Freedom of speech in the EU is under threat again. The European Parliament has voted on a European Commission proposal to recognize hate speech and hate crimes as crimes punishable by imprisonment. According to the draft’s authors, the growing number of victims of racially and sexually motivated hate speech must be met with a harsh response from EU authorities. The Warsaw Enterprise Institute warns that the penalization of hate speech is indefensible in light of the fundamental value of freedom of speech and because of the arbitrariness of what is considered hate speech and what is not. Moreover, it can become a tool of political pressure on groups that may threaten the current government. At the same time, it is clear that criminalizing hate speech will not only fail to reduce the level of social tensions but will make matters worse, pushing them from the virtual into the reality. We believe that freedom of expression should be restricted only in exceptional situations where there is a real threat to the security of citizens.
We are witnessing another battle over freedom of speech in the EU. At the end of January, the European Parliament voted to recognize hate speech and hate crimes as punishable by imprisonment. So far, the bill for the new legislation has yet to meet with the approval of the entire Council of Europe, but pressure from the organization’s authorities is gaining momentum.
There are serious problems with the proposed legislation.
First, what is hate speech that would be subject to punishment? According to Article 83 of the Treaty on the Functioning of the European Union, crimes at the EU level are considered severe cross-border. The article’s catalog of crimes includes terrorism, human trafficking, sexual exploitation of women and children, illegal arms trafficking, and organized crime, among others. European authorities have left themselves a doorway to expand the catalog, depending on the development of crime in the EU. With Parliament’s approval, the Council can unanimously decide to define other areas of crime that meet the criteria mentioned in the article. Unfortunately, in the case of hate speech, it is hard to say whether it meets any of them. It is, therefore, challenging to interpret unequivocally what hate speech is. In the European Commission’s proposal to the Council and Parliament, we can read the definition in the Recommendation of the Committee of Ministers of the Council of Europe of October 30, 1997. The broad definition of “hate speech” includes any form of speech that spreads, incites, promotes, or justifies racial hatred, xenophobia, anti-Semitism, or other forms of hatred based on intolerance. Also contained within this definition are manifestations of intolerance, such as aggressive nationalism, ethnocentrism, discrimination, and hostility toward ethnic minorities. If the EP’s proposal is introduced, guilt or innocence would be determined mainly by arbitrary determinations of what is and is not hate speech. As a result, the legislation could also become a valuable tool for politicians who want to fight their critics. The attempt to criminalize free speech could also stem from a particular ideology. Today, the forefront of the fight to criminalize hate speech is leftist circles, which consider any speech that contradicts their worldview to be hate speech. Fears are growing in some EU countries that it will be regarded as hate speech to oppose mass and uncontrolled migration to the EU or the recognition of two biological sexes, which is still the legal and moral norm in many countries.
Secondly, legislation to criminalize hate speech at the EU level would mean further restrictions on independence in national lawmaking. Today, member states deal with such crimes differently, depending on their federal laws. Some, such as Belgium, France, and Spain, have introduced strict laws criminalizing hate speech based on sexual orientation or gender in cultural terms. Polish law does not explicitly regulate hate speech. Provisions restricting freedom of speech are found in the Polish Constitution and the Criminal Code and can be abbreviated to three main points: prohibition of propagation of totalitarian ideologies and systems, prohibition of insulting religious feelings, and prohibition of criminal threats. At the EU level, however, no common determinant in this area would consider the differences in defining hate speech across member states. In practice, this means that what is punishable in one EU country can get away with it in another. Introducing new legislation could lead to the imposition on member states of the qualification of specific behaviors as falling under the new crime area.
Third, fighting hate speech can increase the level of hatred in society. Removing hate language from the public sphere does not mean eliminating hate itself. Verbal expression of hatred is often an attempt to shout down existing problems to the public, to which it remains indifferent. If the problem signaled by it is recognized and resolved, the hatred will weaken. On the other hand, punishing certain statements with imprisonment can cause them to turn into actions. In prison, hatred is not undermined; stimulated by the feeling of the injustice suffered, it only grows stronger. Let’s keep in mind that totalitarian ideas were not born in universities but in the privacy of prison cells, where later criminals had time to think and realize their convictions.
Fourth, according to the European Parliament’s proposal, “extremist and populist movements” are responsible for the “increase in discrimination and hatred” in Europe today. This results in “dangerous divisions in society,” “deepens political polarization,” and thus “threatens democracy.” In other words, with the new legal instrument, the lawmaker wants to influence the divisions and shape the political debate, which is “increasingly characterized by hate speech.” It intends to save democracies by suppressing speech it deems likely to contribute to populist political movements.
The Warsaw Enterprise Institute’s stance is that freedom of speech should be restricted only in specific situations where there is a real threat to the security of citizens, such as in the case of the use of criminal threats, and EU law in this regard should not be changed. Currently, hate speech, which is difficult to define, is not a particularly serious area of crime as defined in Article 83(1) of the TFEU, and the catalog of European crimes refers to offenses that objectively directly harm the lives and freedom of citizens, threatening security and public finances.
 Article 256 § 1. Whoever publicly propagates a Nazi, communist, fascist or other totalitarian state system or incites to hatred on the basis of national, ethnic, racial, religious differences or on the basis of irreligiousness shall be subject to the penalty of deprivation of liberty for up to 3 years.
 Article 196 of the Criminal Code: Whoever insults the religious feelings of others by publicly insulting an object of religious cult or a place intended for the public performance of religious rites shall be subject to a fine, the penalty of restriction of liberty or imprisonment for up to 2 years; Art. 190. of the CC § 1. Whoever threatens another person with committing a crime to his or her detriment or to the detriment of a person close to him or her, if the threat arouses in the person to whom it was addressed or whom it concerns a reasonable fear that it will be carried out, shall be subject to the penalty of imprisonment for up to 3 years.