Hate Speech

1. Hate Speech LLM CyberCrime 26 March 2012

2. National differences • Huge differences in what forms of expression are tolerated ... • ... even if we confine ourselves to western nations • Uniformity cannot really be expected - co-operation is rare

3. National differences • But the differences are not simply between nations, they are also within them • Different standards within communities, and across communities • Various traditional ways of moderating these differences

6. ‘Hate Speech’

7. 1. International Conventions

8. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965) “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination …” (article 4)

9. ICERD art 4 continued “… (a) Shall declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; …”

10. Ratification of ICERD

11. Effect of the Internet • Increased relevance of international influences: • Ease of communication • Escape to other jurisdictions • A global racist movement (Perry and Olsson (2009) 19 Info & Comms Tech Law 185)?

12. Reservations - US

13. Reservations - Ireland

14. The Cybercrime Convention • Text agreed at Budapest 23 November 2001 • Now signed by 46 nations (including Canada, Japan, South Africa and the US) • 30 nations have ratified it

15. Cybercrime Convention Main provisions • Definitions of major offences against or involving computer systems • Procedural provisions on evidence and international police co-operation

16. Cybercrime Convention • Much dispute as to its merits • Many suggested clauses were abandoned as unacceptable to the US • The Convention is very weak on protection of civil liberties

17. A difference of opinion • All Western democracies have offences of stirring up racial hatred ... • ... but the matter is approached in different ways • In particular, glorification of Nazi Germany is treated very differently

18. Cybercrime Convention • Reference to racist incitement was deliberately omitted, when it became clear that no conceivable draft would satisfy the US and France • There is a separate additional protocol on these matters

19. Additional Protocol art 2 For the purposes of this Protocol: • "racist and xenophobic material" means 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.

20. Additional Protocol art 6.1 ... 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 ...

21. Unacceptability to some nations • Ireland and the UK have not signed • Of non-European parties, only Canada has signed • The US have based their refusal squarely on US constitutional law

22. EU Framework decision of 19 April 2007 • The following will be punishable in all EU member states: • Publicly inciting to violence or hatred, even by dissemination or distribution of tracts, pictures or other material, 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. • Publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes • But member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting.

23. On the (rather diverse) picture in Europe generally, see: Pech, “The law of holocaust denial in Europe” (2009) ssrn.com/abstract=1536078

24. 2. Actual cases

25. Methods of control • Issues: • Liability of those posting material - “permissive intent” • Enforcement – by individuals? (no presence needed for civil trial) • Jurisdiction – Extradition within the EU

26. Actual cases Toben case • Australian citizen • Arrested in 1999 on a visit to Germany • Subsequent arrest in the UK while in transit between the USA and Dubai (under European Arrest Warrant)

28. Pro- and anti- Islam Terrorism Act 2006 s. 1 (UK) • “1(1) This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism …” • “(3) [These statements] include every statement which (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances …”

30. UK – Irving v Lipstadt

31. “The charges which I have found to be substantially true include the charges that Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence; that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light, principally in relation to his attitude towards and responsibility for the treatment of the Jews; that he is an active Holocaust denier; that he is anti-semitic and racist and that he associates with right wing extremists who promote neo-Nazism.” ([2000] EWHC QB 115, Gray J)

32. The Danish cartoons case • On the merits of which see: Kahn, “The Danish Cartoon controversy” ssrn.com/abstract=1499947

34. Ireland?

35. 3. A US haven?

36. The US haven • More and more websites in the US … • May or may not be a real US connection

37. How far can US law go? “Congress shall make no law ... abridging the freedom of speech, or of the press … ” (1st amendment to the constitution)

38. Is the US truly a “haven” for racists? • van Blarcum, “Internet hate speech” (2005) 62 Washington and Lee Law Review 781 • Henry, “Beyond free speech” (2009) 18 Information and Communications Technology Law 235

39. Brandenburg v. Ohio395 US 444 (1969) • “… the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

40. Remedies? • “Imminent lawless action” • Virginia v. Black 538 US 343 (2003) • Locating an actual victim of a particular utterance (and see the recent Matthew Shephard Act (signed 28 October 2009) • Violating the rights of particular people • Tort of emotional distress?

41. Potential for conflict of jurisdictions • E.g. US v UK: R v Sheppard and Whittle [2010] EWCA Crim 65

42. L’affaire “Yahoo!” • Sale of various Nazi medals from Yahoo!’s servers • This included yahoo.com, yahoo.fr and yahoo.de • Questionable whether it complied with Yahoo!’s own guidelines

43. Google’s terms of use

44. Dramatis Personae • Yahoo! Inc (based in California) • Yahoo! France (based in Paris) • La Ligue Contre le Racism et l’Antisemitisme (LICRA) • L’Amicale des Deportes d’Auschwitz

45. 5 April 2000 • LICRA commence proceedings against both Yahoo!s • Process is served on Yahoo! Inc in California • Yahoo! Inc is ordered to make access to the medals from France impossible

46. 22 November 2000 • The order is made final • Arguments based on the 1st amendment are rejected • Yahoo! Inc is ordered to identify site users as best it could, and bar the French ones • Fine on Yahoo! Inc of 10,000 fr per day for non-compliance

47. 21 December 2000 • Yahoo! Inc sue LICRA in a California Federal Court • They seek a declaration that an attempt to enforce the penalty would be invalid as infringing their 1st amendment rights

48. 7 November 2001 • Judge Fogel holds for Yahoo! Inc • Free speech in the US by US citizens is protected by the 1st amendment ... • ... even if it can be “heard” in France

49. 26 February 2002 • L’Amicale des Deportes d’Auschwitz prosecutes Tim Koogle, CEO of Yahoo! Inc, for “justifying war crimes” • Defences based on lack of jurisdiction are rapidly rejected

50. 11 February 2003 • The Tribunal Correctionnel de Paris acquits Koogle • The court notes that Koogle had done nothing to portray Nazism in a favourable light • The prosecution appeals further, but fails