(англ.) Recommendation No. 10. On how to prevent hate speech against protected groups and stereotypes in the media
Freedom of expression protects not only neutral ideas or ideas that are favorably received but also those that offend, shock or disturb the State or any sector of the population. Over time, the possibilityof stimulating heated public debate with provocative language developed into the so-called right to insult.
Under international law, free speech is regulated on a global scale – the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Prevention and Punishment of the Crime of Genocide, and the Universal Declaration of Human Rights as an instrument of soft law. The regional arrangements for protecting human rights in Europe establish similar regulation in the Convention for the Protection of Human Rights and Fundamental Freedoms. What emerges from the wording of these legal provisions is that, at one end of the spectrum, speech that intentionally incites genocide or discrimination, and speech inciting violence have to be eliminated and punished. At the other end of the spectrum, is speech that is merely insulting, disturbing or shocking, yet acceptable in society. The line between what is acceptable and provocative, and unacceptable and discriminatory is blurred, and so there is a need to review legal and journalistic practice in this matter.
Freedom of expression should not be interpreted as the freedom to incite hostility or promote racial hatred, discrimination or violence. At the same time, efforts to combat racism, xenophobia and related intolerance have to be balanced with the need to implement and protect freedom of expression. Hate speech, such ason the Internet, can be best countered not by censorship but by fostering free access to information, which exposed those ideas for what they were. On the other hand, the so-called “marketplace of ideas” does not work very effectively to offset dangerous narratives in a situation, where such narratives are already common or even dominant in society. An effective alternative to partially solve this problem online is timely responding to violations on the part of Internet intermediaries, online media and other actors (via complaints, etc.).This makes it possible, on the one hand, to respond to illegal content ex post facto, rather than setting preliminary filters (that may also automatically filter out fully permitted content), and on the other hand – to act on the basis of negative reactions from and concerns of society – if there is a complaint about a certain type of content, then the impugned statement may have exceeded the permissible limit and may be violating the rights of a particular social group or person.
The role of journalists in society is to present the truth. Journalists should avoid one-sided coverage of events. Full information should be provided and the public/audience should be allowed to make their own decisions and form their own judgments. However, the question arises as to how discriminatory statements by public figures should be presented and balanced, or how oversimplifying, polarizing or stereotyping certain sectors of the population should be avoided. At this point, the issue falls under the domain of journalistic ethics, which requires not only legal recommendations.
People tend to pay more attention to and remember bad events (negativity bias). Therefore,publicationscontaining violence or aggression will have a greater impact on shaping our consciousness. In such situations, greater danger comes from statementscalling for discrimination, violence and/or intolerance – hate speech. The essence of hate speech is defined by the most important factor -being based on such phenomena as social stereotypes, negative prejudice and discrimination. It is part of a broader and more complex phenomenon – communication based on prejudice and discrimination. Such communication is often expressed indirectly, using negative connotations in an ironic way to create an image of being “different”, and, contrastingly,an attractive and correct image. The division into “Us”and”Them” is monitored and developed, just as is a simplification of the situation.
For thepurpose of simplification, stereotypes are sometimes used, i.e. a set of characteristics, a set thinking pattern allowing you to imagine people belonging to another group. Bias – a negative attitude towards any group – stems from stereotypes. The purpose of such mechanisms of human brain is obvious: why start learning about a group anew every time, if you can “download” a standard set of that group’s characteristics. The problem with this scheme is that oversimplification and bias create a black-and-white picture (“they are all good” or “they are all bad,” which is never true), ignoring differences within a group, and adapting poorly to temporal and spatial changes. For example, this can be seen in Disney cartoons, made in the twentieth century containing stereotypes about the role of women and their purpose in society, racism or toxic relationships. Disney+ has now added disclaimers warning about those products’ content.
Stereotypes and bias can often be found in advertising, e.g. toxic masculinity in Gillette ads, racism in Volkswagen or Dior ads, or an August advertisement by a pizzeria in Rivne with the objectification of women, sexism and racism. Finally, discrimination is the unfair treatment of people because they are members of a certain (protected) group. Discrimination is often positioned as a behavioral side of bias.
