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Post-Holocaust and Anti-Semitism

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No. 47     1 August 2006 / 7 Av 5766


Cyberhate, Antisemitism, and Counterlegislation

Michael Whine


  • The growth of websites and chat rooms that promote racism and antisemitism has become a matter of concern for states and international organizations.

  • Such sites enable extremists and terrorist groups to advertise their hate messages, organize their activities, and facilitate attacks against their enemies.

  • Despite the original intentions of the Internet's designers that it be a medium free of state control and subject to no sanction, it is becoming necessary to impose legal parameters and contractual obligations to protect potential victims, whose rights are now recognized as being at least equal to free speech obligations.

  • European and Commonwealth states have now criminalized incitement to hatred via the Internet, and have overcome legal barriers to prosecute and convict offenders; international organizations have issued declarations and enacted conventions that call on states to outlaw incitement online, while carefully protecting free speech rights.

Introduction

Political extremism, including terrorism, relies on information and communication technologies (ICTs) to advertise its message; exert command and control; enable players to act more powerfully than they otherwise would; promote hatred of others, particularly Jews; evade state control and sanction; and target the youthful and impressionable audiences that increasingly rely on these technologies.

The use of ICTs to promote hatred, or cyberhate, became a matter of international concern from the mid-1990s. Since then there has been a concerted effort to debate the issues and establish norms and sanctions to ensure that the Internet ensures free speech while protecting potential victims.

In 2005, the German security service reported that:

The Internet is the key medium for right-wing extremists, who use it to present themselves, make verbal attacks, carry on internal debates and to mobilise attendance at their rallies and demonstrations.... In addition to websites, right-wing extremists increasingly use interactive Internet services for purposes of information or discussion. Along with mailing lists and newsletters, discussion forums are becoming increasingly important for the scene. Rightwing extremists use spam to send more of their anti-constitutional propaganda to a larger audience.1

This article addresses some of the issues raised by Rabbi Abraham Cooper in this publication series.2 It goes further, however, in examining the specific threats posed by cyberhate, and discusses the legal and other remedies being introduced by states and international organizations.


How Cyberhate Functions

Racist and antisemitic groups use ICTs in four ways: promoting ideology; promoting hatred, particularly antisemitism and Holocaust denial; command and control; and targeting opponents.3

Apart from advertising their ideas on their own websites, extremists increasingly seek to merchandise the books, CDs, and tapes that propagate their ideas via mainstream online outlets. The American-owned multinationals Yahoo, Ebay, and Amazon are all market places for such material, which is illegal in several European countries, and have fallen foul of the courts in France and Germany as a consequence.

A French court's decision in May, 2000 instructed California-based Yahoo to delete access to sites offering Nazi memorabilia for sale, and was upheld by the 9th U.S. Circuit Court of Appeals. This has caused some U.S. Web-based commercial organizations to think carefully about the issue of transnational jurisdiction and compliance. Although the court declared that Yahoo is unlikely to ever have to pay the daily fine imposed by France, U.S. commercial organizations are already compromising their free speech beliefs to secure markets abroad and where governments, such as China and Saudi Arabia, insist on the sort of controls that contravene the U.S. First Amendment rights and obligations.4

Google gets many complaints because a search for "Jew" turns up the Jewwatch.com site with its many antisemitic texts at the top of the list. This results from the mathematical algorithm that determines the popularity of a site - as opposed to, say, its authority. It also results from the system of "Google bombing" by extremists, which ensures that many sites have the same links, and then those links refer back to one Web page.


Freedom of Speech, Racial Hatred

At issue has been the conflict between the American First Amendment commitment to free speech and European (and others') fears of allowing the publication of material that incites racial hatred and violence. Bridging this divide, however, is not impossible.

A second issue undermining a consistent approach is that sellers like Amazon aim to have as complete a coverage of their markets as possible. If they do not have an item in their warehouse, they will contact sellers who might. Late in 2005, major British retailers were embarrassed when it turned out they were selling The Protocols of the Elders of Zion and other antisemitic material supplied by extremist groups. They had not made a conscious effort to do so, but were either unaware of the items' nature or of the suppliers' views and sought to provide as wide a range of items as possible.

Holocaust denial remains a core offer by extremists. Despite attempts to shut down both the Swedish antisemitic and Holocaust-denial Radio Islam site managed by Moroccan emigré Ahmed Rami and the Australian Holocaust-denial Adelaide Institute site, they remain available and have been mirrored by sympathizers to ensure their continuance. Many other such sites also exist, and denial material is common in the Arab world.

