Incitement to racial hatred: A legal analysis

There were some pretty offensive things said and written in the British media during Israel's war against Lebanon, but most people, including the police, were unsure about whether some of those things crossed a line and incited racial hatred. Arab Media Watch intern Zeina Talhouni provides legal clarity.

10 November 2006

Section 17 of the Public Order Act 1986 sets out the meaning of 'racial hatred' as being hatred against a group of people defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

This definition follows closely the definition of 'racial group' under section 3(1) of the Race Relations Act 1976.

In Mandla v Dowell Lee [1983] 2 A.C. 548 HL, it was held that "for a group to constitute an ethnic group in the sense of the 1976 Act, it must…regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions…are these:

(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive

(2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.

In addition to those two essential characteristics the following characteristics are…relevant:

(3) either a common geographical origin, or descent from a small number of common ancestors

(4) a common language, not necessarily peculiar to the group

(5) a common literature peculiar to the group

(6) a common religion different from that of neighbouring groups or from the general community surrounding it

(7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups."

Note here that for the purposes of this definition, Arabs would be considered a 'racial group'. The legislation does not cover racial hatred aimed at religious groups unless the affected party is Sikh or Jewish. Hindus and Muslims, for example, are not covered.

A new bill is being reviewed in parliament dealing with inciting religious hatred (Racial and Religious Hatred Bill).

Acts which constitute incitement to racial hatred:

Section 18 of the Public Order Act 1986 sets out the acts intended or likely to stir up racial hatred. It states that: "A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if -

(a)        he intends thereby to stir up racial hatred, or

(b)        having regard to all the circumstances racial hatred is likely to be stirred up thereby."

With specific regards to the media, s18(6) states:

"This section does not apply to words or behaviour used, or written material displayed, solely for the purpose of being included in a programme service."

(note:- that is to say that if a news broadcast includes a separate clip which contains third party racially offensive material, the broadcaster will not be liable for inciting racial hatred)