UN Special Rapporteur on Minority Issues [DRAFT FOR GLOBAL CONSULTATION] ‘Proportionality’, in light of the worst possible response being the inability to make public statements on a given online platform, requires that it is not applied in an identical manner as would be the case of State practices, which mostly concern criminal laws that either prevent expressions vital to democratic governance or incarcerate those human rights defenders and journalists, among others, who express them. The range of responses available are limited to individual SMCs and where they do not extend to criminality and illegality (which should engage States’ international obligations), may necessitate a higher level of protection prioritising the protection from hate, violence, hostility and discrimination and where their proportionality of response is assessed on the basis of inaccessibility to a single online platform rather than illegality or criminality. The notion that the broad classification of expressions as ‘hate speech’ goes beyond the incitement to discrimination, hostility and violence that requires the specific response of prohibition by law40 and need only satisfy the tests of legitimate limitations to the right to freedom of expression is reinforced by the Rabat Plan of Action. It sets out three categories of hate speech: incitements to discrimination, hostility or violence that must be criminalised following consideration of the 6-part threshold test, incitements that must be limited by law and those that can be legitimately limited under ICCPR Art. 19(3). This has been further asserted by the special procedures and the UN Strategy and Plan of Action on Hate Speech. This means that ‘hate speech’ can be categorised broadly and should not be limited to proven examples of incitements of hatred required to be prohibited by States under ICCPR Art. 20(2), but just the expression of hate speech as necessitated by the framework set out in ICCPR, Art. 19(3) and as stipulated in the UNGP.41 The ‘prohibition’ standard for incitements to discrimination, hostility and violence should not be applied by SMCs, States or other stakeholders in defining SMC’s responsibilities with respect to protect their users from hate speech. 4. SMCs should clarify their definition of ‘incitement’ and at least meet and ideally exceed the protection offered by the prohibition on incitement to discrimination, hostility and violence applicable to States. Commentary SMCs have distinct policies on ‘incitement’ distinct from ‘hate speech’. However, such policies focus too narrowly on the incitement of violence only. International human rights law requires the prohibition by law of such incitement along with incitements to discrimination and hostility. It may be argued that these two forms of lesser incitement are subsumed within the general definition of ‘hate speech’. However, it remains possible that an ‘incitement to discrimination and hostility’ may not be captured by ‘hate speech’ policies for the reason that incitement is often aimed at prospective perpetrators of hate speech rather than aimed at protected groups or minorities. It may on the other hand be included within the meaning ‘hate speech’ but not be categorised as a far more severe type of hate speech and thus requiring not only speedier detection but a more robust enforcement response. States must also bring their laws in compliance with the requirements of ICCPR, Art. 20(2), hold perpetrators to account and partner with SMCs as well as stipulate their precise responsibilities to identifying and reacting to such illegal content. Where States do not meet the requirement for protection from incitement to hatred, SMCs should still at a minimum apply the general standard laid out in ICCPR Art. 20(2) and as obliged by the UNGPs. 40 41 ICCPR, Art. 20(2). UNGP. 10