To mark the United Nation’s International Day for Countering Hate Speech on 18 June, ARTICLE 19 calls for the Malaysian government to embrace principles of the right to equality, freedom of expression, and to lead by good example. Politicians and authorities must take the initiative in condemning violence and leveraging their positions to drive meaningful, lasting change. Addressing hate speech requires more than just additional speech; it demands policies and actions that confront the root causes of inequality.
In Malaysia, hate speech is most often used against minority groups, including ethnic and religious minorities, migrants, and LGBTQ+ people. Minority groups affected by hate speech are provided with very little protections, despite the fact that international law is very clear about the importance of supporting protected characteristics.
The detrimental impact of hate speech spans a range of critical areas, including the protection of human rights, atrocity prevention, peacekeeping, gender equality, and the support of children and youth.
In assessing whether restrictions on freedom of expression are legitimate, states must meet international standards in order to uphold human rights. This test is crucial to prevent state overreach and ensure that restrictions are justifiable. The Malaysian government’s current application of laws under the guise of managing issues relating to race, religion and royalty often fails to meet these criteria, demonstrating overreach and an attempt to stifle legitimate expression.
The UN General Assembly established the International Day for Countering Hate Speech as part of its resolution on ‘promoting inter-religious and intercultural dialogue and tolerance in countering hate speech,’ adopted in July 2021.
The resolution recognises the need to counter discrimination, xenophobia and hate speech, and calls on all relevant actors, including states, to increase their efforts to address this issue in line with international human rights law.
‘Hate speech’ under international human rights standards
There is no uniform definition of hate speech under international human rights law. The term is often used to describe language that, while regarded by some offensive or inflammatory, is actually protected by international standards relating to freedom of expression. For this reason, the incorporation of hate speech provisions into criminal law frameworks is often likely to result in the restriction of speech to a degree not permitted by international human rights law.
Under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), restrictions on the right to freedom of expression are permitted only if they are: (a) provided by law, (b) in pursuit of a legitimate aim, including protecting the rights of others, and (c) necessary and proportionate to that aim. Additionally, ICCPR Article 20(2) requires that governments restrict speech that incites discrimination, hostility, violence or international crimes. These standards establish a high threshold for circumscribing speech, but also an obligation to prohibit speech that leads to incitement.
To properly identify hate speech, expressions must be evaluated using a stringent six-part test as recommended by the Rabat Plan of Action. This test helps ensure that only the most severe instances of hate speech, those that warrant restriction, are identified.
Adopt Rabat Plan of Action and UNHRC Resolution 16/18
ARTICLE 19 recognises the legitimate concern about the danger posed by harmful content on social media platforms, and the importance of moderating such content.. However, misidentifying hate speech, or grouping it with another category of harmful content, has two problematic consequences: speech that should be protected under international standards is restricted or criminalised, and hate speech that should be prohibited is not. Therefore, it essential to distinguish between speech protected by international law and speech that may incite violence and must be prohibited.
The Malaysian government relies on its antiquated 1948 Sedition Act, and blasphemy provisions under the Penal Code, including Section 298 and the Section 233 of the Communications and Multimedia Act (CMA). In practice, these laws prioritise the protection of social institutions, namely the monarchy, religion and government institutions. The government has declared that any speech critical of what it terms the ‘the 3Rs’ (race, religion and royalty) will not be tolerated. Through its regulatory body, the Malaysian Communications and Multimedia Commission (MCMC), the government has taken steps to censor and criminalise people who allegedly disseminate hate speech online, using selective prosecution under repressive laws like the CMA, the Sedition Act and the Penal Code. Most of the time, problematic laws such as the Sedition Act, the CMA and the Penal Code are used to restrict legitimate speech that should be protected. These laws also do not comply with the standards governing restrictions on the right to freedom of expression.
Creating an enabling environment for the right to freedom of expression and equality is not only an obligation of states under international human rights law, but it is also essential to ensure that opportunities to expose and counter hate speech are maximised. The Malaysian government must create an enabling environment for the right to freedom of expression and equality in Malaysia, including by passing comprehensive anti-discrimination legislation in line with international human rights standards.
International initiatives have provided a growing body of standards and recommendations to guide government efforts to combat intolerance and hate speech. In particular, Human Rights Council Resolution 16/18 sets out a universally-agreed action plan by states for addressing prejudice based on religion or belief. The Malaysian government could participate in the Istanbul Process, which promotes and guides the implementation of Human Rights Council Resolution 16/18. It has enormous potential to be a strong vehicle for states to exchange knowledge and experiences and to explore innovative and human rights-compatible approaches to promoting inclusivity, pluralism, and diversity.
The Rabat Plan of Action provides practical legal and policy guidance to states on implementing Article 20(2) of the ICCPR. These documents and initiatives propose a range of positive policy measures to combat hate speech that do not rely on criminal penalties, including facilitating interfaith dialogue, training government officials, promoting media pluralism, and creating ‘equality bodies’ to address conflict and intolerance. The Rabat Plan of Action is a practical and effective tool for addressing differences in understanding. It asserts that, as a default, promoting more expression, in conjunction with the enactment of policies and laws to combat the root causes of discrimination, is the most potent antidote to intolerant expression. The Rabat Plan of Action also provides practical guidance: its six-part threshold test prompts states to consider the speaker’s intent to incite specific harm, as well as a range of contextual factors that aid in determining imminence, including the speaker’s identity, content, and the reach of the speech.
Conclusion
Solving social issues without using censorship is essential. When contentious topics or viewpoints are censored, the root causes of prejudice remain unaddressed. Often, state restrictions on freedom of expression and information stifle constructive dialogue by deeming everything “sensitive” and restricting it. To effectively combat hate speech, racial discrimination, religious tension, and harmful stereotypes, we need to promote more open dialogue and dismantle restrictive environments. This approach allows for meaningful discussions about identity, belonging, systemic discrimination, and prejudice, providing a constructive path to address these national issues.
State officials and political figures must set an example by swiftly condemning intolerance and discrimination, including hate speech, while avoiding such behavior themselves. The government must support efforts that promote inclusion, diversity, and pluralism, in accordance with Human Rights Council Resolution 16/18 and the Rabat Plan of Action.
Restricting freedom of expression is not effective in combating religious and racial hatred. To protect and socially include groups at risk of discrimination and violence, we need broader and more positive policy measures. This includes enacting comprehensive anti-discrimination legislation and policies that address systemic discrimination against religion and belief, ensuring authorities condemn religious intolerance and work to de-escalate tensions.
In recognition of International Day for Countering Hate Speech, ARTICLE 19 calls on the Malaysian government to amend or repeal those laws, which have been used to fuel the persecution of minorities, to ensure its legislative efforts combatting hate speech comply with international human rights norms, and to oversee complementary, structural social change to address the underlying causes of discrimination and persecution of minorities.
ARTICLE 19 reiterates that hate speech, as a form of discriminatory expression, is a severe human rights concern. It is often used to silence and intimidate minorities and scapegoat whole groups in society while stifling dissent, or inciting physical violence. Any form of discrimination and hate must be ended immediately with more progressive policies and initiatives from multi-stakeholders in society.
For more information contact Nalini Elumalai, Senior Malaysia Program Officer, ARTICLE 19, [email protected]