MEDICINE, LAW & SOCIETY Vol. 16, No. 2, pp. 227–246, October 2023 https://doi.org/10.18690/mls.16.2.227-246.2023 CC-BY, text © Peršak, 2023 This work is licensed under the Creative Commons Attribution 4.0 International License. This license allows reusers to distribute, remix, adapt, and build upon the material in any medium or format, so long as attribution is given to the creator. The license allows for commercial use. https://creativecommons.org/licenses/by/4.0 HATE SPEECH IN TIMES OF THE COVID-19 PANDEMIC: THE SOCIAL COSTS AND LEGAL IMPLICATIONS OF A HEALTH CRISIS Accepted 2. 8. 2022 Revised 1. 9. 2023 Published 27. 9. 2023 NINA PERŠAK Institute for Criminal-Law Ethics and Criminology, Ljubljana, Slovenia nina.persak@criminstitute.org CORRESPONDING AUTHOR nina.persak@criminstitute.org Keywords hate speech, pandemic, law, regulation, criminalisation, harm, offence Abstract In crisis times, such as the recent health crisis brought out by the COVID-19 pandemic, society responds in a myriad of pro-social as well as negative, anti-social ways. The article starts by mentioning some broader social and regulatory responses to the pandemic that provided a backdrop to the studied phenomenon. It then looks explicitly at hate speech, unpacks the three-layered dimensions of its harmful consequences, helping to grasp the magnitude of harm caused by such pandemic-fuelled prejudice-based expression, and inspects the impact of the pandemic on such expression that is largely criminalised in Europe. The article concludes with some thoughts on the implications and lessons for the future. 228 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 1 Introduction Crises times, including or particularly medical ones such as the recent pandemic, stimulate a series of social phenomena, some of which are positive (such as, for example, displays of solidarity), while others negative, such as the generation and demonstration of negative attitudes toward the out-group or the ones perceived as ‘guilty’ for said crisis as well as state measures that tend to interfere with hu man rights and liberties grossly disproportionately to the health threat, thereby jeopardising the rule of law, or quickly forego ethical principles of public health measures when the opportunity provides itself. In late winter 2020, the COVID-19 infection caused by the new coronavirus – SARS-CoV-2 provided such a crisis setting. Although it initially seemed far-removed from ‘home’, i.e., Europe, and therefore still felt somewhat ‘unreal’, in a matter of days the widespread social response turned into shock, disorientation and fear, with the increasing number of those infected and then of deceased in Italy. Contrary to what one might expect, it was not so much the environmental or health aspects of the pandemic that was particularly disturbing from the outset. We have had worse outbreaks, as experts kept reminding us. Nevertheless, many went into full-panic mode and started hoarding toilet paper, masks and hand sanitisers. While some were thus persuaded that a dystopian future had finally arrived, others coped by diffusing the stress and the situation-related anxieties by humour in an attempt to normalise what was happening. Unfortunately, but expectedly, the light-spirited humour drastically subsided when infections started to rise exponentially and fatalities accumulated. It was then, in particular, that some governments chose to take the authoritarian route and many people turned to finding a scapegoat to blame or through whom they could channel their frustrations and possibly fears for their health, living and future. While the primary out-group were the Chinese, as the virus was said to come from Wuhan, China, the scapegoating and the rise in hate speech soon targeted Asians more generally, and further down the road, other minorities – be they nationality or ethnicity-based or based on other personal characteristics. In this paper, we shall inspect this phenomenon more closely, i.e., hate speech during the health crisis we experienced most recently, its societal elements and legal implications. The article begins by addressing some broader social and regulatory responses to the pandemic that provide a socio-legal backdrop against which the N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 229 question of hate speech and its regulation or repression arises. Next, it examines the undesirable social phenomenon and consequences of hate speech explicitly, analyses the various dimensions of its harmful consequences, which is important for understanding the magnitude of harm caused by such pandemic-fuelled prejudice- based expression, and inspects the impact of the pandemic on said conduct that is largely criminalised in Europe. This includes examining the (first) reactions of certain European and international bodies to such development, without inspecting comprehensively the recent legal regulation in this area (e. g., the EU’s Digital Services Act, Audiovisual Media Services Directive and other related instruments and initiatives), which would fall outside of the scope of this paper. We conclude with some thoughts on the implications of these developments for the prospective hate speech regulations and lessons for the future. 