Time to Reform Denmark's Anti-Hate Speech Law

by DR. RACHEL EHRENFELD, AYLANA MEISEL February 1, 2011
 
Danish reporter Lars Hedegaard (pictured) was found not guilty yesterday of hate speech charges by the criminal court in  Frederiksberg, Copenhagen. Hedegaard was prosecuted earlier this year for comments he made in his home in December 2009 about "honor killings," as practiced by Muslims.
 
Hedegaard argued in his defense that when making the statements he was unaware that it would be published on a blog.  Nonetheless, the criminal case against him proceeded and he still faces a libel suit filed by some 15 individuals and organizations, most of whom are Muslim.
 
As liability under the law is based only on the plaintiff's perception or feeling threatened, denigrated or insulted, truth is not a defense.
 
Many European countries have laws similar to Denmark’s Section 266(b) of the Criminal Code, under which Hedegaard was prosecuted. Rather than protecting the people they were intended to defend, these laws are often exploited by plaintiffs seeking to suppress the expression of personal opinions with which they disagree. The Danish law, which is quite broad, penalizes “whoever publicly or with the intent of public dissemination issues a pronouncement or other communication by which a group of persons are threatened, insulted or denigrated due to their race, skin colour, national or ethnic origin, religion or sexual orientation…” Offenders may be fined or imprisoned for up to two years.
 
As with many other European laws on hate speech, Section 266(b) was revised to conform to the requirements of the 1971 United Nations Convention on the Elimination of All Forms of Racial Discrimination. Specifically, the convention mandated that signatories criminalize “all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination.” The treaty has 85 signatories and 174 parties, including European countries and the United States.
 
Similarly, the 1966 UN International Covenant on Civil and Political Rights (ICCPR) requires signatories to ban “advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence.” The Covenant has 72 signatories and 167 parties including European countries and the United States.
 
Regarding Islam and Muslims, like much of the Western world, Denmark’s interpretation of anti-hate speech law seems to reflect the latest prevalent politically correct speech.  While anti- discrimination/anti-hate speech laws should protect people from discrimination and incitement to violence against them, Danish law seems to have crossed over to favoring Orwellian Newspeak as a mode of expression, thus limiting free speech.
  
Hedegaard’s criminal prosecution seems to have reignited a long-standing debate about whether to abolish Section 266(b) of the criminal code. In its July 2010 report to the UN on the Implementation of the International Convention on All Forms of Racial Discrimination the Danish government reported that:
 
“Two parties supporting the Government has [sic] announced that they supported the abolition of section 266b of the Penal Code and one of the government parties has announced that they will decide on whether they support abolishing of section 266b…” 
 
Danish anti- hate and defamation laws have been used before as a tool to suppress free speech. In 2009, 94,923 Muslims from the Middle East and Australia, claiming to be descendants of Mohammed, threatened 11 Danish publications with lawsuits, unless they removed Mohammed Cartoons from their website. Represented by a Saudi lawyer, the plaintiffs claimed Politiken had offended them by re-printing the Mohammed cartoons. The only newspaper that caved in was Politken, which was quick to settle  and apologize. Encouraged by this victory, the lawyer announced he was preparing to sue the other publications under British libel laws.
   
To guard against the threat to free speech posed by judgments made in British and other foreign courts conducive to frivolous libel suits, the U.S. recently took action against libel tourism - the use of foreign libel laws with lesser protection than afforded by the first Amendment to silence Americans at home. 
 
 In August 2010, as a result of my efforts to fight the enforcement of a British libel judgment in the U.S., the president signed the SPEECH Act, a law blocking the enforcement of unjustified or frivolous foreign defamation judgments. This bi-partisan legislation - initiated by my organization, American Center for Democracy, and supported by major American free speech organizations - passed Congress unanimously. 
 
With the passage of the SPEECH Act, the U.S. reaffirmed its commitment to the protection of free speech within its borders.
 
As Hedegaard’s case indicates, the time is ripe for Denmark to demonstrate a similar commitment, and revise Section 266(b) of its Criminal Code.
 
FamilySecurityMatters.org Contributing Editor Dr. Rachel Ehrenfeld  is the Director of the New York-based American Center for Democracy. She is an expert on terrorism and corruption-related topics such as terror financing and narco-terrorism. She has helped to change New York state law, when the Libel Terrorism Protection Act (pdf) was passed. Similar laws have been passed in other U.S. states, and a federal law known as the SPEECH ACT which was signed by the president in August 2010, follows the same principle - that First Amendment guarantees should protect authors and publishers against foreign libel judgments from countries with poor free speech protections.Aylana Meisel is Legal Fellow at the ACD.
 

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