While in many jurisdictions hate speech is considered as an offence towards an individual or group of people, there are instances where a particular expression could be protected under the right of freedom of speech which is a recognised human right.
Article 82A of the Criminal Code, Chapter 9 of the laws of Malta regulates the offence of incitement to hatred, also known as hate speech, and defines violence or hatred.
It provides that: ‘Whoseover uses any threatening, abusive or insulting words or behaviour, or displays any written or printed material which is threatening, abusive or insulting, or otherwise conducts himself in such a manner, with intent thereby to stir up violence or hatred against another person or group of persons on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, age, disability, religion or belief or political or other opinion or whereby such violence or hatred is likely, having regard to all the circumstances, to be stirred up…... shall, on conviction, be liable to imprisonment for a term from six to 18 months."
Sanctioning hate speech was the subject matter of several debates between legal experts and the matter was also referred to the European Court of Human Rights (ECtHR) several times.
The ECtHR used two approaches. The first approach was that of exclusion from the protection of the European Convention on Human Rights, as provided for in article 17 of the European Convention on Human Rights (ECHR), whereby a comment can result in hate speech and incitement to hatred.
The second approach by the ECtHR was that as regulated by Article 10, paragraph 2, of the Convention which provides that freedom of speech ‘is applicable not only to ‘information’ or ‘idea’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’.
Additionally, the ECtHR in a judgment delivered on 7th December 1976, in the names Handyside v the United Kingdom, whilst referring to Article 10, paragraph 2 of the Convention further added that ‘such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued’.
This judgement by the ECtHR was also referred to by the Maltese Criminal Court of Appeal presided by Madam Justice Edwina Grima on the 28th July 2023, in the case Police v Michael Leonard Paul Hammond.
Hammond was charged in court for having breached article 82A of the Criminal Code, following a comment made on Facebook, on a post shared by a group of people known as LGBTI+GOZO. The appellant had been found guilty by the first court and sentenced to six months imprisonment suspended for three years.
Hammond appealed the judgement mainly on the fact that the prosecution failed to prove its case beyond reasonable doubt and that he could never been found guilty by the first court.
The Criminal Court of Appeal upon delivering judgement considered that the comment made by the appellant was abusive and insulting towards the LGBTI community and that upon writing the post in question it had to be evident for the appellant that such comment would have led to such sentiments as regulated in terms of article 82A of the Criminal Code.
The Court of Appeal in its judgement referred to another judgement by the ECtHR in the names Erbakan v Turkey whereby the latter court stated that ‘...[T]olerance and respect for the equal dignity of all human beings constitute foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance ..., provided that any .. ‘restrictions’... imposed are proportionate to the legitimate aim pursued.’
The appellate court cited another judgement by the ECtHR in the names Vejdeland and Others vs Sweden and stated that ‘inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner.
In this regard, the court stressed that discrimination based on sexual orientation was as serious as discrimination based on “race, origin or colour.”
In conclusion the Criminal Court of Appeal after having examined all the circumstances of the case decided that the comment posted by the appellant was in fact in breach of article 82A of Chapter 9 of the Laws of Malta and confirmed the judgement pronounced by the First Court.
Dr Frank Anthony Tabone is an associate at Azzopardi Borg and Associates, advocates.