Trolling the offenders

Magistrate Joe Mifsud’s recent ruling in a hate speech case has elicited criticism from a number of human rights NGOs. By acquitting a man charged with inciting hostility towards minorities, NGOs argued that Mifsud appeared to condone the crime he was adjudicating.

 “While it is true that the law protects the right to freedom of expression and, to some extent, the right to offend, this freedom is by no means absolute," a statement signed by 14 NGOs said.

This newspaper shares the frustration of those who believe that instigators of hate speech in Malta, especially on online media, are not always held legally accountable for potentially harmful actions. Facebook statements, such as that made by Brendan Bartolo, not only offend individual people, but also damage morale, undermine community spirit, foist negative perceptions on social groups, and undermine the value of communal solidarity Maltese society depends upon.

Nonetheless, the issue is not as clear-cut as it may seem. Mifsud’s verdict centred on the probability – the latter being the operative word – of incitement to racial hatred. It’s not necessary for the act of violence or manifest hatred to have been carried out; if the words themselves carry the probability of an act of hatred and violence, this would already constitute a breach of the Criminal Code.

The magistrate proffered the Equality and Human Rights Commission’s definition of hate speech: i.e., that the boundary between offensive views and hate speech “is not always an easy one to draw”; but that the intention of the person making the statement, the context in which it is made, and the intended audience, are all determining factors. 

Bartolo’s comment itself was an indecorous and derogatory missive against a Maltese Muslim human rights advocate. Certainly, it was offensive: the woman was told to f*** off, and return ‘to her country’ (when she is actually Maltese). And it is but one example of many: in the non-curated and anonymous world of the internet, users regularly resort to offence without considering the real-world consequences of what they said.

Still, we must be cautious. The NGOs themselves acknowledge that ‘the right to offend’ exists, albeit ‘to some extent’. So the question is not whether Bartolo’s comment was ‘offensive’ – it was – but whether it exceeded that ‘extent’ or not.

And the answer must arise out of Maltese law, not public opinion. A magistrate in court must apply the law as it is, not as people want (or expect) it to be. Moreover, magistrates must be mindful of the precedent they may set in any case. This is why the ‘incitement’ prerequisite is so important: ‘offensiveness’, in itself, is not enough to secure a conviction. If the law were to be applied incorrectly to opinions that are offensive – but do not qualify as incitement – the two-way street of freedom of expression would have been closed shut to the detriment of the wider public.

This is also why having detailed legal definitions is so important. In the State of Victoria in Australia, for instance, the term ‘vilification’ is defined as behaviour that incites hatred, serious contempt for, or revulsion or severe ridicule of a person or group of people because of their race or religion. The legal definition is conduct that ‘incites hatred, serious contempt, revulsion or severe ridicule’.

The State of Victoria’s Human Rights Commission’s website lists examples of behaviour that could be seen as vilification, again defined narrowly as hate: speaking about a person’s race or religion in a way that could make other people hate or ridicule them, publishing claims that a racial or religious group is involved in serious crimes without any proof, repeated and serious spoken or physical abuse about the race or religion of another person, encouraging violence against people who belong to a particular race or religion, or damaging their property, encouraging people to hate a racial or religious group using flyers, stickers, posters, a speech or publication, or using websites or email.

While it is often easy to recognise glaring examples of such behaviour, it is also easy for such definitions to be made to fit cases where they shouldn’t apply at all. As with all laws, proper implementation depends on the common sense of law enforcement agencies to apply the law rationally, and throw out facetious cases.

One can, naturally, disagree with Mifsud’s ruling. It would be unwise, however, to represent it as anything but an acknowledgement of an issue that is, in itself, far from simple or clear-cut.

Nonetheless, the issue remains, and must be confronted. The interconnected nature of the world, and the amplification of global issues on social media, has resulted in ‘locker-room talk’ being expressed freely… so to be truly advocates of freedom and openness, solidarity and diversity, we must use our voice to challenge the trolls, racists and fascists; but also to celebrate the wonderful diversity of our society, and defend those who are attacked for their religion, sex, sexual orientation, or political persuasion.

Certainly we must stay vigilant against abuse of freedom of expression. But imperfect as it is, our advice is to troll racists and the far-right back with reason, and the defence of our cherished values.