In the digital age, the problem of responsibility and reliability in using information concerns not only journalists. At a time when individuals can freely communicate with a wide audience, responsibility lies not only with media professionals. Public figures, including politicians, should be aware that they play a leading role in exposing and combating the intolerance and discrimination, including hate speech.
Anti-discrimination legislation criminalizing hate speech toward protected groups is quite common and can be applied to political speeches. The Law On Printed Mass Media (Press) in Ukraine protects from liabilityeditorial teams and journalists in the event of a verbatim reproduction of public speeches or messages by power brokers. In Feret v. Belgium, the court found that in the case of racist or xenophobic discourse, a statement made in an electoral context by an MP has a greater resonance and is apparently even more inciting to hatred. Furthermore, the court stressed that it is extremely important for politicians to avoid public comment that could foster intolerance. Their duty is to defend democracy and its principles, as the ultimate goal was to fulfill the responsibilities ofa manager, not just a politician conducting an election campaign. The ECtHR reached a similar conclusion in Le Pen v. France, emphasizing that the speaker’s influence and status make discriminatory narratives and hate speech even more dangerous, as they legitimize such views in the eyes of the audience. Accordingly, if the media make reference to statements by politicians that are essentially abuses of freedom of expression (with such referencesbeing made in a neutral manner, without condemning or distancing themselves from the content of the statement), then such transmission of discrimination and unlawful callsfoster greater public acceptability of such views, creating the ground for supporting negative rhetoric about vulnerable social groups.
Editors and journalists should therefore be extremely cautious when citing discriminatory statements by public figures, including politicians. In such situations, it is necessary to balance contradictory statements, providing a general context of the situation and explaining the circumstances behind the person’s judgment. It is equally important to present the views of independent experts and respond appropriately to discriminatory discourse. Such situations call for active discussion, including vigorouslydisputing the discriminatory statements. Bigoted speech is exposed by more speech that decries bigotry. Furthermore, it is important for the media to distance themselves from the content of the statements made by third parties, if the journalist is aware of or assuming the possibility of their illegality. For example, in Jerslid v. Denmark,the ECtHR noted that the coverage of a socially important debate on xenophobia and discrimination, as well as extremist views, was permissible. However, in covering such a discourse, it is important to avoid popularizing racist rhetoric. The Independent Media Council recommends that,whenciting discriminatory statements by public figures, their words should be balanced by explaining the context of the situation and taking into account the opinion of the group against which the phrasing was used. To do so, it is necessary to balance the things said with the comments from experts, representatives of the respective group, providing a general context of the problem, describing the situation, explaining the dangers of discrimination. This also applies to interviews, where journalists must actively respond, disputeor condemn the interviewee’s discriminatory statements.
The problem of intolerance in a multicultural society, covered by the media, should be addressedby using professional practices conducing to the promotion of a culture of tolerance. The respective Council of Europe Recommendationsuggests several ways to solve the problem. The first way is training. Schools of journalism might usefully introduce specialist courses with a view to developinga sense of journalistic professionalism, which is attentive to sensitive, discriminatory aspects of information. This will ensure multiethnic and multicultural coverage of events taking place in society. Further in-house trainingor opportunities for outside training for the staff will helpadhere to professional standards of tolerance and inclusiveness. Another way is to develop detailed internal policies. For the media already experienced in covering discrimination, it is useful to systematize the acquired knowledge into practical algorithms for journalistsand editors. Such policies should include the peculiarities of reporting discrimination and violence in the media, balanced reporting on situations of tension between citizens, a prohibition of degrading stereotypes in publications or audiovisual materials. Such policies should also include the need to assess individual behavior, without linking it to the affiliation to a particular group, where it is not crucial or needed; the duty to cover cultural, ethnic or religious communities in a balanced and objective manner, depicting their points of view and worldview. For broadcasters, developing such policies is required by law. In practice, editorial statutes have become a formality rather than a practical guide, able to provide answers to ambiguous ethical questions.
