Internet Hate-Speech Ban Called 'Chilling'
Antimulticulture
Council of Europe's Internet restrictions raise uneasy
questions about civil rights online.
Michelle Madigan
24th September, 2006
As European leaders move to ban Internet hate speech and seek support from
the United States, civil liberties groups charge that the proposal would
violate free-speech rights.
The Council of Europe--not to be confused with the European Union--comprises
44 European countries, plus a handful of non-European nations. Canada,
Japan, Mexico, South Africa, and the United States have observer status
only, but their comments are sought.
The council recently voted to outlaw "acts of a racist and xenophobic nature
conducted through computer systems." The measure was added to the Convention
on Cybercrime, criminalizing hacking, intellectual property violations, and
use of computers to commit fraud. The first set of rules was signed in
November 2001.
The non-European members are being asked to endorse the hate-speech
provision at a meeting in late January.
Broad Ban 'Terrifying'
The Justice Department has indicated it will not support the broader
restrictions because of concern that it is incompatible with First Amendment
rights to free speech.
The agreement defines racist and xenophobic material as "written material,
images or other representations of ideas or theories advocating, promoting
or inciting hatred, discrimination or violence against individuals or
groups, based on race, color, descent, or national or ethnic origin, or
religion."
[ed. 'Cept those "evil" Whites and Christians who get slagged off on a
daily basis by the "tolerant" left and the "religion of peace"...]
"It's a terrifying prospect," says James Gattuso, a research fellow for the
Heritage Foundation, a conservative think tank. "It's inherently dangerous
for governments to define what appropriate speech is. You can't define or
limit speech without chilling speech."
The protocol is subject to interpretation, he notes. "If you have a cartoon
criticizing French foreign policy, would the French government have
recourse?" he asks. "I don't see anything that would exclude that."
The Electronic Privacy Information Center suspects that the protocol is
aimed at right-wing racist speech, says Sarah Andrews, EPIC's research
director. She thinks it targets white supremacist or antiabortion groups. A
separate proposal on revisionism would prohibit speech about Holocaust
denials, she notes.
But either ban is drastically contrary to the U.S. practice of protecting
even hate speech. For example, an antiabortion group ran a Web site called
the Nuremberg Files, which listed doctors who performed abortions. As
antiabortion activists killed these doctors, they were crossed out on the
Web site. Critics said the Web site incited violence, and a lower court
agreed; but upon appeal the Web site was declared to be protected by the
First Amendment. Under the Council of Europe protocol, the Web site would be
illegal, Andrews says.
"At the very extreme, historians or journalists writing about these people
or [about] Holocaust denials would be prohibited," says Andrews.
'Cultural Clash'
The Council of Europe's original Convention on Cybercrime in 2001 also
contained a hate-speech measure, but it was dropped at the last minute to
gain support from the United States, which signed the treaty along with 29
other countries. However, for the treaty to become reality, the members must
enact laws in their own countries.
[ed. What about asking the people?]
Nations have been slow to ratify the treaty, says Barry Steinhardt, director
of technology and liberty programs for the American Civil Liberties Union
and cofounder of the Global Internet Liberty Campaign. Only two Council of
Europe members--Albania and Croatia--have executed the treaty's provisions
from one year ago.
Ratification in the U.S. requires action by the Senate, which has not
happened.
While few countries have taken action, civil liberties groups say the
protocol has a chilling effect and are tracking the Council of Europe's
actions.
"The U.S. has always maintained that they won't sign on to this protocol,
and it would be very shocking if they did so in the end," EPIC's Andrews
says.
If European countries find unacceptable material on an American-based Web
site, they cannot expect American courts to block access to the material
because it would be protected here by the First Amendment, says Paula
Bruening, staff counsel for the Center for Democracy & Technology.
"As disturbing as this kind of speech is, it is protected by the First
Amendment," Bruening says. "Our vision of the Internet is a free exchange of
ideas, but Europe takes a different approach. What we're seeing here is a
cultural clash."
[ed. Centrally planned tyranny, ban, ban, ban....]
Who's Responsible?
The treaty says Internet service providers would not be held responsible for
simply hosting a Web site or chat room containing hate speech.
However, if the Council of Europe member countries adopt laws that make it a
crime to distribute such material to the public through e-mail or Web sites,
this may negatively impact privacy and Internet use by Americans, say some
civil liberties groups.
The proposals would require governments to take invasive measures to
prosecute individuals, says the ACLU's Steinhardt. He says the United States
would have to cooperate in such a case.
American Internet service providers could potentially be forced to shut down
their interactive components because people may engage in speech that is
offensive in Europe, says Steinhardt.
Some members of the European parliament called for an "unlawful hosting"
provision that would have increased the liability of U.S. companies, says
Sarah Deutsch, vice president and associate general counsel for Verizon
Communications.
The Council of Europe rejected that proposal as problematic, but ISPs are
still concerned because Internet jurisdiction is largely unsettled, Deutsch
says.
Recurring Concerns
When French organizations brought Yahoo to court for allowing Nazi-oriented
auction items on its Web site, a French court said Yahoo was liable, but did
not enforce the judgment. A U.S. court said later that the ruling could not
be imposed in the United States.
Some U.S.-based Web sites have chosen to voluntarily block access to some
information in respect of other countries' laws, which also raises concerns
among civil liberties organizations.
But a Yahoo executive could be arrested when traveling in France because
that judgment still stands, says Deutsch. "Some countries hold you liable
because citizens can access your Web site," says Deutsch. "Countries need to
adopt a common set of principles."
[ed. I support the free exchange of ideas, on the internet and otherwise,
and reject utterly the idea of arbitrary "hate crimes" 'decreed' by any
elected or unelected body, without the full consent of the governed -
anything less is tyranny...]
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