LEGAL DILEMMAS RELATED

TO THE RESTRICTION OF HATE SPEECH

Víctor Abramovich

• Discrimination, freedom of expression, •

and state regulation 1

ABSTRACT

Regulating hate speech, which as a rule threatens human dignity, peaceful coexistence and
democracy, is a state responsibility protected by international standards. However, compliance
with this mandate for action faces a legal dilemma: on the one hand, the constitutional principles
of equality and non-discrimination and, on the other, the legal principles that protect freedom
of expression and impose the prohibition of prior censorship. The text examines this apparent
contradiction and offers some guidelines for orienting the state response to this type of speech, in
order to broaden citizenship and ensure public debate.

KEYWORDS
Freedom of expression | Equality | Nondiscrimination | Democracy | Constitutional principles

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1 • Introduction

Expressions of discrimination reinforce stigmas that affect many sectors of society. This
problem has been growing worse since the turn of the century due to the emergence
of political groups who construct their identity on the basis of hate speech rooted in
authoritarian views on issues such as migration, public safety, models of family and sexuality
and gender identities, among others.

At the legal level, states face certain tensions arising from contradictory mandates. On
one hand, constitutional principles on equality and non-discrimination require states to
intervene and restrict the circulation of violent hate speech and stigmatizing ideas. On the
other hand, legal principles that uphold the freedom of expression prohibit prior censorship
and limit the power to regulate content and the attribution of criminal and civil liability for
expressions on matters of public interest.

This article aims to explore this apparent contradiction. To do so, we will begin with a brief
description of the changes made to the scope of the rights to equality and free expression
in international human rights regimes in order to offer guidelines for the state response to
this type of hostile speech.

2 • The evolution of the right to equality and the prevention of

discrimination-based violence

According to the principle of substantive or positive equality, states are obliged to

define policies and strategies to end social, political and also cultural injustices and
those related to the right to recognition. This obligation requires states to deploy
specific strategies in the area of educational and cultural policies. It has implications
for the social communication sphere as well, as states are prohibited from promoting
stigmatizing discourses. They are also required to play an active role in restricting,
dismantling and combatting the circulation of such discourse, regardless of its source.
The Inter-American Court of Human Rights (I/A Court of H.R.) has defined negative
gender stereotypes as attributes, conduct, characteristics or social roles that are or should
be performed by men and women respectively.2 In the context of other conflicts, it has
taken into consideration the social constructs of racial, homophobic or xenophobic
stereotypes and their decisive influence on the development of entrenched practices of
discrimination and violence. Along the same lines, the International Convention on the
Elimination of Racial Discrimination requires states to prohibit and punish racist hate
speech and to promote immediate and effective measures in the fields of education,
culture and information to combat racial prejudice (articles 4 and 7 of the ICERD).
The Covenant on Civil and Political Rights and the American Convention on Human
Rights (ACHR), for their part, prohibit all hate speech that incites violence against any
individual or social group (article 20 of the ICCPR and 13(5) of the ACHR).3

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International human rights law links the construction of social stigma not only to
socioeconomic and political exclusion, but also to exposure to the risk of violence. Article
8 of the Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence against Women, known as the “Convention of Belém do Pará”, recognizes the
existence of stereotypes and representations in the media. One of the state affirmative
action policies that it proposes on the prevention of gender violence is to intervene to
alter sociocultural norms that may reproduce, naturalize or deepen inequality. Furthermore,
article 6 of the Convention of Belém do Pará affirms that the right of every woman to a
life free from violence includes the right to be free from all forms of discrimination and to
be valued and educated free from stereotyped patterns of behaviour and social and cultural
practices based on concepts of inferiority or subordination.

Therefore, the state obligation to act with due diligence to prevent the risk of violence
from materializing provides a solid basis for measures to restrict violent hate speech
against discriminated groups. This includes the legal obligation to intervene to limit the
dissemination of violent hate speech and, more broadly, stigmatizing and discriminatory
forms of expression. This positive state obligation creates obvious tensions with the rules
governing freedom of expression, according to which states must refrain from establishing
regulations on content in order to safeguard broad and uninhibited public debate.

3 • The evolution of the right to freedom of expression and

discriminatory speech

One of the keys to trying to resolve this issue is to note that the evolution of the concept of
equality has given rise to a new conceptualization of the right to free expression.

