On September 22, The New York Times published an opinion piece by Somini Sengupta that detailed the current struggle many Internet companies, such as Google or Facebook, are faced with in trying to find a balance between embracing the First Amendment protections of free speech and protecting against the dangerous consequences of hate speech.
As Ms. Sengupta explains, the Internet companies must consider the potential global reach of content, and abide by the laws of the different countries. The complexity of these considerations makes the Internet companies’ attempts to develop a universal standard for what constitutes hate speech extremely difficult.
“Hate speech is a pliable notion,” writes Ms. Sengupta, “and there will be arguments about whether it covers speech that is likely to lead to violence (Think Rwanda)…”
For the majority of people, Thinking Rwanda will elicit thoughts of genocide, gruesome violence and civil war. Because the horrible massacres in Rwanda perhaps overshadowed the underlying free speech issue that Ms. Sengupta alludes to, LASIS felt some explanation was in order.
A history of tension between the two prominent ethnicities in Rwanda, the majority Hutus and the minority Tutsis, is a history fraught with prejudice, intolerance, and violence. In the early part of the 20th century, when Rwanda was under Belgian control, the Tutsis were considered the superior ethnic group and benefitted from preferential treatment in the form of better jobs and education. The Hutus eventually revolted against the oppression and, by 1962, the Hutus had replaced the Belgians as the controlling group in newly independent Rwanda.
In the spring of 1994, members of the Hutu majority in Rwanda conducted the mass murder of approximately 800,000 people, a violent and tragic genocide of approximately twenty-percent of the Rwandan population. The killings were encouraged by the presidential guard, radio propaganda, and Hutu-owned tabloids. The media outlets published material degrading the Tutsis, advocated for ethnic hatred, and promoted the murder of all Tutsis.
In 1997, the United Nations International Criminal Tribunal for Rwanda indicted three members of the Rwandan media for “incitement to genocide.” The first defendant, Hassan Ngeze, was the founder of a Hutu-owned tabloid, Karunga, which published articles that disparaged the Tutsis. The other two defendants, Ferdinand Nahimana and Jean-Bosco Barayagwiza, were founders of a radio station, Radio Télévision Libre des Milles Collines (“RTLM”), which called for the murder of Tutsis and even provided names and locations of people to be killed.
The term “incitement to genocide” is found in Article 3 of the Convention on the Prevention and Punishment of the Crime of Genocide and is listed as an act that is punishable under the Convention. Absent from the Convention is any sort of legal standard that defines what constitutes “incitement to genocide.” Logically, a tribunal must determine when protected free speech becomes severe enough to warrant punishment.
In the Rwandan Media Trial (a summary of which can be found here), the ICTR analyzed several factors to consider when determining what exactly would constitute “incitement to genocide.” In contemplating this issue, the ICTR recognized the importance of distinguishing between speech relating to ethnic consciousness, which would be protected, and speech that promoted ethnic hatred. Ethnic hatred develops from the stereotyping of an ethnicity combined with the denigration of that ethnicity. Other general factors the ICTR considered were the tone of the statement made, the context in which the statement is made, and the intent of the speaker in making the statement. Additionally, for speech to constitute “incitement to genocide,” the ICTR determined that the speech must call on its readers or listeners to take some form of action. However, a direct causal link between the speech and the violence did not have to be shown.
In the case of Hassan Ngeze, the ICTR found that Mr. Ngeze used his publication of Kangura to “instill hatred, promote fear, and incite genocide.” The content of Kangura often denigrated the Tutsi population and labeled the Tutsis as inherently evil. Further, names of suspected Tutsi members were published in Kangura with a warning for the Hutu readers that the Hutus should protect themselves and prevent their own extermination. The ICTR found that these warnings were an implicit call for the extermination of the Tutsi population. The ICTR found Hassan Ngeze guilty of direct and public incitement to genocide.
Likewise, the ICTR also found both Mr. Nahimana and Mr. Barayagwiza to be guilty of direct and public incitement to genocide. Both men were primarily responsible for the RTLM broadcasts that promoted ethnic hatred of the Tutsis and explicitly called for the extermination of the Tutsi population. Like Kangura, RTLM would often broadcast names of Tutsi individuals and encourage their listeners to kill the Tutsi enemy.
In discussing the importance of the free speech issue, the ICTR emphasized that “[t]he power of the media to create and destroy fundamental human values comes with great responsibility. Those who control the media are accountable for its consequences.”
The ICTR’s cautionary words highlight the important challenges the Internet companies face in determining whether the content on their websites constitutes hate speech. Not only must the Internet companies adhere to the protections of free speech, but they must understand their responsibility as controllers of speech and recognize the potential consequences of their media.