Prison time for sharing wrong opinions in the EU

While the European Commission and the European Parliament have been vocally criticizing Hungary for its alleged silencing of political opponents through its resolution of 17 April, another European country is taking very real steps to silence unwanted opinions. The difference is that Malta has not yet been called out for it by EU leadership.

The form it takes is the Equality Bill, a piece of legislation proposed more than four years ago and pending until today. The Equality Bill has been robustly criticised for its lack of protections for freedom of consciencefreedom of religion or belief, and institutional autonomy.

But there is yet another freedom-limiting aspect to this Bill, which might transform it into the most radical piece of European legislation censoring speech. According to clause 34 of the Equality Bill whoever engages in “hate speech” on a wide array of grounds, including health status, language, political opinion, and property is liable to imprisonment for a term from 6 to 18 months.

There are three problems with such a provision. Firstly, it lacks clarity. Although the definition of a crime should offer enough clarity to the regular citizen to direct his or her actions, the one provided by the Equality Bill is inherently ambiguous. Firstly, no intent to produce harm is necessary. In fact, no harm is even necessary in order for people to go to jail for “hate speech”. The Equality Bill mentions that “hate speech” must “likely” produce such violence or hatred through abusive or insulting words. If a journalist therefore criticizes a political opinion through satire, how “likely” is it for at least some of the readers (especially the ones endorsing the criticized political stance) to feel resent towards the author?

Secondly, it opens the door to severe violations of freedom of expression and speech. So-called “hate speech” relies heavily on subjective and unclear concepts, such as “threatening”, “abusive”, “insulting”. Facing such vagueness people will tend to self-censor for fear of being prosecuted. This has a chilling effect on society as a whole driving opinions and beliefs that are not part of the status quo out of the public square.

On a judicial level, “hate speech” laws can lead to abuses which are politically or ideologically driven. People may find themselves imprisoned simply for expressing openly what they believe. Journalists may be put behind bars for criticising the political or ideological orthodoxy. Satire-writers could be punished for perhaps as little as mocking a politician or public figure. For example, in Belgium, a country with three official languages, it is customary that politicians do not speak all three languages fluently, making it a quasi-tradition that they are ridiculed for it by the press. If this happened in Malta under the new law, would it then qualify as “hate speech” and therefore be punishable under the law?

Thirdly, even putting aside those more fundamental objections for a moment, its penalties are disproportionate. The Equality Bill will impose penalties for so-called “hate speech” including prison from 6 to 18 months. It bans “hate speech” on the grounds of age, creed, national origin, disability, family responsibilities or pregnancy, family or civil status, gender expression, genetic features, health status, sex or sex characteristics, and social origin. This extraordinarily broad and vague list of grounds could qualify virtually anything as “hate-speech”. For example, if taken to the extremes, even a careless comment about the colour of someone’s eyes may result in prosecution and prison time. While this might be a simplified example, many of the grounds listed above are topics which in most countries generate a wide range of opinions and beliefs. What would become of the debates and necessary discussions on more serious and genuinely controversial topics? Can opposing opinions simply be made illegitimate by being labelled as “hate speech” and thus criminalised?

The rule of law is a cornerstone of Europe. It requires clarity and universality. The vagueness of the Equality Bill in Malta undermines these principles. When the rule of law is chipped away at, those in authority gain arbitrary power and the practical effect is the creation of inequality disproportionately affecting minorities. Freedom of speech and opinion is the foundation of a functioning democracy. Bad speech or “insulting words” should not be criminalised, but countered with more speech and debate. The proposed “hate-speech” law in Malta simply erases controversial speech from public discourse by putting its proponents behind bars.