The classic view of freedom of expression, linked to conservative liberal theories, associates
the right to express oneself with individual autonomy. This view began to give way to a more
complex vision in which each individual’s right to express themselves is bound to the social right
to seek and obtain information, ideas and thoughts. This new vision considers the existence
of a robust and broad public debate in the democratic process as a necessary condition for the
exercise of both rights. According to this broader view, persistent inequality affects both the right
of each person to express themself and the community’s right to receive information.

This second concept, which can be referred to as the “egalitarian” concept of free
speech, does not include blind distrust toward the role of the state. It is true that
state intervention can obstruct an open debate of ideas and opinions, which justifies
imposing limits and safeguards to prevent it from repressing dissident political views,
for example. However, at times, given the hegemonic role of certain private players in
the communication ecosystem, the state’s distributional action helps ensure a balanced
debate and the pluralism of information by fostering the inclusion of systematically
silenced sectors and views. In the presence of unequal communication structures, the

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state can be a friend of freedom of expression.4 Not only can it regulate this freedom,
but at times, it is obliged to do so in order to counter injustices resulting from speech or
political injustices. Therefore, there are several important issues on the agenda for state
intervention, such as regulations on the concentration of media ownership, policies
to close the gaps in access to the internet and information technologies and policies
on public and community media, among others.5 At the same time, this egalitarian
conception of the freedom of expression promotes regulatory mechanisms, bans and
systems of accountability for and monitoring of expressions of hate and discrimination.

When we take into account the fact that discriminatory speech helps shape cultural injustices,6
such as distorted and degrading representations that reinforce the subordination of social
groups, we can conclude that this type of speech not only deepens inequality, but also affects
freedom of speech.7 This is because social stigma increases the difficulties of affected sectors
to express themselves, limiting their capacity to mobilize and engage in collective action and
their access to the political public sphere. It also reduces the chances of their sectoral demands
being accepted and shared as cross-cutting matters of general interest. Thus, the exclusionary
effect of this kind of speech undermines the democratic debate.

This means that the tension is not only between free expression and equality, but between
two concepts of freedom of expression: a conservative one and an egalitarian one. To
preserve an integral, plural and heterogenous public sphere, then, strategies to dismantle
stereotypes and segregation in communication processes are required.8 It can thus be argued
that cultural injustices exacerbate the difficulties that groups affected by stigmatization
processes face when expressing themselves and participating in the political sphere, which
places freedom of expression at both ends of the equation in this type of conflict.

4 • The classification of speech and the different standards of

protection

The interpretation of article 13 of the American Convention has led to the definition of a
basic set of guarantees of freedom of expression made up of three fundamental safeguards or
controls. The first is the strict prohibition of prior censorship, which limits the suppression
of information that has already been transmitted. The second is the principle of neutrality,
which restricts the regulation of expressive content. The third is the rule that subjects the
subsequent imposition of liability to strict conditions, establishes that the expression of
opinion on matters of public interest shall not be penalized and limits compensation for
civil liability to claims of actual malice.

The second safeguard in this protective apparatus merits further explanation. The principle
of neutrality means that the state has to guarantee the circulation of all types of expression
or ideas. It has to permit not only ideas and information that are well-received or inoffensive
or different, but also ones that offend, shock, irritate or disturb the state or any sector of

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society. One point to note is that article 13 of the American Convention stipulates that
information and ideas “of all kinds” are to be protected. The principle of neutrality establishes
that the content of an idea alone cannot justify its restriction and that all restrictions based
on the content of what is being expressed must be subject to strict scrutiny. This rule arose
to prevent the direct or indirect censorship of political speech deemed subversive, dissolute
or a threat to public order and safety – a common occurrence during the Cold War and
Latin American dictatorships. This is why constitutional case law differentiates between
regulations based on criteria of timeliness and the timing of the expression, on one hand,
and the ones based on the content of the expression, on the other, and submits the latter to
a rigorous reasonableness test.9 It is worth recalling that upholding the rule of neutrality –
which helps avoid the censorship of ideas and speech that are a “threat” to the established
order – is essential to the promotion of the agenda of social changes necessary to achieve
equality, especially its deepest and most structural dimension, in the political arena.

But how do these principles apply to the case of discriminatory and hate speech? To what
extent can they be authorized or allowed to exist?

