Page 248 - Law and the Media

Obscenity, Indecency and Incitement to Racial Hatred
13.4.2 Meaning of threatening, abusive or insulting

The language or material must be sufficiently extreme. The words ‘threatening, abusive or
insulting’ are to be given their ordinary meaning. The issue of whether the language or
material was threatening, abusive or insulting is a question of fact for the court. To be
insulted is to be more than annoyed. Rudeness does not constitute an insult. It has been said
that ‘an ordinary sensible man knows an insult when he sees or hears it’ (Brutus v Cozens
(1973)).

The requirement that the language of the offence be ‘inflammatory’ has been criticized in
recent years in light of racist publications written in a ‘pseudo-academic’ style. This has been
particularly prevalent in publications concerned with what has been coined ‘holocaust
denial’. Although there have been attempts to make ‘holocaust denial’ a criminal offence,
they have not been successful.

13.4.3 Defences

It is a defence under Section 19(2):

. . . for an accused who is not shown to have intended to stir up racial hatred to
prove that he was not aware of the content of the material and did not suspect, and
had no reason to suspect, that it was threatening, abusive or insulting.

The burden of establishing the defence is on the defendant.

Responsible members of the media will of course not be at risk of intentionally inciting racial
hatred under the Public Order Act 1986. However, inadvertent incitement of racial hatred
may amount to an offence if racial hatred is a likely consequence of the material having
regard to all the circumstances. In addition, the reporting or broadcasting of racially extreme
speeches or literature in news reports may itself attract a prosecution if the effect is that racial
hatred is likely to be stirred up.

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