A/HRC/46/30 condemned the prevalence of online hate speech against Muslims. 165 However, under international law, State action to limit speech must be exceptional. Regardless of its potential to offend, shock or disturb, States cannot prohibit national, racial or religious hate speech unless it reaches the high threshold of incitement to discrimination, hostility or violence under international human rights law. 166 Additionally, the Special Rapporteur emphasizes that international human rights law protects individuals, not religions. 167 The Special Rapporteur further encourages States to adopt measures that operationalize the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, which includes a six-part threshold test (considering the context, speaker, intent, content and form, extent of dissemination and likelihood of harm) for establishing whether hateful expression should be considered to reach the level of incitement that must be prohibited. The Committee on the Elimination of Racial Discrimination also has offered concrete guidance for States parties on the adoption of legislation combating racist hate speech falling under article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.168 The Human Rights Committee too has provided useful guidance, notably through its general comments No. 34 (2011) on the freedoms of opinion and expression and No. 37 (2020) on the right of peaceful assembly. B. Tackling online hate speech The hate speech policies of some of the largest digital and social media companies have improved significantly in recent years. Since 2016, Facebook, YouTube, Twitter, Instagram, Snapchat, TikTok and other social media companies have committed themselves to respecting the European Union code of conduct on countering illegal hate speech online, thereby undertaking to remove all content that meets the definition of illegal hate speech, including that which targets Muslims, under Council Framework Decision 2008/913/JHA. This has coincided with a positive trend in enforcement by these platforms. The European Commission has reported that Facebook, YouTube and Twitter removed 72 per cent of the illegal hate speech from their platforms in 2019, up from 28 per cent in 2016.169 Facebook subsequently established an oversight board to function as its court of final appeal on content moderation decisions, which heard its first set of cases, including one on Islamophobia, just prior to the present report’s publication. 170 Although policy changes have resulted in the removal of particularly egregious online content, there has been an increase in “borderline content” – content that requires in-depth analysis to decide whether it meets a company’s definition of hate speech. This has driven a rise in human-augmented moderation. This is a welcome change, as algorithms developed to screen online content rely largely on text recognition protocols, which are arguably less effective in accurately classifying abstracted text. Furthermore, algorithms often struggle to distinguish between user discussions that explore concerns about or seek to counter hate speech narratives and conduct that directly promotes hostility, discrimination or violence against Muslims, thereby hampering targeted communities’ efforts to counter the discrimination they face.171 While the Special Rapporteur welcomes moves by social media and other digital companies to increasingly engage human moderators in enforcing policies on countering 165 166 167 168 169 170 171 CERD/C/LTU/CO/9-10 and CCPR/C/SWE/CO/7. International Covenant on Civil and Political Rights, art. 20 (2). In its general comment No. 34 (2011), the Human Rights Committee stresses that prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the International Covenant on Civil and Political Rights, except in the specific circumstances envisaged in its article 20 (2), and that it would not be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith (para. 48). Committee on the Elimination of Racial Discrimination, general recommendation No. 35 (2013). https://ec.europa.eu/info/sites/info/files/code_of_conduct_factsheet_7_web.pdf. https://oversightboard.com/news/719406882003532-announcing-the-oversight-board-s-first-casesand-appointment-of-trustees/. Consultation on online hate. See also https://arxiv.org/abs/1702.08138. 17