To determine the levels of state interference in speech, the Inter-American system – the
Rapporteurship, IACHR and the I/A Court H.R. – has developed a sort of classification of
speech according to the degree of protection required to safeguard freedom of expression.
This classification system identifies three categories: at the extremes, speech not protected and
specially protected speech, and in the middle, protected speech.10

4.1 - Unprotected speech

For the Inter-American system, “speech not protected” is that which by virtue of its content
should be prohibited by law and therefore is not covered by the system of guarantees established
by article 13 of the American Convention. This gives states broad powers to intervene in
this type of speech.11 States can go further in establishing subsequent liability and, in certain
cases, adopt limited censorship mechanisms or restrictions on the circulation of information
to prevent specific, clear and imminent risks of violence from materializing. The possibility
of applying prior censorship mechanisms to violent hate speech is, however, a matter of
debate. Some argue that even in these cases, it is the total prohibition of prior censorship that
characterizes the regional human rights system that prevails. They highlight, for example,
that the English version of article 13(5) of the American Convention does not establish an
obligation to legally ban hate speech; it only provides for the punishment of the offence, thus
pointing to liability after the expression of such speech, without invoking censorship.12

Article 13(5) of the American Convention refers to the legal prohibition of propaganda
for war and any advocacy of (national, racial, religious or other forms of ) hatred that
constitute incitements to violence or to any other similar unlawful action against any
person or group of persons on any grounds. This same definition is found in other
binding international instruments.13

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Unprotected speech is thus all hate speech that meets another essential requisite: direct
incitement to violence. This includes physical violence, threats to life and physical integrity,
as well as the generation of a serious environment conducive to harassment and the direct
persecution of a specific social group. It is important to note that the purpose of banning
this type of hate speech goes beyond the goal of restricting racial, ethnic or religious
discrimination; it also one of the policies designed to prevent mass crimes and stop them
from being reproduced. The duty to prohibit and punish this type of expression emerges
more clearly in specific historic or structural contexts in which the state’s prevention policy
was prompted by the existence of a real and imminent threat of violence against certain
social, national, ethnic or religious groups during, for example, an ongoing conflict or
because of recent incidents of extermination and systematic attacks.14

Hate speech not protected by the American Convention is what we can call hate speech
in the strict sense. This type of speech does not include all speech that is stigmatizing due
to the factors mentioned above; it applies only to expressions that pose a clear, current
and specific danger, as they are capable of provoking imminent violence, an environment
that is clearly favourable towards harassment or the persecution of a given sector of the
population because of their aforementioned characteristics.15 In these cases, hate speech
that directly incites violence is understood as hostile conduct towards a group of people
with the intention of causing them harm and therefore, it transcends and goes well beyond
the exchange of opinions or ideas.

4.2 - Unprotected speech and criteria for its regulation and punishment

In its discussion of the UN Rabat Plan of Action, the CERD identifies a few contextual
factors that should be taken into account to determine when hate speech should be
punishable by law. It mentions: i) the content and form of speech: whether the speech is
provocative and direct, the way it is constructed and disseminated, and the style in which
it is delivered; ii) the economic, social and political climate prevalent at the time the speech
was made and disseminated; iii) the position or status of the speaker in society and the
audience to which the speech is directed; iv) the reach of the speech, including the type of
audience, the means of transmission and the frequency and extent of the communication,
especially when the repetition of the message suggests the existence of a deliberate strategy
to engender hostility towards ethnic and racial groups, and v) the objectives of the speech.16

Regarding the assessment of the position or status of the individual disseminating hate
speech, the influence of political leaders, public officials and opinion-makers in the creation
of negative climates that are conducive to violence against vulnerable social groups has been
addressed by several bodies of human rights protection systems.17

Therefore, it is important to specify that the aim of the prohibition of violent hate speech is
always to protect groups at risk of historic or structural violence or persecution. The offences
to be punished must be rigorously defined to cover serious cases without losing sight of this

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egalitarian objective. Otherwise, the concept could end up being misappropriated and used
in a way that runs contrary to the goal of international law. For instance, it could be used
as a tool to directly or indirectly censor oppositional discourses that challenge a political or
social order or a religious belief system.