The recent Iranian initiative to host an international Holocaust-denial conference did not succeed. However, the Adelaide Institute's Frederick Toben and Richard Krege went to Iran for a series of university lectures in which they declared the Holocaust a fiction.5

In a nonmilitary context, command and control refers to the organization and financing of events, and the management of the organizations themselves. It is more commonly conducted via bulletin boards than websites, and some sites are password protected or carry encrypted messages. Extremist groups use this medium increasingly, and it is believed that British and German neo-Nazis now rely on the Internet to organize and manage themselves to the exclusion of any other medium except face-to-face meetings.

The Internet also facilitates international contacts. For example, the American extremist David Duke's attempts to build an international coalition of neo-Nazis and white supremacists, and the Eurofest and European National Front meetings in 2005, which were planned online, indicate how effective the medium has become.6


Security Surveillance

Internet organization is, however, observable by law enforcement and security agencies and therefore holds potential dangers for the users.

For example, in March 2002 a joint American-Spanish investigation into football hooliganism centered on neo- Nazi Real Madrid supporters communicating via U.S.-based servers and led to arrests and convictions.7

In April 2005, Spanish police arrested twenty-one members of the local branch of the neo-Nazi Blood and Honour group who were accused of organizing concerts to include British and American members, via the Internet, where they would incite racist and antisemitic violence.8

Command and control by terrorist groups, particularly Salafi jihadi ones, is now targeted by all security and intelligence agencies and by specialized NGOs and publications.


Targeting Antiracists

Targeting antiracist and other opponents of the extremists online has also become worrisome but so far appears to have led to few prosecutions. The failure to bring to account the known organizers of the British Redwatch and German Anti-Antifa sites, which list anti-Nazi campaigners and journalists, is an ongoing concern of local antifascists and has drawn media attention.

The first prominent case of targeting to come to court was that of Alpha HQ, Ryan Wilson, and Stormfront, the first U.S.-based neo-Nazi site, who jointly conspired to encourage harassment of Bonnie Jouhari of the Reading- Berks Human Relations Council by showing pictures of her office engulfed by flames. A civil case brought by the Pennsylvania attorney-general led to a judgment in February 1999 that they desist and that failure to do so would be a criminal offense treated as such.9

Numerous reports have been disseminated among member organizations of the International Network against Cyberhate (INACH) about harassment campaigns against antifascist and antiracist activists. In early 2006, Spanish neo-Nazis posted a photo of the chairman of the Spanish antiracist organization Movimiento Contra la Intolerancia as well as home addresses of human rights campaigners, and Polish groups have published Polish anti-Nazis' home addresses. This is done with the intention of encouraging physical assaults.10

According to Polish reports in February 2006, Blood and Honour is creating a database of neo-Nazi opponents in various countries that includes photos, addresses, car registration numbers, and other information, possibly to plan coordinated attacks in the future. A spokesman for the Warsaw district prosecutor noted that the Polish authorities were coordinating counteraction with U.S. law enforcement agencies.11


Regulation and Self-Regulation

Should governments impose and enforce legal parameters on content, however offensive or dangerous, or should the industry be allowed to govern itself? This question is a major concern both for the Internet industry and governments. Although the initial philosophy of the Internet's creators was that absolute free speech was paramount, opinions have changed.

Robert Caillou, codesigner of the World Wide Web with Tim Berners Lee, has said: "The Internet and the Web are completely outside geographical state boundaries. This is not dissimilar to air. If you make pollution in one place it travels across the frontiers. For very similar reasons I think we need some regulation of Net behaviour which is internationally agreed, globally agreed."12

Despite European criticism of the United States, self-regulation is effective. American Jewish organizations report that requests to service providers to negotiate terms of service that preclude hate material, and to insist on their enforcement, do work. The Vanguard News Network was removed from the Internet after complaints, as was Jewwatch, both in early 2006 - although they subsequently reappeared after they found new providers.

"We operate an honorable business. As soon as we were legally able to do so we advised the site owner [Weltner] to take his business elsewhere," said the president of the former provider Hostgator Brent Oxley, after complaints about Frank Weltner's Jewwatch site."13


Western Europe

The British government helpfully published the terms of service of leading service providers, as well as the current legislation, to enable the public to complain when they saw racist material online.14 Other forms of pressure can be used. For example, in Britain the clearing banks agreed in 2004 not to do business with sites that merchandise content that incites racism, terrorism, and violence, though they were unable to act against sites operating from abroad.15

Some European countries, however, have tightened their regulation, partly and understandably in fear of a resurgence of Nazism, and because of international criticism of racist violence. In Germany, a North Rhine-Westphalia court in December 2004 upheld the right of the German authorities to block Web pages containing extremist content. A court spokesman stated that "the cross-border character of the Internet must not be allowed to undermine the powers vested to the federal authorities."16

Enforcement of universal legislation and strict terms of service, coupled with universal blocking mechanisms, would ensure an Internet free of hate but would also destroy freedom of speech and contradict human rights norms. There has to be acceptance of some material that is disagreeable, or even offensive, provided it does not incite racial hatred or violence. Absolute self-regulation also provides no solution, since Internet service providers will always pursue commercial interest.

