Related background:
http://www.politechbot.com/p-02540.html
>[The Council of Europe treaty] will be supplemented by an additional
>[European] protocol making any publication of racist and xenophobic
>propaganda via computer networks a criminal offence.
http://www.politechbot.com/p-02390.html
>Last year, a French court ruled that Yahoo in the US, by allowing its Web
>site to be accessed from France, ran afoul of France's law criminalizing the
>exhibition or sale of racist materials.
*********
Date: Tue, 6 Nov 2001 23:54:38 -0500
Message-Id: <200111062354.AA690749580_at_mail.cipherwar.com>
Mime-Version: 1.0
Content-Type: text/plain; charset=ISO-8859-1
From: " Scully_at_cipherwar.com" <Scully_at_cipherwar.com>
To: <declan_at_well.com>
Subject: COE report on racism and xenophobia in cyberspace
Declan,
I'm not a big fan of racist websites, but I believe in universal freedom of
speech, and that means that *everyone* has equal rights to their freedom of
speech. I admire the attention the European Parliament seems to pay
towards privacy, but their pursuit of censorship is wrong.
The Parliamentary Assembly of the Council of Europe (PACE) announced the
following:
"The Standing Committee of the Council of Europe Parliamentary Assembly
will meet in Strasbourg on Thursday 8 November 2001...
"The parliamentarians will debate a report on racism and xenophobia in
cyberspace (Doc. 9263), which reiterates the Assembly's call for the
preparation of a protocol to the Cybercrime Convention outlawing racist
websites and "hate speech" on the Internet, including "unlawful hosting"."
Document 9263, mentioned above, can be found at
http://stars.coe.fr/doc/doc01/EDOC9263.htm, but I pasted it below for ease
of reading. The announcement for the meeting was originally found at
http://stars.coe.fr/act/compress/cp01/773a(01).htm
I hope others find this as disturbing as I do.
-Scully
Document 9263 follows...
(begin text)
Council of Europe
Racism and xenophobia in cyberspace
Doc. 9263
12 October 2001
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Ivar Tallo, Estonia, Socialist Group
For debate in the Standing Committee see Rule 15 of the Rules of Procedure
--------------------------------------------------------------------------------
Summary
The report follows a previous opinion of the Assembly on the draft Council
of Europe Convention on Cyber-crime, and reiterates the Assembly's request
that an additional protocol be drawn up to the Convention as quickly as
possible, defining and criminalizing hate messages, and taking into account
"unlawful hosting" on Internet sites.
The report also asks that it be specified how racist sites can be
eliminated from the Internet and how the effective prosecution of those
responsible can be encouraged.
I. Draft recommendation
1. The Assembly considers racism not as an opinion but as a crime.
The relevant international legal instrument to combat racism is the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD). The Assembly deplores that Andorra, Moldova and San
Marino have not yet ratified this instrument.
2. Adequate legal instruments to combat racism already exist in
some Council of Europe member states. However, on the Internet, it may be
difficult to combat racism, because of the nature of communication and the
legal obstacles to the implementation of provisions against "hate speech".
3. The Council of Europe will soon have a binding legal instrument:
the Convention on cyber-crime, but that convention will not deal at all
with the dissemination of racist propaganda using computer technology. An
ad hoc committee of experts, with terms of reference approved by the
Committee of Ministers, should be asked to prepare a protocol to remedy
this shortcoming of the convention, as requested by the Assembly in its
Opinion No 226 (2001).
4. A protocol to the Convention on Cyber-crime aimed at punishing
racism on the Internet will have no practical effect unless every state
hosting racist sites or messages is a party to it. The Assembly's
starting-point is that a dialogue must start up with all service providers
to convince them of the need to take steps themselves to do away with
racist sites.
5. On an ethical level, the Assembly believes that the
self-disciplinary efforts made by access providers and hosts should be
encouraged. Self-discipline should be made the norm by labelling, or
classifying sites, setting up hotlines, filtering, drawing up rules of
conduct and including clauses in contracts with technical providers
prohibiting their clients from using their services for unlawful purposes.
6. Dialogue between Internet users, technical operators and
prosecuting authorities must be encouraged. The Assembly considers that a
consultation or joint regulation body might be set up within the Council of
Europe to help prepare codes of conduct, serve as a mediator in specific
disputes and generally look out for racism and xenophobia on the Internet.
7. The Assembly would like to see education and training to develop
the discernment of Internet users, particularly the younger generations,
play an important role in the future. Not only racism, but also the
dissemination of hate speech against certain nationalities, religions and
social groups has to be combated.