Another issue worth clarifying is that there is a wide range of hate speech and ideas (racial,
religious, xenophobic, classist or gender-based, for example) that do not fit this narrow
definition, as they do not lead to imminent harmful acts and therefore cannot be strictly
classified as speech not protected by freedom of expression. On the contrary, this type of
speech, which does not reach the threshold of article 13(5) of the American Convention,
falls under a broader, more comprehensive concept of discriminatory expressions. This
concept also includes other demeaning, offensive ideas that promote negative stereotypes
or the stigmatization of vulnerable social groups. Discriminatory ideas also require the state
to intervene to ensure equality in the area of communication and public debate, but unlike
hate speech in the strict sense, they are covered by the American Convention’s system of
guarantees for freedom of expression. This is why a more careful analysis of the restrictions
to impose on this type of expression is required.18

4.3 - Specially protected speech

At the other extreme of the classification system, we find “specially protected speech”. This
type of speech is one in which the state is not allowed to intervene or its intervention should
be minimal, exceptional and based on subsequent liability mechanisms. This includes the
expression of criticism of the government, government officials and those who aspire to
become officials or intervene in the formulation of policies and political speech or any
expression related to matters of public interest in general. In recent years, speech referring
to elements of cultural or religious identity has been added to this category.19

According to international standards, when specially protected speech comes into conflict
with other rights (to privacy or reputation, for example), the subsequent attribution of liability
should conform to the standards of legality, strict necessity and proportionality mentioned
above. Moreover, priority should be given to mechanisms of reply, response or correction,
when possible, instead of economic compensation measures. It has also been clearly established
that for this type of specially protected speech, the subsequent liability imposed shall not be
criminal punishment. In the “Kimel” case”,20 for example, the I/A Court H.R. held that
initiating criminal proceedings for expressions related to public interest should be used as an
exception and a last resort. It also ruled that the sentence imposed on a journalist who had
reported on a judge’s conduct during the dictatorship was disproportionately severe in relation
to the harm caused, thus violating the freedom of expression. The regional court also ruled on
civil liabilities in the case of specially protected speech in the “Fontevecchia” case.21

Under this classification, the most difficult task is to determine the rules to apply to
discriminatory expressions made as part of specially protected speech, such as political or electoral

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criticism, debates with public officials or on public policies, ideas of historical or scientific
value or on any other topic of public interest. What is paradoxical about this type of speech
is that it receives maximum protection under article 13 of the American Convention and,
at the same time, due to its social repercussions, it has the greatest discriminatory impact.
This paradox can be reworded as follows: as expressions, they should be protected, but as
discriminatory conduct, they should be limited.

4.4. - Criteria for the regulation of specially protected speech

It is important to consider a number of elements when defining the scope of regulations on

specially protected speech. First, since these discriminatory ideas are protected by the system
of guarantees of freedom of expression in article 13 of the American Convention, applying
mechanisms of prior censorship is not permitted. Secondly, when discriminatory ideas are
voiced in the context of specially protected speech, restrictions should be limited to the
subsequent attribution of liabilities. The legislative configuration of these liabilities is to be
examined and a judicial review conducted according to strict standards of reasonableness.

On one hand, subsequent liability measures should be set out in a formal law that clearly
defines, without ambiguity, under which objective assumptions such an expression can
be restricted and the type of penalties or reparation that the person responsible for the
expression will face. This is the same as saying that the restriction should be typified in
a formal law. On the other hand, subsequent liabilities should respond to a compelling
social need and invoking reasons of mere convenience or usefulness of such a measure is
not enough to justify them. Furthermore, the scope of the law should be limited to what
is strictly necessary to satisfy this purpose, which means demonstrating that the measure is
appropriate for achieving the proposed objective and that there are no other less harmful
measures available to meet the same goal.

Once the need for the measure has been confirmed, one should also ensure that the severity
of the restriction placed on the freedom of expression by a civil and criminal sanction is
proportional to the extent of the harm caused by the expression in question. There is no
rigid formula for this assessment, but both extremes of the equation should be weighed
according to the specific circumstances of each case.

The need to assess state regulation against a strict scrutiny standard is also due to the fact
that it is a non-neutral restriction based on the content of the expression, as stated earlier.
Yet, while this type of restriction triggers a strict review, there are cases where even under this
standard, it can be justified. The proponents of the restriction are required to prove more than
the mere reasonableness of the regulation: they must show that it is necessary for the pursuit of
“a compelling public interest” and that it has been “narrowly tailored” to serve that interest.22

It may seem contradictory that a state could have an interest in protecting the circulation
of an idea that stigmatizes a social group. However, it is possible to find situations that

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illustrate this type of conflict. Let us consider the context of an electoral debate in which a
political leader or a candidate running for election comments on a migration policy while
referring to a migrant group as having a tendency to commit certain crimes and by doing
so, the candidate reinforces their argument in favour of tightening border controls. The
subject discussed is of public interest, and it is also of general interest to know more about a
candidate’s position on this issue. Another example is when a prominent journalist criticizes
the gender identity law passed by the national congress, arguing that he is reluctant to
acknowledge the new identity of a famous actress. Since he is expressing criticism of a
specific policy adopted by congress, the issue being discussed is clearly of social interest. In
both cases, the discriminatory ideas are expressed in a discussion that is of interest to society.
The restrictions imposed on these expressions in order to curb stigmatizing patterns also
limit or inhibit the circulation of political ideas or opinions and, as a result, they narrow the
scope of the discussion. This explains the need to carefully design these restrictions.

