Hate speech

Hate speech is more than being told what you do not want to hear - and different from only offensive speech. A common definition would be public speech expressing hate or encouraging violence towards an individual or group based on some protected characteristic, such as race, gender, disability, religion or sexual orientation. Hate speech is a direct and demonstrable attack on the equal dignity of others.¹⁸ It says they are lower, second class as a group often speaking about people as if they were non-humans.

There are multifarious impacts from hate speech. Victims can become withdrawn from the public sphere in the wake of being targeted so aggressively with potential for damaging confidence, well-being and much more. The wider society is impacted as frequent exposure to hate speech is associated with desensitization, whereby the public’s ability to recognize the offensive nature of such claims is reduced.¹⁹ In understanding these impacts, there is some research that shows that members of the public typically believe the impact of hate speech has a greater influence on the views of others and more rarely themselves, called having optimistic bias about their own relative immunity from hate speech’s harmfill impacts.²⁰

Social media has been a platform where these crimes have increased significantly. They can take several forms. One is trolling where abusive or hurtful comments are set to someone on social media. A second is online threats to cause serious injury to another, like death or battery. The crime is typically punished by a fine, and the possibility of six months or less imprisonment. Malicious letters are treated no differently in terms of how the crime is prosecuted or punished. The only key difference is these offences happen far more often online than through the letterbox.²¹

Unfortunately, the increasing use of social media has significantly increased the number of cases of hate speech worldwide. This is especially noticeable with respect to the abuse of public figures²² and of women and other underrepresented groups.²³ One reason for this is the ease of making statements that are widely accessible to the public. Someone using Twitter may have few, if any followers, to regularly notice any tweets made. Most, if not all, the tweets shared may have the intended target of friends following the account. But unlike a private conversation among friends in a café, comments on social media may be visible to anyone. The possibility of making comments that may - even unintentionally - cause harm to others is increased.

Hate speech via social media has increased in size and scale with a wider international dimension. One further difference that online hate speech has with traditional hate speech is that comments are assessed differently, in law, when said on social media versus spoken in the public square or mainstream broadcast media. For example, in the UK, the court is required to consider social media comments in the way that a typical user of social media might understand and react to them. This is a very different kind of application of the ‘reasonable person’ standard common across many parts of the criminal law.

One illustration is the case where a man’s ex-wife had told his new partner that the man had attempted to strangle her during their marriage in a post on Facebook. The man sued for defamation, but lost.²⁴ This was because it was held that a Facebook post or tweet on Twitter should be seen as their users see them -as a casual medium with a standard level of precision less than lawyerly. So casual expressions about someone strangling or other talk should not normally be seen literally, because of the medium they appeared on. If said in some different context offline, the outcome might be different.

It has been especially difficult for authorities to prosecute and punish these offences. In the UK, it was not until 2017 that the Crown Prosecution Service decided to punish hate crime online as seriously as hate crime performed face-to-face. Nevertheless, conviction rates can be over 80 per cent for those cases that are brought to court.

Detection methods are improving, especially through the use of corpus linguistics where large datasets - such as tweets sent or Facebook posts - are mined for combinations of words that have been statistically linked together as flagging possible cases of hate speech or online harassment. ²⁶ Such algorithms may never be perfect and always require a second (or more) look over, but they can narrow down a possible set of social media communications from the impossible to the more plausible with big advancements in how this might be improved.²⁷

Despite improvements in detection and prosecution, there is the problem that conviction does not always harm the offender. One landmark study examining the prosecution of anti-immigration party leaders for hate speech found that convictions were associated with higher levels of electoral support. The research claimed that such cases offered the oxygen of publicity for their views helping to extend their support network to voters who may not have known about their positions pre-trial.²⁸

This then leads to the question about how best to punish online hate crime. Firstly, hate crime is a controversial offense and not universally accepted - with wide variation between US states about which activities against specific groups can be prosecuted as hate crimes. Secondly, it is clear that there must be more action against it to reverse its current rise in the number of offences - although it is not at all clear that a higher fine or longer prison sentence would have a positive effect. Thirdly, the offence is increasingly happening online between individuals who may have little or no physical contact or engagement. So, there is a need for offenders to face victims, to better understand the impact of their words on social media and make some amends.

These tentative conclusions support the use of restorative practices, such as the unified theory’s punitive restoration model whereby some form of hard treatment -whether it is prison or intensive therapeutic support - should remain an option. We can go further and launch a Hate Crime Offenders Register.²'¹ Working similarly to a sex offenders register, this would be a register of persons convicted of a hate crime and sentenced to one year or more prison. Persons on this register would have to register their address with local police and be banned from working with vulnerable persons, like children or older citizens in care homes. This would be relatively easy to enforce as whether or not a conviction was for a hate crime would be confirmed in sentencing, the definition of hate crimes exists in various jurisdictions and these same jurisdictions will usually have a sex offender register programme in place as a ready template to use for this new register.

Social media companies have an important role to play in keeping their platforms safe for users - and taking a more pro-active stance on policing their platform to ensure its users are communicating lawfully. A common criticism is that the major platforms do too little and too late, overly reliant on its users to flag inappropriate or unlawful content for review. Such a system is inadequate and ineffective. If social media companies refuse to play a more pro-active role in safeguarding their users from unlawful hate speech, then governments should look to amend their laws to increasing fines or other sanctions if insufficient safeguards are in place - and raising the bar of expectations.

Individuals have their part to play, too. Greater efforts must be made to raise awareness of what counts as hate speech, why it is prohibited, how it is detected and prosecuted and the possible penal outcomes. If done effectively, this should help social media users both better identify when such unlawful communications are made - and better equip users to refrain from making such online posts or tweets themselves.

This remains an area of on-going research. We must creatively follow the evidence where it takes us. What is clear is that the status quo is not working. The suggestions here are only a few ideas for how we might take different actions for improved results. A final consideration is the global nature of social media. This points to the need for greater international cooperation on how hate is identified, prosecuted and punished. Without this, our progress against online hate will have limitations.