For debate in the Standing Committee see Rule 15 of the Rules of Procedure

Pour débat ŕ la Commission permanente – Voir article 15 du Rčglement

Doc. 9263

12 October 2001

Racism and xenophobia in cyberspace

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Ivar Tallo, Estonia, Socialist Group

Summary

The report follows a previous opinion of the Assembly on the draft Council of Europe Convention on Cyber-crime, and reiterates the Assembly's request that an additional protocol be drawn up to the Convention as quickly as possible, defining and criminalizing hate messages, and taking into account "unlawful hosting" on Internet sites.

The report also asks that it be specified how racist sites can be eliminated from the Internet and how the effective prosecution of those responsible can be encouraged.

I.       Draft recommendation

1.       The Assembly considers racism not as an opinion but as a crime. The relevant international legal instrument to combat racism is the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The Assembly deplores that Andorra, Moldova and San Marino have not yet ratified this instrument.

2.       Adequate legal instruments to combat racism already exist in some Council of Europe member states. However, on the Internet, it may be difficult to combat racism, because of the nature of communication and the legal obstacles to the implementation of provisions against “hate speech”.

3.       The Council of Europe will soon have a binding legal instrument: the Convention on cyber-crime, but that convention will not deal at all with the dissemination of racist propaganda using computer technology. An ad hoc committee of experts, with terms of reference approved by the Committee of Ministers, should be asked to prepare a protocol to remedy this shortcoming of the convention, as requested by the Assembly in its Opinion No 226 (2001).

4.       A protocol to the Convention on Cyber-crime aimed at punishing racism on the Internet will have no practical effect unless every state hosting racist sites or messages is a party to it. The Assembly’s starting-point is that a dialogue must start up with all service providers to convince them of the need to take steps themselves to do away with racist sites.

5.       On an ethical level, the Assembly believes that the self-disciplinary efforts made by access providers and hosts should be encouraged. Self-discipline should be made the norm by labelling, or classifying sites, setting up hotlines, filtering, drawing up rules of conduct and including clauses in contracts with technical providers prohibiting their clients from using their services for unlawful purposes.

6.       Dialogue between Internet users, technical operators and prosecuting authorities must be encouraged. The Assembly considers that a consultation or joint regulation body might be set up within the Council of Europe to help prepare codes of conduct, serve as a mediator in specific disputes and generally look out for racism and xenophobia on the Internet.

7.       The Assembly would like to see education and training to develop the discernment of Internet users, particularly the younger generations, play an important role in the future. Not only racism, but also the dissemination of hate speech against certain nationalities, religions and social groups has to be combated.

8.       For these reasons, the Parliamentary Assembly, in accordance with its Opinion No. 226 (2001), in which it recommended that a protocol to the new convention be immediately drawn up with the purpose of defining and criminalising the dissemination of racist propaganda and abusive storage of hateful messages, recommends that the Committee of Ministers:

i.       approve the terms of reference of the Committee of Experts on the criminalisation of racist or xenophobic acts using computer networks (PC-RX), instructing it to prepare a draft protocol to the future Convention on Cyber-crime;

ii.       give this committee sufficient means to enable it to complete its task by 30 April 2002, when its terms of reference expire. The committee should complete its work in time for the protocol to come into force as soon as possible after the entry into force of the future convention;

iii.       make specific mention of “unlawful hosting” in the terms of reference of this committee.

iv.        specify the means by which it is possible to eliminate racist sites from the Internet and to encourage the effective prosecution of those responsible.

II.       Explanatory memorandum

by Mr Tallo, Rapporteur

A.       Introduction

1.       This report originates in the motion for a recommendation presented by Mrs Zwerver1 and other members of the Assembly, recommending that that the Committee of Ministers, in the draft Convention on Cyber-crime, define as criminal acts the distribution of racist and xenophobic materials, hate speech and racial discrimination on the Internet.

2.       Since then the Assembly has submitted Opinion No. 226 (2001) on the draft Convention on Cyber-crime, for which I was rapporteur.2 In the penultimate paragraph of the opinion the Assembly recommends the immediate drafting of a protocol to the new convention under the title “Broadening the scope of the convention to include new forms of offence”, for the purpose of defining and criminalising the dissemination of racist propaganda and abusive storage of hateful messages, inter alia. The discussion in the Assembly revealed a split between those in favour of including an article on racial discrimination, in particular the French delegation which had proposed an amendment to that effect (which the Assembly had rejected by two votes), and my more realistic proposal to take note, while deploring the fact, that it was impossible for the Committee of Experts on Crime in Cyberspace (PC-CY) to reach an agreement on this question without the risk of torpedoing the draft convention.

3.       On 20 June 2001 the Committee of Experts on Crime in Cyberspace (PC-CY) approved the draft Convention on Cyber-crime, and at the same time officially recommended that the European Committee on Crime Problems (CDPC) envisage setting up a new ad hoc committee of experts to draft a protocol to the Convention on Cyber-crime as soon as possible in order to criminalise racial discrimination in cyberspace. The CDPC approved the draft convention and has indeed set up a new committee of experts (PC-RX) to prepare a protocol once the Convention has been adopted (in principle in Budapest on 22 November 2001). The terms of reference of this committee have yet to be approved by the Committee of Ministers once it has approved the draft convention.