Hence, a judicious mix of regulation and self-regulation, which allows for monitoring mechanisms, appears to be a reasonable and practical solution, although some countries will need to emphasize regulation. This debate was played out at the 2004 Paris OSCE (Organization for Security and Co-operation in Europe) meeting on the Relationship between Racist, Xenophobic and Anti-Semitic Propaganda on the Internet and Hate Crimes. The final agreement called for continued research and cooperation between governments to find a mixture of responses that would satisfy the conflicting needs of all.17


Criminal Prosecutions

Countries that do have relevant legislation are now prosecuting online criminal activity. Two obstacles, however, are catching the perpetrators, along with securing an admission of liability when the Internet so easily offers anonymity, and jurisdiction, or which country is responsible for prosecuting - the one where the material is uploaded or the one where it is downloaded.


Canada

Canada has gone further than other countries in adapting and using its hate crime legislation to prosecute cyberhate. In August 2002, the Canadian Human Rights Tribunal (which sits as a court) upheld a complaint against Machiavelli and Associates that they used their website to promote hatred against homosexuals. This followed the landmark decision against neo-Nazi Ernst Zundel, who was found guilty of using his site to promote antisemitism. After that case Canada's Human Rights Commission (which has executive powers) asserted jurisdiction over the Internet by analogy to other forms of telephonic communication, and amended its criminal code accordingly.18

Section 13 of Canada's Human Rights Act and Section 319 of the Criminal Code are both used to shut down hate sites. In March 2006 the Human Rights Tribunal ruled that ISPs can be found liable for hate content where they know of its presence and fail to take action to remove it.19

Of the cases that have come to court, several are particularly noteworthy:

In June 2003, the Commission ruled that the patriotsonguard.org site operated by Alberta white supremacist Fred Kyburz promoted hatred of Jews, ordered that it be removed from the Internet, and fined him $7,500. He was also ordered to pay $3,000 compensation to the complainant, lawyer Richard Warman.20

In January 2005, Glenn Bahr, founder of the white supremacist Western Canada for Us site, was arrested and charged under Section 319 for publishing downloadable material such as The Turner Diaries. His case will come to court in October 2006.21

In March 2006, Warman and the Commission jointly brought a case against Alexan Kulbashian and James Richardson, who managed the Canadian Ethnic Cleansing Team, Tri-City Skins.com, and Affordable Space.com sites. The Tribunal ordered the two neo-Nazis to cease their campaigns against Jews and other minorities and fined them $31,000, as well as awarding Warman $5,000 for having been identified in a hate message.22

In May 2005, Warman sought and obtained an injunction in the Federal Court in Ottawa to prevent Tomasz Winnicki, a far-Right activist, from publishing hate messages on his Thexder_3D and VNN Internet forums pending the outcome of a case brought against him by the Tribunal. On 13 April 2006, the Tribunal issued a permanent cease-and-desist order and fined Winnicki $6,000, also awarding damages of $5,500 to Warman.23

In December 2005, Reinhard Gustav Mueller was convicted by an Edmonton court under Section 319 for willfully promoting hatred over the Internet between 1999 and 2003. At the time of writing, he has not been sentenced.24


The Netherlands

The Netherlands has also used its legislation creatively. Four cases have been successfully prosecuted since 2000, and a further seventeen await hearings.

In July 1999, two members of the neo-Nazi Volksnationalisten Nederland were convicted and imprisoned for promoting hatred against nonwhite immigrants. In November 2000, the Arnhem district court fined "Theo van B." for publishing antisemitic messages to a Usenet group in 1998 and 1999. In June 2002, three members of the neo- Nazi New National Party were fined and briefly imprisoned for purveying racial incitement on their site.

In April 2003, two young users of the stormfront.org site were sentenced to a suspended two weeks' detention and placed on probation for two years. All four cases were referred by the Complaints Bureau for Discrimination on the Internet, and prosecuted under Section 137 of the Penal Code.25


Australia

In Australia, Frederick Toben lost his appeal case before the Federal Court in June 2003 following a 2002 decision ordering him not to publish antisemitic and Holocaust-denial material on his Adelaide Institute site. The original case had been brought to Australia's Human Rights Commission by the Executive Council of Australian Jewry, but he had failed to comply with the Commission's ruling, which constitutes a criminal offence.26

A criminal case against Perth white supremacist Jack van Tongeren and his whiteprideco.com site was dropped in August 2004 when it was found that the site was hosted in the United States and therefore was beyond Australian jurisdiction. However, the decision in the Dow Jones and Company v. Gutnick libel case could potentially influence other countries' approach to the Internet. Here the Australian High Court found that the place of publication of an Internet article is the country in which it is read and not the country where the publisher's server is based or where the material is uploaded.27


