PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation aboriginal man alleged violations of article 2, in particular, 2 (1) (c), article 4, article 5 (d) (i) and (ix), (e) (vi) and (f), article 6 and article 7 of the Convention, in connection with the name, which is today deemed a serious racial epithet, of the grandstand of an important sporting ground in Toowoomba, Queensland, where he lived, named in honour of a sporting personality of the past. Finding Australia in violation of the Convention, the Committee held that the: use and maintenance of the offending term can at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded. The Committee considers, in fact, that the Convention, as a living instrument, must be interpreted and applied taking into the circumstances of contemporary society. In this context, the Committee considers it to be its duty to recall the increased sensitivities in respect of words such as the offending term appertaining today.1173 In its hate speech toolkit, the civil society organization Article 19 has offered the following guidance on assessing context: The expression should be considered within the political, economic, and social context in which it was communicated, as this will have a bearing directly on both intent and/or causation. The contextual analysis should take into account, inter alia: – the existence of conflict in society, for example, recent incidents of violence against the targeted group; – the existence and history of institutionalised discrimination, for example in law enforcement and the judiciary; – the legal framework, including the recognition of the targeted group’s protected characteristic in any anti-discrimination provisions or lack thereof; – the media landscape, for example regular and negative media reports about the targeted group with a lack of alternative sources of information; and – the political landscape, in particular the proximity of elections and the role of identity politics in that context, as well as the degree to which the views of the targeted group are represented in formal political processes.1174 2. Distinguishing the speaker Some adjudicators have drawn distinctions between entities disseminating hate speech. For example, in a case brought before the European Court of Human Rights, Jens Olaf Jersild, a documentary journalist with the Danish Broadcasting Corporation, challenged the legitimacy of the fines that he had received from the authorities in Denmark related to a documentary he had produced and broadcast on national television, in which he interviewed members of a group of young persons in Copenhagen, calling themselves “the Greenjackets”. These interviewees had expressed ideas of racial or ethnic superiority on camera, in addition to confessing to instances of assault on minorities. Based on the television programme, the Danish authorities brought charges against the Greenjackets interviewed by Mr. Jersild. However, with reference to article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, they also sanctioned Mr. Jersild for providing the skinheads with a means to widely disseminate hate speech – namely, a prime time television slot – and thus to disseminate ideas of racial or ethnic superiority. Mr. Jersild contested the fines, noting that the role of journalists and the media was to document and call attention to serious issues in society. Ruling in Mr. Jersild’s favour – and overturning the fines – the European Court of Human Rights, inter alia, reaffirmed the particular role of journalists and the media to bring to public attention serious issues in society.1175 The presence of violent racists in a society would seem to be exemplary in this regard. An approach 182 1173 Committee on the Elimination of Racial Discrimination, Hagan v. Australia (CERD/C/62/D/26/2002), para. 7.3. 1174 Article 19, “Hate Speech” Explained: A Toolkit (London, 2015), p. 78 (footnote omitted). Available at www.article19.org/resources/hatespeech-explained-a-toolkit. See also A/67/357, para. 45, referring to “audience … existence of barriers in establishing media outlets, broad and unclear restrictions on content of what may be published or broadcast; absence of criticism of Government or wide-ranging policy debates in the media and other forms of communication; and the absence of broad social condemnation of hateful statements on specific grounds when they are disseminated”. 1175 European Court of Human Rights, Jersild v. Denmark, Application No. 15890/89, Judgment, 23 September 1994.