The Independent Media Council recommends that the media independently develop internal standards in line with best international practice for covering cases of discrimination or intolerance,encouraging the training of its employees in this area. Unfortunately, very often, the media are complicit in flourishing intolerance and ignorance, posing a real danger to free social development. To meet legal and ethical standards, journalists have to be aware that ignorance and misjudgment of different cultures, traditions and beliefs in the media lead to stereotypes that keep alive discriminatory attitudes. They should also be aware of the impact of their words and images, given the deep-seated fear and anxiety, traditionally present in the communities and society.
The Ethics Code of Ukrainian Journalists prohibits discriminationby sex, language, race, religion, national, regional or social origin or political preference. The respective characteristics of a person (group of people) should be indicated only when this information is an essential part of the story. It is necessary to refrain from hints or comment relating to a person’s physical defects or diseases, avoiding use of insulting expressions andfoul language (principle 15). Other principles of journalistic ethics governing ethical coverage of protected groups includea respect for privacy, publishing objectiveand complete information about facts and events, balance, prohibition to falsify content by the editorial processing. It is understood that these principles operate as a whole but still cannot fully cover the diversity, existing in society. The Code’s wording almost completely duplicates the text of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, except for one important criterion. The Convention leaves the list of grounds for discrimination open, with the list of protected groups in the Code being exhaustive. Such wording may not reflect objective reality, losing flexibility toward social change.
For example, this applies to the prohibition of discrimination on grounds of sexual orientation or gender identity. The issue of hate speech against the LGBTQ+ community was dealt with by the European Court of Human Rights in Liliendahl v. Iceland, Vejdeland and Others v. Sweden.In Vejdeland and Others v. Sweden,the court found no violation of freedom of expression in the applicants’ punishment for distributing leaflets condemning homosexuality. The court emphasized that the leaflets were distributed in a school,in the lockersof young students who were at an impressionable and sensitive age and who had no possibility to decline to accept those leaflets (par.56). In Liliendahl v. Iceland,the court ruled that the contemptuous comments on homosexuals in the case did not constitute the most serious form of hate speech, which was, in essence, an abuse of rights under Article 17 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and did not fall under the protection of Article 10 of the Convention, protecting freedom of expression. However, the court added that discrimination on grounds of sexual orientation is as serious as discrimination on grounds of race or origin. The applicant’s abusive comments did not contribute to public discussions in the context of which the complainant had written them. Therefore, the court found that the punishment for such comments did not constitute a violation of the applicant’s freedom of expression, being lawful, appropriate and necessary in a democratic society.
The Independent Media Council suggests that colleagues from the Commission on Journalism Ethics update the text of Principle 15 of the Code of Journalistic Ethics; the IMC recommends thatthe mediaavoid any form of discrimination in its publicationsand programs. This applies both to a balanced coverage of the context of the situation and to the use of a tolerant language in their texts. With regard to the LGBTQ+ community topic, journalists should avoid the phrase “non-traditional sexual orientation”or use the suffixes -ist or -ism in identifying homosexual people. These suffixes are remnants of a time when such a phenomenon was considered a disease,being criminally prosecuted. In 1991, Ukraine excluded voluntary same-sex relationships of adults from the Criminal Code, and in 1994, the World Health Organization excluded homosexuality from the classification of diseases (ICD), noting that homosexual orientation was one of the options among a variety of sexualities.
It is also important to remember that, according to case law of the ECtHR, sexual orientation is a matter of private life, so it is inappropriate to cover this issue in the context of political discourse, when discussing election programs, civil positions or any other topics, not directly related to someone’s orientation, as it may be invasion of privacy.