United Kingdom

In the UK it has long been held that the medium through which hatred is promoted is immaterial. However, only one case of cyberhate has come to court. In August 2005, Jeremy and Jacqueline Oakley were convicted at Leeds Crown Court for publishing hate material on the White Nationalist Party website, and imprisoned for eighteen months and nine months, respectively.28

In April 2006, the High Court in London ruled that service providers could not be held liable as publishers of defamatory material when their only involvement was as the provider of a service through which defamatory postings were transmitted.29


France

In France, in addition to several publicized cases against Holocaust deniers and the sale of Nazi memorabilia, the criminal case against Jewish campaigner Alexandre Attali is worth noting. In November 2003, he was sentenced to four months' imprisonment and fined 13,000 Euros for inciting hatred by calling for attacks against French Jewish celebrities he branded "anti-Israel" on his website.30


Germany

In Germany, again in addition to well-publicized cases, the police in March 2004 raided the homes of more than three hundred people they suspected of posting neo-Nazi music files on the Internet for others to download. The action followed a two-year clampdown on Internet trading of music that incited racist violence. This took place against a background of more than one hundred racist murders since unification in 1990.31


Scandinavia

In Sweden, Ahmed Rami was arrested in September 2002 in connection to material published on his Radio Islam site, though not charged at the time. He had previously been imprisoned in 1990 for broadcasting similar anti-Semitic material on his radio station, but at that time Sweden lacked the relevant legislation to bring a prosecution against illegal material published on the Internet. In the 2002 case, the legal obstacle was that Rami was using an offshore server located in the United States. Justice Minister Thomas Bodstrom commented, however, that he was "extremely annoyed because of his anti-semitic propaganda which must be stopped. The government is viewing this campaign seriously."32

They were unable to proceed because the offense was not a crime in the United States and hence the American authorities were unable to assist. However, the Swedish Aftonbladet tabloid was fined in March 2002 for allowing racist remarks on its Internet chat site, which was based locally.33

In Norway, Tore W. Tvedt was convicted and imprisoned for posting racist and antisemitic material on the site of the Vigrid far-Right group in April 2002. The Asker and Baerum District Court noted that the case set a precedent in that, while the server was located in the United States and therefore beyond Norwegian jurisdiction, the defendant, who admitted liability, was responsible for the site's content nevertheless.34


Russia

Russian prosecutors have also now become active. They instigated criminal proceedings after the violent attack by Alexander Koptsev on Moscow synagogue members on 11 January 2006. The Moscow prosecutor Anatoly Zuyev said in an interview with the RIA-Novosti agency that he planned to investigate the sources and extent of extremist literature on the Internet so as to prevent its spread.35

In March, a criminal case against Brankfax.ru commenced in the Siberian region of Altai, after it had published violently anti-Muslim postings on a discussion forum. The anonymous poster known as Bratka faces a four-year sentence for inciting religious hatred if convicted.36 The Danish-cartoons issue also surfaced after Gazeta.ru was warned by the Federal Service on Law Maintenance Control in Media that it, too, faced criminal sanctions for reprinting the images at the beginning of March. That same month, a Moscow service provider blocked the Al-Fateh site alleging it had glorified suicide bombings.37

In April, criminal prosecutors in St. Petersburg launched an investigation into the Street Terror Manual posted at www.whitepride.ns-portal.com. This site is registered in California but the material is reposted by Russian nationalist sites including Yuri Belyayev's Freedom Party, frequently referred to by commentators as neo-Nazi which is concurrently under investigation for inciting interracial hatred.38

Russian criminal prosecutions have often been discontinued before they reach the courts. It is hoped, however, that a new spirit of seriousness is pervading the criminal justice system and that these and other cases will end in prosecutions and convictions in due course.


The Progress of Legislation

Since the turn of the millennium, international organizations have been persuaded to pay attention to the cyberhate issue.

Through its agencies and committees, the United Nations has examined the problems and issued guidelines, such as the General Recommendation on Descent-Based Discrimination of August 2002. It called on states: "To take strict measures against any incitement to discrimination or violence against the communities, including through the internet."39

The Intergovernmental Working Group on the Durban Declaration held a two-day conference in January 2006 to consider complementary international standards in combating racism on the Internet. The outcome, however, is unlikely to be more than the publication of vague guidelines.40


European Institutions

A more concerted and focused effort is being made by European institutions.

