Malaysians are becoming increasingly concerned over the rise of hate speech — be it on social media, comments section of news articles, or utterances by public figures. We’re not alone though; societies all over the world are grappling with this challenge.

Are we working towards a thoughtful, appropriate, and uniquely Malaysian response to this problem? If not, what might such a response look like? Our editorial proposes a framework for hate speech management — with an eye towards further research on this pressing topic.

The age of polarisation

• In August this year, a 21-year-old male killed 22 people in El Paso in response to the notion of a "Hispanic invasion of Texas". The Christchurch shootings in New Zealand this year were similarly a response to fears of a "white genocide". According to the Pew Research Centre, political polarisation and extremism across the world is at its peak.
  
• Continuous exposure to hateful and inciting speech is a huge driver. Researchers in Germany concluded that online hate speech against refugees is correlated with surges of physical attacks against them. Multiple studies have also identified overlaps between President Donald Trump’s rhetoric to waves of reported hate crimes across the US. Apart from linkages to violence and hate crimes, numerous studies have shown that frequent exposure to hate speech increases mistrust and prejudice against communities — eroding the fabric of societal harmony.
  
• Malaysia has yet to experience such scales of hate crimes or incidents but the conditions for potential violence are present. Highly racial and religious views at varying levels of ‘hatefulness’ are rife as demonstrated in the responses to the introduction of khat writing in the national curriculum, the uproar over a Universiti Malaya graduate’s protest against the vice-chancellor for the latter’s statement at the Malay Dignity Congress, the Malay Dignity Congress itself and many other events in just this year itself.
  
• The direction of mainstream political speech also appears to be increasingly about cultural wars. In by-election campaigning, voters have been urged by an Opposition politician not to support a ‘Christian-led’ or ‘kafir-led’ Pakatan Harapan government and on the flip side, told by a ruling MP not to vote for ‘Taliban’ philosophies. The recent Tanjung Piai by-election shows no sign of this theme abating as both government and opposition politicians have accused each other of inciting hatred and racism.

The questions facing us today

• For Malaysians, May 13th still stands as a collective warning against going too far in making racially-charged speech, but whether this painful moment in history continues to keep us from danger is questionable. Online market research company Vase.ai recently found that 54% of Malaysian respondents believe May 13th could happen again amidst the country’s current political climate.
  
• Given the amount and variety of divisive speech we’re exposed to, are we responding well to the challenge of hate speech and its effects on us as individuals and as a society? From our quick online poll conducted on Twitter and Instagram last week, the answer appears to be a resounding ‘no’.

• Malaysia has several laws that address different facets of hate speech and incitement, including the Sedition Act, the Communications and Multimedia Act, the Printing Presses and Publications Act, as well as Sections in the Penal Code. Under these laws, several people have been convicted for speech deemed offensive or seditious that touched on ethnicity and religion.
  
• The public also have the option of lodging complaints with either the Human Rights Commission of Malaysia (SUHAKAM) or the Malaysian Communications and Multimedia Commission (MCMC). It is unclear, however, whether investigations of such complaints lead to action against perpetrators of hate speech.

For an overview of laws addressing incitement, read our primer here.

• Are our laws sufficient, or do we need a more holistic institutional framework to deal with hate speech? How should we address speech that is ‘merely’ insensitive or offensive (but consistently disseminated) vs. speech that is inciting? And finally, who gets to define what counts as hate speech?

The hate speech management spectrum

• How and to what extent a society addresses hate speech comes down to its own priorities and values. More liberal societies, supported by liberal theorists, believe that hate speech laws infringe on individual rights to freedom of expression and enable political censorship. On the other side of the spectrum, more conservative societies and critical legal theorists argue that hate speech laws are needed to protect vulnerable groups.
  
• With more research linking hate speech to polarisation and hate-fuelled incidents or violence, it is likely that more societies will call for greater hate speech management. Most nations prosecute incitement, namely speech or activities deemed to provoke or urge for hateful actions. However, some countries are also going further by prosecuting hateful expression.
  
• Japan and France, for example, have passed laws to address hate speech. In Japan’s case, politicians are even calling for new legislation to ban hate speech as the existing law does not explicitly forbid or penalise it. Meanwhile, Australia has civil laws for hate speech in most states implemented by state authorities such as the NSW Anti-Discrimination Board or the Australian Human Rights Commission. According to Article 19, a British human rights organisation, several countries in the European Union also allow hate speech victims to seek justice under civil laws.

Refer to selected countries’ laws on hate speech in our primer here.

What’s the difference between criminal law and civil law?

Civil law and criminal law are separate entities of law with different provisions and punishments.

The objective of civil law is to remedy wrongdoings on the victim by demanding compensation from the perpetrator. The objective of criminal law is to punish the wrongdoer and to give society a strong signal of deterrence from similar crimes.

Civil law remedies have been hailed as a positive aspect of hate speech legislation.