Another issue worth considering is covering gender equality in the media. Gender Media Monitoring Projecthas been monitoring the presence of women on radio, television and in print news since 1995. The first study, conducted in 71 countries, found that only 17% of subjects of news stories – people interviewed or mentioned in the news – were women. News was more oftenpresented by women, but they were still not frequently featured in the stories. A 2015 study found that the world reported in the news still remains predominantly male. This can also be seen in using stereotyped roles of men and women in society in publications. Besides, the problem is not only the low mention of women in the media, but also such content’s low quality. For example, when analyzing the reactions of Ukrainian society to the figure of Tymoshenko, international organizations note that “Ukrainian press and social media spent more time covering a change in former Prime Minister Yulia Tymoshenko’s hairstyle than they did discussing her faction’s role in the political crisis surrounding a vote of no-confidence in parliament.“In particular, it has been repeatedly emphasized that the incorrect emphasis in covering women’s political, social and other activities in the media leads to even greater stigmatization of the role of women. Although not always openly discriminatory, it is at least unethical and unbalanced coverage of socially important information.
The topic of sexual harassment and/or the objectification of women or men (portraying a person only as an object of sexual desire) in the press, television, and advertising also deserves mentioning. This is evidenced by the Ukrainian movement #I’mNotAfraidToSay and its later world counterpart#MeToo, where people tell stories about cases of harassment (in two years alone, Twitter collected 24 million posts). Another example is sexual harassment of women and the management’s using their position to havesexual privilege on Fox News. In the Ukrainian context, the question arises not only about the presence of women in the media environment or the possibility of their career growth, but also research in Ukraine on gender equality in the media and media organizationsin general. An equally important aspect is the gender justice issue in media content.
The Independent Media Council recommends that the media avoid gender bias and using stereotypes about the role of men and women in society when selecting stories, their characters, and expert commentary. Similar approaches should be applied to newsrooms’/media organizations’ internal activities. The procedure and results of recruiting employees in media organizations should strive for gender balance, remuneration of men and women in the same/similar positions should not be different, and it is necessary to provide effective opportunities for women’s career growth, promoting their influence on the development of the respective media.
Media organizations areobliged toadopt a policy of zero tolerance toward sexual harassment at work, the use of official positions for such purposes, providing an opportunity for anonymous reporting of such cases and their immediate and independent investigation. The following algorithm for covering gender-sensitive information will help adopt a structural approach to understanding the gender issue.
One of the most serious issues in the Ukrainian media context is the creation and dissemination of materials directly or indirectly relating to the topic of racial and ethnic discrimination. Traditionally, such discrimination (and, consequently, hate speech and calls for violence or hatred) is based on the deep-rooted, unjust stereotypes stemming in part from a difficult historical past. They form negative expectations toward a certain social group and the behavior of its members, with the prolonged existence of such negative stereotypes and expectations contributing to automatic generalization, i.e. negative attitudes toward the group at large, which is very difficult to overcome and does not allow group members to get past the negative image of the group as a whole (so-called stigmatization). Furthermore, the concept of “confirmation bias” reflects quite well the mechanism of the dissemination, rooting and dominance of stereotypes – already existing ideas or expectations of a person about a particular social group or phenomenon lead to the fact that such a person seeks and pays attention only to information confirming their existing position, while positive information about the discriminated group is ignored by such a person due to inconsistency with their original views. That is, when the audience has doubts about the appropriateness of discriminatory or implicitly discriminatory views, media materials formulated in a way supporting hate speech or at least not denying it contribute to the cultivation of discriminatory and hostile attitudes. Thus, in Perinçek v. Switzerland the ECtHRexplicitly stated that even the remarks made in the context of political or historical debates should not stigmatize specific social groups but be very careful and balanced so as not to incite hatred toward a specific group in a social, cultural and geopolitical context.
Overall, the issue of local contexts is extremely important, as they often only increase the risk of discriminatory statements. Theses that are neutral in one region are often perceived ascontrastingly negative in another region so that the audience begins to attach tothem negative connotations on a regular basis. For example, in Mugesera v. Canada, the court found that ignoring the local context led to virtually unhindered spread of hate speech – the word “cockroaches” used against political opponents caused uncontrolled waves of violence in Rwanda, as it belonged to the discriminatory statements dividingthe social groups into “Us” and “Them”.
