Sticks, stones and violent words: bones of contention

by

CHERIAN GEORGE

September 15th, 2012

In sending a man to jail for violence-ridden Facebook posts, Singapore’s High Court has drawn a line around extreme speech that is more restrictive of political expression than what is widely considered as best practice. The decision reflects Singapore’s well-established preference for public order over free expression.

In 2010, engineer Gary Yue Mun Yew posted a link to a video clip the assassination of Egyptian President Anwar Sadat while viewing a parade. “We should re-enact a live version of this on our grandstand during our national’s parade!!!!!!” he said. On his own Facebook page, he posted a classic Vietnam War photo of an execution, but with cabinet minister Wong Kan Seng’s head superimposed.

In March, Yue was fined S$8,500 by a district judge. The judge ruled that while the post contained an incitement to violence, Yue had not intended to incite violence: he had been driven by “angst” and a desire for attention.

The prosecution appealed. According to CNA, High Court Judge Quentin Loh said he could not see the distinction drawn by the lower court. Justice Loh said he found “direct and undisputed evidence” that Yue “intended to incite violence”. Yue has been sentenced to two months’ jail – a “stiff sentence” intended to deter “behaviour which has the potential to be injurious to public order and safety”.

Under international human rights law, incitement to violence is not protected by the right to freedom of expression. One of the most horrific of such cases involved the radio station that instigated and helped organise the genocide in Rwanda. Its leaders were convicted by an international tribunal – a decision welcomed by human rights defenders.

Words, in turns out, can indeed move sticks and stones to break one’s bones.

However, courts worldwide have recognised that concerns about public order and safety need to be balanced with people’s need to participate in political debate. And it is widely accepted that democratic debate must give some latitude to speech that most consider offensive or distasteful (as Yue’s postings certainly were).

To strike this balance, one group of legal experts came up with the so-called “Johannesburg Principles” (download PDF here). Among other things, the 1995 document states that if a government wants to prosecute speech as a threat to national security, it must prove that:

1. a) the expression is intended to incite imminent violence;
2. b) it is likely to incite such violence; and
3. c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Similar principles have been applied by the European Court of Human Rights. This Court has occasionally been asked to judge whether governments’ actions violate Article 10 of the European Convention on Human Rights (ECHR), which protects freedom of expression. A couple of contrasting cases involving Turkey illustrate how the Court tries to strike a balance.

In one 1997 case, Zana v. Turkey, the European Court was asked to examine the Turkish authorities’ decision to imprison a former mayor for what he said in an interview. The accused had said he supported the PKK guerrilla movement; and that while he was “not in favour of massacres”, “anyone can make mistakes, and the PKK kill women and children by mistake.”

Looking at the context of the extreme tension in Southeastern Turkey at that time, the European Court decided in favour of the government. It said that the words of a former mayor of the most important city in that region, carried in a major daily newspaper, “had to be regarded as likely to exacerbate an already explosive situation”. The Turkish authorities had therefore not transgressed Article 10, the Court found.

In contrast, the European Court in Karata v. Turkey found that the authorities had violated a Kurdish poet’s free speech rights under Article 10 when the government imprisoned him. Karata’s collection of poetry included lines that called for violence in aggressive tones. However, the Court said, “the fact that they were artistic in nature and of limited impact made them less a call to an uprising than an expression of deep distress in the face of a difficult political situation”.

As such cases build up in Europe, Latin America and Africa, a pattern emerges that is consistent with the Johannesburg Principles. Jurisdictions that want to provide space for free speech while protecting public order and people’s safety will not convict individuals just because they have used expressions that, at face value, condone violence or even murder. There must be a specific intent to incite violence, and a concrete danger of violent acts being committed as a result.

Based on this principle, courts treat what politicians and other influential speakers say more seriously than unknown individuals; and also consider whether the pre-existing social context is one where listeners are likely to act on the offending words.

As Gary Yue has discovered to his cost and others should take note, Singapore applies a different standard.

Further reading

• Organization for Security and Co-operation in Europe, Background Paper, “Human Rights Considerations in Combating Incitement to Terrorism and Related Offences” (2006) Download PDF here.
• Council of Europe, Manual on Hate Speech by Anne Weber (2009) Download PDF here.