Primer| Legal Reform

How We Deal With Hate Speech Today

An introduction to hate speech and current laws that address it.

By Jia Vern Tham | 10 November 2019



What is hate speech?

  • The Cambridge dictionary defines hate speech as public speech that expresses hate or encourages violence towards a person or group based on race, religion, gender, or sexual orientation. Under international human rights law, however, there is no single agreed definition of hate speech.
  • The International Covenant on Civil and Political Rights (ICCPR), a UN treaty, proposes that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence should be prohibited by law. While this covers a large proportion, hate speech may also target characteristics such as gender, sexual orientation, and others.
  • The form of hate speech often discussed today is race-baiting, which is the act of intentionally encouraging racism or racial issues often to gain political leverage. In recent times, politicians and election candidates around the world, including the US, UK, and Europe, have been accused of increasingly engaging in race-baiting hate speech for their campaigns.
  • British human rights organization Article 19 has argued that hate speech is an emotive concept — people can identify it when they encounter it, but their reasons for calling it hate speech are often “elusive or contradictory”.
  • What counts as hate speech is therefore highly specific to the local context; levels of tolerance vary across the world. A 2015 study by Pew Research Centre found a marked difference across regions in the level of acceptance to offensive statements.
  • Though hard to pin down, some countries have taken steps to define what constitutes hate speech through various pieces of legislation after taking into consideration their respective historical contexts and social norms.


Why is it important?

  • The first concern about hate speech is the link to violence. Mass genocides against European Jews during the Second World War, the Tutsis in Rwanda and the Rohingya in Myanmar were preceded by consistent dissemination of hateful and inciting messages.
  • More recently, extremism experts have revealed links between heated rhetoric from political leaders and reports of hate crimes. For example, multiple studies have identified correlations between President Donald Trump’s rhetoric to surges in reported hate crimes across the US.
  • In Germany, researchers concluded that online hate speech against refugees is correlated with physical attacks against them. They found that for every four Facebook posts critical of refugees, there was an anti-refugee incident.

Hate crimes are crimes motivated by bias or prejudice. The Organisation for Security and Cooperation in Europe (OSCE) considers an act a hate crime if it constitutes a criminal offence, and is demonstrably motivated by bias or prejudice towards specific communities.

  • The second concern about hate speech is the link to polarisation and disharmony. Hate speech on social media platforms has been found to have reinforced racism, misogyny and homophobia. Psychologists from the US and Poland have proven that frequent exposure to hate speech increases prejudice, mistrust, and anger against targeted communities — increasing the potential for hate incidents or crimes.
  • Despite the research findings on the effects of hate speech, the UN Office of the High Commissioner for Human Rights (OHCHR) found that nations either have insufficient legislation to address hate speech or vague and unclear provisions that are open to misuse.


How do different countries deal with hate speech? 

