Ioannis Iglezakis
Associate Professor, Faculty of Law, Aristotle
University of Thessaloniki
Paper presented in the REDA Conference, Cyprus, 5-6/11/2015
Introduction
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.
Conclusion
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.
