The Law and the Internet (France – Europe – International Conventions)By Marc Knobel | February 10, 2017 | Flashpoint 42
In France and in many European countries in particular, the provisions prohibiting incitement to racial hatred and the dissemination of racist remarks constitute reasonable and necessary restrictions on the right to freedom of speech. Many laws form the framework for combating racism and antisemitism.
Furthermore, these countries are concerned with avoiding the trivialization of racist expression by directing criminal policy not just to the most serious cases, but also to the condemnation of ordinary racism by making convictions known, improving reporting and, above all, by developing a real media education policy for young people.
In this short text, we will highlight some features of the penal provisions in the fight against racism and antisemitism on the internet.
France has long had particularly advanced legislation. Protection from all forms of discrimination was written into the Declaration of the Rights of Man and of the Citizen of 1789.
THE LAW IN FRANCE
A number of laws support the French approach to combating racism and anti-Semitism:
- the law of July 29, 1881 on freedom of the press (chapter IV), the first law to punish discriminatory statements;
- law no. 72-546 of July 1, 1972 concerning the fight against racism, in which a certain number of actions are designated as crimes (such as the refusal to provide a product or firing someone from a job for racist reasons);
- law no. 90-615 of July 13, 1990 prohibiting all racist, anti-Semitic or xenophobic actions, with in particular the creation of the misdemeanor of contesting the existence of crimes against humanity;
- the new Penal Code that entered into force on March 1, 1994 created new crimes and strengthened punishments for racist misdemeanors (corporate bodies can be held criminally responsible);
- law no. 2003-88 of February 3, 2003 increasing the penalties for crimes of a racist, anti-Semitic or xenophobic nature;
- law no. 2004-204 of March 9, 2004 adapting the court system to changes in criminality specifies the aggravating circumstance of a crime being “preceded, accompanied or followed by [racist or anti-Semitic] statements, writing, images, objects or actions.” To punish crimes of a racist nature, the law provides for various legal sanctions including fines, loss of civic rights and imprisonment. For example, racist verbal abuse is punished by up to six months of prison and/or a fine of up to €22,500, refusing to provide a good or service for reasons of national, ethnic, racial or religious discrimination is subject to up to two years of prison and a fine of up to €30,000.
On the Internet, prevention and repression measures have been enhanced by law no. 2004-575 of June 21, 2004 for trust in the digital economy. Internet hosts and access providers now have the obligation of contributing to preventing the distribution of pedophile, revisionist and racist information.
Adopted in 2004, the law on the digital economy (LEN) expressly confirmed the ability of judges in chambers, apart from any other criteria of competence, to prescribe filtering of a racist and antisemitic website (article 6-I. 8).
The judicial authority may forbid, through procedure or upon petition, any person mentioned in Par. 2 (physical persons or corporate bodies who make available to the public through online communication services to the public, even free of charge, storage of signals, writing, images, sounds or messages of any kind provided by the receivers of these services) or, if not, any person mentioned in Par. 1 (persons whose business is to offer access to online communication services to the public), any measures needed to prevent damages or to put an end to a damage caused by the content of an online communication service to the public.”
The Pharos platform
The creation of the PHAROS alert platform by the Interior Ministry represents real progress. This service allows web users to carry out the necessary procedures, and allows police to act more efficiently. This system, initially restricted to combating child pornography, has now been extended to all areas, including racism.
For this reason the public authorities are making this portal available to French web users. By clicking on the “REPORT” button, they can transmit notification of illicit content or behavior that they may have encountered during their Internet use. In addition, they no longer need concern themselves with determining which is the competent authority. Their alert is directed to and processed by the correct service (local or national police) and may lead to a response from judicial authorities.
According to the French National Consultative Commission on Human Rights, the PHAROS platform received 8,971 alerts in 2011 concerning discrimination or racism on the Internet, or 10% more than in 2010… (8,684 in 2012: extrapolation for the current year).
Among existing systems, that of the Association of Access Providers (AFA), pointdecontact.net, is used by the eleven internet companies that are members of the association. “All the members of the AFA (Editor’s note: except apparently Google) place this link at the bottom of their pages, which is far from being the case abroad,” explains the association, which notably includes SFR, Orange, Google and, since October 2012, Microsoft and Lebara Mobile.
The AFA received 2,278 alerts through this system regarding racist or xenophobic messages in 2011, compared with 2,300 in 2010 and 1,156 alerts in 2012.
It is in the United States in particular, where a very broad conceptualization of freedom of speech reigns, that any regulation of racist statements is seen as violating the constitutional right to free speech. Regulation – even when morally justifiable – is always perceived negatively and many antiracist activists themselves prefer to combat these pernicious ideologies in other ways. American web users even believe that where hateful speech has caused harm, it is up to those who are against it to express their own side. The focus must therefore be on “voluntary” methods such as improving individual accountability through education, and that of agencies and organizations, public or otherwise, by drafting codes of conduct at the national or international levels. In the United States, websites denouncing the “homosexual threat” or, even more strangely, libertarian websites that justify terrorism, are more easily tolerated. These websites all provide details for purchasing explosive devices, the list of components needed to manufacture them, classified by order of strength, depending on the detonators, preparation and lighting of these devices. Puritan America, however, is uncomfortable with Internet clubs or forums of a more sensual nature.