8. For these reasons, the Parliamentary Assembly, in accordance
with its Opinion No. 226 (2001), in which it recommended that a protocol to
the new convention be immediately drawn up with the purpose of defining and
criminalising the dissemination of racist propaganda and abusive storage of
hateful messages, recommends that the Committee of Ministers:
i. approve the terms of reference of the Committee of Experts on
the criminalisation of racist or xenophobic acts using computer networks
(PC-RX), instructing it to prepare a draft protocol to the future
Convention on Cyber-crime;
ii. give this committee sufficient means to enable it to complete
its task by 30 April 2002, when its terms of reference expire. The
committee should complete its work in time for the protocol to come into
force as soon as possible after the entry into force of the future convention;
iii. make specific mention of "unlawful hosting" in the terms of
reference of this committee.
iv. specify the means by which it is possible to eliminate racist
sites from the Internet and to encourage the effective prosecution of those
responsible.
II. Explanatory memorandum
by Mr Tallo, Rapporteur
A. Introduction
1. This report originates in the motion for a recommendation
presented by Mrs Zwerver[1] and other members of the Assembly, recommending
that that the Committee of Ministers, in the draft Convention on
Cyber-crime, define as criminal acts the distribution of racist and
xenophobic materials, hate speech and racial discrimination on the Internet.
2. Since then the Assembly has submitted Opinion No. 226 (2001) on
the draft Convention on Cyber-crime, for which I was rapporteur.[2] In the
penultimate paragraph of the opinion the Assembly recommends the immediate
drafting of a protocol to the new convention under the title "Broadening
the scope of the convention to include new forms of offence", for the
purpose of defining and criminalising the dissemination of racist
propaganda and abusive storage of hateful messages, inter alia. The
discussion in the Assembly revealed a split between those in favour of
including an article on racial discrimination, in particular the French
delegation which had proposed an amendment to that effect (which the
Assembly had rejected by two votes), and my more realistic proposal to take
note, while deploring the fact, that it was impossible for the Committee of
Experts on Crime in Cyberspace (PC-CY) to reach an agreement on this
question without the risk of torpedoing the draft convention.
3. On 20 June 2001 the Committee of Experts on Crime in Cyberspace
(PC-CY) approved the draft Convention on Cyber-crime, and at the same time
officially recommended that the European Committee on Crime Problems (CDPC)
envisage setting up a new ad hoc committee of experts to draft a protocol
to the Convention on Cyber-crime as soon as possible in order to
criminalise racial discrimination in cyberspace. The CDPC approved the
draft convention and has indeed set up a new committee of experts (PC-RX)
to prepare a protocol once the Convention has been adopted (in principle in
Budapest on 22 November 2001). The terms of reference of this committee
have yet to be approved by the Committee of Ministers once it has approved
the draft convention.
4. Having already addressed the problem of criminalising racist and
xenophobic propaganda in my previous report, I shall briefly restate the
facts here and look at some solutions that might be envisaged.
B. Work published by the European Committee against Racism and
Xenophobia (ECRI)
5. At ECRI's behest, the Swiss Institute of Comparative Law
prepared a very thorough report on "legal instruments to combat racism on
the Internet".[3] It reviews the situation in twelve Council of Europe
member states and at European Union level. ECRI subsequently asked the
member states to send a very clear message to the European Conference
against Racism in October 2000 that Europe was determined to take action to
prevent the use of the Web for racist purposes and to develop the Internet
as a way of bringing cultures closer together.
6. The European Conference against Racism considered the
legislative measures needed to combat racism on the Internet in its working
group on legal protection, while its working group on information,
communication and the media looked at the legal and technical aspects of
communication on the Internet and recommended that the fight against racism
not be overlooked in the draft Convention on Cyber-crime. This is when the
idea that a special protocol on the subject might be drawn up was
suggested. Mention was also made of education and training to develop a
sense of discernment vis-à-vis the new technologies, including the Internet.
7. In the political declaration adopted on 13 October 2000
governments undertook "to combat all forms of expression which incite
racial hatred as well as to take action against the dissemination of such
material in the media in general and on the Internet in particular". The
Council of Europe Commissioner for Human Rights said in his general report:
"New technologies, and particularly the Internet, are powerful forces for
cultural rapprochement and thus help combat racism. The Internet and other
media also play a negative role, however, when they are used to disseminate
racism and hatred. In such cases, we must react and protect ourselves. It
is true that there are currently loopholes in the law because technology
advances faster than lawyers can deliberate. Given that the problem has to
be resolved at global level, we must hope that it is not overlooked at the
forthcoming World Conference".[4] The issue was to be addressed in the
political declaration and programme of action to be adopted by the World
Conference on racism, racial discrimination, xenophobia and related
intolerance taking place in Durban from 31 August to 7 September 2001.
