Chara Bakalis

This article is about online hate speech propagated via platforms operated by social media companies (SMCs). It examines the options open to states in forcing SMCs to take responsibility for the hateful content that appears on their sites.  It examines the technological and legal context for imposing legal obligations on SMCs, and analyses initiatives in Germany, the UK, the EU and elsewhere.  It argues that whilst SMCs can play a role in controlling online hate speech, there are limitations to what they can achieve.

The issue of hate crime and how to tackle it has become of increasing significance over the last two decades, particularly in light of the murder of Stephen Lawrence in 1993. Although incitement to racial hatred offences existed under the Public Order Act 1986 (POA), the Government introduced specific legislation to tackle racist hate crime under the Crime and Disorder Act 1998 (CDA). These offences created aggravated versions of basic offences which were committed when an offender was motivated by or demonstrated racial hostility. Religion was added

to the CDA provisions in 20013 and to the POA in 2006, whilst the POA provisions were further extended to sexual orientation in 2008. The CDA also introduced a sentencing provision which in its current form under the Criminal Justice Act 2003 (CJA) requires all sentencing judges to take account of any hostility towards race, religion, sexual orientation, disability and transgender identity as an aggravating feature which increases the level of punishment an offender may receive. Although opinion is divided as to whether a state should introduce targeted legislation in

order to tackle hate crime, hate crime statutes now appear in many jurisdictions across the world. 

In March 2012, the Hate Crime Action Plan was launched which sought to outline the Government’s strategy for reducing the levels of hate crime experienced by victims. Combatting hate crime is seen as central to ensuring that as a society we “embrace [the] rich mix of different races, cultures, beliefs, attitudes and lifestyles” that exist in Britain today. Effective legislation is at the heart of the Hate Crime Action Plan and is fundamental to its success. With this in mind, in

November 2012 the Ministry of Justice, as part of a cross-departmental Government initiative on hate crime, asked the Law Commission to consider the case for broadening the scope of the CDA and POA provisions to bring them into line with the greater range of victims protected under the CJA. The Law Commission published its final report on the matter in May 2014 in a report entitled Hate Crime: Should the Current Offences be Extended? This article seeks to assess the Law Commission’s recommendations. In the first section a summary of the current law will be provided, followed by a brief overview of the recommendations. The subsequent sections will deal with each of the recommendations in more detail. It will be argued that the review of the CDA offences recommended by the Law Commission should be extended to include the entire legislative framework which deals with hate crime. This is because reform in this area has been piecemeal, resulting in a disordered set of laws which do not necessarily give effective protection to hate crime victims. Examining the CDA in isolation from the CJA and the POA will not satisfactorily address the problems with the current legislation, and runs the risk of overlooking

the importance of assessing these provisions as a comprehensive body of hate crime law.

This article examines the concept of ‘equality' in the context of the sentencing of religious offenders. Judges are often reluctant to consider the importance of the religious beliefs of the offender during sentencing for fear that this is tantamount to giving them an advantage over non-religious offenders. This article explores the extent to which the religion of the offender should be taken into account at the sentencing stage in light of a more fully developed concept of ‘equality' which has emerged from discrimination law. It will be argued that ‘formal equality' requires that the religion of the offender be taken into account where it fits with established grounds relevant to ‘offence seriousness' or mitigation, and that the concept of ‘substantive equality' requires deeper consideration to be given to how established sentencing principles may have a greater impact on the protected characteristics under the Equality Act 2010, such as religion.

The function of religion in the sentencing phase of a criminal trial has been comparatively neglected. The structure of the European Convention does not leave it open simply to ignore religion in sentencing--that route to neutrality in relation to religion has been closed. Instead, the developing jurisprudence under the Convention has created obligations in relation to both the manifestation of religion through offending, and the treatment of repeat, conscientious offenders. These obligations have the potential to give too much emphasis to the protection of religious conviction over other pressing state interests, in particular the rights and interests of others, and need to be read narrowly.

This paper explores the relationship between religion and sentencing. It considers what problems may arise when a judge fails to take proper account of a defendant's religious beliefs at the sentencing stage, or takes improper account. It highlights the need for more guidance to be given to judges in order to ensure greater consistency and fairness in sentencing outcomes.

This article examines the new offence of inciting religious hatred under the Racial and Religious Hatred Act 2006. A historical analysis of existing provisions aimed at legislating against racial hatred and blasphemy is adopted, in order to determine whether the creation of this new offence is justified and necessary. We conclude that although the new offence may fulfil an important symbolic role in a post September 11th environment, in its current form the legislation has not taken sufficient account of the precedent of racial hatred and blasphemy laws, or of more general questions about the criminalisation of hatred.