  • Some countries prosecute speech deemed an incitement to violence, while some others go further and criminalise speech deemed offensive or hateful.
  • Most countries deal with hate speech under criminal law which mete out punitive measures such as jail sentences and fines. A handful of countries, such as Australia, prosecute hate speech under civil law which allows a complainant to bring a case against an alleged perpetrator of hate speech before a court or commission — and which may have other forms of penalties.
  • The United States is perhaps the most liberal country regarding hate speech. The first amendment under the US Constitution protects speech no matter how offensive the content is. However, it does not protect speech that incites an immediate breach of peace “by their very utterances”.
  • Some other countries not only prohibit incitement but also outlaw speech deemed offensive and hateful. As a party to the ICCPR, Indonesia has embedded the protections and limitations stipulated in the UN treaty into the country’s legal system including banning hate speech. Under Indonesia’s Criminal Code, any expression of hostility, hatred or contempt against one or more groups of people based on ethnicity, race, religion, gender, age, and disabilities could face imprisonment of one to seven years or a fine.
  • France outlaws insult and incitement to discrimination, hatred or violence against a person or group based on ethnicity, nationality, race, religion, gender, sexual orientation, and disabilities. In July, the country also passed a landmark law to combat online hate speech.
  • Singapore’s Penal Code and Sedition Act deal with offensive speech as well as incitement to racial and religious hatred — with heavy penalties. Nevertheless, these laws have been criticised as “archaic”. Singapore has also formed a Presidential Council for Religious Harmony under its Maintenance of Religious Harmony Act to advise the Parliament on issues related to religious harmony.
  • While most countries deal with hate speech through the national criminal law system, Australia manages hate speech through civil laws at the state level. Australia’s Racial Discrimination Act outlaws offending, insulting, humiliating or intimidating a person in public because of his race, colour, national, or ethnic origin. This includes words, sounds, images, or writing communicated to the public in any way. The act stipulates that “an unlawful act is not necessarily a criminal offence", creating an avenue for civil complaints to the Australian Human Rights Commission.
  • Nevertheless, hate speech laws can also be wilfully ineffective. In Myanmar, an Interfaith Harmonious Coexistence Bill was drafted in 2016 which was claimed would secure protection from hate speech. However, in the proposed law, religions protected from hate speech are limited only to religions “most of the citizens worship” — enabling hate speech and worse towards religions worshipped by minorities. For example, the law has not stopped surges in hate speech directed towards the Rohingyas, whether on social media platforms or traditional media outlets.
  • It is worth noting though that attempts to define hate speech in countries such as the US and Australia are heavily debated as it is seen as an infringement on freedom of expression.


How is Malaysia dealing with hate speech?

  • Malaysia is not a party nor a signatory to the ICCPR, which calls for legal prohibition of hate speech.

What is the difference between being a party and a signatory to an international treaty?

Party: A country that has signed and ratified an international treaty.
Signatory: A country that has signed an international treaty but has yet to ratify it.

  • Although Malaysia does not have a single law addressing hate speech, we have several laws that address different aspects of it: incitement as well as dissemination of offensive or hateful speech.
    • The Sedition Act outlaws speech, action, publication, and distribution of materials deemed seditious — which is defined as the tendency to incite hatred, contempt, disaffection against any Ruler, Government, the administration of justice in Malaysia, promote feelings of hostility between different races, and question any right or privilege protected in the Federal Constitution.
    • Section 233 of the Communications and Multimedia Act criminalises the use of network facilities or services to transmit any communication deemed offensive and could cause annoyance to another person.
    • The Printing Presses and Publications Act bans the printing or production of materials that would incite violence against anyone or property, or to provoke hatred and disharmony.
    • Section 298A of the Penal Code criminalises any words or actions deemed to cause disharmony or hatred on grounds of religion.
    • Section 503 to 505 of the Penal Code forbids threats, insults, statements or rumours intentionally made or circulated against anyone or any community to provoke peace.
  • In 2015, Pew Research Centre revealed that only 25% to 27% of 1,000 Malaysian respondents believe that people should be able to make offensive statements publicly. Concern over the rise of hate speech in Malaysia has led some to call for specific legislation to regulate it. However, there are also concerns that new laws would not solve the issue and may even be used to curtail free speech further. Still, some others call for the preservation of existing laws but with much tighter enforcement — especially on those with influential platforms such as politicians and religious leaders.
  • In July last year, Religious Affairs Minister Datuk Dr. Mujahid Yusof Rawa announced the government’s intention to introduce three new pieces of legislation to criminalise hate speech. While the proposed Anti-Discrimination Act and the Religious and Racial Hatred Act will not be tabled, there have yet to be any further developments on the stated National Harmony and Reconciliation Commission Act to date.

Questions to ponder:

1. How should hate speech be defined? And who gets to define it?
2. How can hate speech laws coexist with the right to freedom of speech?
3. Are Malaysia’s laws sufficient to address hate speech? Do we need better legislation, or something else?

Email us your views or suggestions at editorial@centre.my.