Associate Professor, Faculty of Law, Aristotle University of Thessaloniki
Paper presented in the REDA Conference, Cyprus, 5-6/11/2015
As is well known, the Internet is a decentralized international network of computer networks not owned by any government or private organization. Because of its particular characteristics, it is often depicted as a specific domain, called the ’Cyberspace’, which has no territorially-based boundaries and rises above the restrictions of national legislation. It is also praised as ‘the largest experiment in anarchy that we have ever had’ and as a network, in which ‘nobody knows if you’re a dog’.
The Internet is also a means of communication that allows the spreading of free expression globally and for that it is supported that it promotes a democratic culture. However, there is a tension between free expression and hate speech being disseminated on the Internet. In more particular, the anonymity and ability of communication of one-to-many and many-to-many has made it an ideal instrument for the widespreading of hate speech by extremists and hatemongers.
Thus, the Internet has become the ‘new frontier’ for spreading hate; it allows extremists and haters easier access to an expectedly big audience, which consists in a high degree of young and gullible persons. The Simon Wiesenthal Center’s Digital Hate and Terrorism project reported in 2011 that there existed over 14,000 problematic websites, forums, blogs and social media postings. Hate groups also exploit the Web 2.0 and gave developed their own sites such as New Saxon, “a Social Networking site for white singles” produced by the American Neo-Nazi group National Socialist Movement. Extremists are also represented on Facebook, so, e.g., Stormfront, National Socialist Life, Libertarian National Social Movement, Aryan Guard, FARC, Al Shabab Mujahideen, Hamas, Hezbollah, etc. Furthermore, Twitter is used as an online marketing tool for extremists, despite its efforts to remove terror postings, while online terrorist magazines proliferate in many languages.
Greece was also affected by the surge in hate speech, particularly in the time of economic crisis. It has been documented in a Report drafted by the European Commission against Racism and Intolerance for Greece in 2014, that speech attacking immigrants, Muslims, Roma, Jews, as well as homosexual and transgender persons is widespread in the mass media and on the Internet, particularly due to the lack of self-regulation mechanisms.
Tο respond to the wave of online hate, many countries and international organizations have enacted legislation, providing for criminal sanctions against such practices. The only exception is United States, which have a long constitutional tradition of protection of freedom of expression and the introduction of criminal sanctions against speech would violate this right. In my presentation, I will examine the peculiarities of regulating hate speech on the Internet on international level and, in more particular, its conflict with the right to freedom of expression.
Definition of Hate Speech
The definition of the term "hate speech" can be found in various international legal texts. In more particular, according to the Committee of Ministers of the Council of Europe, it covers all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.
This term is defined by the European Court of Human Rights, which refers to hate speech as covering all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance).
Greek law adopts a more comprehensive approach; Law 4285/2014 mentions acts or actions, which may provoke discrimination, hate or violence against a person or a group of persons, determined on the basis of race, color, religion, descent, national or ethnic origin, sexual orientation, gender identity or disability (Article 1 (1) and 2 (1)).
The international and EU legal framework against hate speech on the Internet
The Council of Europe introduced the Convention on Cybercrime in 2001, which is a milestone in this area and was signed by USA, also. Any provisions on cyber hate were excluded from the Convention, since USA would not accept them and so, the Council of Europe adopted the Additional Protocol to the Convention on Cybercrime concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.
This protocol complements the provisions of the Convention and is a point of reference as regards the criminalization of online hate, as it is the first international legal act in this field.
In particular, it provides in Article 3 that each contracting 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”.
Notably, "racist and xenophobic material" means, in accordance with Article 2 (1), any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites 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. This definition differs from other international legal texts, such as the 12th protocol to the ECHR and the UN International Convention on the Elimination of All Forms of Racial Discrimination. The reason is that the additional protocol has a specific field of application and requires different treatment.
The Protocol provides in Art. 4 that 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 factors, or (ii) a group of persons which is distinguished by any of these characteristics.
Furthermore, Art. 5 provides that 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 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 factors; or (ii) a group of persons which is distinguished by any of these characteristics.
And finally, it provides in Art. 6 that 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: 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.
The protocol intends only minimum harmonization of national law and so, it provides in Articles 3, 5 and 6 that any Party may reserve the right not to apply, in whole or in part, these provisions, or that it may require additional elements for the fulfilment of the offence. Reservations and declarations made by a Party to the Convention on Cybercrime may also apply to this Protocol (Art. 12 (1)).
The EU is also active in this field. The EU Council, namely, adopted the Joint Action of 15 July 1996 concerning action to combat and xenophobia (96/443/JHA), which provides that EU Member States must ensure an effective judicial cooperation and, if necessary, for that purpose, take steps to punish as criminal offence:
public incitement to discrimination, violence or racial violence or racial hatred in respect of a group of persons or a member of such a group defined by reference to colour, race, religion or national or ethnic origin;
public condoning, for a racist or xenophobic purpose, of crimes against humanity and human rights violations;
public denial of the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 April 1945 insofar as it includes behaviour which is contemptuous of, or degrading to, a group of persons defined by reference to colour, race, religion or national or ethnic origin;
public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia;
participation in the activities of groups, organisations or associations, which involve discrimination, violence, or racial, ethnic or religious hatred.
It also adopted the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. This provides that EU Member States shall take the necessary measures to ensure the criminalization of the following acts:
(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;
(b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material;
(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;
(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.