C. Racism on the internet
8. The first racist sites appeared in the 1990s. At present there
are 4,000, including 2,500 in the United States (compared to only 160 in
1995). The same phenomenon can be seen in Europe, where 50,000 swastikas
were counted in 2000, including 20,000 in Germany alone. Sweden, Finland
and Austria are unfortunately as badly affected as Germany. Despite the
proliferation of racist sites in the USA, the number of racist activists in
the country remains rather marginal. The messages are disseminated on Web
sites and via newsstands, forums and e-mail (e-mails are considered as
private correspondence). Books, records, revisionist songs and newspapers
are thus freely available. The sites concerned are easy to access and free
of charge.
9. Cyber-racists pursue two goals: disseminating their propaganda
all over the world, safely, cheaply and uncensored, and recruiting new
members. Their Web sites are generating a racist community that did not
exist in the past. Racists find inspiration in this community for the acts
of violence they commit.
D. Legislation and case-law round the world
10. There are no specific laws on cyber-racism, although almost all
countries have laws prohibiting racist speech. The minimum standard is set
by the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD)[5], Article 4 of which calls for laws against the
dissemination of racial hatred outside the private sphere. These rules
apply to hate speech on the Internet. Revisionism (ie the denial of an
internationally acknowledged genocide) is the exception to this common
rule. Only Germany, Belgium, France, Switzerland and Austria have passed
laws on the subject. The laws are worded in neutral terms and are therefore
perfectly applicable to hate messages on the Internet. In this respect
there is no legal void where racism on the Internet is concerned.
11. Prosecution should not be a problem. However, it is difficult to
prosecute sites which are hosted outside Europe. The United States have
criminal laws against racist speech. Yet they entered a reservation to the
United Nations Convention in order to protect freedom of speech. The
Supreme Court has developed case-law on the First Amendment according to
which "hate speech" is punished only if there is a direct and imminent
threat to a specific person. Those who operate the sites - often foreigners
- hide behind the first amendment. The only link with the United States is
the physical location of the information at issue. For example, a French
site for a French audience, called "Radical Web", is housed on a server in
Costa Rica.
12. American case-law applies only to messages sent in the United
States to an American or partly American audience. The experts are unaware
of any legal judgments against messages aimed at circumventing more
stringent regulations in other countries. There is no telling, therefore,
whether an American court would grant protection under the United States
Constitution to racist messages re-routed via a server in the United States
to escape the less permissive laws in a foreign country.
13. What can the law do about this? One can hardly ask the United
States to go back on an established principle. So we cannot ask them to
subscribe to a general law punishing hate speech on the Internet. Recent
cases have shown that it is better to persuade service providers to co-operate.
14. The steps taken by Belgium, France and Switzerland at the
national level have shown their limitations. It is possible to block a
site, but not to attack the source, ie the server in the United States, for
example. It is often difficult to pinpoint the origin of a racist message.
E. Modified proposal by the Swiss Institute of Comparative Law
15. This proposal is the fruit of research work done by the Swiss
Institute of Comparative Law. The international community, together with
the United States, should devise a mutually satisfactory instrument that
meets European requirements without undermining the institutions and
fundamental principles of American law. The future protocol, incorporating
the procedural principles already enshrined in the Council of Europe's
Convention on Cyber-crime, could include such a provision on the
dissemination of racist messages. We would then have a binding text,
comparable to Article 9 of the Convention, obliging the parties to adopt
the necessary legislative measures to criminalise the use of information
technology to produce, supply and disseminate material of a hateful, racist
or discriminatory nature, which would be followed by a less binding legal
standard.
16. This less binding legal standard would cater for those states
which were unable to accept such binding provisions. It would require
states to do everything in their power to ensure that binding rules were
not circumvented by dissemination, via servers located on their territory,
of hate messages aimed exclusively at an audience in a less permissive
state (for example by ordering the deletion of messages hosted unlawfully).
The notion of "unlawful hosting" as a means of circumventing the laws of
less permissive states would be introduced. The idea is not a new one, as a
similar provision already exists in Article 16 of the European Convention
on Transfrontier Television.[6]
17. This means of bypassing the law is familiar to us. The aim would
therefore be to prevent the dissemination of hate propaganda by offering
the United States, which cannot afford to criminalise it, a legal
instrument to do away with such unscrupulous messages. This would mean
agreeing on a definition of the term "unlawful hosting", which could be
taken to mean "the hosting, for the purpose of on-line circulation, of
sites containing hate messages in the form of texts, images, sound or other
media, in order to take advantage of more lenient regulations".