Although it came comparatively late, the European Parliament resolution of 27 January 2005 well summarized the problem: "Jews in Europe are experiencing a heightened sense of insecurity as a result of anti-Semitism disseminated on the internet, manifested in the desecration of synagogues, cemeteries and other religious sites, attacks on Jewish schools and cultural centres, and attacks on Jewish people in Europe, causing numerous injuries."41

Since 2004, the OSCE has been pushing for effective action. Permanent Council Decision No. 607 called on participating states to:

Combat hate crimes, which can be fuelled by racist, xenophobic and anti-Semitic propaganda in the media and on the Internet;

Encourage and support international organisations and NGO efforts in these areas.42

Permanent Council Decision No. 633 called on participating states to:

Investigate and, where applicable, fully prosecute violence and criminal threats of violence, motivated by racist, xenophobic, anti- Semitic or other related bias on the Internet;

...train law enforcement agents and prosecutors on how to address crimes motivated by racist, xenophobic, anti-Semitic or other related bias on the Internet and…share information on successful training programmes as part of the exchange of best practices;

...encourage and support analytically rigorous studies on the possible relationship between racist, xenophobic and anti-Semitic propaganda on the Internet and the commission of crimes motivated by racist, xenophobic, anti- Semitic or other related bias;

...welcome continued and increased efforts by NGO's to monitor the Internet for racist, xenophobic and anti-Semitic content, as well as NGO's efforts to share and publicise their findings.43

Permanent Council decisions have been endorsed by the Ministerial Council, notably in Decision No. 3/04, which deals with "Combating the Use of the Internet for Terrorist Purposes," and in Decision No. 12/04, which concerns "Tolerance and Non-Discrimination." The latter notes the outcomes of the 2004 Berlin Conference on Anti-Semitism and the 2004 Paris meeting. It also gave the go-ahead for the Cordoba conference and commissioned the OSCE's Office for Democratic Institutions and Human Rights (ODIHR) to begin work on combating discrimination and promoting tolerance.44

On 15 December 2000, the European Commission against Racism and Intolerance (ECRI) published its General Policy Recommendation No. 6 on Combating the Dissemination of Racist, Xenophobic and Antisemitic material via the Internet. It recommended that Council of Europe member states' governments:

  • include the issue of combating racism, xenophobia and antisemitism in all current and future work at international level aimed at the suppression of illegal content on the Internet;

  • reflect in this context on the preparation of a specific protocol to the future Convention on cyber-crime to combat racist, xenophobic and antisemitic offences via the Internet;

  • take the necessary measures for strengthening international co-operation and mutual assistance between law enforcement authorities across the world, so as to take more efficient action against the dissemination of racist, xenophobic and antisemitic material via the Internet;

  • ensure that relevant national legislation applies also to racist, xenophobic and antisemitic offences committed via the Internet and prosecute those responsible for this kind of offence;

  • undertake sustained efforts for the training of law enforcement authorities in relation to the problem of dissemination of racist, xenophobic and antisemitic material via the Internet;

  • reflect, in this context, on the setting up of a national consultation body which might act as a permanent monitoring centre, mediating body and partner in the preparation of codes of conduct;

  • support existing anti-racist initiatives on the Internet as well as the development of new sites devoted to the fight against racism, xenophobia, antisemitism and intolerance;

  • clarify, on the basis of their respective technical functions, the responsibility of content host and content provider and site publishers as a result of the dissemination of racist, xenophobic and anti-Semitic messages;

  • support the self-regulatory measures taken by the Internet industry to combat racism, xenophobia and antisemitism on the net, such as anti-racist hotlines, codes of conduct and filtering software, and encourage further research in this area;

  • increase public awareness of the problem of the dissemination of racist, xenophobic, and anti-Semitic material via the Internet while paying special attention to awareness-raising among young Internet users - particularly children - as to the possibility of coming upon racist, xenophobic and anti-Semitic sites and the potential risk of such sites."45

Recommendation:
The Fight against Antisemitism

In June 2004 the ECRI also adopted General Policy Recommendation No. 9 on the Fight against Antisemitism, which called on states to "ensure that criminal legislation covers anti-Semitic crimes committed via the internet, satellite television and other modern means of information and communication."46

Designed as advisories, the policy recommendations have had direct and far-reaching consequences, most significantly the Additional Protocol to the Council of Europe Convention on Cybercrime. This was agreed on 28 January 2003 and came into force on 1 March 2006 in five states (listed below).

As with other Council of Europe conventions, it does not have the force of law but ratifying states are expected to legislate it. In this case they could ratify the Convention but not the Additional Protocol.

The Protocol states, inter alia, the following:


Article 3:
Dissemination of racist and xenophobic material through computer systems.

1. Each party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

Distributing, or otherwise making available, racist and xenophobic material to the public through a computer system.

2. A Party may reserve the right not to attach criminal liability to conduct as defined by paragraph 1 of this article, where the material, as defined in Article 2, paragraph 1, advocates, promotes or incites discrimination that is not associated with hatred or violence, provided that other effective remedies are available.

