The Devil’s in the Details: How Countries’ Defamation Laws Can (and Can’t) Combat Hate Speech

Despite the multitude of efforts to combat hate speech, it persists within our global media discourse. It appears in legacy news media content, right-wing media outlets, and social media. In some countries, defamation laws are used to punish those who publish false, defamatory statements about a group defined by its racial, religious, or national origin, gender identity, or sexual orientation. Recognizing the potential role civil defamation laws can play in mitigating the problem of hate speech in media, this article offers a comparative legal analysis of existing defamation laws in Brazil, Germany, and the United States. The purpose of this inquiry is to determine whether and to what extent victims of hate speech might be able to employ these laws to seek justice. Our analysis indicates that criminal libel laws are often abused by political actors, and thus civil laws are preferred. Based on Germany’s experience, we also find that social media platform compliance with this process is essential. Therefore, we propose a solution that expands U.S. libel law to include group defamation and uses carveouts to CDA Section 230 to motivate platform participation in identifying and removing group libel.