The European Commission (EC) is considering proposals to extend the list of the most serious EU-wide crimes that require a standardised, bloc-wide policing and judicial response to include “hate speech”.

The proposal features as part of a raft of measures drawn up by the EU’s European Citizens’ Panel on Tackling Hatred in Society (“the panel”), which is advocating for greater controls to be implemented across the bloc to prevent the spread of all forms of what it terms “hate speech”.

The EC’s Vice-President for Values and Transparency Věra Jourová has already welcomed the panel’s report, noting that it “recognised the risks of hate speech and issued clear and ambitious recommendations to tackle hate speech”. 

Jourová’s colleague, Dubravka Šuica, Vice-President for Democracy and Demography, concurred. “Together, in a safe and transparent space, they have deliberated on this crucial issue and produced robust, relevant recommendations,” she said of the panel, adding: “I am proud to share them with President [Ursula] von der Leyen and my colleagues in the College of European Commissioners.”

The panel is one of a series of European Citizens’ Panels (ECPs) convened in support of President von der Leyen’s recent promise to build a European democracy “fit for the future”. ECPs consist of around 150 “European citizens”, with a quota system ensuring that young people aged 16-25 represent a third of the panel. 

Despite the stated aim of ECPs being to “give citizens a voice in EU policy-making”, there appears to be the whiff of ‘managed democracy’ about the recommendation development process, with an EC-approved “facilitation team” providing “support” to the panel alongside a “committee of experts” who offer “additional input”.

The panel’s final report adopts a definition of “hate speech” as any speech that is “incompatible with the values of human dignity, freedom, democracy, the rule of law, and respect of human rights”.

But as this definition’s reference to vague, ill-defined terms like “values” and “human dignity” suggests, “hate speech” is something of a legal misnomer, since what is being referred to are forms of expression that some people or groups may indeed claim to find insulting, upsetting, or offensive, but that nonetheless receive and warrant legal protection.

The introduction of this element of subjectivity into the policing of hate speech across the EU’s various policies and proposals over recent year has of course not been entirely unintentional, allowing as it does for the EC’s unelected bureaucrats to rearticulate what qualifies as “hatred” in their own political interests, thus widening the net of applicability to various individuals and groups whose dissenting views on climate change, mass immigration, and LGBTQ+ issues are ideologically inconvenient.

Understood in this context, one of the more alarming proposals put forward by the panel is for the EC to update and expand the common definition of “illegal hate speech” to better criminalise certain undesirable forms of speech. 

“A new, comprehensive definition is crucial for making the spread of illegal hate speech a criminal offense prosecutable across all EU Member States,” the document suggests, before explaining that this adaptation “will ensure that all forms of hate speech are uniformly recognised and penalised, reinforcing our commitment to a more inclusive and respectful society.

“By including hate speech in the list of EU crimes,” it adds, “we can protect marginalised communities and uphold human dignity.”

It seems likely that the panel’s EC-approved “facilitators” and “committee of experts” played a large part in drafting this recommendation, not least because it adopts exactly the same terminology as an EC proposal that was recently endorsed by the European Parliament to extend the list of EU-wide crimes to include “hate speech”.

For so-called “Euro-crimes” of this kind, the European Parliament and the EC have the power to establish minimum rules concerning the definition of criminal offences and sanctions, which member states must then integrate into their own legal systems.

The EU’s ability to flout the principle of subsidiarity in such a cavalier fashion is entrenched in Article 83(1) of the Treaty of the Functioning of the European Union (TFEU), which provides for a list of ‘Euro-crimes.’

Although this list is exhaustive, and currently includes just ten “areas of crime” – including terrorism, human trafficking, and the sexual exploitation of women and children – Article 83(1) contains a provision allowing the Council of the European Union (“the Council”) to adopt a decision (subject to the consent of the European Parliament) extending that list. 

This process was triggered back in 2020, when President von der Leyen announced, in her State of the Union Address and in the accompanying letter of intent, a new initiative “to extend the list of EU crimes to all forms of hate crime and hate speech — whether because of race, religion, gender or sexuality”.

The change this proposal requires is staggering. Although all member states currently criminalise hate speech on grounds of race, colour, religion, descent, national or ethnic origin, only 20 of them explicitly include sexual orientation in hate speech legislation, while 12 include gender identity and a mere two cover sex characteristics.

So under the panel’s recommendation, will carrying a placard stating “Transwomen are not women” violate the human dignity of someone with the relevant protected characteristics? Will Christians who take to social media to share their views on marriage and sexuality violate the human dignity of people who claim an eccentric gender identity for themselves or feel a particular sexual orientation? And what about situations, as in Ireland following last year’s Dublin riots — where social media users identify the nationality of a suspected murderer — will that be taken to violate the human dignity of others who share similar national, ethnic or racial characteristics? 

In fact, we don’t need to speculate on the basis of hypothetical examples.

The Finnish politician Paivi Rasanen’s ongoing, and already three-year long legal ordeal, in which she was charged under the country’s recently implemented hate speech laws for tweeting a verse from the Bible while challenging her local church for its decision to sponsor a Helsinki Pride event, already provides a worrying glimpse into the EC’s brave new world.

Plus, although most of the human rights organisations, charities, and NGOs that work with and alongside the EU are fairly coy when it comes to providing real-world examples of “hate speech,” tucked away in the Council of Europe’s recent Study on preventing and combating hate speech in times of crisis is a subsection titled “Hate speech and the Russian Federation’s war of aggression against Ukraine” that contains the following passage:

At local level [in Germany], though—especially in small towns or villages where refugees from Ukraine have been and are hosted—tensions have arisen, and law enforcement has been alerted in case of hate speech … according to the Society for Civil Rights, hate speech has started targeting refugees from Ukraine, also as a reaction to a recent ‘housing crisis’ in Germany. People in fact have started complaining that “refugees have better accommodation than our homeless people, than our poor.

Is that hate speech that violates the human dignity of Ukrainians, one wonders, or simply the expression of perfectly legitimate political opinion concerning the German’s state’s approach to territorial borders, immigration, and welfare provision?

One thing we do know is that following the vote on the EC’s proposal in the European Parliament earlier this year, the only thing standing in the way of this dubious category of speech being added to the EU’s list of particularly serious crimes that “have impact beyond national borders” is a vote in the Council.

It’s true that for the past two years the proposal has been held up at this stage — much to the dismay of many “progressives” within the European Parliament, the Council has made what the Committee on Civil Liberties, Justice and Home Affairs describes as “insufficient progress”, and thus failed to secure the unanimity required to adopt the proposal. But for how much longer will this remain the case? 

Given that the proposal to include this vague, ill-defined concept in the list of EU-wide crimes has now been endorsed not only by the European Parliament but also by a supposedly independent, allegedly representative citizens’ panel, pressure is undoubtedly being brought on the Council to give the green light to a form of censorship that the EC wants us to believe is what all [nation-state dwelling] Europeans want.