What is hate speech and when are such statements illegal?
Children and young people may be exposed to or even contribute to spreading hate speech online. Where is the limit and what does the Norwegian law say?
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The online tone may become harsh, and some people are more vulnerable than others. In the European survey EU Kids Online, it is found that 16 percent of Norwegian children between the ages of 12 and 16 reports that they have seen hate messages attacking certain individuals or groups (EU Kids Online, 2020).
But what exactly is hate speech?
– The term hate speech is used in a wide range of expressions, such as various forms of intimidation, harassment, or bullying. The police work primarily with the criminal hate speech, says Monica Lillebakken, police superintendent and head of the hate crime group at Oslo Police District.
In the legal definition, hate speech is defined based on section 185 of the Penal Code, which is understood as statements that are liable to create or spread hatred against specific groups, Lillebakken points out.
– We have five grounds that have been given special protection; skin color or national or ethnic origin, religion or beliefs, sexual orientation, gender identity or gender expression, and/or disability, explains Lillebakken.
The core area of the clause is statements made publicly, i.e., suitable for reaching a larger number of people, Lillebakken emphasizes.
– According to the preparatory works, this means that the statement must be suitable for reaching at least 20 people. It is not a requirement that such a number have heard the statement but have been present when the statement was made. The scope of the provision was expanded in the new Penal Code, that if a hate speech is made against someone affected by the statement, this is also a criminal offense, but with a lower penalty. For example, if you say something hateful about Jews in front of someone Jewish himself,» says Lillebakken.
Not all hatred breaks the law
Freedom of speech is strong in Norway. Therefore, there is also a granted margin before the law sets a limit on what is illegal.
– It is important to point out that there are many statements that are downright tasteless and are perceived by the general public as hate speech, without being criminal for that reason. Section 185 of the Penal Code must always be assessed against Section 100 of the Constitution on freedom of expression. In recent years, we have received several Supreme Court rulings that make it somewhat easier for the police to consider these cases. Nevertheless, there are demanding assessments that form the basis, says Lillebakken.
The Supreme Court has drawn a distinction between critical statements on a subject, whether political, cultural, religious or other nature, and statements that attack one or more people,» explains Lillebakken.
– The first group of statements normally hits the core of freedom of expression and is not affected by the penal code even if they are perceived as offensive. Such statements of a political nature, for example, do not target “anyone”, as the condition is in section 185, says Lillebakken.
This is different for personal attacks, which may be affected by the statutory clause.
– Such statements enjoy a “modest constitutional protection” because they “have nothing in common with the core value that freedom of expression is supposed to protect, namely the free exchange of words”. Regardless of whether a hate speech is a criminal offense or not, it can do as much harm to the person or persons who are exposed to this, says Lillebakken.
Increase in hate speech
The police superintendent refers to the statistics for the Oslo Police District where there is an increase in hate speech from 2015 to 2020. The figures apply to hate speech both online and offline. Lillebakken thinks that some of the increase is also related to an increase in competence among the police employees:
- 2015: 41
- 2016: 71
- 2017: 71
- 2018: 108
- 2019: 107
- 2020: 125
Lillebakken also highlights five Supreme Court rulings, two of which apply to hate speech online. The convicts are all adults.
- In one case, the defendant was sentenced to 24 days’ probation and a fine of NOK 10,000 plus legal costs. The person had posted a racist comment in the comments section on Facebook.
- The other case also led to a NOK 12,000 fine after a racist comment on a closed Facebook group.
Section 185 of the Penal Code regulates hate speech:
- Hate speech
A penalty of a fine or imprisonment for a term not exceeding three years shall be applied to any person who with intent or gross negligence publicly makes a discriminatory or hateful statement. The use of symbols is also considered a “statement.” Any person who in the presence of others, with intent or gross negligence, makes such a statement to a person affected by it, see the second paragraph, is liable to a penalty of a fine or imprisonment for a term not exceeding one year.
Discriminatory or hate speech means threatening or insulting someone, or promoting hatred, persecution, or contempt towards someone because of their
- a) skin color or national or ethnic origin,
- b) religion or beliefs,
- c) sexual orientation,
- d) gender identity or gender expression, or
- e) impaired functional ability.
Photo (main image): Shutterstock / Evgeny Bornyakov
Read more:
Hate speech: More difficult for immigrant children
Reporting of bullying and hate speech in games
Should children be encouraged to stand up against hate speech?
(First published on 20 August 2021. Translated by Ratan Samadder)
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