• Given Malaysia’s particular mix and history of ethnic issues, we argue that a focus on incitement comes too late. Repeated exposure to hateful expression not only increases the likelihood of hate incidents, it also damages trust and understanding within society. Therefore, varying levels of hate speech need to be called out and addressed — the question is how.

Proposed: A broader response

• We propose that not all hate speech should be addressed by punitive measures; a rehabilitative and societal approach can and should be put in place. We look to Western Asia for an example: In Lebanon last year, two Muslim teenagers who vandalised a Virgin Mary statue were sentenced to study references to Mary found in the Quran instead of being sent to jail. This ruling was hailed as an "epitome of justice" that promotes coexistence between Muslims and Christians in Lebanon.
  
• However, a purely punitive and legal response is also unwieldy. In 2015, researchers found Australia’s hate speech complaints mechanism to be burdensome on victims. In other jurisdictions with hate speech civil laws, victims rarely bring actions under those laws as they are prohibited by the cost of legal representation and length of proceedings. There should be a simpler way to surface and respond to less serious examples of hate speech.

• Our basic position on hate speech management in Malaysia is thus — we need a broad and transparent institutional framework that:
  
  (i) defines key levels of hate speech. What is mildly insensitive vs. seriously offensive? What can be classified as hateful vs. inciting? Varying intensities of hate speech should be outlined for Malaysia, perhaps in line with the Rabat Plan of Action’s classifications.
  
  (ii) assigns a proportionate and constructive response towards each category of hate speech. More rehabilitative measures such as public apologies or community service are arguably a more effective way to deal with less intense forms of hate speech. Punitive measures could be reserved for repeat offenders or for harsher forms of hate speech.
  
  (iii) makes it simple for victims or complainants to come forward and receive redress. Rather than going through the police or the courts for every incident, a civil institution such as a new or existing commission could be the first point of call, with clear procedures and guidelines for lodging hate speech complaints.
  
  (iv) updates these definitions and responses over time. A parliamentary committee charged with legal reform could ensure that definitions of hate speech are periodically checked and revised, in line with changes in societal values or new learnings about the harms of hate speech.

• In April this year, National Unity and Social Wellbeing Minister P. Waytha Moorthy revealed that the government is considering setting up a National Harmony and Reconciliation Commission. This commission will reportedly investigate complaints of discrimination — though its full scope, powers and workings still remain undisclosed to date.
  
• In a recent Dewan Rakyat session, the government also announced a Unity Issues Management Committee that will act as an official forum to identify unity issues that borders on threatening national security. The Committee will reportedly work with the National Security Council, the Royal Malaysia Police (PDRM), and the Malaysian Communications and Multimedia Commission (MCMC) on issues pertinent to race, royalty, and religion to allow monitoring and enforcement under existing laws. The details of implementation remain unclear at the time of this writing. 
  
• While we await more information on how these pieces fit (by the way, Malaysia also has a National Unity Consultative Council), The Centre will continue to work on building our proposed framework of hate speech management stated above by carrying out relevant research. To date, we are of the view that current measures are mostly late-stage and punitive rather than early-stage and corrective or rehabilitative.

But what is hate speech in Malaysia?

• The UN Office of the High Commissioner for Human Rights (OHCHR) Rabat Plan Of Action distinguishes between three types of expression: expression that constitutes a criminal offence; expression that is not criminally punishable but may justify a civil suit or administrative sanctions; and expression that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility, and respect for the rights of others.
  
• These guidelines need to be adapted to our unique context. Hate speech is an emotive and highly localised concept and thus, what counts as hate speech — including different levels of it — needs to take into account our historical baggage as well as the views of all groups. This is bound to be a heated debate — based on our quick online poll on Twitter and Instagram, a large majority does not think that there is a shared understanding of what constitutes hate speech in Malaysia.

• Nevertheless, an attempt needs to be made. In line with OHCHR’s hate speech threshold test, Malaysia should also develop a similar threshold test appropriate to our circumstances. This should include getting the responses of all groups to key examples of hate speech, particularly minorities. Speech that one group finds ‘innocently’ insensitive could be extremely offensive or worse, inflammatory or dangerous, to others.

• The importance of hate speech definition is not limited to racial and religious issues. A coherent definition of hate speech or hate incidents on the basis of gender or sexual orientation is also critical — yet largely absent. Following the murders of 18-year-old "effeminate" Nhaveen in 2017 and a transgender woman in Klang last year, a Human Rights Watch report highlighted the lack of acknowledgement for the role of bias or hate in driving these acts of violence. These concerns were also echoed by Klang MP Charles Santiago as well as Malaysia Crime Prevention Foundation (MCPF) senior vice-chairman Tan Sri Lee Lam Thye.
  
• It is high time we work out what hate speech means in our society; not only to combat it but perhaps more importantly, to understand how other people, who are unlike us, think and feel. It is also high time for Malaysia to consider measures that address varying levels of hate in the country, not just to penalise it but also to build a stronger union among us.

Interested to work with us on this research topic? Email us at editorial@centre.my.