A/78/538 46. The Special Rapporteur perceives that there is a significant degree of heterogeneity in the legal approaches to online racist hate speech. 49 Of significant concern to the Special Rapporteur is the absence of a legal prohibition of incitement to discrimination, hostility or violence in many domestic legal frameworks worldwide (see Rabat Plan of Action, para. 15). She is also concerned that in jurisdictions that have legislation in place, there are gaps in the degree to which provisions comply with the standards laid out in international human rights law. Legislative provisions can include overly broad restrictions on freedom of expression that, in certain cases, can be instrumentalized by Governments to repress dissent or silence individuals from racial and ethnic groups. 50 Ineffective implementation of legislation 47. Another key challenge to effectively preventing and addressing online racist hate speech is the ineffective implementation of legislation in place to address online racist hate speech that constitutes incitement and, in the most serious cases of such incitement that meet the threshold for criminalization, as defined by the Rabat Plan of Action, to punish perpetrators. 51 As highlighted by the Committee on the Elimination of Racial Discrimination in paragraph 17 of its general recommendation No. 35 (2013), it is not enough to declare relevant forms of speech as offences; the provisions of article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination must also be effectively implemented. This is achieved through the effective investigation of offences, and, where appropriate, prosecution and other remedial measures. 48. Given the importance of investigation and prosecution to the effective implementation of relevant legislation, the Special Rapporteur is concerned by reports that victims who have suffered harm, as a result of incitement, often cannot access justice and other forms of remedy. This is reflected in the relative paucity of jurisprudence on online racist hate speech (see Rabat Plan of Action). Barriers to access to justice and remedy can include a reluctance of victims to report incidents because of their lack of trust in public authorities and/or fear of reprisals; the withdrawal of complaints by victims owing to difficulties engaging with relevant authorities; and a lack of awareness among victims about their rights and how to seek remedy. 52 Such trends have a negative impact on victims’ right to access to justice, which is protected by article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination and article 2 (3) of the International Covenant on Civil and Political Rights. They also create impunity for incitement, which emboldens perpetrators and further legitimizes and normalizes other forms of online racial hatred. As outlined in paragraph 18 of general recommendation No. 35 (2013), these trends impede judicial review of the facts of individual cases, which has been recognized as being of central importance to the interpretation and implementation of relevant international human rights law provisions at the national level. Gaps in the non-legal measures of States 49. 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. It could, however, still be harmful to those from racial and ethnic groups. __________________ 49 50 51 52 16/22 Submission from Asociación por los Derechos Civiles and Hogan Lovells, The Global Regulation of Online Hate. Rabat Plan of Action and submissions from the Belarusian Helsinki Committee and Belarusian Association of Journalists. Ibid. A/HRC/47/25 and Council of Europe, “Hate speech and violence”, available at https://www.coe.int/ en/web/european-commission-against-racism-and-intolerance/hate-speech-and-violence. 23-20290