Freedom of speech is also a constitutional right in many other countries. However, the highest legal authorities in many European countries consider that provisions forbidding incitement to racial hatred and publication of racist statements are reasonable and necessary restrictions to the right to free speech.
Concerned in 1996 by the resurgence of racism due to the social and economic environment, the United Nations noted that this resurgence took place simultaneously with massive technological progress in the distribution of racist and xenophobic propaganda in the world. It therefore raised the question of the role played by the worldwide web. This concern by UN institutions with the use of the Internet as a tool for propagating racial hatred appears in a number of texts and preparatory work carried out for the World Conference against Racism. This is true in particular of the report by Maurice Glélé-Ahanhanzo of January 15, 1999 (E/CN.4/1999/15); the report by the in-session open composition working group in charge of studying and formulating proposals for the Conference, of March 16, 1999 (see chap. 51, p. 12 and chap. 77 and 81a, p. 17 of E/CN.4 1999/16); the document prepared by the Human Rights Commission dated April 20, 1999 (see § 9, p. 2; § 8, p. 4; § 34, p. 6); the report presented by M. Obka-Onyango, of June 22, 1999 (E/CN.4/Sub.2/1999/8), see p. 5, chap.15 and p. 11, chap. 33; as well as the document by the Subcommittee for the promotion and protection of human rights of August 13, 1999 (page 6, letter h, E/CN/4/Sub.2/1999).
These concerns led to the organization of a UN seminar in November 1997 in Geneva, devoted to “the evaluation of the role of the Internet and the means to ensure that it is used responsibly with regard to the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.” Sometimes accused of inaction in other areas, the United Nations reacted quickly to the rise of racism on the Net, showing thus the importance it gives, since its foundation, to the struggle against racial discrimination.
Finally, during a speech given to the UN General Assembly on November 5, 2012, the UN special rapporteur noted the increase in racism on the Internet at the global level, before calling on governments and private companies to redouble their efforts. “The number of incidents involving violence and crimes of a racist nature perpetrated under the influence of propaganda on the Internet inciting to hatred is growing, despite the adoption of positive measures,” says Mutuma Ruteere, who sees it as “crucial that Internet service providers and other relevant industry sectors participate.”
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) specifically calls for criminal punishments for racism in its article 4. The United States recently accepted to join this Convention under the express condition of being allowed to formulate a reservation with regard to this article. The United States recalled on this occasion that they are attached to freedom of speech as guaranteed by the first amendment of the US Constitution. Many countries regret today the formulation of this reservation by the most powerful country in the world.
This approach has direct consequences on the types of resources planned for combating racist excesses on the Internet. Because the United States refuses, in the name of free speech, to involve the public authorities – judicial, legislative or police – this was very logically the position defended by the country during the seminar held in Geneva in November 1997.
Restrictions to freedom of speech can be viewed as legitimate for combatting racism, not only based on the International Convention on the Elimination of All Forms of Racial Discrimination (articles 4 and 1 in particular) and on the jurisprudence established by the CERD, but also by virtue of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Furthermore, with regard to article 4 of the ICERD, today there is pressure towards its effective application. Article 4a is particularly clear in this regard: actively distributing racist propaganda is a criminal offense. And it is apparent, with regard to freedoms in general, that “these must never be exercised to the detriment of others’ rights recognized by the UN in all its international instruments and particular in chapter i of the UN Charter and article 30 of the Universal Declaration.” This provision makes clear that “freedom of speech may not be used to promote non-respect for human rights.”
Referring to article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, existing provisions also apply to the new media. If the right to freedom is valid for the Internet, restrictions to this right also apply. The Internet is merely an instrument, not a goal in itself, and cannot be viewed as exempt from national and international laws.
Finally, with regard to American reservations concerning article 4, we can conclude specifically to the attention of the United States: “If these reservations were presented before a court, it is not certain that they would be maintained. The United States – having set its own doctrine with regard to freedom of speech – believes itself justified in placing its own Constitution above international law…”
The Law in Europe
In January 2003, the Council of Europe released for signature the Additional Protocol to the Convention on Cybercrime. Negotiated upon request by France, this text asks member states to criminalize the distribution of racist and xenophobic materials through computer systems. The targeted behaviors are the distribution of racist and xenophobic materials, verbal abuse and threats motivated by racist or xenophobic considerations, and the public approval or justification of acts of genocide or crimes against humanity. This protocol also aims to facilitate extradition of those accused of these crimes within Europe, and favors judicial cooperation in suppressing these acts. In addition, in order to combat misdemeanors arising from hatred – which may be incited by racist and antisemitic propaganda on the Internet – the Organization for Security and Cooperation in Europe (OSCE) organized a special meeting in Paris on June 16 and 17, 2004. This meeting aimed to study the phenomenon of racism and anti-Semitism on the Internet and the solutions provided by public authorities and Internet professionals, as well as by NGOs. Finally, let us note that the European Commission against Racism and Intolerance (ECRI), in its recommendation No. 9 for general policy to combat antisemitism adopted on June 25, 2004, called on the governments of member states to ensure “that criminal law covers crimes committed through the Internet, satellite television channels and other communication methods.”
