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Legal instruments to combat racism on the internet
I. INTERNET: THE TECHNICAL AND LEGAL ENVIRONMENT
It is appropriate to point out a number of factors of a factual, in particular technical, nature, without which it is not easy to understand why the fight against unlawful, and more particularly racist, contents on the Internet gives rise to new difficulties for lawyers, difficulties which have not always been overcome by the legislature and especially by the courts, which are often incapable of precisely distinguishing the various facets of Internet communication and their implications. In some cases the Internet is referred to as software, in others access providers have been confused with hosts, while in yet others courts have declined to adjudicate on the matter. Nowadays such hesitations or errors of assessment are becoming less common, owing in particular to better training for the competent authorities. It none the less remains that the terminology is not yet uniform and there is still a risk of confusion, in particular from one language to another.
Polycentrism: First of all, the Internet is not a centralised network but a distributed network, i.e. is a collection of different and varied networks (academic, commercial, regional etc.) joined together by links; devices connected to one or other of these multiple networks can communicate among themselves by using common technical languages (protocols). This absence of centralisation has an important consequence: it is impossible to intervene by taking action against any “head” of the network, which would pass an injunction down through the various subordinate levels until it reached the final level. In real terms, an injunction to a specific access provider to cut off access to a racist site would prevent access to that site only by surfers connected to the Internet through the access provider on which instruction was served. Where action is aimed at the entire network of networks, it is necessary to contact directly the undertaking whose server accommodates the impugned statements (and there may be several of these in the case of mirror sites, i.e. sites accommodated elsewhere which replicate the content of the original site).1
Ubiquity: As a network of networks, the Internet has a global dimension. The communications which it carries are in principle accessible from any point on the planet which is connected to the network of networks. In practice, a racist message distributed on the Internet is therefore potentially visible from everywhere, regardless of the location of the server which accommodates and distributes it. None the less, some services are reserved for authorised persons (who use a password) or accessible only on payment of a fee. Similarly, certain closed networks, known as Intranets, are of a strictly local nature; they use the techniques which have made the Internet successful (in particular hyperlinks) but serve only the specific addressees of a precise entity (an undertaking or a university, for example); the wide public of surfers cannot access them, in the absence of an interconnection; having said that, a racist message is reprehensible whether it is disseminated on the Internet or an Intranet, because it is disseminated outside a strictly private circle (except in the rather theoretical case of an Intranet limited to a restricted circle of close acquaintances).
Secrecy: for various reasons surveillance of the network of networks is very difficult. First, it is possible to communicate anonymously on the Internet: many sites allow surfers to obtain software allowing them to send or consult messages in complete confidentiality; either they eliminate all trace of connections or they conceal the identity of the computer used.2 Significantly, all machines linked to the network are identifiable, since when a machine is connected it is allocated an individual Internet address (known as the IP address and consisting of a series of numbers). The situation is therefore similar to that applicable to road traffic: each vehicle has an individual registration plate, although the driver as such is not identifiable.
The secret nature of the Internet is reinforced by the fact that certain unlawful contents are disseminated in an encrypted form. In other words, the content of a message is comprehensible only to those who have the decoding key (which is not always the same as the encoding key). However, the restrictions on the right to encode applicable in a few rare countries (notably France), like the more widespread restrictions on the export of encryption software (notably in the Unites States) undoubtedly hinder the possibilities of circulating messages with illicit contents.
Finally, the surveillance of communications is also made more difficult by the fact that, as the technique of dissemination means, the data which go to make up a single message are not necessarily circulated together; the information is split up into several packages, which often take different routes. This makes interception, in particular the legal interception, of unlawful communications more difficult.
Transience: information – whether a short message or voluminous files – travels very quickly on the Internet. In a few seconds racist messages forced to disappear from one server may reappear on another server on the other side of the world. Such a relocation makes virtually no difference to the surfer: in view of the ubiquity of the Internet, he accesses it as before, immediately the new access address is known.
It is important to realise that the Internet is simply a technique which allows separate networks to interoperate. On these networks various forms of services circulate, and they may come under the legal regime applicable to individual communication, that applicable to the press or that applicable to radio and television broadcasting. However, the following services are the most common and the most specific:
Electronic messaging: better known under the English name “e-mail”, this service is comparable to the traditional mail sent by post. It is reserved to “point-to-point” communications, that is from a specific sender to a (or sometimes a number of) specific addressee(s). Owing to its private nature, any racist messages sent via this medium are in principle lawful, since in the countries studied racial propaganda or hateful statements constitute an offence only where they are disseminated in public; however, e-mail may sometimes convey circular letters to a large number of addressees, in which case they will no longer be in the nature of private communications exempt from legal proceedings.