That said, the fact that such restrictions are subject to greater scrutiny does not mean that
the state cannot impose limits on and establish subsequent liabilities for this type of speech.
Preventing the dissemination of negative and demeaning stereotypes is a compelling social
duty that is important enough to justify imposing restrictions on speech even when it concerns
matters of public interest. This is where policies on equality in relation to recognition offer
democratic states sound arguments for intervening in communications.

Since restricting the circulation of discriminatory messages is, in general, an imperative social
need, strict scrutiny should be confined to the assessment of the scope of this restriction and
whether the restrictive measure has been adequately designed.

To determine the level of subsequent liability, the contextual factors of each act of expression
must also be taken into consideration. Without going into detail on this complex issue,
criminal sanctions involving the deprivation of liberty will be imposed only in exceptional
cases due to the severity of such a penalty and will require proof that no other less harmful
ways to achieve similar anti-discrimination objectives exist. For the most part, case law
considerations taken into account to avoid criminalizing speech on matters of public
interest in conflicts involving reputation or privacy, which preclude criminal prosecution or
see it as a “last resort”, will also be applied in this particular area.

5 • Some remedial and preventative measures in response to

discriminatory expressions23

The existence of compelling social interest in curbing this type of discriminatory speech
gives more leeway for imposing, in certain cases, compensation or administrative liability
and collective or individual reply or rebuttal mechanisms that use even broader criteria than
the ones governing liability for injurious or invasive speech.

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One alternative is to regulate the right to reply. The right to reply, as enshrined in article 14
of the American Convention on Human Rights (ACHR), has historically been considered
a mechanism for individual responses to attacks on honour or personal honour and privacy
that use inaccurate or offensive information targeted at a specific individual. However,
broader reply mechanisms could also be conceived to address discriminatory speech that
is more general in scope and does not target specific individuals, but that directly and
disproportionately affects certain groups or social sectors.

Here, the legal right protected by the right to reply would not be honour in the strict
sense, but rather the right to freedom from discrimination, which includes the reputation
and identity of the affected group whenever acts to deny recognition are used as ways of
reinforcing subordination and subjugation, as argued above.

Discriminatory speech is a type of act of discrimination that generates the right to

compensation for both individual victims who can prove specific concrete damages and
groups affected by pejorative speech of a more general nature. This system of collective civil
redress could be regulated together with the aforementioned reply mechanism. Current anti-
discrimination law24 provides for compensation for material and moral damages resulting
from an act of discrimination, as well as the right to suspend and put an end to the said
act. One could consider, for instance, the relevant practice of the Inter-American human
rights system25 on economic compensation for the benefit of affected communities, such as
the creation of community development funds. Another option would be to consider the
decisions of national courts on collective economic compensation in consumer class action
suits or on environmental issues.

Finally, it is important to note that compensation mechanisms should also apply to

discriminatory expressions on the internet, social media and digital platforms. While internet
offers a much wider range of possibilities for reply and response than other media, especially
in the case of specially protected speech, regulations should address the specific aspects of the
digital environment, including the dilemmas related to regulating these platforms.26

5 • Conclusion

In sum, states have the duty to adopt measures to restrict the circulation of hate speech
and the expression of discrimination. The international norms that protect substantive
equality and aim to prevent the violence of discrimination clearly establish a mandate
for intervention. This type of expression not only worsens inequality, but also excludes
the targeted sectors from communication processes and severely limits their ability to
express themselves. However, fulfilling this mandate for action poses enormous challenges
for democratic systems. It is a matter of choosing forms of intervention and moderation
rules that preserve the fundamental core of freedom of expression, which is a key tool for
strengthening citizenship, promoting social change and guaranteeing broad public debate.

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Here, it is necessary to explore various types of non-traditional prevention and remediation

measures that help combat stereotypes without unduly affecting the dissemination of ideas
related to matters of social interest.

