Communiqué by the OSCE Representative on Freedom of the Media on the impact of laws countering extremism on freedom of expression and freedom of the media

OSCE participating States are responding to threats from extremists by creating laws that include provisions which might seriously limit free expression and free media online and offline.

To address potential threats to free expression and free media, the Representative issues this communiqué with the following recommendations to OSCE participating States:

• Anti-extremism laws only should restrict activities which necessarily and directly imply the use of violence.
• Limits to free expression and free media imposed by anti-extremism laws should respect OSCE commitments and international law, notably article 19 of the International Covenant on Civil and Political Rights.
• Hate speech can be addressed if it directly incites to violence and leads to hate crimes, particularly targeting minorities and other vulnerable groups.

According to several international documents, extremist activities can be subject to legal restrictions by States when they imply the use of violence and represent a direct and imminent threat to basic constitutional pillars and, particularly, human rights, for the purpose of severe political upheaval.

Mere expression of controversial and provocative political views must therefore be respected and protected as part of pluralistic and democratic debates.

Anti-extremism laws can be particularly dangerous for free media when they fail to clearly define the notion of extremism, and use a heterogeneous, wide or open list of offences that are generally grouped as extremist. These offences may include “public explanation and justification of terrorism,” “agitation of social enmity,” “propaganda of religious superiority,” “libelous accusations of extremism against public officials,” “provision of information services to extremists,” and “hooliganism” motivated by hatred.

Anti-extremism laws also are problematic when they fail to properly define the criteria and safeguards which are necessary to guarantee their fair interpretation and enforcement. In several cases enforcement and interpretation of anti-extremism laws were put in the hands of politically controlled bodies without independent judicial oversight. 

It is dangerous to empower public officials such as prosecutors or police officers to define an extremist act and exert leverage on the judicial system to impose their understanding of these “crimes against the State.” This opens the way to curtailing legitimate political debate and may have a chilling effect on journalists reporting on matters of public interest.

Calls for genocide and hate speech targeting minorities and vulnerable groups that may lead to hate crimes may be proscribed in line with international legal instruments and with full respect for OSCE commitments without imposing disproportionate limits on free expression. However, it should not be forgotten that controversial words are best fought with more factual, reasonable speech and not by repression and restrictions.

As stressed by the OSCE Ministerial Council in Bucharest in 2001, increased attention should be paid to manifestations of aggressive nationalism, racism, xenophobia, anti-Semitism and violent extremism. However, this should be always consistent with their commitments regarding freedom of expression and the free flow of information.

Dunja Mijatović

OSCE Representative on Freedom of the Media
Vienna, 7 October 2014