Authored By: Aiana Saparbekova
Ala-Too International University
I. Introduction
Digital communication has transformed the exercise of freedom of expression. Social media platforms allow individuals to communicate political, religious and social ideas across borders almost instantaneously and to reach audiences far beyond those available through traditional media. The same technologies can also amplify discriminatory and hateful expression, including speech directed against racial, religious and other vulnerable groups. The central legal question is therefore how international human rights law can protect open expression while responding to speech that creates a serious risk of discrimination, hostility or violence.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) protects the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. The right is not absolute: article 19(3) permits restrictions that are provided by law and necessary for specified legitimate purposes. Article 20(2) goes further by requiring States to prohibit advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.[1][2][3]
This article argues that international human rights law requires a distinction between offensive or hateful expression and the narrower category of serious incitement. Restrictions should satisfy legality, necessity and proportionality, while the Rabat Plan of Action provides a structured threshold test for identifying incitement. Applied online, this framework can protect vulnerable groups without giving States or digital platforms an unlimited power to suppress lawful speech.
II. The International Legal Framework
A. Freedom of Expression under Article 19 ICCPR
Freedom of expression occupies a central place in the international human rights system. The Human Rights Committee has described freedom of opinion and expression as indispensable conditions for the full development of the person and as essential foundations of every free and democratic society. Article 19(2) protects political discourse, journalism, cultural and artistic expression, religious discourse and other forms of communication. The Committee has also confirmed that the protected means of expression include electronic and internet-based modes of communication.[4][5]
The protection is not limited to popular or agreeable speech. General Comment No 34 states that the scope of article 19(2) embraces expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with article 19(3) and article 20. This point is essential in the hate-speech context because offence alone does not automatically remove expression from the protection of the Covenant.[6]
Article 19(3) permits restrictions only where specific conditions are met. A restriction must be provided by law, pursue one of the legitimate aims listed in the Covenant, and be necessary for that aim. The Human Rights Committee has further explained that restrictions must conform to the principle of proportionality and must be the least intrusive instrument among those capable of achieving the protective function. These requirements limit the risk that vague terms such as “offensive”, “extremist” or “hateful” will be used to suppress legitimate criticism or controversial debate.[7]
B. Hate Speech and Article 20 ICCPR
International law does not contain a single universally agreed legal definition of “hate speech”. The United Nations Strategy and Plan of Action on Hate Speech expressly notes the absence of an international legal definition and uses a working definition for the purposes of United Nations action. The ICCPR instead identifies a narrower category of expression that States must prohibit.[8]
Article 20(2) requires prohibition by law of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. The wording establishes an important threshold: hostility or prejudice is not by itself enough. The expression must amount to advocacy of the specified hatred and must constitute incitement to one of the prohibited consequences.[9]
The Human Rights Committee has made clear that articles 19 and 20 are compatible and complementary. Restrictions justified by article 20 must also comply with article 19(3). Article 20 therefore does not create a general exception through which governments may avoid the safeguards surrounding freedom of expression.[10]
III. Human Rights Committee Practice
In Faurisson v France, the Human Rights Committee considered a complaint arising from the applicant’s conviction under French legislation concerning the contestation of crimes against humanity. The Committee concluded that the restriction on his expression was permissible under article 19(3) and found no violation of article 19. The decision demonstrates that highly harmful expression may be restricted, but only through the legal analysis required by the Covenant rather than by treating controversial speech as automatically unprotected.[11]
The Committee applied a similar framework in Ross v Canada. The applicant, a school teacher, had published antisemitic material outside the classroom. The Committee accepted that the measures imposed on him restricted his freedom of expression, but concluded that the restriction served the protection of the rights or reputations of others and did not violate article 19. In its reasoning, the Committee referred to the protection of the Jewish community from religious hatred and noted the relevance of the principles reflected in article 20(2).[12][13]
These communications do not establish that every offensive or discriminatory statement can be prohibited. Their significance lies in the Committee’s insistence on a contextual inquiry into the purpose and necessity of the restriction. That approach is consistent with the broader requirement that limitations on expression remain exceptional and proportionate.
IV. The Challenges of Regulating Online Hate Speech
A. Definition and Context
The absence of a universal legal definition creates a practical difficulty. The expression “hate speech” may be used to describe conduct ranging from prejudiced or insulting language to direct encouragement of violence. Treating all of these forms of expression identically would produce an overbroad legal regime. International human rights law therefore focuses on the context, purpose and consequences of the speech rather than on offensive vocabulary alone.
Context is particularly important online because the same words may perform very different functions. A journalist, academic or human rights monitor may reproduce hateful language in order to report, criticise or document it. A rule based only on keywords could therefore remove lawful expression together with genuine incitement.
B. Digital Platforms and Over-Removal
Online platforms also complicate the traditional relationship between the State and the speaker. Private companies decide whether posts remain visible, whether accounts are suspended and how their community standards are enforced. At the same time, States may impose legal duties on platforms to respond to unlawful content.
The 2019 report of the UN Special Rapporteur on freedom of opinion and expression, David Kaye, specifically evaluates the human rights law applicable to the regulation of online hate speech. The report stresses the importance of applying international freedom-of-expression standards to government regulation and to the demands States place on internet companies. A system that imposes severe liability for failing to remove uncertain content can encourage platforms to delete more speech than the law actually requires. The resulting over-removal can chill lawful political, religious and social debate.[14]
V. The Rabat Plan of Action
The Rabat Plan of Action provides a particularly useful framework for identifying the point at which hateful expression reaches the level of prohibited incitement. It recommends a high threshold for criminal sanctions and sets out a six-part threshold test. The relevant factors are: (1) context; (2) the speaker’s position or status; (3) intent; (4) content or form; (5) extent of dissemination; and (6) likelihood, including imminence, that the speech will produce the prohibited result.[15]
The test is well suited to online communication. An inflammatory statement made by an influential public figure during serious communal tension may present a substantially greater risk than identical words used in a small private discussion. Likewise, a message disseminated repeatedly to a very large audience may have consequences that a limited communication does not.