NOTES

1 • This version is an excerpt of an article with Los conflictos en torno a la libertad de expresión
the same title published in the book “El límite en las sociedades contemporáneas, Buenos Aires:
democrático de las expresiones de odio”, Siglo XXI, 2014.
Editorial Teseo and the National University 6 • See: Charles Taylor, “El Multiculturalismo y
of Lanus, City of Buenos Aires, 2021. 17- la política del reconocimiento”, Mexico, Fondo
57. Available from www.teseopress.com/ de Cultura Económica, 1993, and Fraser, Nancy,
ellimitedemocraticodelasexpresionesdeodio/ “Justitia Interrupta. Reflexiones críticas desde
2 • For more on the concept of negative gender la posición “postsocialista”, Bogotá, Siglo del
stereotypes, among others, see Corte IDH, González, Hombre, University of the Andes, 1997.
J. et al. v. Mexico “Campo algodonero”, judgement 7 • As affirmed by the Committee on the
on 16-11-2009 par. 401, Espinoza, González et al v. Elimination of Racial Discrimination (CERD),
Peru, judgement on 20-11-2014, par. 268. “Racist hate speech potentially silences the free
3 • Article 4 of the Inter-American Convention speech of its victims… Freedom of expression…
Against All Forms of Discrimination and assists vulnerable groups in redressing the
Intolerance and the Inter-American Convention balance of power among the components of
Against Racism, Racial Discrimination and Related society, promotes intercultural understanding
Forms of Intolerance establish that states shall and tolerance, assists in the deconstruction
undertake to prevent, eliminate, prohibit and of racial stereotypes”. Committee on the
punish, in accordance with their constitutional Elimination of Racial Discrimination (CERD),
norms and the provisions of the conventions, General Recommendation No. 35, “Combatting
all acts and manifestations of discrimination racist hate speech”, 2013, par. 28-29.
and intolerance, including ii) the publication, 8 • “The principles of the Convention are served by
circulation or dissemination, by any form and/or encouraging media pluralism, including facilitation
means of communication, including the Internet, of access to and ownership of media by minority,
of any materials that: a) advocate, promote or indigenous and other groups in the purview of
incite hatred, discrimination and intolerance; b) the Convention, including media in their own
condone, justify or defend acts that constitute languages. Local empowerment through media
or have constituted genocide or crimes against pluralism facilitates the emergence of speech
humanity as defined in international law, or capable of countering racist hate speech.” CERD,
promote or incite the commission of such acts. G.R. 35, CERD par. 41. Similar wording can be
4 • See: Owen Fiss, Libertad de expresión y found in: the Office of the United Nations High
estructura social, Mexico: Fontamara, 1997. Commissioner for Human Rights (OHCHR), Rabat
5 • For more on this issue, see: Damián Loreti Plan of Action, 2013, par. 38.
and Luis Lozano, Luis, El Derecho a Comunicar. 9 • See the United States Supreme Court, United