18. Signs of "unlawful hosting" could include sites in a different
language from that of the host country, sites where the content provider's
address is located in a country other than the host country, sites where
most connections originate from foreign servers, contact or payment
addresses located in a different country from the host country, reference
to contexts and facts specific to a country other than the host country,
referencing of the site by the search engine.
19. The unlawful hosting of hate sites could include the unlawful
hosting of electronic newsstands that foster hatred. Revisionist content
would also have to be covered. The approach would thus be two-pronged: a
binding provision and a measure to punish circumvention of the binding
provision. This would raise no legal or technical problems.
20. Any party would be free to decide not to be bound, but would have
to make sure that the binding provision was not circumvented by
dissemination via servers located on its soil. It is technically possible
to eliminate these racist sites. At the request of the applicant state, the
"offending" state may do any of the following: order the host operator to
do away with unlawfully hosted content; order the host operator, subject to
administrative sanctions, to prevent dissemination; refuse to reference the
offending sites or newsstands.
F. Conclusions
21. The Yahoo! case, when the French judicial authorities asked the
provider to block access to messages denying the existence of the Holocaust
which were hosted on servers in the United States, showed that it is
certainly possible to target a particular state or community.[7] The
protocol to the Convention on Cyber-crime should define the term "racist
propaganda" as any message, text, sound or other content hosted on a server
for the purpose of promoting the superiority of one race or group of
persons of one colour or ethnic origin (the wording is taken from Article 4
of the 1966 Convention). Another definition might be a message encouraging
hatred, violence or in any way soliciting assistance for racist activities,
including the financing thereof. There are thus a number of possible
measures and approaches that should make it possible to define racist
propaganda.
22. Concerning the collision between hate speech and freedom of
expression, the
PC-RX committee will have to give thought to the ethical and political
dimensions. The main question - how to focus on a particular territory - is
essentially a technical problem. The Assembly is confident that the
committee will examine the measures to be taken and find suitable legal
solutions.
23. That being so, the Assembly must ask the Committee of Ministers
to instruct the Bureau of the European Committee on Crime Problems (CDPC)
to allow it to attend the meetings of the PC-RX as an observer, under para.
5 of the committee's terms of reference as approved by the CDPC.
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8886
(http://stars.coe.fr/doc/doc00/EDOC8886.htm) and Reference No. 2560 of 9
November 2000
Draft recommendation adopted unanimously by the committee on 10 September 2001
Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr
Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr
Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr
Bordas, Mr Brecj, Mr Bruce, Mr Bulavinov (alternate: Mr Shishlov), Mr
Chaklein, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright,
Mrs Err, Mr Evangelisti, Mr Floros, Mrs Frimannsdóttir, Mr Fyodorov, Mr
Guardans, Mr Gustafsson, Mrs Hadjiyeva (alternate: Mr A. Huseynov), Mr
Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord
Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs
Krzyzanowska, Mr Lacão, Mr Lento, Mrs Libane, Mr Lintner, Mr Lippelt, Mr
Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr Mas Torres, Mr McNamara, Mr
Michel, Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu (alternate: Mrs
Cliveti), Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alternate: Mr
Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy (alternate: Mr Le Guen), Mr
Rustamyan, Mr Simonsen, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez
Gonzalez), Mr Spindelegger, Mr Stankevic (alternate: Mr Landsbergis), Mr
Stoica (alternate: Mr Coifan), Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr
Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim,
Mr Wilkinson (alternate: Lord Rotherwick), Mrs Wohlwend, Mr Wojcik, Mrs Wurm
N.B. The names of those members who were present at the meeting are printed
in italics.
Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Cupina.
--------------------------------------------------------------------------------
[1] See Doc 8886. (http://stars.coe.fr/doc/doc00/EDOC8886.htm)
[2] See Doc 9031. (http://stars.coe.fr/doc/doc01/EDOC9031.htm)
[3] See ECRI's Web site: http://www.ecri.coe.int/en/sommaire.htm.
[4] See Document EUROCONF (2000) 9 final, dated 16 October 2000.
[5] This international treaty has not yet been ratified by the
following Council of Europe member states: Andorra, Liechtenstein, Moldova
and San Marino.
[6] Article 16 - Advertising directed specifically at a single
Party. § 1. - In order to avoid distortions in competition and endangering
the television system of a Party, advertisements which are specifically and
with some frequency directed to audiences in a single Party other than the
transmitting Party shall not circumvent the television advertising rules in
that particular Party.
[7] See earlier Parliamentary Assembly report (Doc 9031) §
45. (http://stars.coe.fr/doc/doc01/EDOC9031.htm)
(end text)
Source: http://stars.coe.fr/doc/doc01/EDOC9263.htm
--
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| Cipherwar: Information Warfare
| http://www.Cipherwar.com
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