PART FIVE: DISCRIMINATION AND EXPRESSION broadcast in the mainstream media or via the Internet, the frequency, the quantity and the extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work) is circulated in a restricted environment or widely accessible to the general public; (f) Likelihood, including imminence: Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for said speech to amount to a crime. Nevertheless, some degree of risk of harm must be identified. It means that the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct.1166 The Rabat Plan of Action further sets out that distinctions with regard to domestic sanctions should be made between (a) expression that constitutes a criminal offence; (b) expression that is not criminally punishable, but may justify a civil suit or administrative sanctions; (c) expression that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility and respect for the rights of others.1167 The Rabat Plan of Action notes with concern that perpetrators of incidents that indeed reach the threshold of article 20 of the International Covenant on Civil and Political Rights are generally not prosecuted, whereas members of minorities are often de facto persecuted, with a chilling effect on others, through the abuse of vague domestic legislation, jurisprudence and policies.1168 A focus on prohibition has led, in a number of countries and contexts, to expression that is protected by international human rights law being deemed “hate speech” because it is politically inconvenient or contentious, or because it is not acceptable in the view of the majority. This is a problem that disproportionately affects groups at risk of discrimination and that may be part and parcel of negative treatment affecting minorities. At the same time, there is often denial that hate speech affects specific groups, in particular minorities.1169 The result is a situation in which “on the one hand, ‘real’ incitement cases are not prosecuted, while on the other hand peaceful critics are persecuted as ��hate preachers’”.1170 These are troubling, problematic developments and are part of wider threats to civic space, the consideration of which is beyond the scope of the present guide.1171 PART FIVE At the same time, there is growth of court and other adjudicator action against hate speech, due to rapidly rising concerns in this area, not least due to the spread of hate online because of the spread of hate speech by clergy and other religious figures.1172 1. Assessing context Certain of the criteria set out under the Rabat threshold test merit comment, in particular as there is international jurisprudence in particular cases or commentary elaborating aspects of their meaning. For example, the Committee on the Elimination of Racial Discrimination has also found States in violation of the relevant Convention in cases concerning offensive public signage. In the case of Hagan v. Australia, an 1166 Ibid., para. 29. 1167 Ibid., para. 20. 1168 Ibid., para. 11. 1169 The Special Rapporteur on minority issues has noted that: “The menace of hate speech affects minorities first and foremost. Whether by omission or not, many actors in the field fail to systematically acknowledge and nominally admit who the main targets are of racism, prejudice, scapegoating and even incitement to violence in social media. By not specifically mentioning minorities, the extent and brutality of hate speech is ignored, even camouflaged in a fog of generalities. In a sense, everyone becomes an accomplice to hate when the main victims remain unnamed. The result is fertile ground to feed intolerance and exclusion, the godparents of hate towards minorities.” See A/HRC/46/57, para. 22. 1170 OHCHR, “Threshold test on hate speech now available in 32 languages”, 15 May 2020. Available at www.ohchr.org/EN/NewsEvents/ Pages/Hate-speech-threshold-test.aspx. 1171 United Nations, “United Nations Guidance Note: Protection and Promotion of Civic Space” (2020). Available at www.ohchr.org/ Documents/Issues/CivicSpace/UN_Guidance_Note.pdf. 1172 United Nations, “Strategy and Plan of Action on Hate Speech”; and OHCHR, #Faith4Rights Toolkit, module 7. On human rights and hate speech by clergy, see Tamas Kadar, “Dealing with cases involving hate speech and incitement to discrimination by the clergy” (Strasbourg, Council of Europe Press, 2021). 181