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LEGAL DILEMMAS RELATED TO THE RESTRICTION OF HATE SPEECH

States et al v. Play Boy Entertainment Group Inc., Supreme Court in Brandenburg v. Ohio 395
May 22, 2000. Also see the votes of Petracchi and U.S. 444, 1969 and, along the same lines, the
Belluscio in the Supreme Court case of Asociación United Nations Committee on the Elimination
de Teleradiodifusoras Argentinas y otros v. Gobierno of Racial Discrimination (CERD), General
de la Ciudad de Buenos Aires, June 7, 2005. Recommendation No. 35. Also see Henrique
10 • Special Rapporteur for Freedom of Bianchi and Hernán V. Gullco, El derecho a la
Expression IACHR – OAS (SRFE-OAS), The Inter- libertad de expresión, Análisis de fallos nacionales y
American Legal Framework regarding the Right extranjeros, Editorial Platense, 2009. Chapter III,
to Freedom of Expression, 2009. 9-139; Eduardo Bertoni, op. cit., 2007.
11 • Idem. 16 • See CERD, General Recommendation 35 and
12 • See Damián Loreti, Tensiones entre libertad de the Rabat Plan of Action.
expresión y protección contra la discriminación: la 17 • See I/A Court H.R., ¨Rios et al. v. Venezuela¨,
incidencia de las regulaciones sobre censura previa judgement from 28-1-2009; Special Rapporteur
y el debate sobre el rol del Estado, Buenos Aires: for Freedom of Expression IACHR - OAS (SRFE-
Red Universitario sobre Derechos Humanos y OAS), Annual Report of the Office of the Special
Democratizaciones para América Latina, 2012; Rapporteur for Freedom of Expression 2008, 180.
Eduardo Bertoni, La libertad de expresión en el 18 • See Special Rapporteur for Freedom of
Estado de Derecho, Buenos Aires: Del Puerto, Expression IACHR - OAS (SRFE-OAS), Annual
2007, 179-184; Special Rapporteur for Freedom Report of the Office of the Special Rapporteur
of Expression IACHR - OAS (SRFE-OAS), Annual for Freedom of Expression 2015 and SRFE-OAS,
Report of the Office of the Special Rapporteur op. cit., 2009.
for Freedom of Expression 2004, Chapter VII, 19 • In the “López Álvarez” case, the I/A Court
“Hate speech and the American Convention on H.R. analysed the situation of members of the
Human Rights”, 161- 180. Garifuna community detained in a prison in
13 • See article 20 of the International Covenant Honduras who were not allowed to speak their
on Civil and Political Rights (ICCPR) and article language. According to the I/A Court H.R., as
4 of the ICERD. Similarly, the International one’s own language is an expression of cultural
Convention on Genocide establishes that acts of identity, it is speech specially protected by the
direct and public incitement to commit genocide freedom of expression, SRFE-OAS, 2009.
shall be punished (article 3 of the Convention). 20 • I/A Court H.R., case of Kimel v. Argentina,
14 • See ruling 235/2007 of the Constitutional judgement of May 2, 2008.
Court of Spain on the constitutionality of 21 • I/A Court H.R., case of Fontevecchia and
crimes of denial and justification of genocide D´Amico v. Argentina, judgement of November
in the Spanish criminal code and the cases 29, 2011.
brought before the ECHR, Garaudy v. France, 22 • See, for example, the votes of Petracchi
2001 and Perincek v. Switzerland, 2013. The and Belluscio, in the case Asociación de
most complex debate concerns the rules to Teleradiodifusoras Argentinas, mentioned earlier.
punish the denial and justification of genocide 23 • The full version can be found on pages 50 to
and crimes against humanity, which assimilate 56 in the book entitled “El límite democrático de
these expressions with hate speech and thus, las expresiones de odio”.
classify them as speech not protected by 24 • See Law 23.592 of 1988 of the Argentine
freedom of expression in order to extend the Congress. See Supreme Court of Argentina, case
scope of state restrictions to them. “Sisnero, Mirta Graciela y otros c/Taldelva SRL. y
15 • See the doctrine of the United States otros s/amparo”. See also analysis of the Colombian

98 Sur - International Journal on Human Rights

VÍCTOR ABRAMOVICH ARTICLE

Constitutional Court, in the tutela action, judgment with illegal armed groups, ordering measures to
T-500 of 2016, Case T-5336862, Subject: tutela rectify the information to the media. The case was
action brought by Organización Nacional Indígena processed as a tutela action of collective scope.
de Colombia, ONIC, against the director of the 25 • See, among others, the case of Indigenous
program Séptimo Día, the director of the Caracol Communities Members of the Lhaka Honhat
channel, and the Agencia Nacional de Televisión, Association (Our Lands) vs. Argentina, judgment
ANTV. In this case the court accepted the active of February 6, 2020; The Case of the Garifuna
legitimacy of the indigenous organizations to Community of Punta Piedras and its members
act on behalf of the honor, dignity and right to vs. Honduras, judgment of October 8, 2015.
equality of the indigenous communities affected 26 • The regulatory dilemmas related to
by erroneous and stigmatizing information the regulation of digital platforms are also
referring to the functioning of the autonomous analysed in the book “El límite democrático de las
jurisdiction and the linking of the communities expresiones de ódio”.

VÍCTOR ABRAMOVICH – Argentina

Víctor Abramovich is a professor at the Faculty of Law of the University
of Buenos Aires and the National University of Lanús, Argentina. Former
member of the IACHR. Attorney General to the Supreme Court.

email: abramovichv@gmail.com

Received in October 2022.

Original in Spanish. Translated by Karen Lang.

“This journal is published under the Creative Commons Attribution-NonCommercial-

NoDerivatives 4.0 International License”

• SUR 32 - v.19 n.32 • 87 - 99 | 2022 99