Moderator: Prof. Irwin Cotler, M.P., McGill University, Canada
Panel: Mr. Francois Cordier, Prosecutor, Tribunal de Grande Instance Paris, France Mr. Ronal Eissens, Director, MDI-Complaints Bureau for Discrimination on the Internet, The Netherlands Mr. David Rosenthal, University of Basel, Switzerland Dr. Steve Shapiro, Director of American Civil Liberties Union, USA

Prof. Irvin Cotler, in his introduction to the subject, asked the following questions to set the theme of the seminar: What is the nature, scope and impact of legislation concerning hate speech on the Internet? Should legislation be used to deal with this problem and what are the possible legal remedies? What experience has been gained of these legal remedies? What are the technical, legal or political obstacles? What are the non-legal strategies and remedies available?

Mr. Francois Cordier outlined the French legal system in the area. French law provides for four kinds of offences with relevance to the topic of the seminar: insult, defamation, provocation, denial of crimes against humanity. The same law applies to all statements made either on or off the Internet. The main difficulties are: inadequate technical training of police in order to find the person responsible for a statement on the Internet; insufficient support of providers, especially US providers, in assisting the authorities to identify the authors of anonymous messages via internet.

Mr. Ronald Eissens presented the Complaints Bureau for Discrimination on the Internet in the Netherlands (MDI) founded in March 1997 by the Magenta Foundation. The MDI concerns itself with getting discriminatory expressions removed from the Dutch part of the Internet. If an expression on the Internet is deemed to be a criminal offence, a so-called request to remove is sent to the user where the expression originates. In most cases the expression is removed within 48 hours. If the request is ignored, a complaint is filed with the public prosecutor.

Successful prosecution gives the MDI its necessary credibility and deterrent force. Experience shows that the few convictions passed by the courts up till now have shocked the Internet community and have put racists on their guard. Experience shows also that free providers (e.g. Yahoo, Geocities, Lycos etc.) even in countries where there is no threat of prosecution (e.g. the USA) comply with requests to remove racist websites because they realize that the majority of their customers and advertisers do not want to be associated with racism, Anti-Semitism or Holocaust Denial. This might be attributed to the fact that free providers are especially sensitive concerning their public image.

Dr. Steve Shapiro outlined and justified the US position on hate speech: the law should concern itself with conduct and not with speech. Hate speech is protected by the 1st Amendment to the US constitution. The US legal system, however, does acknowledge certain limits to free speech: threats, harassment, incitement to violence, individual defamation are prohibited. The US system, however, does not contain the concept of group defamation. It is noteworthy that most cases of the civil rights movement in the 1950s and 1960s involved the defence of the right of free speech to the benefit of minority representatives. Experience at US Universities also showed that anti-racist speech codes were mostly applied to blacks. Any strategy which fights encryption and anonymity on the Internet will need to face the dilemma that, for example, Human Rights activists in China need encryption and anonymity on the Internet to sustain their struggle for democracy. The response to hate speech is more speech, not prescribed silence.

Mr. David Rosenthal pointed out that self-regulation of the Internet community concerning hate speech is not the ideal solution due to the lack of democratic legitimization and control. Even legislation is successful only if sufficient pressure is created for the global internet community (e.g. it makes a difference if legislation is passed in the US or in Switzerland). The best targets for pressure are source Internet providers which are in the best position to keep track and delete racist websites from their servers. No provider is actually required to support racism, and given enough pressure it will cease to be worthwhile . The legal differences between the US and continental Europe might be solved by the following compromise strategies:

• geographically limited blocking of certain websites via the use of encryption technology: such a solution would not be difficult or expensive to implement technically, but would protect US providers from prosecution, would limit access to racist websites much better than provider restrictions imposed on the end users’ side and would honour the US right of freedom of speech, since racist speech would not be limited within the US.

• Effective content identification: the US could regulate racist speech in such a way as to ease its detection and filtering wherever required. Although the US may not ban racist speech outright, it may impose reasonable restrictions in order to make it easier for third parties, providers and foreign countries to identify and block racist speech.

During the ensuing discussion, the minister of urban policy and integration of ethnic minorities of the Netherlands, Mr. Roger van Boxtel, called for a protocol to the draft convention on cybercrime prepared by the Council of Europe which deals with hate speech on the internet. This protocol than might be signed by those countries wishing to participate in the fight against hate speech.

During the discussion, it was also questioned if the internet is a successful recruitment tool for racist organisations; more people seem to be attracted and recruited by racist music than via racist web sites.

Prof. Irwin Cotler concluded the session by pointing out that law is a crucial strategy amongst many other strategies possible to deal with the problem. The antinomy between the freedom of speech and the prohibition of hate speech might be overcome by the consideration that hate speech is an attack on the very purposes of free speech.
Rapporteur: Dr. Niraj Nathwani
Legal Affairs Officer of the EUMC