4.       Having already addressed the problem of criminalising racist and xenophobic propaganda in my previous report, I shall briefly restate the facts here and look at some solutions that might be envisaged.

B.       Work published by the European Committee against Racism and Xenophobia (ECRI)

5.       At ECRI’s behest, the Swiss Institute of Comparative Law prepared a very thorough report on “legal instruments to combat racism on the Internet”.3 It reviews the situation in twelve Council of Europe member states and at European Union level. ECRI subsequently asked the member states to send a very clear message to the European Conference against Racism in October 2000 that Europe was determined to take action to prevent the use of the Web for racist purposes and to develop the Internet as a way of bringing cultures closer together.

6.       The European Conference against Racism considered the legislative measures needed to combat racism on the Internet in its working group on legal protection, while its working group on information, communication and the media looked at the legal and technical aspects of communication on the Internet and recommended that the fight against racism not be overlooked in the draft Convention on Cyber-crime. This is when the idea that a special protocol on the subject might be drawn up was suggested. Mention was also made of education and training to develop a sense of discernment vis-ŕ-vis the new technologies, including the Internet.

7.       In the political declaration adopted on 13 October 2000 governments undertook “to combat all forms of expression which incite racial hatred as well as to take action against the dissemination of such material in the media in general and on the Internet in particular”. The Council of Europe Commissioner for Human Rights said in his general report: “New technologies, and particularly the Internet, are powerful forces for cultural rapprochement and thus help combat racism. The Internet and other media also play a negative role, however, when they are used to disseminate racism and hatred. In such cases, we must react and protect ourselves. It is true that there are currently loopholes in the law because technology advances faster than lawyers can deliberate. Given that the problem has to be resolved at global level, we must hope that it is not overlooked at the forthcoming World Conference”.4 The issue was to be addressed in the political declaration and programme of action to be adopted by the World Conference on racism, racial discrimination, xenophobia and related intolerance taking place in Durban from 31 August to 7 September 2001.

C.       Racism on the internet

8.       The first racist sites appeared in the 1990s. At present there are 4,000, including 2,500 in the United States (compared to only 160 in 1995). The same phenomenon can be seen in Europe, where 50,000 swastikas were counted in 2000, including 20,000 in Germany alone. Sweden, Finland and Austria are unfortunately as badly affected as Germany. Despite the proliferation of racist sites in the USA, the number of racist activists in the country remains rather marginal. The messages are disseminated on Web sites and via newsstands, forums and e-mail (e-mails are considered as private correspondence). Books, records, revisionist songs and newspapers are thus freely available. The sites concerned are easy to access and free of charge.

9.       Cyber-racists pursue two goals: disseminating their propaganda all over the world, safely, cheaply and uncensored, and recruiting new members. Their Web sites are generating a racist community that did not exist in the past. Racists find inspiration in this community for the acts of violence they commit.

D.       Legislation and case-law round the world

10.       There are no specific laws on cyber-racism, although almost all countries have laws prohibiting racist speech. The minimum standard is set by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)5, Article 4 of which calls for laws against the dissemination of racial hatred outside the private sphere. These rules apply to hate speech on the Internet. Revisionism (ie the denial of an internationally acknowledged genocide) is the exception to this common rule. Only Germany, Belgium, France, Switzerland and Austria have passed laws on the subject. The laws are worded in neutral terms and are therefore perfectly applicable to hate messages on the Internet. In this respect there is no legal void where racism on the Internet is concerned.

11.       Prosecution should not be a problem. However, it is difficult to prosecute sites which are hosted outside Europe. The United States have criminal laws against racist speech. Yet they entered a reservation to the United Nations Convention in order to protect freedom of speech. The Supreme Court has developed case-law on the First Amendment according to which “hate speech” is punished only if there is a direct and imminent threat to a specific person. Those who operate the sites - often foreigners - hide behind the first amendment. The only link with the United States is the physical location of the information at issue. For example, a French site for a French audience, called “Radical Web”, is housed on a server in Costa Rica.

12.       American case-law applies only to messages sent in the United States to an American or partly American audience. The experts are unaware of any legal judgments against messages aimed at circumventing more stringent regulations in other countries. There is no telling, therefore, whether an American court would grant protection under the United States Constitution to racist messages re-routed via a server in the United States to escape the less permissive laws in a foreign country.

13.       What can the law do about this? One can hardly ask the United States to go back on an established principle. So we cannot ask them to subscribe to a general law punishing hate speech on the Internet. Recent cases have shown that it is better to persuade service providers to co-operate.

14.       The steps taken by Belgium, France and Switzerland at the national level have shown their limitations. It is possible to block a site, but not to attack the source, ie the server in the United States, for example. It is often difficult to pinpoint the origin of a racist message.

