Raskrinkavanje.me: How the story of hate speech became a story of censorship

The documentary film "Referendum - A Story of Fictional Freedom", produced by the Center for Social Stability from Serbia, has provoked strong public reactions in Montenegro.

In addition to challenging Montenegrin independence and national identity, the film contains a number of discriminatory and dehumanizing claims and narrative constructions. Among them is the claim that Cetinje experienced “the greatest demographic explosion” after World War II, because, while the people of Cetinje were dying on the battlefields, their families were “guarded by Italian soldiers.” Although such a conclusion is not stated directly, it is difficult to ignore the implication that the origins of the post-war generations and the moral integrity of the entire community are linked to cooperation with the occupier.

After the film aired, (AMU) It fined TV Adria and TV Prva a maximum of 10.000 euros each, and imposed a temporary restriction on rebroadcasting on TV Informer due to repeated violations of the law. The AMU also pointed out that they were aware that TV Adria and TV Prva had previously been warned and fined.

But almost overnight, the debate, at least in one media outlet, stopped being about the documentary's content and became a debate about alleged censorship. Serbian President Aleksandar Vučić he evaluated the decision as undemocratic and as evidence of fear of dissent. It soon became clear that the documentary was no longer the main topic. The discussion was about freedom of the media, the suppression of freedom of speech and private state, the position of the Serbs, To Milo Đukanović, Stipe Mesić and the NDH, the referendum, identity divisions, and other historical and political disputes. An impressive amount of topics have been opened up in order not to talk about one – the content that provoked a reaction from regulators.

In almost every discussion involving regulatory measures against the media, removing content from digital platforms, or sanctioning hate speech, the term censorship becomes one of the most frequently used words.

The mention of that “magic” word shifted the public debate away from the content of the documentary itself and towards the question of whether the regulator had the right to react at all. In this way, the questions of whether content that presents a people as inferior, fabricated or morally less valuable can constitute hate speech or discrimination and whether democratic societies have the right to respond to such content with regulatory measures were pushed to the background.

From a political communication perspective, it's hard not to notice the spin attempt. The more people talk about censorship, the less they talk about the content that generated the entire debate.

Freedom of expression is not an absolute right.

The discussion of the AMU decision is often conducted in a simplistic black-and-white manner, as if there are only two options - either we have full freedom of expression or we have censorship. Such a framing of things does not correspond to European legal standards.

Freedom of expression is one of the fundamental rights in democratic societies. The European Court of Human Rights has repeatedly reiterated that it protects not only information and ideas that are well-received or non-controversial, but also those that offend, shock or disturb. This is why political speech enjoys a particularly high level of protection.

However, it is equally important to emphasize that the European legal order has never accepted the concept of absolute freedom of speech. Article 10 of the European Convention on Human Rights guarantees freedom of expression, but at the same time provides for the possibility of its limitation when prescribed by law, when it serves to protect a legitimate aim and when it is necessary in a democratic society. Among the legitimate aims that the Convention explicitly recognizes are the protection of national security and territorial integrity, the rights and reputation of others, public order, health, morals, etc.

In other words, the question is not whether a state may ever restrict a particular form of expression, since the European answer to that question has long been in the affirmative. The key question is under what conditions it may do so.

That is why the European Court of Human Rights developed detailed criteria through practice to distinguish legitimate political or journalistic expression from content that incites hatred, discrimination or hostility towards certain groups. The Court does not assume that every offensive or inaccurate statement is automatically hate speech, but always assesses the context, intention, content and potential consequences of such speech. Therefore, in its practice, it consistently distinguishes between criticism, even very harsh political speech, and content that presents entire groups of people as less valuable, dangerous or undesirable.

To understand where that line lies, it is necessary to look not only at the case law of the European Court of Human Rights, but also at the regulatory framework that exists in the European Union today.

The European Union does not prohibit regulatory interventions – it foresees them

The key document in this area is Audiovisual Media Services Directive (AVMSD), which regulates the operation of television broadcasters, on-demand services and, after amendments in 2018, some digital platforms. The directive assumes that freedom of expression and media pluralism are fundamental European values, but it also clearly emphasizes the obligation to protect human dignity and other fundamental rights.

It therefore obliges member states to ensure that audiovisual media services do not contain incitement to violence or hatred against individuals or groups based on protected characteristics, including sex, race, ethnic origin, nationality, religion or belief, disability, age or sexual orientation. At the same time, it requires that any measures taken by states be necessary, proportionate and in accordance with fundamental rights.

In other words, European rules protect not only freedom of expression, but also the dignity of people who may be targets of discrimination and hatred.

For Montenegro, this issue is not just theoretical. Law on Audiovisual Media Services, adopted in 2024 as part of the alignment with the AVMS Directive, provides for the protection of human dignity, a ban on hate speech and the possibility of restricting the rebroadcasting of programmes that continuously violate these standards. It is precisely such alignment that was part of the reforms that contributed to obtaining a positive IBAR. Therefore, it is interesting that today the application of standards that were incorporated into Montenegrin legislation precisely through the process of European integration is presented as allegedly undemocratic or unEuropean.

In this case, another international legal instrument is important - European Convention on Transfrontier Television of the Council of Europe, which AMU refers to in explaining the measure imposed against Informer TV. Criticisms of AMU pointed out that it was a document from 1989, created in the era of classic linear television, before platforms, on-demand services and the modern digital media environment.

