The main problem in analysing a case of hate speech is that there is not a universal methodology to do so. While the European Court of Human Rights does offer clues as to how the severity of a case of hate speech can be determined, these indications are determined indirectly from its case law and, therefore, the methodologies used by national institutions with attributions in sanctioning hate speech vary to a rather high extent.

The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility of violence, adopted on 5 October 2012, does recommend that there should be made a clear distinction between hate speech that is criminally punishable, hate speech that is not criminally punishable but would justify civil or administrative sanctions and hate speech that just “raises concerns in terms of tolerance, civility and respect for the rights of others” .

In order to make the distinction between the criminally punishable hate speech and the other two type of hate speech, the Rabat Plan of Action proposes a six-part threshold test, that takes into account:

1. the Context of the speech

2. the Speaker

3. the Intent

4. the Content and the form of the speech

5. the Extent of the speech and

6. the Likelihood of the speech to produce immediate actions against its targets

and offers general recommendation as to what needs to be taken into account for each of these six criteria.

The methodology we are proposing starts from the criteria and recommendations expressed in the Rabat Plan of Action and aims at making them easier to operationalize by adding more sub-criteria and offering more concrete advice as to how these subcriteria can be evaluated.