Can Europe block racist Web sites from its borders?
By Anita Ramasastry
(FindLaw) -- Based on a treaty that went into effect in January, Europe is attempting to shut out racist and xenophobic "hate" Web sites. Meanwhile, a new contact network "operating round the clock and seven days a week," is being set up to provide European police forces with immediate assistance with their investigations.
The result of Europe's actions, however, may not be to shut down such sites. Instead, the United States may become a haven for hatemongers' sites, due to the strength of our First Amendment.
The members of the Council of Europe (COE) are signatories to the 2001 Convention on Cybercrime -- which was conceived to deal with Internet crime such as virus attacks and Web site hacking. Just last week, 12 out of 44 of the COE's member States signed an additional protocol to the Convention that has a very different purpose.
The new protocol is motivated by the COE's desire to harmonize members' domestic laws and bring together Europe in a cohesive fight against racism and xenophobia on the Internet. The COE also wants to improve international, or at least regional, cooperation with respect to the investigation and prosecution of cyberspace hate speech.
The Council argued, in its report on the new protocol, that it is a necessary response to the fact that "[t]he emergence of international communication networks like the Internet provide certain persons with modern and powerful means to support racism and xenophobia and enables them to disseminate easily and widely expressions containing such ideas."
The original COE Cybercrime treaty was also signed by a number of non-COE states: the United States, Canada, Japan, Mexico and South Africa. These states can choose to sign on to the protocol too, if they want. But the United States, for one, is highly unlikely to do so -- especially since the protocol, which is both content-based and vague, conflicts with the First Amendment, and would, if enforced, chill political speech.
The specifics of the protocol
The protocol broadens the treaty's scope to cover offenses relating to distribution of racist or xenophobic propaganda via computer. According to a COE statement, it will "eliminate racist Web sites from the Internet and define and criminalize hate-speech on computer networks."
What counts as "racist" or "xenophobic" speech? The protocol reaches "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, color, descent or national or ethnic origin, as well as religion if used as pretext for any of these factors."
It also requires signatory states to enact domestic laws, if they have not already done so, criminalizing intentionally distributing, or "making available" via computer such material -- or, in addition, material which denies, minimizes, approves of or justifies crimes genocide or crimes against humanity.
Reading such material, however, will not be criminalized, and the racist or xenophobic character of the material, not just the distribution or availability, must be intentional to count as a crime. That means Internet Service Providers (ISPs) do not commit a crime if they merely serve as an unwitting conduit or host for extremist material.
What counts as "distributing" or "making available"? Even linking to banned material may be criminal. And it is clear that "[e]xchanging racist and xenophobic material in chat rooms, [or] posting similar messages in newsgroups or discussion fora" would count.
Strikingly, under the protocol, even password-protected "private" sites may be criminal if the general public, or even a general class of persons, can access them. Truly private communications -- such as one-to-one e-mails -- however, are exempt from the protocol.
The advent of a U.S./Europe cyberhate divide
Besides reflecting a strong European stance against hate speech, the new COE protocol may represent the first step in the "zoning" of cyberspace -- in which access to content may be restricted based on the user's citizenship and domicile. Americans may be able to access content that Europeans no longer can.
How? European governments may even filter extremist material so that their citizens cannot access it. Or ISPs may end up doing their job for them. As noted above, ISPs are exempt from the protocol if they are unaware of hate speech they unwittingly host. But what if a complaint brings such speech to their attention? In that event, the prudent course for the ISP is to shut down the site, whether or not it truly fits within the protocol, and wait to see if the poster wins a court challenge.
Most ISPs expressly retain the right to remove harmful or offending material in their contracts with their customers, so for them deposting is the safest course: The customer, due to the contract, has no recourse, and the ISP then eliminates any risk.
Even the prospect of possible civil liability for libel has convinced ISPs in Britain and elsewhere in Europe to ban Web sites from their servers. Certainly the risk of criminal liability will prove an even stronger incentive for ISPs to depost.
More hate sites are likely to be hosted -- and perhaps also operated -- in the U.S.
Web hosting for extremist sites may change somewhat, as well -- as it is driven out of Europe and into the U.S.
According to the COE, the majority of hate Web sites seem to be U.S.-based anyway. As part of its deliberations, the COE cited a report noting that 2,500 out of 4,000 racist sites were created in the United States. But in the wake of the protocol, even more sites are likely to begin to use U.S. host servers, rather than European ones.
