A/HRC/44/58 of freedom of expression under international human rights law. For determining what racist expression should be punishable by law, the Committee stresses the importance of context, which includes: (a) the content and form of the speech; (b) the economic, social and political climate; (c) the position or status of the speaker; (d) the reach of the speech; and (e) the objectives of the speech. 39 Member States, and even private actors such as the technology companies that often directly interface with racist and xenophobic content online, must remain vigilant in their identification of racist expression in national climates in which certain groups, including neo-Nazis, are openly committed to spreading and enforcing intolerance. The Committee warns that racist speech may sometimes rely on indirect language to disguise its targets or objectives, and may rely on coded symbolic communication to achieve its ends. Even incitement may be express or implied, through actions such as displays of racist symbols or distribution of materials as well as words.40 52. Member States must take urgent action to ensure that racist expression violating the standards set out in the International Convention on the Elimination of All Forms of Racial Discrimination are made punishable by law. The Committee on the Elimination of Racial Discrimination has recommended that the criminalization of forms of racist expression be reserved for serious cases, to be proven beyond reasonable doubt, that the application of criminal sanctions be governed by the principles of legality, proportionality and necessity, and that less serious cases should be dealt with using non-criminal sanctions.41 53. Unfortunately, sometimes Member States use concerns about racist or intolerant speech as a pretext for illegitimately quashing expression that is compliant with human rights. The Committee on the Elimination of Racial Discrimination has observed with concern that broad or vague restrictions on freedom of speech have been used to the detriment of groups protected by the Convention. The Special Rapporteur endorses the Committee’s position that international human rights law prohibits States from using measures to monitor and combat racist speech as a pretext to curtail expressions of protest at injustice, social discontent or opposition.42 Overly broad defamation and slander laws that target minority religious groups, political opponents, academics, human rights defenders or others who appropriately exercise their freedom of expression should not be tolerated. The Special Rapporteur also strongly condemns attempts by public and private actors to co-opt the language of equality and non-discrimination as a means of stifling legitimate expression. Similarly, she further condemns attempts by public and private actors to use the language of freedom of expression or association as a means of, or cover for, violating the rights of others to equality and non-discrimination. 54. The Committee on the Elimination of Racial Discrimination has highlighted that, although article 4 has operated as the principle vehicle for the prohibition of racist speech, the Convention contains other provisions essential for fulfilling the objectives articulated in that article. Article 4 expressly invokes article 5, which guarantees the right to equality before the law and the right to be free from racial discrimination in the enjoyment of rights, including freedom of expression. Article 6 requires the provision of effective remedies for violations of rights enshrined in the Convention, as indicated above, and article 7 underscores the importance of education in promoting equality and tolerance. 55. In paragraph 84 of the Durban Declaration, the participants at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance condemned the persistence and resurgence of neo-Nazism, neo-Fascism and violent nationalist ideologies based on racial or national prejudice. In paragraph 85 of the Declaration, they condemned political platforms and organizations based on, among other things, doctrines of racial superiority and related discrimination, as well as legislation and practices based on racism, racial discrimination, xenophobia and related intolerance, highlighting that they were incompatible with democracy and transparent and accountable governance. Furthermore, 39 40 41 42 Committee on the Elimination of Racial Discrimination, general recommendation No. 35, paras. 4 and 15. Ibid., paras. 7 and 16. Ibid., para. 12. See also Human Rights Committee, general comment No. 34, paras. 22–25 and 33–35. Committee on the Elimination of Racial Discrimination, general recommendation No. 35, para. 20. 13