European Commission against Racism and Intolerance (ECRI)


Legal instruments to combat racism on the internet

VI. CONCLUSION

At the close of this study, we find that:

  • the European countries which we have examined have adequate legal instruments to combat racism: since they make no reference to a technical means of communication, the existing rules intended to combat traditional hateful statements are perfectly capable of suppressing hateful statements on the Internet. If there is any deficiency, it is solely in relation to the suppression of revisionism, since some European countries refuse to make the negation of genocide an offence.
  • the difficulties encountered in combating racism on the Internet are due to the particular characteristics of communication on the Internet and to legal obstacles to the implementation of the practical rules prohibiting hateful statements.

 

- for this reason, racist messages and the www sites which accommodate them are difficult to locate and their authors are difficult, since the information may be conveyed in an encrypted and anonymous form on the Internet; similarly, it may disappear very quickly from one server and reappear on another (a mirror site) on the other side of the world; finally, access providers do not keep records of the connections by surfers (logs) for a period long enough to enable the offending information to be traced back to its source.

 

- the very wide protection which American courts afford to freedom of expression has allowed numerous racist www sites or electronic mailboxes to find refuge in the United States; where conduct in question does not constitute an offence in that country, judicial cooperation is inoperative: the authors of these racist communications cannot be prosecuted and the hosts cannot be compelled to close down the offending sites. This applies even more to revisionist statements: not only the United States but the more permissive European countries are so many “havens” for revisionism.

 

- the legal instruments at the source of international judicial cooperation have not adapted to the era of digitalised, world-wide electronic communications. Their lengthy and cumbersome procedures, which are linked with national sovereignty, scarcely favour the cooperation and coordination indispensable to effective action against transient communications which know no frontiers.

  • these difficulties in implementing judicial proceedings against the authors of racist statements have resulted in action being targeted against the various intermediaries who enable messages to be conveyed on the Internet: access providers and hosts in particular. In legal terms, the solutions found by the courts, and more rarely by the legislatures of the countries studied, are not yet uniform, but a certain tendency is emerging towards establishing a graduated scale of criminal, or even civil, liability, according to the proximity of the operator to the content of the messages: an obligation to exercise diligence is imposed in the hosts and a fortiori on the relayers of information who operate electronic mailboxes or archives. On the other hand, access providers, who are more remote from the content, are prosecuted only if a judicial authority has informed them of the illicit nature of the information which they convey and has formally ordered them to block access to it.
  • A movement to mobilise the community of surfers in order to locate racist and more generally illicit sites and to curb their proliferation is under way; the methods implemented vary between labelling sites and setting up hot lines; they also include filtering. Owing to the pressure brought to bear on them, the technical intermediaries, especially the access providers and hosts, have taken or are in the process of taking self-disciplinary measures in the form of codes of conduct, which are passed on to their customers by means of clauses inserted in the contracts prohibiting them from making unlawful use of the services provided.

On the basis of the foregoing, we are of the opinion that the following measures might be envisaged:

  • At international level, a specific international convention aimed at suppressing racism on the Internet will have practical effect only if all the States in the world are parties to it. That is a utopian vision, in view of the considerable disparities regarding freedom of expression. The prudent course, therefore, would be to enter into a dialogue with all service providers, in particular the Americans, in order to convince them that they themselves must take the appropriate measures to combat racist sites (by blocking sites, filtering, refusing anonymity to authors of sites, etc.).
  • On a material level, revisionism should be made an offence throughout Europe; although such standardisation on a continental scale will not prevent revisionist sites from finding a refuge in more permissive countries, it would send out a clear signal of the European attitude to revisionism.
  • Again on a material level, it will be necessary to distinguish the function of the access provider from that of the host and to establish clearly the responsibility of each of them. Whereas the access provider should only be held responsible in respect of the illicit contents of which he was aware but to which he has not blocked access, the host must show that he has exercised wider vigilance, in particular towards sites which he accommodates anonymously and free of charge.
  • In terms of procedure :

 

- it is important to ensure that national and international provisional measures make it possible to order manifestly racist sites or electronic mailboxes to be closed down as quickly as possible, or to block access to them.

 

- access providers must be required to keep logs of connections for six months; however, a longer period might be incompatible with the data-protection principle that information must not be stored indefinitely.

 

- hosts must be required to reveal the identity of the authors of the sites which they accommodate.

  • on an ethical level, the efforts to achieve self-discipline made by access providers and hosts should be encouraged. The emphasis must be placed on making self-discipline more widespread: all access providers and hosts must comply with the ethical rules; in that regard, it is advantageous if there is a national federation to which all technical intermediaries belong.
  • in a dynamic and changing environment, the dialogue between surfers, technical operators and prosecuting authorities must be preferred to misplaced and selective reactions on the part of the legislature. Setting up a body for dialogue, or indeed a joint regulatory body, is the most appropriate means of doing this; this body could participate in the preparation of codes of conduct, serve as mediator in specific disputes and act as a permanent observatory, in particular by informing the legislature of the measures to be taken when self-discipline does not work.
  • education and training must be maintained. Education primarily concerns the community of surfers, especially children, who must be aware that they may encounter racist sites and that the statements which they will find are unacceptable. Training is especially aimed at the prosecuting authorities, who must know more about the specific technical features of the Internet; from this aspect the establishment at national level of a specialised prosecution authority would be an advantage.
  • lastly, it must be emphasised that these various measures, in particular the obligation to exercise diligence, must not be aimed solely at combating racism, but also at combating any illicit communication on the Internet. In that regard, it would be appropriate to act in cooperation with those who seek to combat paedophilia on the Internet, since their action is particularly specific.