Electronic mailboxes: these services permit the exchange of all sorts of contributions (selective remarks, articles, images etc.) on a given topic. These “multilog” services, known as new groups, mailboxes, discussion groups or discussion lists, may be supervised by a “moderator” or uncontrolled, and offered only to approved participants or completely public. In principle, contributions are erased after a certain period (calculated in days, weeks or months, depending on circumstances); some services offer archives which allow “dead” contributions to be consulted. “Chat rooms” are similar to discussion groups, apart from the fact that the conversation takes place in real time; users are required to register and use nicknames to identify themselves.
www sites: these sites are storage places for information whose size varies between a few paragraphs and dozens of pages containing text, graphics, images or even sound. They are interlinked by hypertexts which make it possible to switch automatically from one site to another and are the basic components of the vast web that is the Internet. It is thus significant that racist sites all have lists of links to other sites of the same type, which make it easy to navigate in the universe of hateful expression.
It should be noted that:
First of all, a distinction must be drawn between the providers of the containers and the providers of the contents. The former make available the infrastructure which makes communication on the network of networks possible; they have no influence over the content of the various messages which they convey. The latter have direct influence over the content of the messages, whether because they are the authors or publishers of the messages or because they participated in their formal conception. Between these two poles there is yet a third, more flexible, category, which brings together actors who, in various ways, act as relays for the contents.
Be that as it may, it should be emphasised that this typology is schematic in nature. First, it is not uniformly accepted; in certain countries the actors are known by different titles, with the attendant risks of terminological confusion. Then, and in particular, an ever-increasing number of operators combine the various roles, and provide the infrastructures, access, host services and information services at the same time.
The telecommunications operator: its role is restricted to setting up the necessary terrestrial or radio telecommunications network and conveying information on this network, which may be a traditional telephone network, a wide-band integrated network or a cable broadcast distribution network. In the countries studied this economic activity is subject to administrative authorisation for reasons to do with the scarcity of broadcasting channels and the more or less marked public-service nature of the services provided. The telecommunications operator merely conveys millions of messages per day and in principle assumes no responsibility for any unlawful dissemination. For this reason no further reference to this actor is necessary.
The access provider: this person plays a key role in communications on the Internet. It provides surfers with the indispensable connection to the network of networks, on the basis of a contract, which is most often lined with general conditions. This economic activity is not subject to administrative authorisation; it follows that it is not possible to carry out a general surveillance of the way in which the access provider functions; in particular of the nature of the sites to which it provides access.
The host: the host provides a content provider with a storage and data-management service (hard disk space, machine processing and tape loop capacity) which allows the information to be accessible, notably via a dedicated www site. It may also undertake to provide technical assistance or information on the number of connections or files downloaded. Relations between the host and subscriber are contractual; here, too, general conditions generally complete supplement contractual terms. It may also be the case that the host participates directly in designing the site by providing its “pages” (graphic design, creation of frames etc.).
Apart from the author of the statements or images, who is beyond doubt the principal actor, this category consists of:
This category combines various actors who, although they have no direct influence on the content of the messages, none the less play an important role in locating, updating it and selecting information, such as those who run on-line archives and “monitor” discussion groups or establish hypertext links to other information sources. In principle, because they operate the “points”, these persons are aware of the information to which they point. However, it may happen that the information which they highlight is altered without their knowledge (the hypertext link remains the same, but the content of the site has changed).
1. Note: contrary to what the general public willingly believe, the Internet Society (http://www.isoc.org/isoc) is not a managing body of the network of networks (it cannot be repeated enough: there is no such body) but an international group of surfers whose aim is to promote the development of the Internet in the sense of the sharing of knowledge and free communication at world level.
2. See, for example, http://www.anonymizer.com/3.0/index/shtml. These sites are not specifically intended to promote crime on the Internet but to prevent personal information from being collected and personality profiles of surfers from being drawn up for essentially commercial purposes.
3. See, for example, the well-known racist site www.stormfront.org, which offers all kinds of racist texts, moderated and unmoderated discussion groups, a chat service, the opportunity to contact the publishers (firstname.lastname@example.org) and, finally, hypertext links to a host of www sites of the same type.
4. Anglo-saxon terminology tends to group the host and the value-added supplier under the generic term service provider.