A/78/538 Political Rights. 39 The Rabat Plan of Action provides a set of criteria to determine when expressions should be considered as criminal offences based on the following six factors: context; 40 speaker; 41 intent; 42 content and form; 43 extent of the speech act; 44 and likelihood, including imminence. 45 In the Rabat Plan of Action, it is outlined that all forms of incitement to discrimination, hostility or violence should be prohibited in national legal frameworks, but only the most serious cases, as determined by the threshold test, should be criminalized. 41. Regarding the forms of expression that warrant criminalization, the Special Rapporteur also wishes to highlight that the Convention on the Prevention and Punishment of the Crime of Genocide requires States to criminalize inc itement to genocide (see A/74/486). 42. In most cases, online racist hate speech does not reach the threshold whereby it could be legitimately subjected to criminal sanctions under international human rights law. Accordingly, other measures to prevent and address online racist hate speech are very important. Counterspeech, education, community projects and steps to build societal support for plurality are critical to preventing and addressing online racist hate speech. The obligation to develop and effectively implement such measures has a basis in international law. As highlighted in paragraph 10 of general recommendation No. 35 (2013), article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination includes the obligation to implement “immediate and positive measures” to eradicate discrimination, which is complemented by broader obligations to dedicate the widest possible range of __________________ 39 40 41 42 43 44 45 14/22 The Rabat Plan of Action threshold test is available in 32 languages on the website of the Office of the United Nations High Commissioner for Human Rights at www.ohchr.org/en/freedom-ofexpression. In para. 29 (a) of the Rabat Plan of Action, “context” is defined as follows: “Context is of great importance when assessing whether particular statements are likely to incite discrimination, hostility or violence against the target group, and it may have a direct bearing on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated. ” In para. 29 (b) of the Rabat Plan of Action, “speaker” is defined as follows: “ The speaker’s position or status in the society should be considered, specifically the individual’s or organization’s standing in the context of the audience to whom the speech is directed. ” In para. 29 (c) of the Rabat Plan of Action, “intent” is defined as follows: “Article 20 of the International Covenant on Civil and Political Rights anticipates intent. Negligence and recklessness are not sufficient for an act to be an offence under article 20 of the Covenant, as this article provides for ‘advocacy’ and ‘incitement’ rather than the mere distribution or circulation of material. In this regard, it requires the activation of a triangular relationship between the object and subject of the speech act as well as the audience. ” In para. 29 (d) of the Rabat Plan of Action, “content and form” are defined as follows: “ The content of the speech constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include the degree to which the speech was provocative and direct, as well as the form, style, nature of arguments deployed in the speech or the balance struck between arguments deployed.” In para. 29 (e) of the Rabat Plan of Action, “extent of the speech act” is defined as follows: “Extent includes such elements as the reach of the speech act, its public nature, its magnitude and size of its audience. Other elements to consider include whether the speech is public, what means of dissemination are used, for example by a single leaflet or broadcast in the mains tream 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 t o the general public.” In para. 29 (f) of the Rabat Plan of Action, “likelihood, including imminence” is defined as follows: “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. ” 23-20290