- 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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