Transcript Freedom of Expression – EU Pornography, Hate Speech, General

Hate Speech
LLM CyberCrime
26 March 2012
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National differences
 Huge differences in what forms of
expression are tolerated ...
 ... even if we confine ourselves to
western nations
 Uniformity cannot really be expected
- co-operation is rare
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National differences
 But the differences are not simply
between nations, they are also within
them
 Different standards within
communities, and across
communities
 Various traditional ways of
moderating these differences
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‘Hate Speech’
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1. International Conventions
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International Convention on the
Elimination of All Forms of Racial
Discrimination (ICERD, 1965)
“States Parties condemn all propaganda and all
organizations which are based on ideas or
theories of superiority of one race or group of
persons of one colour or ethnic origin, or
which attempt to justify or promote racial
hatred and discrimination in any form, and
undertake to adopt immediate and positive
measures designed to eradicate all
incitement to, or acts of, such discrimination
…” (article 4)
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ICERD art 4 continued
“… (a) Shall declare as an offence punishable by law all
dissemination of ideas based on racial superiority or
hatred, incitement to racial discrimination, as well as
all acts of violence or incitement to such acts against
any race or group of persons of another colour or
ethnic origin, and also the provision of any assistance
to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and
also organized and all other propaganda activities,
which promote and incite racial discrimination, and
shall recognize participation in such organizations or
activities as an offence punishable by law; …”
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Ratification of ICERD
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Effect of the Internet
 Increased relevance of international
influences:
Ease of communication
Escape to other jurisdictions
A global racist movement (Perry
and Olsson (2009) 19 Info &
Comms Tech Law 185)?
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Reservations - US
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Reservations - Ireland
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The Cybercrime Convention
 Text agreed at Budapest 23
November 2001
 Now signed by 46 nations
(including Canada, Japan,
South Africa and the US)
 30 nations have ratified it
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Cybercrime Convention
Main provisions
 Definitions of major offences
against or involving computer
systems
 Procedural provisions on
evidence and international police
co-operation
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Cybercrime Convention
 Much dispute as to its merits
 Many suggested clauses were
abandoned as unacceptable to
the US
 The Convention is very weak on
protection of civil liberties
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A difference of opinion
 All Western democracies have
offences of stirring up racial
hatred ...
 ... but the matter is approached in
different ways
 In particular, glorification of Nazi
Germany is treated very
differently
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Cybercrime Convention
 Reference to racist incitement was
deliberately omitted, when it
became clear that no conceivable
draft would satisfy the US and
France
 There is a separate additional
protocol on these matters
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Additional Protocol art 2
For the purposes of this Protocol:
 "racist and xenophobic material" means any
written material, any image or any other
representation of ideas or theories, which
advocates, promotes or incites hatred,
discrimination or violence, against any
individual or group of individuals, based on
race, colour, descent or national or ethnic
origin, as well as religion if used as a pretext
for any of these factors.
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Additional Protocol art 6.1
... distributing or otherwise making
available, through a computer
system to the public, material which
denies, grossly minimises,
approves or justifies acts
constituting genocide or crimes
against humanity ...
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Unacceptability to some nations
 Ireland and the UK have not signed
 Of non-European parties, only
Canada has signed
 The US have based their refusal
squarely on US constitutional law
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EU Framework decision of 19 April 2007
 The following will be punishable in all EU member
states:
 Publicly inciting to violence or hatred, even by
dissemination or distribution of tracts, pictures or
other material, directed against a group of persons
or a member of such a group defined by reference
to race, colour, religion, descent or national or
ethnic origin.
 Publicly condoning, denying or grossly trivialising
crimes of genocide, crimes against humanity and
war crimes
 But member States may choose to punish only conduct
which is either carried out in a manner likely to disturb
public order or which is threatening, abusive or
insulting.
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On the (rather diverse)
picture in Europe generally, see:
Pech, “The law of holocaust denial
in Europe” (2009)
ssrn.com/abstract=1536078
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2. Actual cases
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Methods of control
Issues:
•Liability of those posting material “permissive intent”
•Enforcement – by individuals?
(no presence needed for civil trial)
•Jurisdiction – Extradition within the EU
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Actual cases
Toben case
 Australian citizen
 Arrested in 1999 on a visit to
Germany
 Subsequent arrest in the UK while
in transit between the USA and
Dubai (under European Arrest
Warrant)
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Pro- and anti- Islam
Terrorism Act 2006 s. 1 (UK)
 “1(1) This section applies to a statement that is likely to
be understood by some or all of the members of the
public to whom it is published as a direct or indirect
encouragement or other inducement to them to the
commission, preparation or instigation of acts of
terrorism …”
 “(3) [These statements] include every statement which
(a) glorifies the commission or preparation (whether in
the past, in the future or generally) of such acts or
offences; and (b) is a statement from which those
members of the public could reasonably be expected to
infer that what is being glorified is being glorified as
conduct that should be emulated by them in existing
circumstances …”
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UK – Irving v Lipstadt
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“The charges which I have found to be
substantially true include the charges that
Irving has for his own ideological reasons
persistently and deliberately misrepresented
and manipulated historical evidence; that for
the same reasons he has portrayed Hitler in
an unwarrantedly favourable light, principally
in relation to his attitude towards and
responsibility for the treatment of the Jews;
that he is an active Holocaust denier; that he is
anti-semitic and racist and that he associates
with right wing extremists who promote neoNazism.”