3. Notwithstanding paragraph 2 of this article, a Party may reserve the right not to apply paragraph 1 to those cases of discrimination for which, due to established principles in its national legal system concerning freedom of expression, it cannot provide for effective remedies as referred to in the said paragraph 2.


Article 4:
Racist and xenophobic motivated threat.

1. Each party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

Threatening, through a computer system, with the commission of a serious criminal offence as defined under its domestic law, (i) persons for the reason that they belong to a group, distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these facts, or (ii) a group of persons which is distinguished by any of these characteristics.


Article 5:
Racist and xenophobic motivated insult.

1. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

Insulting publicly, through a computer system,
(i) persons for the same reason that they belong to a group distinguished by race, colour, descent or national ethnic origin, as well as religion, if used as a pretext for any of these factors; or
(ii) a group of persons which is distinguished by any of these characteristics.

2. A Party may either:

a. require that the offence referred to in paragraph 1 of this article has the effect that the person or group of persons referred to in paragraph 1 is exposed to hatred, contempt or ridicule; or

b. reserve the right not to apply, in whole or in part, paragraph 1 of this article.


Article 6:
Denial, gross minimisation, approval or justification of genocide or crimes against humanity.

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right:

2. 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, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.


A Party may either:

a. Require that the denial or the gross minimisation referred to in paragraph 1 of this article is committed with the intent to incite 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, or otherwise.

b. Reserve the right not to apply, in whole or in part, paragraph 1 of this article.47


Ratifying the Protocol

The states that initially ratified the Additional Protocol to the Council of Europe Convention on Cybercrime were Albania, Cyprus, Denmark, Slovenia, and the Former Yugoslav Republic of Macedonia. It came into force in France on 1 May 2006.

Countries that have signed but not yet ratified include: Armenia, Austria, Belgium, Bosnia and Herzegovina, Croatia, Estonia, Finland, Germany, Greece, Iceland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Poland, Portugal, Romania, Serbia and Montenegro, Slovenia, Sweden, Switzerland, and Ukraine.

Non-European countries were also invited to sign, and Canada signed and ratified in July 2005. South Africa, Japan, and the United States signed only the Convention itself. sup>48


How Effective Will This Be?

Cyberhate is a global phenomenon and cannot be tackled via a local strategy. It requires an international effort to establish legal norms that respect national conventions but ensure cooperation between agencies and governments.

On ratifying the Additional Protocol, Canada's then justice minister Irwin Cotler noted that: "No one country alone can combat racist hate, particularly cyberhate…. This is an anonymous, borderless, faceless crime. We've gone from 5 hate sites on the Internet in 1995 to 5000 in 2005. These are horrific sites. They're used for purposes of recruitment. They particularly target the young. It is predatory hate of the worst kind."49

The dynamic nature of the medium, and the burden placed on law enforcement agencies, means that they cannot be expected to spot every problem. Therefore, the role of monitoring NGOs such as INACH and its members is vital, as ECRI and the OSCE have both noted.

During the ten years since the problem of cyberhate was first discussed, the international community has moved comparatively quickly to confront and combat the problem, particularly given national differences in approach.

However, future success depends on the determination of governments themselves.

Some have shown themselves reluctant to act, either because they have free speech concerns or because they are unwilling to enact legislation. Others have failed to see the dangers, perhaps believing that the gap between incitement to violence and the violence that almost always ensues is unproved.

However, fears of Salafi jihadi terrorism in the wake of 9/11 are forcing governments to examine the communications used by terrorists, and they are now taking action to monitor and block where necessary. The growth of far-Right extremism is also a problem, albeit less publicized, and governments should now address the far Right's means of communication as well.

Legislation, and its enforcement, is but one of a range of options open to governments. They should consider all others, and in particular heed the concerns of the specialized NGOs that raised these concerns ten years ago, and that continue to focus governments' attention on the dangers.


*     *     *

Notes

1. "Internet as a Key Medium," Annual Report of the Office for the Protection of the Constitution (BfV) (Bonn, 2004), 26.

2. Manfred Gerstenfeld, interview with Rabbi Abraham Cooper, "Anti-Semitism and Terrorism on the Internet: New Threats," Post-Holocaust and Anti-Semitism, 20A, 16 May 2004.

3. See also Michael Whine, "The Use of the Internet by Far Right Extremists," in Brian Loader and Douglas Thomas, eds., Cybercrime: Law, Security and Privacy in the Information Age (London: Routledge, 2000); also available at www.ict.org.il/articles/articledet.cfm?articleid=413; Michael Whine, "Cyberspace: A New Medium for Communication, Command and Control by Extremists," Studies in Conflict and Terrorism, Vol. 22, No. 3 (1999), RAND/ Taylor & Francis; also available at www.ict.org.il/articles/cyberspace.htm.