In the reality of Ukraine, the issue of discrimination against the Romani is particularly sensitive, as society has long formed a negative image of this minority and established historical stereotypes,with the ineffectiveness of respective state programs continuing to hinder the equal and full inclusion of the Romani community into Ukrainian society. A significant reason for this bias is a lack of sufficient truthful and complete information about the life and way of life of the members of the Romani ethnic group, resulting in the information vacuum filled with rumors, fabrications and other discriminatory elements. Also, incorrect designations of this minority can often be seen in the media, which once again reinforces the negative attitudes toward this social group, with media coverage of the life of the Romani community being almost exclusivelyreduced to negative reports.
The Independent Media Council recommends that themedia take into account local contexts when covering information relating to racial, ethnic and national minorities (including the dissemination of materials about events abroad). When covering the culture and way of life of national and ethnic minorities, it is recommended to study in more detail their characteristic features and interpretation from the point of view of the representatives of a particular social group for the purpose of proper, complete and balanced coverage of this topic. In addition, one should refrain from using the social groups’ incorrect names, andindicate the appropriate names in the notes when directly citing third parties using incorrect words, therefore contributing to the correct attitude of the reader toward the topics covered.
The topic requiring no less attention and meticulous analysis is coveringinformation relating to religion. In Norwood v. the United Kingdom, the ECtHR noted that stigmatization of religious groups was no less dangerous than discriminatory or hostile statements on racial and ethnic grounds. The court also stressed that not only local but also global contexts should be taken into account, when covering religious topics. What is unacceptable is extrapolating negative world experience to local groups, equating their behavior with the worst historical experience. The Independent Media Council presenteddetailed recommendations on covering religious information. You can read themhere.
It is understood that ethics codes are unlikely to completely eradicate the problem of intolerance in the media, but they can help focus on their social responsibility in such situations. Journalists may not know all the ethics principlesby heart, but they should act ethically. This applies when it is necessary to cover conflicts: some story may be true, but one should think about whether its publication would lead to an escalation of the situation, and perhaps even violence, and whether the public interest in disseminating information outweighs such risks. This is the area of editors’ decision-making.
The editor’s column helps evaluate the work of the entiremedia better. However, a problem arises with regard to the fact that readers are not interested in such material. They are more interested in headlines than in editorials. At the same time, the editor’s column helps determine the media’s political and value orientations, which will allow the reader to receive the published information more cautiously, being aware of possible bias given the media’s social and political position.
It should also be remembered that recent trends indicate a need to adhere to the standards of responsible journalism, when covering any event or conducting any media activity. In turn, this imposes on the media an obligation to review content of dubious legality and, if necessary, to take measures to distance the editorial officefrom the content of the story, in order to balance it or openly condemn the discriminatory statements by third parties.
Publication of material is a process requiring balanced and accurate editorial decisions. At the same time, it is a question of internal responsibility. The editorial office should work to avoid excessive sensationalism or manipulation of negative events. No one denies the media’s right to disseminate information in such a way as to attract maximum public attention to its material (specifically, using capitalized headlines, short and apt ideas, a sensational tone, etc.). But this does not allow journalists to use “gratuitously offensive language”, therefore still requiring adherence to basic ethical standards and a balanced presentation of material. In addition, in the era of social networks, one of the urgent problems is the speed of disseminating information, as it influences the delivery of reliable data to the reader, as well as the issue of the media’s citation and reputation. However, the timing of the publication should also be weighed against the balance of interests and the editor’s responsible decision, especially with regard to sensitive topics, including discrimination. Although the news is referred to asa perishable commodity, whose relevance decreases in direct proportion to the delays in publication, this cannot serve as a basis for disseminating unverified, unbalanced, biased or discriminatory news.
Prior to publication, journalists should answer the following questions:
Are we accurate, impartial, and inclusive enough, publishing information based on the facts?
Do we act independently fromthe narratives stemming from politics or emotion rather than the facts?
Do we fairly and transparently depict the impact of a protected/discriminated group on society?