2 Certain Social and Regulatory Responses to the Pandemic The SARS-CoV-2 virus, with its imminently harmful and in many cases, even deadly consequences, etched into our societal consciousness and increased our awareness of public health and broader environmental issues. As noted in our previous work (Peršak, 2020a), the invisibility of the threat in the shape of a virus has added an element of uncertainty and increased psychological distress, which led some to panic, prematurely stock up on essential foods, medicine and toilet paper, start sewing (and selling) protective masks and self-isolate even prior to state-imposed measures requiring those. After the pandemic was declared, we witnessed many political parties and their leaders starting to use the war rhetoric and increasing repressive powers (for example, excessively mobilising police or even the army), as well as decreasing democratic oversight over the government (for example, limiting protests). 1 Due to the measures taken, some countries, for example, Hungary, even lost their status of ‘democracy’ in the report of the NGO Freedom House. 2 1 Council of Europe has explicitly noted that oversight – ‘given the serious implication of states of emergency or their equivalent for human rights, democracy and the rule of law’ – be it parliamentary or judicial is ‘vital’. Among countries where courts have also reviewed laws enacted under a state of emergency or emergency-like state is Slovenia. Slovenian Constitutional Court, for example, assessed the constitutionality of a government ordinance restricting freedom of movement and assembly of people in public places and banning the movement of residents outside their municipalities (CDADI, 2020. p. 7, referring to the Constitutional Court judgment (2020), no. U-I- 83/20, 16 April 2020 [date of the final decision: 27 August 2020). 2 In light of the adoption of an emergency law that allowed the government to rule indefinitely by decree, which was not considered democratic, Hungary has been designated as a ‘hybrid regime’. See Freedom House (2020). 230 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 In terms of regulatory responses, countries around the world clearly struggled with addressing this wide-spread health crisis in a systematic, coherent and liberties- respecting way. The ‘deeper penetration of social control into the social body’ (Cohen, 1979, p. 356), revealed by the COVID-19’s version of the all-seeing Panopticon (Bentham, 1995; Foucault, 1991), was reflected in the increased use of technologies, such as drones and apps, to monitor human behaviour. Belgium, for example, used drones to warn or remind citizens in parks of the new measures as well as to discipline and alert others (Van Brakel et al., 2022; Stonor, 2020). While the new technology was speedily incorporated into the fight against the virus, this also raised several concerns, particularly regarding privacy and data protection. However, another element of the modern-day Panopticon has been provided by fellow humans who willingly self-engaged in checking, scrutinising and shaming other people’s behaviour. The punitive attitudes, revealed, for example, in the appeals for severe(r) punishment of those who break the rules, have become increasingly transparent or evident during these times (Peršak, 2020a). This may partly be explained by one’s prior punitive orientation, which could have attracted condemnation or even be labelled as ‘deviant’ (Becker, 1963) in ‘normal times’, owing to liberal democratic expectations of tolerance in pluralist societies, but was partly also triggered by one’s increased fears for life, safety, health and livelihood – human needs that take precedence over one’s concern for one’s reputation and social standing. Uncertainties about the future have surely contributed to the frustration, the existence of which ‘always leads to some form of aggression’ (Dollard et al., 1939, p. 1). Public health measures, their selection, implementation and haste with which they have been changing, instilling in citizens a sense of disorganisation and lack of strategy on the governmental side, have attracted severe scrutiny. Their selection and implementation, on the one hand, revealed a certain neglect of ethical and legal principles, such as proportionality of the intervention, minimal intrusion into people’s lives consistent with the aim sought and respect for the autonomy of the individual. 3 On the other hand, crisis and shortage of resources exacerbated the existing vulnerabilities of certain groups, who, consequently, found themselves at heightened risk of discrimination and of their rights being trampled. One such 3 See, for example, Nuffield Council on Bioethics’ (2020) ethical considerations that should guide governmental response to COVID-19, highlighting also fairness and respect for individuals, solidarity (just sharing of burdens) and the need to generate trust. N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 231 example involved plans for rationing care in cases where mechanical ventilators, required by patients with severe respiratory distress from coronavirus, were in short supply and the number of critically ill coronavirus patients surpassed capacity. In Alabama, USA, such a plan stipulated that patients with ‘severe or profound mental retardation’ and those with ‘moderate to severe dementia’ should be deemed ‘unlikely candidates for ventilator support’ during the times of rationing, while Washington’s guidance recommended that hospital triage teams consider transferring those patients which display ‘loss of reserves in energy, physical ability, cognition and general health’ to outpatient or palliative care (Fink, 2020). The new coronavirus and the measures to fight it have also impacted criminal activity. While certain crime, such as street crime, witnessed a significant reduction in late March 2020, 4 cybercrime and domestic violence, for example, increased. The situation where people have to isolate themselves and stay at home was conducive to the aggravation of existing domestic conflict situations and more time spent online. Cybercrime also swelled during the pandemic: global ransomware and cyberattacks on healthcare, for example, spiked (Arsene, 2020), and cyber criminals particularly targeted videoconferencing tools, such as Zoom, much used during the pandemic, to zoom-bomb, harass its users and hijack videoconferencing applications, for example, creating domains mimicking Zoom with the aim of stealing personal information (Barr, 2020). Hate speech also increased markedly during this time. 3 Hate Speech and the Pandemic 3.1 Hate Speech: Definition and Distinction from Hate Crime Hate speech is a broad term denoting, generally, expression, the motive or objective of which is to humiliate, denigrate, stimulate violence or discrimination against a person or group of people based on their personal – often immutable or difficult- to-change – characteristic, such as race, nationality, gender, religion, sexual orientation, disability, political and moral beliefs, socio-economic class and so forth. It is an expression of discriminatory prejudice (not necessarily of the emotion of hate), based on the above-mentioned personal attributes or an expression that is 4 Belgium, for example, initially recorded a 30 percent drop in crime in general (Bové, 2020). 232 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 motivated fully or partially by racial, ethnic, religious, sexual and other prejudice. According to the definition of the Council of Ministers of the Council of Europe, hate speech is understood as ‘all types of expression that incite, promote, spread or justify violence, hatred or discrimination against a person or group of persons, or that denigrates them, by reason of their real or attributed personal characteristics or status such as race, colour, language, religion, nationality, national or ethnic origin, age, disability, sex, gender identity and sexual orientation’. 5 Hate speech is not necessarily a juridical term used to prohibit such expression. In Slovenia, for example, criminalised hate speech is prohibited as ‘Public incitement to hatred, violence or intolerance’ in Article 297 of the Criminal Code of the Republic of Slovenia. 6 It is also not the most appropriate term to denote such harmful speech, as it is not necessarily the emotion of hate that motivates such behaviour; more commonly it is some sort of prejudice based on the victim’s (real or perceived) personal characteristics that stimulates hate speech. Nevertheless, the term has become increasingly accepted in legal texts as well (see for example, case- law of the European Court of Human Rights, the European Union policy and legislative initiatives). The issue of appropriate legal regulation of hate speech often turns upon finding the right balance between freedom of expression, on the one hand, and harmfully wrongful prejudice-based expression that justifies state intervention, on the other. The recent pandemic times made the finding and striking of this balance even more challenging, as the legal responses and social phenomena witnessed included sometimes the illegitimate curtailing of the freedom of expression as well as the rise 5 Point 2 of the Appendix to the Recommendation CM/Rec(2022)16[1] of the Committee of Ministers to member States on combating hate speech. The word ‘race’ in this text includes a footnote with the following content: ‘Since all human beings belong to the same species, the Committee of Ministers rejects, as does the European Commission against Racism and Intolerance (ECRI), theories based on the existence of different “races”. However, in this document, the term “race” is used in order to ensure that those persons who are generally and erroneously perceived as “belonging to another race” are not excluded from the protection provided for by the legislation and the implementation of policies to prevent and combat hate speech.’ 6 On some legal dilemmas relating to the articulation, systematisation, interpretation and enforcement of this offence, see, for example, Peršak (2016a). The Supreme Court of the Republic of Slovenia has later, in its judgment of 4 July 2019, clarified the articulation of the offence in said Article, which was until then interpreted by prosecutors (based on the Legal opinion of Supreme State Prosecutor’s Office from February 2013) as requiring that public order be violated or concretely endangered in every case. This interpretation may have resulted in ‘a significant impunity gap’ (ECRI, 2019, p. 11). The Supreme Court clarified (in line with the grammatic interpretation of Article 297) that there are actually two ways in which the prohibited conduct can be committed – either in a way that disturbs or can endanger public order (and that the latter does not require ‘concrete endangerment’) or by using threat, verbal abuse or insult. N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 233 of hate speech, and of hate crime. Although the latter is not the subject matter of this article, it may be useful to clarify its meaning vis-à-vis hate speech. While hate speech refers to expression (usually verbal) of prejudice-fuelled nature on the basis of some personal characteristic, the term hate crime is used to capture other types of crime, typically involving some sort of violence (e.g., murder, assault, harassment and so forth), that has been motivated by bias against or based on some protected personal characteristic. 