4. "French Court Wins Anti-Hate Case against Yahoo," AFP, 12 January 2006.

5. "Iran in March 2006," Adelaide Institute, www.adelaideinstitute .org/Iran/2006.

6. Advertisement, 2005 International European American Conference, 20-22 May 2005, www.davidduke.com; see also "David Duke's European American Conference: Racists Gather in New Orleans," ADL Law Enforcement Agency Resource Network, 25 May 2005.

7. "Internet Nazis," The Times, 11 March 2002.

8. Statewatch Bulletin, Vol. 15 No. 2 (March-April 2005), www.statewatch.org/contents/swbul15n2.html.

9. Commonwealth of Pennsylvania Acting by Attorney General D. Michael Fisher, Plaintiff vs. Alpha HQ and others, Defendants, Final Decree, No. 98-11436, Court of Common Pleas, Berks County, Pennsylvania, 17 February 1999.

10. Movimento Contra Intolerancia posting to INACH, 6 February 2006.

11. Polish Fascists Creating Database on Adversaries, Newspaper Reports," Axis Information and Analysis, 2 February 2006, www.axisglobe.com/print_news.asp?news=6205.

12. Stephanie Nebehay, "Web Co-Inventor Backs Licensing," Reuters, 27 November 1999.

13. "Company Boots White Supremacist Group Offline," Kansas City Channel, 9 February 2006, www.theckansascitychannel.com/news/ 6879290/detail.html; John Johnson, "Boca Anti-Semitic Website Host Tells Site Owner to 'Take His Business Elsewhere,'" Boca Raton News, 5 January 2006, www.bocaratonnews.com/index.php?src= news&prid=13745&category=Main%20H.

14. "Racially Inflammatory Material on the Internet," Home Office, February 2002, www.iwf.org.uk/about/policies/hogde3-2.htm.

15. "Banks in New War on Porn Websites," This Is London, 5 July 2004, www.thisislondon.co.uk/news/business/articles/ timid80059?version=1.

16. "German Court Upholds Web Ban on Nazi Content," ComputerWeekly.com, 22 December 2004, www.computerweekly.co/ print/ArticlePrinterPageasp?liArtID=135960liFavo.

17. OSCE Meeting on the Relationship between Racist, Xenophobic and Anti-Semitic Propaganda on the Internet and Hate Crimes, OSCE, Paris, June 2004, www.osce.org/documents/cio/2004/09/ 3642_end.pdf.

18. Machiavelli Decision, Canadian Human Rights Tribunal, 20 August 2002. For a useful summary of Canadian legislation and cases, see "2005 Audit of Antisemitic Incidents, Part 11 Analysis and Discussion," League for Human Rights of Bnai Brith Canada, www.bnaibrith.ca/audit2005Analysis.html. See also Zundel's own website managed by his wife Ingrid Rimland, www.zundelsite.org

19. Richard Blackwell, "Web Message Hate, Tribunal Rules," Globe and Mail, 11 March 2006, www.theglobeandmail.com/servlet/ story/LAC.20060311.HATE11/TPStory/.

20. Richard Warman and Canadian Human Rights Commission and Fred Kyburz, Ruling on Amendment of Complaint, Canadian Human Rights Tribunal, 2003 CHRT 6, 13 February 2003. See also Paul Lungen, "Jury Convicts Edmonton Man in Internet Hate Case," Canadian Jewish News, 12 April 2006, available at www.cjnews.com/viewarticle.asp?id=8109.

21. "Hate Crimes Suspect Arrested and Charged," Press Release, Canadian Anti-Racism Education and Research Society (CAERS) , 12 January 2005; Criminal case against Glenn David Bahr, Tribunal case WCFU T1087/6805, www.chrt-tcdp.gc.ca/cases/schedule_e.asp.

22. Richard Blackwell, "Web Message Hate"; Richard Warman and Canadian Human Rights Commission and Alexan Kulbashian, James Scott Richardson, etc., Decision, Canadian Human Rights Tribunal, Athanasios D. Hadjis, 2006 CHRT 11, 2006/03/10.

23. Richard Warman and Canadian Human Rights Commission and Tomasz Winnicki, Reason for Decision, Canadian Human Rights Tribunal, 2006 CHRT 20, 13 April 2006, www.chrt-tcdp.gc.ca/ search/files/t10210205_er_13april106.pdf.

24. Larry Johnsrude, "Holocaust Denier Claims Right to Anti-Jewish Website," Edmonton Journal, 13 December 2005.

25. Internet Verdicts, Complaints Bureau for Discrimination on the Internet (MDI), Netherlands, report to INACH, 11 June 2004.

26. Harry Benjamin, "Clean Up Your Website in a Week, Australian Court Orders Shoah Denier," JTA, 20 September 2002, available at www.jta.org/page_view_story.asp?strwebhead=Australian+court.

