A/HRC/28/64 refers to statements about national, racial or religious groups which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups; (d) the promotion, by different communities, of a positive sense of group identity does not constitute hate speech. 58. A six-part test has been developed by the NGO Article 19 to determine the appropriate threshold for assessing the types of expressions constituting “incitement to hatred”:21 (1) context of the expression, including consideration of existing conflicts within society, existence and history of institutionalized discrimination, history of clashes and conflicts over resources, the legal framework and the media landscape. In relation to media, issues to be examined include censorship, existence of barriers to establishing media outlets, limits to the independence of the media or journalists, broad and unclear restrictions on the content to publish or broadcast and evidence of bias in the application of the restrictions, absence of criticism of government or wide-ranging policy debate in the media and access by the audience to a range of alternative and easily accessible views and speeches; (2) speaker, including consideration of his/her official position, level of authority or influence over the audience and whether the statement was made by a person in his/her official capacity. Politicians and public officials or persons of similar status should be given special consideration; (3) intent of the speaker to incite hatred, not mere recklessness or negligence; (4) content of the expression, including what was said, the targeted audience and the targeted potential victims, tone and form of the speech; (5) extent and magnitude of the expression, including the means of dissemination (press, audiovisual media, work of art, etc.); (6) likelihood of harm occurring, including its imminence. 59. As underscored by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (A/66/290), it is necessary to differentiate between illegal expression, which States are required to prohibit under international law, and expression considered harmful, offensive, objectionable or undesirable, but which States are neither required to prohibit or criminalize. It is important to differentiate between three types of expression: (a) expression constituting an offence under international law that can be prosecuted criminally; (b) expression not criminally punishable but that may justify a restriction and a civil suit; (c) expression that does not give rise to criminal or civil sanctions but still raise concerns in terms of tolerance, civility and respect for others. Negative or stereotyped characterizations of minority groups may fall under any of those three categories. 60. The Special Rapporteur considers that, while much attention is rightly paid to legal responses to hate speech, equal attention and discussion should be dedicated to non-legal and social responses. She was impressed by community initiatives, in which hate groups have been confronted and halted by ordinary citizens,22 and alternative and creative ways that have been initiated to tackle hate speech. 61. Although several constitutions and legislative acts regulate incitement to hatred, practice in respect of national case law differs greatly. In African societies, the importance of traditional conflict resolution methods, the limited number of applicable modern judicial remedies, the lack of public awareness of such remedies, and the weakness of national policies to prevent incitement to hatred were identified as contributing factors to low levels 21 22 Article 19, “Prohibiting incitement to discrimination, hostility or violence”, Policy Brief 2012, pp.27– 40. See, for example, the Not In Our Town initiative at www.niot.org. 13