3.2 Harms of Hate Speech When deliberating the types of legal regulation, and particularly the legitimacy of regulation through criminal law or criminalisation, of hate speech, it is imperative to emphasise that hate speech includes harm, not merely offence: in other words, that hate speech is harmful, not merely offensive. This is important to note, since the criminalisation of offence or offensiveness is controversial, as the subjectivity of feelings poses a problem for legitimate criminalisation. There are limits to the extent to which the law can recognise one’s feelings without losing its objectivity, general applicability and legal certainty (Peršak, 2016b; 2019). 7 Requiring that the victim (the offended injured party) give reasons as to why certain conduct has been ‘offensive’ may be an attempt to maintain a certain objectivity and reasonableness in the legal treatment of crimes; however, as I argued elsewhere, this may place an unfair burden on the victim to prove that their emotional processing was reasonable lest they be denied the existence of the offence (Peršak, 2003). This also requires that the victims be sufficiently articulate and in touch with their own emotions to do so, which may not always be the case. Furthermore, and this is key in terms of justified criminalisation, offendedness is usually a transient feeling, which is not causing any longer-term ‘setbacks’ to the individual’s legally protected interests. Criminal ‘harm’, by contrast, presents such a wrongful ‘setback of one’s interests’ (Feinberg, 1984; 1985; Simester & von Hirsch, 2011). This is the reason why it is the most uncontroversial, the least contested criminalisation principle in contemporary liberal democracies. While free expression and toleration may – as mediating factors – work or balance against prohibiting bare insult (which is merely offensive), speech that 7 When the content of an offence depends on whether one has experienced a particular negative emotion (such as alarm or distress – which are part of the definition or elements of the offence of anti-social behaviour in England and Wales, for example), the criminalisation is made dependent on highly subjective perceptions and sensibilities of the victim, rather than on the actual conduct of the offender. This, however, is difficult to reconcile with the traditional criminal-law principle of legal certainty. 234 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 contains (also) elements of harm, such as racial slurs, more easily justifies criminalisation. A racial slur, for example, is a ‘particular species of insult [which] may adversely affect the ability of people from minority groups fully to participate in the community’s social, political, and economic life’ (Simester & von Hirsch, 2011, p. 120), which makes it harmful, i.e., violates legally protected interests or legal goods (Peršak, 2007). This reasoning applies to hate speech as well, as the harmful impact generated by hate speech targeting individuals or groups with attributes or personal characteristics that are immutable or difficult to change, as they are linked to one’s identity or to one’s membership of a certain group (be it based on ethnicity, gender, sex, nationality or sexual orientation, disability and so forth) are very similar. Hate speech is clearly offensive, but it is not just offensive; it is also psychologically harmful, as it goes to the heart of the person’s group identity, reduces it to negative stereotypes and prejudices, disaffirms one’s individuality and chastises the victim for the deeply personal characteristic they possess and mainly cannot change (Peršak, 2020b). Since hate speech goes to the heart of one’s identity and undermines that person’s dignity as the basic social standing that entitles them to equal treatment in society (Waldron, 2012), its consequences are particularly sinister and long-lasting, thereby defiling one’s interests. This premise has been supported by ample empirical evidence, demonstrating, for example, that prejudice-related stressful events have enduring, more deleterious effects on the health of minorities, such as LGB, than general stressful events not prejudice-motivated (Frost, Lehavot & Meyer, 2013). However, the harmful consequences of hate speech do not stop at the level of the directly targeted individual victim. In addition to the latter, detrimental impacts can be witnessed also on the level of the victim’s group or community with whom the immediate victim shares the personal characteristic for which they were targeted, as well as wider society. Empirical evidence demonstrates that members of the victim’s community exhibit incredibly similar emotional and behavioural responses as those of the immediate victim (Perry & Alvi, 2011). A study on racist hate speech, based on interviews with 101 members of indigenous and minority ethnic communities in Australia, revealed