Today, within the European Union, this convention has been replaced by the AVMS Directive. However, for non-EU countries, such as Montenegro and Serbia, this convention remains the only international instrument for cross-border television broadcasting. This convention also requires that programming content respect human dignity and the fundamental rights of others and prohibits incitement to violence or racial intolerance, in Article 7 of which the AMU refers.

A particular problem is that the mechanism for monitoring and resolving disputes provided for by the Convention has not actually functioned for years. In theory, disputes should be resolved through cooperation between regulators and the mechanisms provided for by the Convention itself. In practice, the Montenegrin regulator regularly warns of content it considers to be inciting national hatred and discrimination in the programs of broadcasters under the jurisdiction of Serbia, while the Serbian REM generally does not react. This was also the case in this case TV Informer. Therefore, disputes are not resolved in the country of origin of the program, as the basic logic of the Convention provides, and Montenegro resorts to restricting rebroadcasting as a last resort to protect the public interest. Therefore, the AMU did not refer to some exotic censorship instrument, but to the European convention, ratified by both Montenegro and Serbia, which itself obliges broadcasters to respect programming principles that protect human dignity.

In recent years, European regulators have imposed fines, temporarily suspended programs, and even banned the distribution of certain channels due to content deemed to incite hatred, discrimination, or seriously violate the rights of others.

One illustrative example comes from France, where the national regulator fined the television station CNews 200.000 euros after broadcasting a commentator's statements that unaccompanied minor migrants were "thieves", "rapists" and "murderers". Of particular note is the regulator's reasoning, which emphasizes that the problem was not that the debate on migration was being opened, but that an entire group of people was being presented as criminal and socially dangerous based on their origin. French The State Council later confirmed the regulator's decision.. Among the key elements of the reasoning was the fact that the program was broadcast with a time delay, which gave the television station the opportunity to control the content before its broadcast. The Court recalled the obligation of the broadcaster to maintain control over the program, assessing that in the specific case it was not a matter of unpredictable statements in a live broadcast, but of content that the broadcaster had the opportunity to review before broadcasting. It was precisely this possibility of prior editorial control that was one of the elements on which the confirmation of the regulatory decision was based. This aspect is particularly relevant for the Montenegrin case, since it concerns pre-produced documentary content whose broadcast was not the result of an unpredictable event or statement in a live program.

Even more illustrative are the examples from Lithuania and Latvia, whose regulators have repeatedly intervened against television channels due to content deemed to incite ethnic hatred, hostility towards certain peoples, or promote war propaganda. In the case of Latvia, The European Commission assessed that the decision to suspend the broadcast of the Russian channel was in accordance with European Union law, after the regulator concluded that the program broadcast messages that incite hatred towards certain national groups. In the case of Lithuania, the issue of regulatory restrictions also reached before the Court of Justice of the European Union, which did not challenge the very possibility of regulatory intervention, but rather examined its legal basis and proportionality.

The most famous example is certainly the European Union's decision in 2022 to suspend the broadcasting of Russia Today and Sputnik within the Union. This was an extraordinary measure taken after the start of Russia's aggression against Ukraine, so the case cannot simply be compared to regular regulatory procedures. However, it is significant because General Court of the European Union rejected RT France's claims that this constituted an impermissible restriction on freedom of expression. The Court accepted that freedom of expression was restricted, but concluded that such restrictions could be lawful when they had a clear legal basis, pursued a legitimate aim and did not go beyond what was necessary to achieve it.

These examples do not in themselves prove that every decision by a regulator is automatically justified. However, they do show that European regulators have the right to intervene against content that incites hatred and discrimination.

What should we actually be discussing?

European standards, case law, and the experiences of regulators across the continent do not provide a pre-emptive answer to the question of whether the AMU decision in this case was correct, but they do outline the criteria against which such decisions can be assessed.

Does the content in question contribute to a political or historical debate or portray an entire group of people as inferior, morally inferior or undesirable because of their identity? Is it critical reporting on or promotion of particular views? Did the broadcaster have editorial control over the content it broadcasts? And finally, was the regulatory measure lawful and proportionate?

Part of the criticism of the AMU decision refers to Article 50 of the Constitution of Montenegro, which stipulates that the competent court may prevent the dissemination of information and ideas in cases of, among other things, the propagation of national and religious hatred or discrimination. The relationship between this constitutional provision and the powers granted to the regulator by the Law on Audiovisual Media Services may be the subject of legal debate and possible judicial review.

But the Constitution of Montenegro does not have just one article. It prohibits incitement and incitement to hatred or intolerance on any grounds, as well as any form of direct or indirect discrimination. That is why it is somewhat unusual when only one part of the constitutional text is quoted in a public debate, while the provisions that relate precisely to what is at issue are left out.

That's why perhaps what is least wanted to be discussed from the start is more interesting - the question of whether the documentary's content constitutes a criminal offense of inciting religious and national hatred and whether such content requires a reaction from other institutions. And why, instead of discussing it, is so much energy being spent on proving that the problem only arose when the regulator reacted?

If a serious debate has already been opened about the limits of freedom of expression, then the question of where the other institutions of the system are should be opened equally seriously. Because, if the content of the documentary does not contain elements of hate speech and incitement to national intolerance, that should be clearly stated. And if there are, then it is legitimate to ask – why are the institutions silent?