Rule of Law and Hate Speech. The Role of Criminal Law in The Realm of Free Speech (Part 2)

The present contribution should be read in close connection with the first part published in the 2025 first issue of this review. It aims at framing the assessment of forms of criminalisation in abstracto concerning serious conducts of hate speech offline and online and their legitimacy in a more comprehensive reflection of criminal policy, grounded on criminological knowledge, comparative analysis, EU and international obligations of criminalisation and principles ruling criminal law. A positive evaluation in this respect represents a necessary step towards a further exam of the most appropriate features the specific criminal offence(s) should have and the most effective techniques the legislator should prefer to better protect the legal interests at stake, striking a fair balance between competing valuable interests and complying with the principles of legality, clarity and certainty, culpability and proportionality. Ideally moving from the ideas already expressed in the first part, therefore, the current analysis focuses on the jurisprudence of the European Court of Human Rights relating to hate crime and hate speech under European Convention on Human Rights relevant provisions. Such analysis deals with both the minimum level an expression must attain to be deemed as hate speech in the Court’s opinion, and the role of internet service providers in managing third-party contents, that are considered as illegal or harmful, in terms of possible breach of existing legal duties and responsibility for failure to remove or take them down. The conclusions reached by the Court on this latter issue raised some criticism and must be read according to the new relevant provisions of the EU Regulation 2022/2065 (Digital Services Act), which introduced a multilayered, complex and comprehensive regulatory framework providing for specific due diligence obligations incumbent on different providers, which are coupled with a strong commitment of public authorities in managing risks concerning the dissemination of illegal content, in particular hate speech, via social media and platforms. A brief analysis of some issues raised in the U.S. legal system in this field and recently examined by U.S. Federal Supreme Court gives further insights into the complexity of the matter and the multifaceted way to face these new challenges depending on different legal systems and traditions. At last, the contribution outlines some conclusions about the structure and the elements that should characterise a criminal offence with the aim of contrasting hate speech online and offline under a more comprehensive criminal policy aimed at protecting victims and rehabilitating perpetrators, taking specifically account of the newly adopted Directive (EU) 2024/1385, on combating violence against women and domestic violence, which sets out an obligation to criminalise cyber incitement to violence and hatred based on gender, provided for in Art. 8.