ARTICLE-19-policy-on-prohibition-to-incitement

Recommendation 6:
Domestic legislation should
include specific prohibition of
“incitement” as provided by
Article 20(2) of the ICCPR
National legislation should include specific
and clear reference to “incitement to
discrimination, hostility or violence” (instead
of a broad range of different and vague
prohibitions). The use of broader terms or the
mere prohibition of “incitement to hatred”
should be avoided or, alternatively, the
legislation should specify that they should
be interpreted within the meaning of Article
20(2) of the ICCPR. Ideally, there should
be an explicit recognition in the drafting of
legislation that it is intended to implement
Article 20 of the ICCPR.
The right to freedom of expression should
be explicitly protected, as required by
Article <strong>19</strong> of the ICCPR.
Recommendation 7:
The prohibition to incitement
should conform to the three-part
test of legality, proportionality
and necessity
In as much as it restricts freedom of
expression, any incitement-related
restriction should conform to the threepart
test provided under Article <strong>19</strong> (3)
of the ICCPR. As lex specialis, Article
20(2) provides an additional, rather than
a substitutive obligation on States. The
implication is that for an incitement-related
restriction to be legitimate, it must meet all
three parts of the test:
• The interference must be provided for
by law. This requirement is fulfilled
only where the law is accessible and
“formulated with sufficient precision
to enable the citizen to regulate his
conduct. 60 ”
• The interference must pursue a
legitimate aim. The list of aims in
the various international treaties is
exclusive in the sense that no other
aims are considered to be legitimate
as grounds for restricting freedom of
expression.
• The restriction must be necessary in
a democratic society or must meet
a pressing social need. 61 , the word
“necessary” meaning that there must
be a “pressing social need” for the
restriction. The reasons given by the
State to justify the restriction must
be “relevant and sufficient” and the
restriction must be proportionate to
the aim pursued. 62
<strong>ARTICLE</strong> <strong>19</strong> believes that the application
of the three-part test has an essential part
to play in building a more coherent and
cohesive legal framework, a framework
in which freedom of speech is respected,
26
60
The Sunday Times v. United Kingdom, 26 April <strong>19</strong>79, Application No. 6538/74, para. 49 (European Court of Human Rights).
61
Zana v Turkey, judgement of the Grand Chamber of 25 November <strong>19</strong>97, Application No 18954/91 para 51; Lingens v Austria,
Judgement of 8 July <strong>19</strong>86, Application No 9815/82, paras 39-40.
62
Lingens v. Austria, 8 July <strong>19</strong>86, Application No. 9815/82, paras. 39-40 (European Court of Human Rights).