Internet Hate-Speech Ban Called 'Chilling'
WASHINGTON--As European leaders move to ban Internet hate speech and seek support from the United States, civil liberties groups charge that the proposal would violate free-speech rights.
The Council of Europe--not to be confused with the European Union--comprises 44 European countries, plus a handful of non-European nations. Canada, Japan, Mexico, South Africa, and the United States have observer status only, but their comments are sought.
The council recently voted to outlaw "acts of a racist and xenophobic
nature conducted through computer systems."
The non-European members are being asked to endorse the hate-speech provision at a meeting in late January.
The Justice Department has indicated it will not support the broader restrictions because of concern that it is incompatible with First Amendment rights to free speech.
The agreement defines racist and xenophobic material as "written material, images or other representations of ideas or theories advocating, promoting or inciting hatred, discrimination or violence against individuals or groups, based on race, color, descent, or national or ethnic origin, or religion."
"It's a terrifying prospect," says James Gattuso, a research fellow for
The protocol is subject to interpretation, he notes. "If you have a cartoon criticizing French foreign policy, would the French government have recourse?" he asks. "I don't see anything that would exclude that."
But either ban is drastically contrary to the U.S. practice of protecting even hate speech. For example, an antiabortion group ran a Web site called the Nuremberg Files, which listed doctors who performed abortions. As antiabortion activists killed these doctors, they were crossed out on the Web site. Critics said the Web site incited violence, and a lower court agreed; but upon appeal the Web site was declared to be protected by the First Amendment. Under the Council of Europe protocol, the Web site would be illegal, Andrews says.
"At the very extreme, historians or journalists writing about these people or [about] Holocaust denials would be prohibited," says Andrews.
The Council of Europe's original Convention on Cybercrime in 2001 also
contained a hate-speech measure, but it was dropped at the last minute to gain
support from the United States, which
Nations have been slow to ratify the treaty, says Barry Steinhardt,
director of technology and liberty programs for the
Ratification in the U.S. requires action by the Senate, which has not happened.
While few countries have taken action, civil liberties groups say the protocol has a chilling effect and are tracking the Council of Europe's actions.
"The U.S. has always maintained that they won't sign on to this protocol, and it would be very shocking if they did so in the end," EPIC's Andrews says.
If European countries find unacceptable material on an American-based
Web site, they cannot expect American courts to block access to the material
because it would be protected here by the First Amendment, says Paula Bruening,
staff counsel for the
"As disturbing as this kind of speech is, it is protected by the First Amendment," Bruening says. "Our vision of the Internet is a free exchange of ideas, but Europe takes a different approach. What we're seeing here is a cultural clash."
The treaty says Internet service providers would not be held responsible for simply hosting a Web site or chat room containing hate speech.
However, if the Council of Europe member countries adopt laws that make it a crime to distribute such material to the public through e-mail or Web sites, this may negatively impact privacy and Internet use by Americans, say some civil liberties groups.
The proposals would require governments to take invasive measures to prosecute individuals, says the ACLU's Steinhardt. He says the United States would have to cooperate in such a case.
American Internet service providers could potentially be forced to shut down their interactive components because people may engage in speech that is offensive in Europe, says Steinhardt.
Some members of the European parliament called for an "unlawful hosting" provision that would have increased the liability of U.S. companies, says Sarah Deutsch, vice president and associate general counsel for Verizon Communications.
The Council of Europe rejected that proposal as problematic, but ISPs are still concerned because Internet jurisdiction is largely unsettled, Deutsch says.
When French organizations brought Yahoo to court for allowing
Nazi-oriented auction items on its Web site, a French court said Yahoo was
liable, but did not enforce the judgment. A
Some U.S.-based Web sites have chosen to
But a Yahoo executive could be arrested when traveling in France because that judgment still stands, says Deutsch. "Some countries hold you liable because citizens can access your Web site," says Deutsch. "Countries need to adopt a common set of principles."