27. Byron Kaye, "Supremacist Website Untouchable," Australian News, 19 August 2004,www.theaustralian.news.com.an/common/ story_page10,5744,10498806%255E1702,00.html. See also www.aijac.org.an/review/2002/2711/jack-jim.html. On the Gutnick case, see, e.g., Roger Maynard and Frances Gibb, "Web Libel Actions Can Be Brought Worldwide," The Times, 11 December 2002; "How Diamond Joe's Libel Case Could Change the Future of the Internet," The Guardian, 11 December 2002.

28. "Internet Racists Jailed," Searchlight, September 2005.

29. "UK Court Rating on ISP Liability for Defamatory Web Postings," press release, Kirkpatrick & Lockhart Nicholson Graham, 21 April 2006.

30. "Paris Court Convicts Jewish Man over Web Hate Call," Reuters, 4 November 2003, www.reuters.com/newsArticle.jhtml?type=to pNews&storyID=3753014.

31. "Neo-Nazi Music Sharers Raided," Reuters, 24 March 2004, www.reuters.co.uk/newsPackageArticle.jhtml?type=entertainme ntNews&storyID=482404§ion=news.

32. "Swedish Police Arrest Moroccan on Charges of Incitement against Jews," Al-Hayat, 10 September 2002 (BBC Monitoring). [in Arabic]

33. "Rare Case Has Norwegian Man Convicted of Racism on the Web," Associated Press, 24 April 2002.

34. Ibid.

35. "Moscow Prosecutors to Search for Extremism in Internet," MosNews, 2 February 2006, available at www.mosnews.com/ news/2006/02/02/internetextremism.shtml. See also "13 Years for Synagogue Knife Attacker," Daily Telegraph, 28 March 2006.

36. "Government Seeks to Close Website for Anti-Islamist Comment," MosNews, 10 March 2006, available at www.mosnews.com/news/ 2006/03/10/bankfax.shtml.

37. "Russian News Website Warned over Publishing Mohammed Cartoon," MosNews, 9 March 2006, available at www.mosnews.com/ new/2006/03/09/gazetaru.shtml; "Russian Provider Shuts Down Palestinian Site Promoting Suicide Bombings among Children," MosNews, 9 March 2006, available at www.mosnews.com/news/ 2006/03/09/hamassite.shtml.

38. Elizabeth Swanson, "Street Terror Manual under Investigation," Moscow News, 3 April 2006, available at www.english.mn.ru/ english/issue.php?2006-11-5.

39. General Recommendation on Descent-Based Discrimination, General Recommendation XXIX, Committee on the Elimination of Racial Discrimination, 22 August 2002, United Nations, CERD/ C/61/Misc.29/rev.1

40. Issues of Racism and the Internet and Globalisation and Racism to be examined by Working Group on Durban Declaration, UN Office at Geneva, 13 January 2006, available at www.unog.ch/ 80256edd006b9c2e/(httpnewsbyyear-en) 2ee1c3a8f82815.

41. The Holocaust, anti-semitism and racism, European Parliament Resolution P6_TA-PROV(2005)0018, adopted 27 January 2005.

42. Combating Anti-semitism, Decision No. 607, Permanent Council, Organisation for Security and Co-operation in Europe, MC. DEC/ 12/04, 7 December 2004.

43. Promoting tolerance and media freedom on the Internet, Decision No. 633, Permanent Council, Organization for Security and Cooperation in Europe, MC.DEC/12/04, 7 December 2004.

44. Combating the use of the Internet for terrorist purposes, Decision No. 3/04, Ministerial Council, Organisation for Security and Cooperation in Europe, MC/DEC/3/04, 7 December 2004.

45. ECRI General Policy Recommendation No. 6, Combating the Dissemination of Racist, Xenophobic and Antisemitic Material via the Internet, Council of Europe, Strasbourg, 15 December 2000.

46. ECRI General Policy Recommendation No. 9, on the fight against Antisemitism, Strasbourg, 25 June 2004.

47. Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, Council of Europe, Strasbourg, 28 January 2003, www.conventions.coe.int/Treaty/ en/Treaties/Html/189.htm.

48. Correspondence between ECRI director and author, 7 March 2006.

49. "Canada Signs Protocol to Fight Online Hate," ONT.CAN News, 12 July 2005, www.ont-law.com/page-5901.


*     *     *

Michael Whine is Government and International Affairs Director at the Community Security Trust, the defense agency of the UK Jewish community, and Defence and Group Relations Director of the Board of Deputies of British Jews, the representative body of the community. He is a consultant on antisemitism to the European Jewish Congress, which he represents at the OSCE. He has been engaged in researching antisemitism and extremism for twenty years.



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