Some may also choose to move their operations and personnel to the U.S. -- a frightening thought for American who, while they respect the right to speak, don't welcome an influx of hate-filled neighbors.
The Yahoo! case, and why the protocol may raise the same issue
From the hate sites' perspective, it makes sense for them to move. U.S. court decisions have strongly supported the First Amendment in cyberspace, even when the speech is hateful -- and have suggested that the U.S. has no duty to enforce contrary European law.
Last year, for instance, a U.S. federal district court judge ruled that Yahoo did not have to block French citizens' access to online sales of Nazi memorabilia, which are illegal in France. (In France, such sales violate a criminal statute outlawing the exhibition of Nazi propaganda and artifacts for sale.)
The case arose because Yahoo!'s U.S. homepage included an auction site that, in turn, included Nazi and Third Reich-related materials. French citizens could access the materials directly through the U.S. site, or through a link on the French Yahoo! site. As a result, a French court concluded that Yahoo! was guilty of breaking the French law.
The French court accordingly issued an order requiring Yahoo! to take measures to block French citizen's access to the U.S. site, with a penalty of 100,000 Euros for each day of non-compliance with the order. Yahoo! partially complied, but felt that it did not have the necessarily technology to fully comply. Accordingly, it sued in a California federal district court, seeking a declaratory judgment against the enforcement of the French court order on the ground that enforcement would violate the U.S. Constitution's First Amendment. The court agreed. (An appeal is currently pending in the U.S. Court of Appeals for the 9th Circuit.)
This principle established in the Yahoo! case may be put to the test again if European authorities seek to apply the new protocol extraterritorially, to sites based in the U.S. that are accessible in Europe. For example, what happens when French of German law enforcement asks U.S. police officers for information about extremists running a hate site in the U.S.?
The COE itself clearly believes that its protocol applies extraterritorially. The protocol expressly makes cross-border communications of racist or xenophobic material by foreign Web sites illegal. And the COE seems to mean what it says.
For instance, Ivar Tallo, an Estonian member of the COE Assembly, expressed his belief that the protocol would, and should, reach a French racist organization that, taking advantage of the First Amendment, had established a U.S. Web site even though it meant to influence French, not a U.S., audience. If the protocol were in place, Tallo commented, a racist organization "would not be able to hide behind American laws protecting freedom of speech."
It may be up to U.S. courts to decide if Tallo is right -- or if the Yahoo! judge, who thought American free speech law ought to apply in America, and European law in Europe, is correct.
Or, alternatively, it may not be up to U.S. courts at all. Direct blocking by European countries of communications from U.S. sites thought to violate the protocol is also a possibility. Spain, for instance, recently passed legislation authorizing Spanish judges to block access to foreign Web pages that are a threat to its national defense and public order.
The strong conflict between U.S. and European free speech law
Due to the striking difference between speech laws in the U.S. and Europe, the option of adhering to both does not exist. Article 10 of the European Convention on Human Rights (ECHR) does recognize a right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas, and which covers even speech that offends, shock or disturbs the State or any sector of the population. But Article 10's right is far less broad that the right to free speech granted in the First Amendment.
The European Court of Human Rights has held, for example, that a state's actions to restrict the right to freedom of expression may be justified when such ideas or expressions violated the rights of others. According, the ECHR is not thought to conflict with a number of laws that would never pass muster in the U.S., including laws in Spain, Germany and France outlawing Internet "racism" and denial of the Holocaust, and a U.K. law outlawing publication of material likely to incite racial hatred.
The depth of the contrast between U.S. and European law can be illustrated by the case of Gerhard Lauck. Lauck publishes Nazi newspapers and a Nazi Web site from Nebraska with impunity. The site is legal in the U.S., but it is illegal in Germany, which has laws against Nazi propaganda that apply to any Web site Germans can access, wherever it is located. (Jurisdiction over even those sites outside Germany was upheld in a December 2000 German case.)
While the U.S. may be horrified to become a haven for such cyberhatemongers as Lauck, it can at least be proud of being a haven for free speech at the same time.
Anita Ramasastry, a FindLaw columnist, is an assistant professor of law at the University of Washington School of Law in Seattle and the associate director of the Shidler Center for Law, Commerce & Technology.