The incitement of hate

The Reasons: Race, Religion, or Sexual Orientation

Stirring up hatred against people because of their race, or because of religious beliefs or sexual orientation, in the form of making or publishing certain kinds of threatening statement is one boundary to freedom of expression and a crime.

The common elements to the three topics below are that a magistrate can grant a warrant to the police to seize any inflammatory material; all prosecutions must be approved by the Attorney General and, in terms of penalties, on summary conviction it is up to six months’ imprisonment, a fine or both and on indictment up to seven years’ imprisonment or a fine or both.

Stirring up racial hatred

Racial hatred has been defined for legal purposes as ‘hatred against a group of persons defined by reference to colour, race, nationality (including citizenship), or ethnic or national origins’.

The Public Order Act 1986 made it an offence to use threatening, abusive or insulting words or behaviour with intent to stir up racial hatred in the street or in a public speech. The Act also made it an offence to display, publish or distribute written material that is threatening, abusive or insulting with intent to stir up racial hatred. In both cases, it remains an offence without such intent if hatred is likely to be stirred up regardless.

The repercussions for the media of intent not being necessary to commit an offence could have lead to problems when reporting in direct or indirect quotes inflammatory speeches, manifestos or political propaganda. However, after lobbying by what is now the Society of Editors, the phrase ‘having regard to all the circumstances’ was inserted into the 1986 Act in order to protect news reports of such examples as extreme political rallies. The publication must be considered by a court in context and any prosecution must be approved by the Attorney General. Factors in play include the nature of the publication, its circulation and target market and any special sensitivity that might affect the readership at the time of publication.

The Attorney General in 1987 set down these factors to take into account in such decisions. He also stated that expressing anti-racist views through editorial or letters would not excuse the publication of inflammatory racist material.

Stirring up religious hatred

The Public Order 1986 was amended by the Racial and Religious Hatred Act 2006 which created a new offence; that of stirring up hatred against people on religious grounds. The Act made it an offence to use threatening words or behaviour and, similarly to the 1986 Act, an offence to display, publish or distribute any written material with intent to stir up religious hatred. A further addition made it an offence to use threatening visual images or sounds in a broadcasted programme with intent to stir up religious hatred. Media employees at risk include the programme provider, producer, director and news/ content reader if they had intent.

Religious hatred has been defined as hatred against a group of persons defined by their religious belief or lack of religious beliefs. It is for the courts to decide what is classed as a religion or religious belief, in the context of particular cases. Common religions in the UK include Christianity, Judaism, Islam, Hinduism, Buddhism, Sikhism, Zoroastrianism and Jainism. Branches or sects within a religion can be classed as religious beliefs. The phrase ‘lack of religious beliefs’ protects a group of persons as defined by, for example atheism or humanism.

It is important to note that the offence applies only to words that are threatening, not simply ‘abusive’ or ‘insulting’ which protects criticism of groups for their religious, or lack of religious, beliefs. This amendment in the 2006 Act thus clearly differs from the offence of stirring up racial hatred and is referred to as the ‘free speech section’. So, what is not restricted is the ‘discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse’ of religious beliefs. Similarly, the ‘proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system’ if not threatening, is not illegal.

Such words which stir up religious hatred must be intended to do so – it is not enough that the words stir up such hatred as a result of recklessness. In Parliament debates it was decided that the aim of the act was ‘to prosecute those who seek to set one community against another’ not to stifle any criticism of religion.

Stirring up hatred on grounds of sexual orientation

The Public Order Act 1986 was further amended by the Criminal Justice and Immigration Act 2008 which created the offence of stirring up hatred on the grounds of sexual orientation with intent and such hatred was defined as towards persons of the same sex, the opposite sex or both. The aim of the law was to protect homosexual and bisexual people but with this definition, heterosexuals are also included. Jack Straw, who was then Lord Chancellor, remarked in Parliament, that ‘we are all now appalled by hatred and invective directed against gay people’.

When this section of the 2008 Act comes into effect, it will be an offence to use threatening words or behaviour or to display, publish or distribute any written material which is threatening if there is intent to stir up hatred on grounds of sexual orientation. As with the grounds of religious beliefs, it is also an offence to broadcast such material with intent to stir up such hatred and the employees to be held liable are identical in this law to those listed above.

A further similarity with the laws on stirring up hatred on grounds of religious beliefs, is that the Criminal Justice and Immigration Act 2008 stated that discussion or criticism of sexual orientation, conduct or practices or urging people to refrain or modify such sexual orientation is not illegal. However, the Coroners and Justice Bill 2009 removed this ‘free speech’ amendment from 2008 (section 29JA of the Public Order 1986).