E.       Modified proposal by the Swiss Institute of Comparative Law

15.       This proposal is the fruit of research work done by the Swiss Institute of Comparative Law. The international community, together with the United States, should devise a mutually satisfactory instrument that meets European requirements without undermining the institutions and fundamental principles of American law. The future protocol, incorporating the procedural principles already enshrined in the Council of Europe’s Convention on Cyber-crime, could include such a provision on the dissemination of racist messages. We would then have a binding text, comparable to Article 9 of the Convention, obliging the parties to adopt the necessary legislative measures to criminalise the use of information technology to produce, supply and disseminate material of a hateful, racist or discriminatory nature, which would be followed by a less binding legal standard.

16.       This less binding legal standard would cater for those states which were unable to accept such binding provisions. It would require states to do everything in their power to ensure that binding rules were not circumvented by dissemination, via servers located on their territory, of hate messages aimed exclusively at an audience in a less permissive state (for example by ordering the deletion of messages hosted unlawfully). The notion of “unlawful hosting” as a means of circumventing the laws of less permissive states would be introduced. The idea is not a new one, as a similar provision already exists in Article 16 of the European Convention on Transfrontier Television.6

17.       This means of bypassing the law is familiar to us. The aim would therefore be to prevent the dissemination of hate propaganda by offering the United States, which cannot afford to criminalise it, a legal instrument to do away with such unscrupulous messages. This would mean agreeing on a definition of the term “unlawful hosting”, which could be taken to mean “the hosting, for the purpose of on-line circulation, of sites containing hate messages in the form of texts, images, sound or other media, in order to take advantage of more lenient regulations”.

18.       Signs of “unlawful hosting” could include sites in a different language from that of the host country, sites where the content provider’s address is located in a country other than the host country, sites where most connections originate from foreign servers, contact or payment addresses located in a different country from the host country, reference to contexts and facts specific to a country other than the host country, referencing of the site by the search engine.

19.       The unlawful hosting of hate sites could include the unlawful hosting of electronic newsstands that foster hatred. Revisionist content would also have to be covered. The approach would thus be two-pronged: a binding provision and a measure to punish circumvention of the binding provision. This would raise no legal or technical problems.

20.       Any party would be free to decide not to be bound, but would have to make sure that the binding provision was not circumvented by dissemination via servers located on its soil. It is technically possible to eliminate these racist sites. At the request of the applicant state, the “offending” state may do any of the following: order the host operator to do away with unlawfully hosted content; order the host operator, subject to administrative sanctions, to prevent dissemination; refuse to reference the offending sites or newsstands.

F.       Conclusions

21.       The Yahoo! case, when the French judicial authorities asked the provider to block access to messages denying the existence of the Holocaust which were hosted on servers in the United States, showed that it is certainly possible to target a particular state or community.7 The protocol to the Convention on Cyber-crime should define the term “racist propaganda” as any message, text, sound or other content hosted on a server for the purpose of promoting the superiority of one race or group of persons of one colour or ethnic origin (the wording is taken from Article 4 of the 1966 Convention). Another definition might be a message encouraging hatred, violence or in any way soliciting assistance for racist activities, including the financing thereof. There are thus a number of possible measures and approaches that should make it possible to define racist propaganda.

22.       Concerning the collision between hate speech and freedom of expression, the
PC-RX committee will have to give thought to the ethical and political dimensions. The main question - how to focus on a particular territory - is essentially a technical problem. The Assembly is confident that the committee will examine the measures to be taken and find suitable legal solutions.

23.       That being so, the Assembly must ask the Committee of Ministers to instruct the Bureau of the European Committee on Crime Problems (CDPC) to allow it to attend the meetings of the PC-RX as an observer, under para. 5 of the committee’s terms of reference as approved by the CDPC.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8886 and Reference No. 2560 of 9 November 2000

Draft recommendation adopted unanimously by the committee on 10 September 2001

Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr Bordas, Mr Brecj, Mr Bruce, Mr Bulavinov (alternate: Mr Shishlov), Mr Chaklein, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Evangelisti, Mr Floros, Mrs Frimannsdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hadjiyeva (alternate: Mr A. Huseynov), Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacăo, Mr Lento, Mrs Libane, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr Mas Torres, Mr McNamara, Mr Michel, Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu (alternate: Mrs Cliveti), Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alternate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy (alternate: Mr Le Guen), Mr Rustamyan, Mr Simonsen, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic (alternate: Mr Landsbergis), Mr Stoica (alternate: Mr Coifan), Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson (alternate: Lord Rotherwick), Mrs Wohlwend, Mr Wojcik, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Ćupina.


1        See Doc 8886.

2        See Doc 9031.

3        See ECRI’s Web site: http://www.ecri.coe.int/en/sommaire.htm.

4        See Document EUROCONF (2000) 9 final, dated 16 October 2000.

5        This international treaty has not yet been ratified by the following Council of Europe member states: Andorra, Liechtenstein, Moldova and San Marino.

6        Article 16 - Advertising directed specifically at a single Party. § 1. - In order to avoid distortions in competition and endangering the television system of a Party, advertisements which are specifically and with some frequency directed to audiences in a single Party other than the transmitting Party shall not circumvent the television advertising rules in that particular Party.

7        See earlier Parliamentary Assembly report (Doc 9031) § 45.