([2000] EWHC QB 115, Gray J)
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The Danish
cartoons case
 On the merits of which see:
Kahn, “The Danish Cartoon
controversy”
ssrn.com/abstract=1499947
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Ireland?
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3. A US haven?
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The US haven
 More and more websites in the
US …
 May or may not be a real US
connection
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How far can US law go?
“Congress shall make no law ...
abridging the freedom of
speech, or of the press … ”
(1st amendment to the
constitution)
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Is the US truly a “haven” for
racists?
 van Blarcum, “Internet hate
speech” (2005) 62 Washington and
Lee Law Review 781
 Henry, “Beyond free speech”
(2009) 18 Information and
Communications Technology Law
235
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Brandenburg v. Ohio
395 US 444 (1969)
 “… the constitutional guarantees of free
speech and free press do not permit a
State to forbid or proscribe advocacy of
the use of force or of law violation
except where such advocacy is directed
to inciting or producing imminent
lawless action and is likely to incite
or produce such action.”
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Remedies?
 “Imminent lawless action”
 Virginia v. Black 538 US 343 (2003)
 Locating an actual victim of a particular
utterance (and see the recent Matthew
Shephard Act (signed 28 October 2009)
 Violating the rights of particular people
 Tort of emotional distress?
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Potential for conflict of
jurisdictions
 E.g. US v UK:
R v Sheppard and Whittle [2010]
EWCA Crim 65
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L’affaire “Yahoo!”
 Sale of various Nazi medals
from Yahoo!’s servers
 This included yahoo.com,
yahoo.fr and yahoo.de
 Questionable whether it
complied with Yahoo!’s own
guidelines
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Google’s terms of use
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Dramatis Personae
1. Yahoo! Inc (based in California)
2. Yahoo! France (based in Paris)
3. La Ligue Contre le Racism et
l’Antisemitisme (LICRA)
4. L’Amicale des Deportes
d’Auschwitz
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5 April 2000
 LICRA commence proceedings
against both Yahoo!s
 Process is served on Yahoo! Inc in
California
 Yahoo! Inc is ordered to make
access to the medals from France
impossible
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22 November 2000
 The order is made final
 Arguments based on the 1st
amendment are rejected
 Yahoo! Inc is ordered to identify site
users as best it could, and bar the
French ones
 Fine on Yahoo! Inc of 10,000 fr per
day for non-compliance
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21 December 2000
 Yahoo! Inc sue LICRA in a
California Federal Court
 They seek a declaration that an
attempt to enforce the penalty
would be invalid as infringing their
1st amendment rights
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7 November 2001
 Judge Fogel holds for Yahoo!
Inc
 Free speech in the US by US
citizens is protected by the 1st
amendment ...
 ... even if it can be “heard” in
France
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26 February 2002
 L’Amicale des Deportes
d’Auschwitz prosecutes
Tim Koogle, CEO of Yahoo! Inc, for
“justifying war crimes”
 Defences based on lack of
jurisdiction are rapidly rejected
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11 February 2003
 The Tribunal Correctionnel de
Paris acquits Koogle
 The court notes that Koogle had
done nothing to portray Nazism
in a favourable light
 The prosecution appeals
further, but fails
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23 August 2004
 The 9th Circuit Court of Appeals
reverses Judge Fogel’s ruling
 Unless attempts were made to
enforce the French ruling, no issue
arose
 The extent of Yahoo’s 1st
amendment rights would be
determined when relevant
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10 February 2005
 A differently-constituted 9th
Circuit Court is persuaded that
the earlier judgment was
erroneous
 A rehearing of the case is
ordered
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12 January 2006
 The newly-constituted court
rules (by a majority) that they
had no jurisdiction
 Some judges relied on territorial
jurisdiction, others lack of
ripeness
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30 May 2006
 The US Supreme Court denies
cert.
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Conclusions: (i) Values
 It is hard to accuse either set of
courts of unreasonable
disregard for the other
 Neither used their powers to the
limit
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Conclusions: (ii) Speed
 It is now 10 years since the
behaviour complained of ...
 ... and yet neither set of courts
has ruled very clearly on the key
issues in the case
 A lot has happened in the interim!
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4. Conclusions
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The inevitability of
international collaboration
 … both by law-enforcers and by
law-breakers
Perry and Olsson, “Cyberhate”
(2009) 18 Information and
Communications Technology Law
185
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Use of incohate offences?
 Guichard, “Hate crimes in
cyberspace”
(2009) 18 Information and
Communications Technology
Law 201
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Is the Internet
really different?
 Harris et al, “Truth, law and
hate”
(2009) 18 Information and
Communications Technology
Law 155
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Remedies
Blocking foreign sites?
 Greater and greater
sophistication in identifying the
physical location of certain IP
addresses
 A significant but imperfect
solution
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Remedies
Co-operation with foreign ISPs
 US federal law requires free
speech, not that ISPs co-operate
in making free speech available
 Voluntary agreement by ISPs is
certainly an option
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Remedies
Extradition in “true threat” cases
 The limits of “free speech”
protection yet to be determined
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But do we want to
encourage state control?
 Very hard to cut down on state
control once it is in place
… because critics of the regime
will already be labelled as
criminals
 The virtues of free speech
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