However, Member States are given the discretion to publish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting (Artile 1 (2)); and also, the Member States may opt to make punishable the act of denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court, or by a final decision of an international court only (Article 1 (3)).
Both legal acts are not referring specifically to the Internet, as the Additional protocol to the Convention on Cybercrime, but they find application to acts committed in the online environment.
The conflict with constitutional rights
It is certain that the punishing of online hate speech is conflicting with the right to freedom of expression, which is enshrined in Article 10 (1) ECHR and other international acts, such as Article 11 (1) of the EU Charter of Fundamental Rights, Article 19 (20 of the International Covenant for Civil and Political Rights and Article 19 (2) of the Universal Declaration of human Rights. However, the exercise of this right can be restricted, such as when online hate speech is subjected to criminal sanctions.
The ECHR has stated in its decision of Gündüz v. Turkey that it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance, including religious intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued. The Court also noted in another case that there can be no doubt that concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10 of the Convention.
The importance of the Internet as a means to promote freedom of speech is recognized in ECHR’s case-law and in more particular, in the case Ahmet Yildirim v. Turkey. In this judgement, the Court held that the blocking of access to all Google Sites, which took place in order to restrict access to a particular web page that published content that insulted the memory of Atatürk, the founder of modern Turkey, which had the effect of also blocking access to the applicant’s website, constituted a breach of Article 10 f the Convention. The Court considered that the impugned measure amounted to “interference by public authority” with the applicant’s right to freedom of expression, of which the freedom to receive and impart information and ideas is an integral part. Such interference did not satisfy the requirement of ‘foreseeability’ and did not afford the applicant the degree of protection to which he was entitled by the rule of law in a democratic society.
In this decision, the Court highlights that the Internet has become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest. This means also that the dissemination of racial and hate speech through the Internet is far more effective than though traditional means. So, e.g., in the case of Willem v. France, a mayor in a French city was sentenced by a criminal court to a fine for announcing the boycott of Israeli products, to protest the anti-Palestinian policies of the Israeli Government. The mayor was prosecuted for incitement to discrimination on national, racial and religious grounds. The ECHR found no violation of his right to freedom of expression, since his prosecution and conviction had not been of his political opinions, but for calling on the municipal authorities to engage in act of discrimination. The Court noted that the announcement of the boycott was not only made orally at the council but it was also posted on the website of the municipality and thus, the discriminatory nature of the mayor’s decision was exacerbated.
In another case, an Internet publication was also given an important role. The case concerned the prohibition of the poster of the Raelian Movement, in which its website was mentioned. Τhe Court examined whether it was appropriate for the purposes of examining the necessity of the disputed measure to take into consideration, as the domestic courts did, the content of the Raelian Movement’s website, whose address was indicated on the poster in question. In the Court’s decision it is mentioned that:
Having regard to the principle that the Convention and its Protocols must be interpreted in the light of present-day conditions (see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Vo v. France [GC], no.53924/00, § 82, ECHR 2004‑VIII), the Chamber took the view that the website did have to be considered because, as it was accessible to everyone, including minors, the impact of the posters on the general public would have been multiplied on account of the reference to the website address.
Subsequently, the Court noted that the impugned poster clearly had the aim of attracting people’s attention to the website, since the address of that site was given in bold type above the slogan “The Message from Extraterrestrials”. It would thus be illogical for the Court to look solely at the poster itself and thus, it was deemed necessary to examine the content of the website in question.
As it is evident, the prohibition and penalization of hate speech on the Internet should be without prejudice to the right of freedom of expression. The case law of the Strasburg Court provides guidance on how to strike a balance in cases of conflict.
Some of the countries that ratified the Additional Protocol to the Convention of Cybercrime adopted a restrictive approach in that they provided for that the act of disseminating racist and xenophobic material is only punishable if the perpetrator had the intention of committing a hate crime. The Greek law, for example, provides that the offence of public incitement to violence or hatred or other act of discrimination against a person or group or persons identified in reference to race, color, religion, genealogical origin, national or ethnic origin, sexual orientation, gender identity or disability, is punishable under the condition that there is an imminent danger of the public order or contain a threat for the life, the freedom or the bodily integrity of the above persons. Similarly, the offence of the denial of genocide and crimes against humanity and war crimes are punished in case this behaviour is presented in a way that can incite violence or hatred or has a threatening aim or aims at defaming a group or a member of this group.
Particularly, as regards the denial or condoning of crimes against humanity and genocides, a recent decision of the ECHR in the case of Perinçek v. Switzerland shows that a balance between conflicting rights should be struck. This case concerned the criminal conviction of a Turkish politician for publicly expressing the view, in Switzerland, that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire had not amounted to genocide. The Court did not find necessary to subject Mr Perinçek to a criminal penalty in order to protect the rights of the Armenian community. To conclude to this decision it took into account that his statements touched upon a matter of public interest and did not amount to a call for hatred or intolerance and that those could not be regarded as affecting the dignity of the Armenian Community in the extent that a criminal law response in Switzerland was necessary.
It goes without saying that legal measures against hate speech may not prove sufficient to restraint the flood of such online publications. It would take also to work together with ISPs, who should adopt a policy of removing offensive content, and also use filtering techniques and other innovative technologies to detect and remove such content from the Web.