The system in place in France and Europe is probably sufficient to the task. However, we know that racist websites are multiplying and that the texts published are increasingly violent and foul. The Internet has become a sewer into which anything can flow. Simply surfing the web is enough to understand this situation. We can find incendiary Ku Klux Klan attacks, SS manuals, the Protocols of the Elders of Zion, neo-Nazi publications, all the false propaganda by revisionists, thousands of racist and anti-Semitic books, long diatribes and calls for murder against Blacks, Arabs and other minorities, and elements justifying jihad and violence against “heretics”. In short, all forms of image and text that are an insult to human dignity, and all the schools of thought that ride roughshod over human rights.
At the end of November 2008, the European Commission announced that racism, incitement to hatred, and the justification, negation or trivialization of genocidal crimes would soon be subject to penalties ranging from one to three years in prison throughout the European Union. The European Justice Ministers agreed to incorporate these criminal sanctions in their legislation. It took nearly seven years of negotiations to achieve this result, pointed out European Justice Commissioner Jacques Barrot when presenting the decision to the press following the meeting. “Racism and xenophobia have no place in Europe and must not have a foothold anywhere in the world,” he said, adding: “I welcome the introduction of severe and effective sanctions against the violation of human rights and fundamental freedoms that are principles shared by the countries of Europe.”
Internet: The Council of Europe Recommends a Code of Good Conduct
The other good news came from the Council of Europe. In October 2008, this body published a set of rules for good conduct aimed at providers of Internet services and editors of online games, according to the website vnunet.fr. Referring to the European Human Rights Convention, this European institution aims primarily to foster a shared democratic space. It just released two sets of guidelines for promoting respect for the privacy, security and freedom of speech of European Internet users, indicates this same website.
These measures were taken in concert with the major European organizations: the Interaction Software Federation of Europe (ISFE), the European Federation of Recreational Software (whose members include online game publishers such as ActiVision, Microsoft, Electronic Arts, Atari, Nintendo and Ubisoft), and the European Federation of Internet Service Provider Associations (EuroISPA), which includes European associations like AFA (France), with members such as AOL, Bouygues Télécom, Microsoft France, Numericable, Orange, SFR and Telecom Italia. “We are convinced that every member of society – including the private sector – has a role to play in their own area of activity. The idea is not to draft legal texts, but to help companies promote these rights on a daily basis,” declared Jan Kleijssen, Director of Standard Setting for the Council of Europe.
These practical guidelines provided by the Council of Europe require suppliers of online services and games to inform users of their rights and of the dangers inherent in navigating the web. Online games must protect children to the maximum extent possible, by keeping them away from violent, sexist or racist content.
Applying evaluation and certification to games, such as PEGI, which recommends classifying games by age, allows parents to better understand the dangers that some online games might involve (excessive practice, abusive use of personal data). The Council of Europe also highlights the importance of alerting web users to the risks they take of being exposed to viruses, phishing attempts, spam, Trojan horses, violent, pornographic or racist content, and dangers of sexual solicitation of children. The responsibility to provide information about protective tools that exist (antivirus software, parental control, filtering software, anti-spyware, and electronic signature) is also described. These recommendations particularly apply to Internet access providers and web service providers.
For many years, the development of xenophobia, racism and antisemitism on the Internet has been tolerated with a leniency nourished by the lethargy or desertion on the part of those who, in the political or associative world, could have endeavored to change the course of things. Indeed, the dissemination of much illicit content on the Internet has become commonplace. Certainly, anti-racist associations have initiated proceedings in Europe to oppose these hate-mongers, but why rely solely on the work of these associations? Does not the fight against racism and antisemitism on the Internet also fall in the purview of the public authorities?
Moreover, it is true that one factor in particular reinforces the reality of the Internet as a zone of generalized lawlessness, or rather, “non-law”: the substantial relic of the ideology that led to the development of this tool under the conditions that we know.
We are indeed in the presence of a curious mixture of the old libertarian slogan “it is forbidden to forbid” and the very liberal “laissez-faire”. To be sure, the Internet remains culturally and ideologically… an American network. The law governing it from the point of view of the free flow of information is a “non-law” enshrined in the American Constitution: the principle of total freedom of communication. Of course, no one ought to reproach the United States for being a great democracy. But this principle…should it be adopted universally? Should the total “freedom” of communication be incumbent on the entire world? What about the Europeans? This question begs further examination.
Marc Knobel is a Scholar of History and Director of Research at the CRIF (Conseil Représentatif des Institutions Juives de France) in Paris, France.