Hate Speech

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1 Hate Speech Hate Speech LLM CyberCrime 26 March 2012

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Hate Speech. LLM CyberCrime 26 March 2012. 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. National differences. - PowerPoint PPT Presentation

Transcript of Hate Speech

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Hate Speech Hate Speech

LLM CyberCrime

26 March 2012

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National National differencesdifferences

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

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National National differencesdifferences

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

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‘‘Hate Speech’Hate Speech’

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1. International Conventions1. International Conventions

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International Convention on the International Convention on the Elimination of All Forms of Elimination of All Forms of

Racial Discrimination (ICERD, Racial Discrimination (ICERD, 1965)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)

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ICERD art 4 ICERD art 4 continuedcontinued“… (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; …”

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10Ratification of ICERD

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Effect of the InternetEffect of the Internet Increased relevance of

international influences:Ease of communicationEscape to other jurisdictionsA global racist movement (Perry and Olsson (2009) 19 Info & Comms Tech Law 185)?

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Reservations - USReservations - US

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Reservations - Reservations - IrelandIreland

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The Cybercrime The Cybercrime ConventionConvention

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

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Cybercrime Cybercrime ConventionConvention

Main provisions Definitions of major offences against or involving computer systems

Procedural provisions on evidence and international police co-operation

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Cybercrime Cybercrime ConventionConvention

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

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A difference of opinionA 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

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Cybercrime Cybercrime ConventionConvention

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

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Additional Protocol Additional Protocol art 2art 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.

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Additional Protocol art Additional Protocol art 6.16.1

... 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 ...

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Unacceptability to some Unacceptability to some nationsnations

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

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EU Framework decision of 19 April EU Framework decision of 19 April 20072007

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.

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On the (rather diverse) picture in Europe generally,

see:

Pech, “The law of holocaust denial in Europe” (2009)

ssrn.com/abstract=1536078

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2. Actual cases2. Actual cases

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Methods of controlMethods of control

Issues:

•Liability of those posting material - “permissive intent”

•Enforcement – by individuals? (no presence needed for civil trial)

•Jurisdiction – Extradition within the EU

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Actual casesActual casesToben 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)

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Pro- and anti- Pro- and anti- IslamIslam

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 …”

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UK – Irving v UK – Irving v LipstadtLipstadt

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“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)

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The Danish The Danish cartoons casecartoons case

On the merits of which see:

Kahn, “The Danish Cartoon controversy”

ssrn.com/abstract=1499947

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Ireland?Ireland?

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3. A US haven?3. A US haven?

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The US havenThe US haven

More and more websites in the US …

May or may not be a real US connection

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How far can US law How far can US law go?go?

“Congress shall make no law ... abridging the freedom of speech, or of the press … ”

(1st amendment to the constitution)

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Is the US truly a Is the US truly a “haven” for racists?“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

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Brandenburg v. OhioBrandenburg v. Ohio 395 US 444 (1969)395 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.”

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Remedies?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?

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Potential for conflict Potential for conflict of jurisdictions of jurisdictions

E.g. US v UK:

R v Sheppard and Whittle [2010] EWCA Crim 65

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L’affaire “Yahoo!”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

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Google’s terms of Google’s terms of useuse

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Dramatis PersonaeDramatis Personae1. Yahoo! Inc (based in California)

2. Yahoo! France (based in Paris)

3. La Ligue Contre le Racism et l’Antisemitisme (LICRA)

4. L’Amicale des Deportes d’Auschwitz

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5 April 20005 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

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22 November 200022 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

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21 December 200021 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

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7 November 20017 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

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26 February 200226 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

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11 February 200311 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

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23 August 200423 August 2004 The 9th Circuit Court of

Appeals reverses Judge Fogel’s ruling

Unless attempts were made to enforce the French ruling, no issue arose

The extent of Yahoo’s 1st amendment rights would be determined when relevant

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10 February 200510 February 2005 A differently-constituted 9th Circuit Court is persuaded that the earlier judgment was erroneous

A rehearing of the case is ordered

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12 January 200612 January 2006 The newly-constituted court rules (by a majority) that they had no jurisdiction

Some judges relied on territorial jurisdiction, others lack of ripeness

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30 May 200630 May 2006

The US Supreme Court denies cert.

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Conclusions: (i) Conclusions: (i) ValuesValues

It is hard to accuse either set of courts of unreasonable disregard for the other

Neither used their powers to the limit

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Conclusions: (ii) Conclusions: (ii) SpeedSpeed

It is now 10 years since the behaviour complained of ...

... and yet neither set of courts has ruled very clearly on the key issues in the case

A lot has happened in the interim!

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4. Conclusions4. Conclusions

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The inevitability of The inevitability of international international collaborationcollaboration

… both by law-enforcers and by law-breakers

Perry and Olsson, “Cyberhate” (2009) 18 Information and Communications Technology Law 185

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Use of incohate Use of incohate offences?offences?

Guichard, “Hate crimes in cyberspace” (2009) 18 Information and Communications Technology Law 201

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Is the Internet Is the Internet really different?really different?

Harris et al, “Truth, law and hate” (2009) 18 Information and Communications Technology Law 155

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RemediesRemediesBlocking foreign sites? Greater and greater sophistication in identifying the physical location of certain IP addresses

A significant but imperfect solution

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RemediesRemediesCo-operation with foreign ISPs

US federal law requires free speech, not that ISPs co-operate in making free speech available

Voluntary agreement by ISPs is certainly an option

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RemediesRemedies

Extradition in “true threat” cases

The limits of “free speech” protection yet to be determined

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But do we want to But do we want to encourage state encourage state

control?control? Very hard to cut down on

state control once it is in place … because critics of the regime will already be labelled as criminals

The virtues of free speech

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