that these communities experienced ‘constitutive harms’ (e.g., subordination, silencing, various negative emotional symptoms, restrictions on freedom and opportunities to participate fully in society, the lowering of their self- esteem, and undermining of human dignity) as well as ‘consequential harms’ (such N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 235 as persuading others to believe in the negative stereotypes of the victimised community, normalising racism and stimulating others to emulate the behaviour of hate speakers). It noted further that these harms are often ‘enduring’ and ‘experienced cumulatively’ (Gelber & McNamara, 2016, pp. 336–337). Hate speech, like hate crime, is a ‘message crime’ – the message of which communicated from the offender to the victim and the victim’s community is that they ‘do not belong’ (Chakraborti, 2011, p. 3). Furthermore, these effects seem to be exacerbated during prejudice-stimulating times. In relation to bias-motivated incidents also impacting the victim’s wider community, data presented by the European Network Against Racism, for example, indicates that ‘at times of crisis, minorities suffer heightened anxiety, fear and worries about their safety and possibility to access health services’ (ENAR, 2020; cited in FRA, 2020, p. 34). Additionally, social harms of hate speech to wider society include creating a hostile environment for the victim’s community and minorities in general, normalising identity-based inequality, 8 and the undermining of social cohesion and social stability by creating civil strife between groups (Al-Hakim, 2010). UNESCO (2023) points out that it attacks inclusion and diversity, and sets back ‘peace, stability, sustainable development and the fulfilment of human rights for all’. Hate speech also undercuts fundamental values of a liberal democratic system (such as tolerance, pluralism, the ‘public good of inclusiveness’ (Waldron, 2012, p. 4), reinforces negative views, e.g., racist attitudes and unequal treatment of minorities (Calvert, 1997), and spreads nationalism, racism, xenophobia and stimulates hate crime, violence and neo- fascism. The Resolution of 25 October 2018, on the rise of neo-fascist violence in Europe (2018/2869(RSP)), issued by the European Parliament (2018), particularly underlined the propensity of the dissemination of hate speech online to lead to ‘a rise in violence, including by neo-fascist groups’ (in point D), calling on the EU Member States to, among others, ‘strongly condemn and sanction hate crime, hate speech and scapegoating by politicians and public officials at all levels and on all 8 In this regard, inspecting the influence of harm speech on children (and young adults) may be of a particularly relevance. Simpson (2019, p. 104) notes that the most promising hypothesis for seeking evidence that shows how hate speech contributes to the harms of social hierarchy, and consequently the responsibility of hate speakers, is the ‘Clan Hypothesis: hate speech influences children's attitudes in a way that legitimates and normalizes identity-based inequalities’. It is also worth noting that even in the US, where free speech is close to an ‘absolute right’, being most ardently, constitutionally protected with no limitation clauses, hate speech is, nevertheless, ‘pervasively regulated and disfavored in higher education’ (Cagle Juhan, 2012, p. 1618). 236 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 types of media, as they directly normalise and reinforce hatred and violence in society’ (point 9). With this in mind, it could be argued therefore that in addition to ‘psychological harms’, hate speech engenders also ‘normative harms’ that can be defined as violations of normative interests that represent core values in a particular society or violations of the ‘living conditions that respect widely acknowledged normative standards and values, which allow the individual to pursue his life choices, express himself and engage in meaningful social interactions (such as privacy, autonomy, individuality, fairness, equal treatment, being treated with respect/dignity, and so forth)’ (Peršak, 2014, p. 234). Relating to hate speech, these are undoubtedly being treated with respect/dignity and equal treatment (freedom from discrimination), in addition to some of those normative standards and values referred to above, such as social cohesion and fundamental values of liberal democratic societies (Peršak, 2020b). 3.3 Hate Speech During the Pandemic and Responses Thereto In the name of COVID-19 prevention, free expression was curtailed by several governments. Human Rights Watch noted that at least 83 governments worldwide have used the COVID-19 pandemic to justify infringing the exercising of freedom of expression and peaceful assembly. ‘Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalising speech that they claim threatens public health’ (Human Rights Watch, 2021) and victims included not only activists, journalists, political opposition groups but also healthcare workers and other critics of governmental responses to the coronavirus. On the other hand, speech has been abused to promote prejudice and hate. In this context, the pandemic has demonstrated that even in liberal and pluralist, assumingly open-minded societies, it does not take much for intolerance, xenophobia and discrimination to come to the fore, particularly if the source or trigger of