Intent is equally important. Journalists, researchers and civil society organisations may quote hateful statements without endorsing them. Requiring attention to intent helps prevent regulation from punishing those who expose or analyse hatred. Extent and likelihood are also critical online because rapid distribution can increase risk, but reach alone should never substitute for the complete contextual assessment required by the Rabat framework.
VI. A Rights-Based Approach to Regulation
A coherent approach should distinguish between different levels of harmful expression. The first category is the expression covered by article 20(2): advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. States are required to prohibit this category. The second consists of expression that may be restricted under article 19(3) if the requirements of legality, legitimate aim, necessity and proportionality are met. A third category consists of offensive or prejudiced speech that does not meet either legal threshold. Such speech can still cause harm, but international human rights law does not require criminal prohibition of every such statement.
This graduated approach is consistent with the United Nations Strategy and Plan of Action on Hate Speech. The Strategy is expressly grounded in freedom of opinion and expression and states that the United Nations supports “more speech, not less” as a key means of addressing hate speech. It also identifies responsibilities for governments, societies and the private sector and calls for stronger digital citizenship, research and understanding of the drivers of hate speech.[16]
Accordingly, criminal sanctions should be concentrated on the most serious forms of intentional incitement. For harmful expression below that threshold, less restrictive responses may include counter-speech, education, media and information literacy, support for affected communities and transparent platform moderation. These measures can reduce harm without giving public authorities an unnecessarily broad power to control legitimate discourse.
Platforms should also provide clear moderation rules and meaningful review mechanisms. Users should be able to understand why content has been removed and to challenge decisions that incorrectly suppress lawful expression. States, for their part, should avoid liability regimes that predictably encourage automatic removal whenever the legality of speech is uncertain.
VII. Conclusion
Online hate speech presents a genuine challenge because international human rights law must protect two important interests at the same time: individuals and communities must be protected from serious incitement, while society must retain the open space required for political discussion, criticism and democratic participation.
The ICCPR provides a coherent framework for this balance. Article 19 establishes broad protection for freedom of expression while permitting carefully limited restrictions that satisfy legality, necessity and proportionality. Article 20(2) identifies the narrower category of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence and must be prohibited. Human Rights Committee practice confirms that restrictions require contextual justification rather than automatic exclusion from protection.
The Rabat Plan of Action makes this framework more practical by directing attention to context, speaker, intent, content, reach and likelihood of harm. These factors are particularly valuable in the online environment, where the scale and consequences of expression can vary dramatically. The preferable model is therefore a graduated one: serious incitement may justify legal prohibition, while less severe harmful expression should normally attract proportionate alternatives such as counter-speech, education and transparent platform moderation. Such an approach protects vulnerable communities without weakening the freedom on which democratic debate depends.
Bibliography
Treaties
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
Cases and Communications
Faurisson v France Communication No 550/1993, UN Doc CCPR/C/58/D/550/1993 (Human Rights Committee, 8 November 1996).
Ross v Canada Communication No 736/1997, UN Doc CCPR/C/70/D/736/1997 (Human Rights Committee, 18 October 2000).
United Nations Materials
Human Rights Committee, ‘General Comment No 34: Article 19: Freedoms of Opinion and Expression’ UN Doc CCPR/C/GC/34 (12 September 2011).
Human Rights Council, ‘Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred: Addendum’ UN Doc A/HRC/22/17/Add.4 (11 January 2013) (Rabat Plan of Action).
David Kaye, ‘Promotion and Protection of the Right to Freedom of Opinion and Expression’ UN Doc A/74/486 (9 October 2019).
United Nations, United Nations Strategy and Plan of Action on Hate Speech (2019).
Committee on the Elimination of Racial Discrimination, ‘General Recommendation No 35: Combating Racist Hate Speech’ UN Doc CERD/C/GC/35 (26 September 2013).
Reference(S):
[1] ibid art 20(2).
[2] ibid art 19(3).
[3] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 19(2).
[4] ibid paras 11-12.
[5] Human Rights Committee, ‘General Comment No 34: Article 19: Freedoms of Opinion and Expression’ UN Doc CCPR/C/GC/34 (12 September 2011) paras 2-3.
[6] ibid para 11.
[7] ibid paras 22, 34.
[8] United Nations, ‘United Nations Strategy and Plan of Action on Hate Speech’ (18 June 2019) <https://www.un.org/en/node/218461> accessed 6 September 2026.
[9] ICCPR (n 1) art 20(2).
[10] Human Rights Committee, General Comment No 34 (n 4) paras 50-52.
[11] Faurisson v France, Communication No 550/1993, UN Doc CCPR/C/58/D/550/1993 (Human Rights Committee, 8 November 1996), paras 9.4-9.7.
[12] ibid para 11.5.
[13] Ross v Canada, Communication No 736/1997, UN Doc CCPR/C/70/D/736/1997 (Human Rights Committee, 18 October 2000), paras 11.1-11.6.
[14] David Kaye, ‘Promotion and Protection of the Right to Freedom of Opinion and Expression’ UN Doc A/74/486 (9 October 2019) paras 20, 29, 57.
[15] Human Rights Council, ‘Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred: Addendum’ UN Doc A/HRC/22/17/Add.4 (11 January 2013), appendix, para 29.
[16] United Nations, ‘United Nations Strategy and Plan of Action on Hate Speech’ (18 June 2019) <https://www.un.org/en/node/218461> accessed 6 September 2026.
