FC: Council of Europe debates "anti-online-racism" treaty Thursday

From: Declan McCullagh (declanat_private)
Date: Wed Nov 07 2001 - 09:37:16 PST

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    Related background:
    >[The Council of Europe treaty] will be supplemented by an additional 
    >[European] protocol making any publication of racist and xenophobic 
    >propaganda via computer networks a criminal offence.
    >Last year, a French court ruled that Yahoo in the US, by allowing its Web
    >site to be accessed from France, ran afoul of France's law criminalizing the
    >exhibition or sale of racist materials.
    Date: Tue,  6 Nov 2001 23:54:38 -0500
    Message-Id: <200111062354.AA690749580at_private>
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    From: " Scullyat_private" <Scullyat_private>
    To: <declanat_private>
    Subject: COE report on racism and xenophobia in cyberspace
    I'm not a big fan of racist websites, but I believe in universal freedom of 
    speech, and that means that *everyone* has equal rights to their freedom of 
    speech.  I admire the attention the European Parliament seems to pay 
    towards privacy, but their pursuit of censorship is wrong.
    The Parliamentary Assembly of the Council of Europe (PACE) announced the 
    "The Standing Committee of the Council of Europe Parliamentary Assembly 
    will meet in Strasbourg on Thursday 8 November 2001...
    "The parliamentarians will debate a report on racism and xenophobia in 
    cyberspace (Doc. 9263), which reiterates the Assembly's call for the 
    preparation of a protocol to the Cybercrime Convention outlawing racist 
    websites and "hate speech" on the Internet, including "unlawful hosting"."
    Document 9263, mentioned above, can be found at 
    http://stars.coe.fr/doc/doc01/EDOC9263.htm, but I pasted it below for ease 
    of reading.  The announcement for the meeting was originally found at 
    I hope others find this as disturbing as I do.
    Document 9263 follows...
    (begin text)
    Council of Europe
    Racism and xenophobia in cyberspace
    Doc. 9263
    12 October 2001
    Committee on Legal Affairs and Human Rights
    Rapporteur: Mr Ivar Tallo, Estonia, Socialist Group
    For debate in the Standing Committee see Rule 15 of the Rules of Procedure
    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 
    II.        Explanatory memorandum
                 by Mr Tallo, Rapporteur
    A.        Introduction
    1.         This report originates in the motion for a recommendation 
    presented by Mrs Zwerver[1] 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-à-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 
    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 
    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 
    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 
    (http://stars.coe.fr/doc/doc00/EDOC8886.htm) 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 Lacão, 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 Cupina.
    [1]     See Doc 8886. (http://stars.coe.fr/doc/doc00/EDOC8886.htm)
    [2]     See Doc 9031. (http://stars.coe.fr/doc/doc01/EDOC9031.htm)
    [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.  (http://stars.coe.fr/doc/doc01/EDOC9031.htm)
    (end text)
    Source: http://stars.coe.fr/doc/doc01/EDOC9263.htm
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