fear (e.g., a virus) has come from abroad. The racialisation of public health crises that took place has been observed before: Ebola, for example, has been linked to Africa and Africans (Elias et al., 2021). Psychologically, this has been said to allow people to ‘detach themselves from the epidemic and consequently protect themselves and N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 237 their identities’ (Ittefaq et al., 2022, p. 227; Idoiaga Mondragon, de Montes & Valencia, 2017). COVID-19 thus became linked to China and the Chinese, with former USA President Donald Trump calling coronavirus ‘Chinese virus’ (Forgey, 2020). By the time SARS-CoV-19 reached Europe, however, it was not only the Chinese (citizens, residents and tourists) who became the target of hate speech and violence, but Asians more generally. In the UK, Anti-Asian hate crimes were reported to have increased by 21 percent during the coronavirus crisis (Grierson, 2020). The AI-based start-up ‘L1ght’ registered a 900 percent increase in hate speech directed towards Chinese people in the first few months of the pandemic in the UK (Ahmed, 2020). A study of online hate speech, which analysed 263 million conversations in the UK and USA between 2019 and mid-2021, has found that online hate speech in the UK and USA rose by 20 percent since the start of the pandemic (Baggs, 2021). In the UK, the hate speech conversation was the first to spike, which was then followed by a more steady rise in hate crimes, adding weight to the claims that there is a correlation between online words and ‘real-world’ action (Brandwatch & Ditch the Label, 2021, p. 6). The European Union Fundamental Rights Agency (FRA) noted that ‘the COVID-19 pandemic triggered an increase in racist and xenophobic incidents, including verbal insults, harassment, physical aggression and online hate speech’. While initially, racist incidents specifically targeted people of perceived Chinese or other Asian origin, the attacks and blaming soon spread to other minorities, particularly on social media. They highlighted that this also concerned religious groups (for example, emerging conspiracy theories driven by antisemitism) and that it affected Roma and people with immigrant background, in particular (FRA, 2021, p. 32–33). In July 2020, the Council of Europe’s Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI) noted ‘ethnicization of the pandemic and homophobic discourse’, particularly during the first phase of the epidemic, which included the blaming of certain groups for the spread of the coronavirus and discriminatory attacks against persons perceived Chinese. This later expanded to some other minority groups, in particular the Roma community, which in their view exposed ‘the deeply rooted anti-Roma sentiments existing in society’. They have also noted that ‘certain political and religious leaders have been particularly active in encouraging intolerance, racism or xenophobia’, singling out extreme-right political parties and groups in Europe as those reported to ‘exploit the Covid-19 crisis for political purposes and advance their anti-immigrant, ultra-nationalist agendas, using 238 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 at times antisemitic and xenophobic conspiracy theories to this end’ (CDADI, 2020, p. 17). Realising the scope of the problem, the United Nations issued the UN Guidance Note on Addressing and Countering COVID-19 related Hate Speech, which clarified that this phenomenon includes ‘a broad range of disparaging expressions against certain individuals and groups that has emerged or been exacerbated as a result of the new coronavirus disease outbreak – from scapegoating, stereotyping, stigmatization and the use of derogatory, misogynistic, racist, xenophobic, Islamophobic or antisemitic language’ (United Nations, 2020, p. 2), and dedicated a whole webpage to the ‘pandemic of hate’. 9 The UN Secretary-General António Guterres already stressed the problem of COVID-19-related hate speech in May 2020, calling it a ‘tsunami of hate and xenophobia, scapegoating and scaremongering’ and appealing to states to address this issue urgently (Guterres, 2020). The issue of hate speech and hate crime, and its rise during the pandemic, has also been noted by the EU institutions. In her State of the Union Address on 16 September 2020, the European Commission President von der Leyen announced the Commission’s intention to engage in the matter and ‘propose to extend the list of EU crimes to all forms of hate crime and hate speech – whether because of race, religion, gender or sexuality’. This initiative was later included in the Commission Work Programme 2021 and finally adopted on 9 December 2021. Its objective is to appeal to the Council to identify hate speech and hate crime as ‘other areas of crime’ under Article 83(1) of the Treaty on the Functioning of the European Union (TFEU), and thereby add it to the currentl y closed-list of 10 EU crimes (Eurocrimes) stipulated therein. Expanding this list of particularly serious crimes having cross- border dimensions is possible on the basis of ‘developments in crime’, which has been observed in relation to hate crime and hate speech (European Commission, 2021; Peršak, 2022). Nevertheless, the existing Framework Decision 2008/913/JHA on racism and xenophobia 10 already aimed to ensure that some specific forms of hate speech and hate crime, namely those based on race, colour, religion, descent or national or ethnic origin, as serious manifestations of racism and xenophobia are 9 https://www.un.org/en/hate-speech/impact-and-prevention/a-pandemic-of-hate 10 Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, OJ L 328, 6.12.2008, pp. 55–8, repealing previous Joint Action 96/443/JHA. N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 239 punishable by effective, proportionate and dissuasive criminal penalties throughout the EU by requiring Member States to take the necessary measures to criminalise certain offences, such as the public incitement to violence or hatred on the grounds mentioned above. 