Do we understand the definition of a protected/discriminated group, and do we use the terms correctly in our story? D
o we articulate for society the rights of protected/discriminated groups in accordance with national or international practice guidelines and standards?
Do we keep emotions under control: do we avoid victimizing or victim blaming, do we not frame them, or do we stereotype them without considering the general context?
Do we speak to everyone?
Do we avoid hate speech?
To be effective for democracy and human rights, journalism must be inclusive, accountable and a reflection of the whole community. Journalists need to develop sources that represent the diversity of thought, feeling, and experience of the people.
Thus,the Independent Media Council, guided by Paragraph 4 of the Regulations on the Independent Media Council, and also with the purpose of improving information and analytical content in the Ukrainian media recommends that:
For the media, journalistic and media organizations:
– journalists recognize and remember their important role in combating discrimination, intensifying their efforts to adequately respond to cases of discrimination;
– media and journalistic organizations organize training courses for professional journalists on international human rights standards regarding hate speech, discrimination, freedom of expression and the respective codes of conduct, on a regular basis;
– journalistic organizations ensure the effective implementation of the codes of conduct (policies) to prevent hate speech and discrimination; such codes (policies) should be distributed among journalists and media organizations to ensure their harmonization and relevance, as well as sharing implementation experiences. To overcome the violation of such codes (policies), the following effective measures should be taken:
– collecting one’s own practice and policies in the field of anti-discrimination, and after assessing compliance with the standards, applying them widely within the organization;
– building a culture of equality within the organization, developing intolerance for any discrimination and/or sexual harassment and usingone’s official position for such purposes;
– adopting a recruitment policy encouraging journalists from minorities and/or protected/discriminated groups to engage in mass journalism and join the organization;
– encourage the coverage and promotion of diversity and inclusiveness of Ukrainian society in publications. This should be ensured in particular by internal editorial policies, containing appropriate recommendations for covering racial, ethnic, and religious groups, people with disabilities, LGBTQ+ communities, etc;
– balance different positions in the process of covering the topics of discrimination, and actively warn about the unacceptability and dangers of discrimination;
– in case of disseminating discriminatory comments by public figures, add the general context of the situation; provide balance using comments from experts and the protected/discriminated group in question;
– oppose respondents if they use discriminatory comments or resort to stereotypes and bias;
– avoid an “us versus them” division; represent the whole society in the publication;
– be gender-equitable in preparing stories and publications, avoid deliberately using stereotyped roles of men and women in society, except when such use will contribute to public discussions (for example, when the publication debunks or discusses stereotyped roles);
– work on developing one’s own worldview: read, learn the unknown, expand the horizons of one’s own ideas, fight with one’s own stereotypes in the first place;remember that negative bias is often the result of a lack of knowledge, experience, courage and openness to the new and unknown in the world. The fear of what is”different” and”unknown” is natural, but for the sake of civilizational development, it is necessary to make an intellectual and moral effort on a daily basis to overcome such fear;
the government and competent state authorities:
– promote awareness and adopt a culture of inclusiveness, respect for diversity and tolerance at all stages of the educational process; specifically, include respective courses in the educational program for future journalists;
– study the issue of gender equality in the media industry, and assess the observance of the rights of men and women in the media profession;
– the media regulator: in consultation with civil society and the media, develop and adopt a system to respond to cases of incitement to hatred and enmity based on race, color, language, religion, gender, political or other beliefs, national or social origin, belonging to national minorities, property, birth, sexual orientation or other characteristics in respective media content;
– hold consultations with civil society and the media on a regular basis to develop effective tools to combat hate speech and discrimination in the Ukrainian media sector, including educational programs, media literacy programs, responsible citizenship development programs, and thematic content creation programs with a focus on human rights, etc.
 Jessica S. Henry, Beyond Free Speech: Novel Approaches to Hate on the Internet in the United States, 18 (2009) 18 INFO. & COMM. TECH. LAW, Amal Clooney and Philippa Webb. The right to insult in International Law.