Could the Estonian Ban on Hate Speech Interpreted in a More Efficient Way?

Abstract

The Estonian ban on incitement to hatred is not effective and thus violates the Framework Decision of the Council of the European Union on combating certain forms and expressions of racism, general and country specific recommendations of the European Commission against Racism and Intolerance and other international treaties. The conflict stems from the inactivity of the Estonian legislators in regard to hate speech. The violation of the Framework Decision cannot be overcome by interpreting laws. However, the contradiction has been somewhat amplified by the case law of the Estonian Supreme Court. Pursuant to the principle of supremacy of European Union law, the Supreme Court should consider reviewing its interpretation of the ban on hate speech and the danger caused by racist expressions. While even a radical revision would not solve the conflict with European Union law to full extent, a different interpretation could somewhat alleviate the discrepancy. The Ministry of Justice of Estonia has proposed a draft act to amend the ban on incitement to hatred. Even though the proposed wording follows international treaties more closely, its coherence still depends on the interpretation given to it by courts.