Attached below is a presentation given at the November 10-14 United Nations summit on the Internet and "hate speech." Note what the speaker wants the U.N. to do:
a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
b) shall declare illegal and prohibit organizations, and also all other propaganda activities which promote and incite racial discrimination and
-Declan --- IMPLEMENTATION OF THE PROGRAMME OF ACTION FOR THE THIRD DECADE TO COMBAT RACISM AND RACIAL DISCRIMINATION Seminar on the role of Internet with regard to the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination Geneva, 10-14 November 1997 Item V: Prohibition of Racist Propaganda on the Internet: Juridical Aspects, International Measures Note: The opinions expressed in this paper are those of the author and are not necessarily shared by the OHCHR. Mr. Agha Shahi, Member of the Commitee on the Elimination of Racial Discrimination The International Community is increasingly concerned that new technological developments in the sphere of communications and in particular computer networks such as the Internet, are being exploited to disseminate racist propaganda through out the world. It is therefore necessary to assess the role of the Internet in spreading ideas of racial superiority and hatred through a wide variety of electronic communication and information retrieval methods, known as cyberspace and to explore from the juridical aspect what international measures can be taken to ensure a responsible use of the new medium, taking into account the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) The International Convention which has been ratified or acceded to by 148 States, is the international community's primary legal instrument for combating racial hatred and discrimination. In Article 4 of this Convention: "State Parties ... undertake to adopt immediate and positive measures designed to eradicate: all incitement to, or acts of, (racial) discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, interalia: a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; b) shall declare illegal and prohibit organizations, and also all other propaganda activities which promote and incite racial discrimination and shall recognise participation in such organizations and activities as an offence punishable by law; c) shall not permit public authorities or public institutions, national or local to promote or incite racial discrimination". Article 1, paragraph 1 of ICERD defines "racial discrimination" as: "... any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." Article 6 of the International Convention provides for remedies against acts of racial discriminations as well as just and adequate reparation or satisfaction for any damage suffered as a result of the violation of Article 4 and the human rights expressly set forth in Article 5 of the Convention. In its General Recommendation XV (42) of 17 March 1993, the Committee on the Elimination of Racial Discrimination (CERD) reminded the States Parties that Article 4 is of a mandatory nature and that they have the obligation not only to enact laws to criminalise racial discrimination but also to ensure that the laws are effectively enforced by national tribunals and other state institutions. Article 4 aims at prevention rather than cure; the law penalises in order to deter racism or racial discrimination as well as activities aimed at their promotion or incitement. In respect of Article 4(b), CERD stresses that States Parties are required to declare illegal and prohibit all organisations as well as organised and other propaganda activities and punish participation in them and that 4(c) outlines the obligations of public authorities at all administrative levels, to ensure that they do not promote or incite racial discrimination. The introductory clause to Article 4 of International Convention imposes an obligation to pay due regard to the principles embodied in the Universal Declaration of Human Rights (UDHR) and the rights expressly set forth in Article 5 of the Convention including the criminalisation and punishment of: "All dissemination of ideas based on racial superiority or hatred"... (as well as) "Organisations", and also all other propaganda activities which promote and incite racial discrimination and (also) participation in such organisations and activities". Article 5(d)(viii) and (ix) of the Convention do not spell out the right to freedom of opinion and expression nor the right to freedom of peaceful assembly and association. The Universal Declaration defines these rights in its Articles 19 and 20: Article 19 "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers". Article 20 "1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association". Article 29 of the Universal Declaration limits the rights to freedom of opinion and expression and to peaceful assembly and association as follows: Article 29 Paragraph 2: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." Paragraph 3: "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United nations". There is a further lmitation in the Universal Declaration: Article 30: "Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein". Under Article 4 of ICERD, "due regard" to the rights to freedom of expression and freedom of peaceful assembly and association must also take into account the limitation put on the exercise of these rights as set forth in Articles 29 and 30 of UDHR. Therefore, the "due regard" clause cannot be interpreted as reducing to ineffectiveness, the mandatory force of ICERD's Article 4(a) and (b). Dissemination of ideas of racist superiority or the prohibition of organisations and propaganda activities which promote and incite racial discrimination are also contrary