11 A study from 2021, supporting said Commission initiative, has noted the surge of hate crime and hate speech, which has been steadily increasing across the EU in recent years and particularly thriving on social media. For example, 63 percent of girls who were surveyed reported some form of online harassment on social media platforms and 38 percent of people with disabilities experienced hate speech in the 12 months prior to the survey. These developments have been connected to a perception of increased migration, to economic and social crises, the growing use of the internet, including social media, as well as the proliferation of disinformation and conspiracy theories. The coronavirus pandemic, which stimulated insecurity and economic hardship, appears to have significantly contributed to the surge in hate speech and hate crime (European Parliamentary Research Service, 2022; FRA, 2021). The pandemic or the COVID-19 virus did not make people racist and xenophobic, of course; they have just inflamed or exacerbated such negative attitudes more. Staying inside, having disposable time and feeling bored, matched with the feeling that people are losing control over their lives contributed to what some call the ‘perfect storm’ for trolls engaging in online abuse (Baggs, 2021). The scapegoating narratives of war and prejudices result in an increased ‘othering’ of those on the margins, of those falling outside of the dominant culture's norms. Seeing others as a ‘danger’, however, impacts their (un)equal access to certain rights and protection. E v e n i f t h e d a n g e r i s n o t r e a l o r ‘ t h e o t h e r ’ i s n o t a source of any danger but is, conversely, endangered by the majority, it could be (and has been) regulated against. The Slovenian regulation of shopping hours for the elderly and the retired during 11 Article 1(1)(a). The Framework Decision also requires Member States to criminalise the commission of such an act by public dissemination or distribution of tracts, pictures or other material (Article 1(1)(b)), and publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes (Article 1(1)(c)) and crimes against peace, war crimes and crimes against humanity (Article 1(1)(d)) directed – in both instances – against a group of persons or a member of such a group defined by reference to mentioned prohibited grounds when carried out in a manner likely to incite to violence or hatred. Instigation, aiding and abetting in the commission of these offences must be made punishable as well (Article 2). Nevertheless, there is clearly room for further harmonisation of substantive criminal law protecting human dignity at EU level, relating more broadly to EU non-discrimination legislation (Stajnko et al., 2023), owing to, among other reasons, the very limited list of protected personal characteristics and prohibited conducts in the mentioned Framework Decision as well as diverging implementation thereof among Member States and further developments in crime (Peršak, 2022). 240 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 the pandemic is a case in point. One of the measures of a Slovenian governmental decree – exceptional legal measures used copiously during the pandemic –limited, for example, certain grocery shopping hours (i.e., from 8 to 10 am and the last hour before closing) to vulnerable groups. During these periods, no other groups were allowed to shop for groceries, which stood to reason as others were more dangerous to the mentioned vulnerable groups. Nevertheless, the same decree also mandated that persons above 65 years could only shop within those hours (STA, 2020), which paternalistically forbade them from grocery shopping during most of the day. These vulnerable groups have thus proceeded from being seen or acknowledged as victims in need of extra protection to the perpetrator-like figures, whom we have to manage, control and even punish should they disobey the rules. This particular rule was months later expectedly condemned by the Slovene Equality body as discriminatory, while Srebrna nit – Association for Dignified Old Age pointed out that this shopping-limitation rule did not bring about any scientifically-proven beneficial results, but that it did increase intolerance and ageism in society (IUS INFO, 2020). 