of working to clear up the grey areas. Finally, Section 1.4 introduces and attempts to respond to the sceptical challenge that says, because the term ‘hate speech’ is linked to conceptual ambiguities, misleading connotations, an explosion of applications, and politicisation, it would be better to dispense with both the term and its concepts. We critically examine five main ways of responding to this sceptical challenge: rehabilitation, downsizing, abandonment, replacement, and enhanced understanding. We defend the final response as being the most promising and the overarching goal of the book.

Chapter 2 identifies prototypical examples of hate speech and seeks to explain what makes them such. Section 2.2 lists the original examples of hate speech cited in Mari Matsuda’s seminal article on the legal concept. We then explain how, even though the ordinary and legal concepts of hate speech share paradigmatic examples, the ordinary concept now has its own extended body of exemplars. Section 2.3 attempts to plot the complex pattern of overlapping and criss-crossing similarities among these exemplars. Section 2.4 looks in more depth at one of the paradigmatic examples of hate speech, namely racial slurs such as ‘nigger’. We highlight similarities it shares with other prototypical examples of hate speech. Finally, Section 2.5 defends a particular account of what it means for a new example to have enough similarities with exemplars to count as hate speech. If there are enough similarities across at least four out of five of the distinguishing qualities of target, style, message, act, and effect, then this conceptually justifies applying the phrase ‘x is also hate speech’ to the new example. We dub this the global resemblance test.

Chapter 5 seeks to orient the ordinary and legal concepts of hate speech. Section 5.2 uncovers various ways in which the ordinary and legal concepts of hate speech come together, including in terms of the kinds of speech they both count as hate speech. In Section 5.3, however, we turn to consider the potential sources of divergence between the ordinary and legal concepts of hate speech including the differing social functions or purposes played by the two concepts. Section 5.4 addresses the nature of the relationship and interaction between the ordinary and legal concepts of hate speech. Finally, in Section 5.5 we try to show why theoretical disagreements about the relationship between the ordinary and legal concepts of hate speech matter. In particular, we argue that uncovering these deeper disagreements can help to explain both the source of some academic controversies about the legitimacy of hate speech laws and the source of some wider public debates about the rights and wrongs of social media platform content policies on hate speech.

Chapter 4 defends classifying a further five grey area examples as hate speech in the ordinary sense of the term under the global resemblance test. We shall also critically examine Facebook’s community standard on hate speech in relation to its handling of these kinds of attacks, and make specific recommendations to address relevant weaknesses. Section 4.2 looks at what we call identity attacks. Section 4.3 investigates existential denials, namely statements denying the very existence of people identified by a protected characteristic. Section 4.4 scrutinises identity denials, by which we mean statements denying that certain people are who they take themselves to be, based on protected characteristics. Section 4.5 examines identity miscategorisations, which go one step further and attribute identities to people that do not match the identities they take themselves to possess, based on protected characteristics. Finally, Section 4.6 assesses identity appropriations, wherein people adopt elements of the identities of other people, based on protected characteristics, but without claiming to possess the relevant identities.

This chapter examines the question of prior restraints and other limitations to artistic freedom, pointing to the lack of a precise definition of ‘censorship’. Which grounds of prior restraint are legitimate or necessary under international law? is there an obligation for States to ban exhibitions such as Mirroring Evil: Nazi Imagery or the exhibition Ode to the Sea displaying artworks made by prisoners from Guantànamo Bay? When can States legitimately restrict artistic freedom? And how do international bodies draw the fine line between illegitimate censorship, legitimate restrictions and regulation? The chapter discusses the problem of artistic expressions inciting to hatred and other types of incitement (negationism, revisionism and Holocaust denial), in light of international standards. It further offers a more detailed approach to the methodology of human rights bodies in defining limitations to artistic freedom (and more broadly balancing conflicting interests), including the problem of artists’ ‘duties and responsibilities’. Finally, it examines the responsibility of non-State actors for human rights violations, if any, in the case of private exhibitions and events that incite to racism, hatred or misogyny, as well as similar issues arising in digital arts, on the web and social media platforms.

This chapter discusses the right to freedom to expression and to freedom of information as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is also paid to topics such as hate speech, defamation, press freedom and access to government information. In the final section, a short comparison between the different instruments is made

European Criminal Law has developed into a complex, jagged subject matter, which at the same time has become increasingly important for everyday criminal law practice. On the one hand, this work aims to do comprehensive justice to the complexity of the matter without sacrificing readability. In order to achieve this, the book’s structure enables legal scholars and experienced practitioners to access the information relevant to them in a targeted manner and, at the same time, enables less-oriented readers to gain access to European Criminal Law. Thus, the volume both answers basic questions and offers discussion in more specialised areas. Written by experts in the field, the book offers discussions that are both of the highest academic standards and accessibly readable.