How to respond to ‘hate speech’ in a human-rights-compliant manner is not one of the easiest international-law questions. Anyone brave enough to venture into this intellectual minefield will be called upon, sooner or later, to tackle several crucial – often interrelated – issues. Is there a difference between ‘unprotected’ and ‘prohibited’ speech? I.e., are states allowed to outlaw some forms of hate speech without being, strictly speaking, required to do so under existing international rules? Which is the behaviour that these rules seek to constrain? For example, should national criminal law opt for ‘high-threshold’ (incitement to violence or discrimination) or ‘low-threshold’ (defamation and insult) offences? May one qualify as a potential victim of hate speech without belonging to a group sharing certain characteristics such as those expressly mentioned in the international provisions banning discrimination? Most importantly, is it possible to devise anti-hate-speech rules that do not require, when applied to concrete cases, a balancing exercise between competing rights?

Religious hate-speech – the destructive effects of which are palpable for minorities like the Jewish and the Muslim – raises problems of its own, often related to demands for privileged treatment made by believers. Jeroen Temperman in his latest cutting-edge study addresses – in his usual meticulous way, within the difficult conceptual framework described above – one such demand, which had not received until recently the attention it deserved in legal literature. May one rely on his/her freedom of religion or belief (forb) to claim the right to engage in what others would qualify as homo/transphobic speech?

This is a real problem (much more taxing than another demand for privileged treatment, known as the defamation-of-religion exception), given the challenge that sexual-orientation and gender-identity questions genuinely present for many faithful. (High-publicity discrimination cases litigated on both sides of the Atlantic, such as Eweida and the same-sex-wedding-cake ones, attest to this.) As Temperman shows through extensive comparative research, the question has exercised the legislator and courts of many pluralist democracies. Letting oneself be guided by one’s ‘liberal’ instincts may, of course, lead to some answers. Thus, recognising an absolute ‘scripture defence’ would seem a rather dubious proposal; as the author points out, this would have struck the balance between forb and lgbt rights a priori in favour of the former, always sheltering some forms of hate speech from the threat of persecution. Many dilemmas, however, remain. Can one, for example, use the hate-speech argument to question the right of religion to define sin? Or deny to a considerable segment of the population the opportunity to contribute their perspectives to important social debates?

In this book Temperman approaches these complex, emotionally charged issues in a dispassionate manner, methodically ‘unpacking’ all related questions: how sexual orientation and gender identity came to be recognised as protected characteristics in international anti-discrimination law; how the members of the lgbt+ community became part of the ‘others’ whose rights have to be balanced against freedom of expression and religion under the European Convention on Human Rights (the echr – an interesting situation where ‘othering’ becomes a legal victory); and how the European Court of Human Rights (the ECtHR) has gradually recognised a duty to prosecute hate speech, aligning the echr with the iccpr (the Covenant) and icerd. While doing so, he covers an impressive array of international material. He also highlights the differences between forms of hate speech that states must forbid under Article 20(2) of the Covenant and forms that states may punish under Article 10 of the echr.

Temperman’s book contains three key propositions, each made with remarkable clarity. First, the practice of states belonging to the Western European and Others Group (weog – this being one of the UN ‘regions’), seen in the light of consistent treaty bodies’ findings, has created a regional custom, prohibiting incitement to violence or discrimination against the lgbt+ community. This is a significant development, as anti-incitement rules form an essential emancipation tool. Secondly, international supervision can help unify the level of protection afforded to the lgbt+ community, in this respect. Laws in the ‘regions’ surveyed (weog and, to a certain extent, Latin America) often have gaps, not covering all potential victims – especially trans people. Statutory reform is, of course, necessary in an area of law where semantics often hide a considerable degree of bias.

Thirdly, once the ‘scripture defence’ is set aside, one can safely rely on the UN Rabat Plan of Action to create a robust theoretical framework for examining allegations of religious incitement to homo/transphobic violence or discrimination. Temperman proposes, in this connection, a fine contextual analysis based on six parameters, each one of which performs a well-explained function in the balancing of freedom of expression and religion against lgbt rights. He also makes useful suggestions about third-party expert input to the adjudication process and socio-legal research that can help gauge, among other things, the vulnerability of each target group and the likelihood that, in any given situation, it will be impacted by homo/transphobic incitement. This makes fascinating reading, especially when precedent is discussed in a critical manner (Hammond v. dpp, which resulted in a conviction for the believer); also when it is shown how better results were obtained in one of the rare – one might stress – cases that did not involve Christian defendants (R. v. Ilhaz Ali, Razwan Javed and Kabir Ahmed).

The conclusions reached are not only thoroughly thought-out. They are also highly relevant for the work of many international human-rights monitoring bodies and courts. The ECtHR would be one of them. Anyone vaguely familiar with its case law knows that the ‘subsidiarity’ approach, currently favoured in Strasbourg, involves setting parameters at the European level that will guide national judges (enjoying a margin of appreciation) in their search for the right equilibrium between competing interests. The parameters to be used in cases of religiously motivated homo/transphobic speech may well be found in Temperman’s latest book.

Admittedly, the author’s threshold for punishing such speech is rather high. This should not be taken to indicate bias in favour of believers. It rather reflects a principled position vis-à-vis hate speech in general. Moreover, nothing excludes that a similarly well-structured balancing-exercise can be conducted in respect of the lower-threshold offences tolerated under the echr.

Undoubtedly, Religious Speech, Hatred and lgbt Rights has much to commend it. One caveat must, of course, be entered. The author does not hide that his proposals mostly concern liberal democracies. However, he does recall that often regional customs gradually evolve into international standards. Moreover, setting the threshold high may be necessary if the aspiration is to create a universal obligation for states to punish homo/transphobic speech. This ground-breaking book, rich in international sources and comparative material, with its outstandingly subtle analysis of highly contested issues, could turn out to be the stepping-stone for the recognition of such an obligation.

Stephanos Stavros

Senior Legal Adviser to the Director General of Human Rights and the Rule of Law, Council of Europe