4 Conclusion What should have been learnt from the societal response to the corona virus and COVID-19 disease is that a serious reconsideration of wider ‘social harms’ that go beyond pure criminal harms 12 in such cases as well as of the sensitivity of the rule of law standards in such a setting and, more generally, of the global public health standards (for example, those relating to (eating) wild animals) is in order. The light that has been shed during the pandemic on the societal harms we inflict upon ourselves remind us how important yet delicate our civilisational accomplishments, such as fundamental rights, democratic standards and even basic civility, are when put to the test in situations where our more basic human needs (Maslow, 1970) like health are threatened. On the one hand, the disorientation and lack of effective and efficient response by the governments to the need for certain medical equipment (for example, respirators, masks) attests to the fact that more thought should be given to the role of strategic foresight to anticipate and better 12 In the criminological field, it was in particular the ‘social harms perspective’ (or zemiology) that highlighted the blind spots of the mainstream conception of harm, linked purely to criminal law, and pointed out many other social harms that would merit societal condemnation, including those related to the environment and health. See for example, Hillyard et al., 2004. N. Peršak: Hate Speech in Times of the COVID-19 Pandemic: The Social Costs and Legal Implications of a Health Crisis 241 prepare for similar emergencies in the future. On the other hand, the lessons of this pandemic, which include the rise of hate speech as well as the rise of conspiracy theories, disinformation or fake news, clickbait pseudoscience and massive ‘infodemic’ 13 (WHO), warn us that the rule of law and human rights, including equality and privacy, cannot be taken for granted even in well-established democracies and that more resources should be spent on education, the fight against fake news and pseudoscience as well as on initiatives that sensitise people to the plight of those less fortunate and more vulnerable, who are often the first casualty of real and metaphorical ‘wars’, including being recipients or victims of hate speech. While the EU is trying to address the specific problem of hate speech and hate crime through proposing initiatives, such as the one mentioned, with a view on later legislation that would eventually, and helpfully, harmonise the definition and sanctions for such offences 14 and more comprehensively address the infringement of values on which the Union has been founded (Nuotio, 2023), relying purely on the current and future criminal-law solutions will not comprehensively solve the existing societal problem. The real arena for effectively tackling such harmful expression (today and in the long run) lies predominantly in awareness raising, empathy and sensitivity training that (re)programmes one’s attitudes 15 more thoroughly and on a larger scale than punishment of individual offenders ever could. Nevertheless, (criminal) law – despite generally being a rather blunt and reactive tool for handling social problems – can to some extent support such endeavour as a functional tool of normative integration (Durkheim, 1984) in the broader civilising process of societies (Elias, 2000). 13 ‘The 2019-nCoV outbreak and response has been accompanied by a massive “infodemic” – an over-abundance of information – some accurate and some not – that makes it hard for people to find trustworthy sources and reliable guidance when they need it’ (World Health Organization, 2020). 14 H a v i n g h a t e c r i m e a n d h a t e s p e e c h a d d e d t o A r t i c l e 8 3 ( 1 ) T F E U a s a n e w E U c r i m e a r e a w o u l d a l l o w t h e European Commission to propose a directive establishing minimum rules on the definition and sanctions for such offences. 15 Section 4 of the Appendix to the Council of Europe's Recommendation CM/REC(2022)16, stipulating ‘Principles and guidelines on a comprehensive approach to combating hate speech’, similarly highlights ‘awareness raising, education, training and use of counter-speech and alternative speech’. Point 47, for example, stipulates that ‘Member States should ensure that human rights education, education for democratic citizenship and media and information literacy, all of which should address offline and online hate speech, are part of the general education curriculum’ and point 51 that ‘Member States should support awareness-raising and training programmes that engage with perpetrators of hate speech in order to address their prejudices and discriminatory actions and expressions. In appropriate cases, a court or prosecution service could enforce participation in such programmes as an alternative sanction, with the aim of achieving restorative justice’ (Council of Europe, 2020). As prejudice is a preconceived attitude (Rouse, Booker & Stermer, 2011) and hate speech is prejudice-motivated expression, training that engages perpetrators to address their prejudices seems particularly key in tackling hate speech. 242 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023 Legal Sources Council of the EU (2008). Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, OJ L 328/55, 6. 12. 2008. Council of Europe (2020). Recommendation CM/Rec(2022)16[1] of the Committee of Ministers to member States on combating hate speech (Adopted by the Committee of Ministers on 20 May 2022 at the 132nd Session of the Committee of Ministers). Retrieved from https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680a67955 (3 March 2023). 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Ključne besede: sovražni govor, pandemija, zakon, regulacija, kriminalizacija, škoda, prekršek 246 MEDICINE, LAW & SOCIETY Vol. 16, No. 2, October 2023