to one of the purposes of the United Nations which is, in the words of Article 1 paragraph 3 of the UN Charter "to promote and encourage respect for human rights and fundamental freedom for all without distinction as to race, sex, language or religion and also to Article 55 of the Charter which enjoins respect for and observance of these rights and freedoms. In Article 4 of the International Convention, the "due regard" clause makes no reference to the provisions of the International Covenant on Civil and Political Rights (ICCPR), as the latter was adopted by the UN General Assembly one year after the former. The Covenant which is an international treaty, translates into precise rules of international law, the principles of the Universal Declaration which do not constitute a legally binding text though arguably, because of the Declaration's universal acceptance, it is claimed to have the force of customary international law. The following Articles of the ICCPR spell out the right of freedom of opinion and expression and the permissible limitations on the exercise of this right: Article 19 (ICCPR) 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals. Article 20 (ICCPR) constitutes a further limitation of the foregoing Article 19. It reads: 1. Any propaganda for war (war of aggression) shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. The question arises whether under Article 20 (2) and law enacted should not be restricted to protection of national security, or of public order or public health or morals as in Article 19 (3) (though the two articles stand apart) by projecting into Article 20 (2) "due regard" for freedom of expression, particularly in view of Article 5 paragraph 1 of the Covenant that: "no state, group or person has the right to engage in any activity aimed at the destruction of any of the rights and freedoms recognised herein (including freedom of expression) or their limitation to a greater extent than is provided for in the Covenant". There are also corresponding provisions in ICCPR Article 21 on the right of peaceful assembly and limitations thereon to UDHR Article 20 on the right to freedom of peaceful assembly and association, as well as in regard to the limitations that are permissible in the two instruments on grounds of recognition and respect for the rights and freedoms of others and requirements of morality, public order and the general welfare in a democratic society... Reservations to or declarations of interpretation of Article 4 of ICERD have been made by some sixteen State Parties including the United Kingdom, France, Germany, Austria, Italy and Switzerland and some others. They have stated that legislative measures in the fields covered in subparagraphs (a), (b) and (c) of that article are to be adopted only with "due regard" to freedom of opinion and expression and freedom of peaceful assembly and association and to attain the end specified in the earlier part of Article 4. But these reservations fail to pay due regard to the limitations on the rights to the freedoms of expression and association in the Universal Declaration and the International Covenant themselves. As for the declarations of interpretation of these States Parties, they "do not constitute reservations and have no legal effect on the obligations under ICERD of the States that make them" (HR Geneva/1996/SEM 1/BP2 by Luis Valencia Rodriguez, Member CERD) The United States has made more far-reaching reservations -- that "nothing in the Convention (ICERD) shall be deemed to require or authorise legislation or other action by the United States of America incompatible with the Constitution of the United States of America", i.e. incompatible with the extensive protections of individual freedom of speech, expression and association. The Human Rights Committee, which has built up an impressive body of jurisprudence through interpretation of the provisions of ICCPR, has held that proscription of racist speech to be an appropriate and legitimate restriction. It holds that Article 19 which protects freedom of speech needs to be interpreted in the light of Article 20 (in JRT and WG Party V Canada DOC A/38/40 at 231--Paper presented by Australia to UN Seminar 9-13 September 1996, Geneva on Racist propaganda through Computer and Electronic Network). This working paper concludes: "It should be noted that it is only in the United States, with its quasi-absolutist conception of freedom of speech, that the regulation of racist speech is held to violate the constitutional right of free speech. Free speech is a constitutional right in Canada and many European countries. Yet the highest courts in these countries have held that provisions which prohibit racial incitement and the dissemination of racist ideas are reasonable and necessary exceptions to the right of free speech. In 1989, for instance, the Canadian Supreme Court upheld Canada's anti-hate speech legislation. Interpretation of freedom of expression involves resort to the values and principles of a free and democratic society". This conclusion is in line with the view of the Committee on the Elimination of Racial Discrimination (CERD) as well as the generality among the State Parties that the right to freedom of expression is not absolute but subject to certain limitations (in UDHR and ICCPR), that these limitations lie in the balance to be struck between the obligations deriving from Article 4 of the International Convention (ICERD) and the protection of these fundamental freedoms. CERD has consistently rejected any construction of "due regard" for freedom of expression as neutralising the obligation to prohibit and punish dissemination of ideas based on racial superiority or hatred or incitement to racial discrimination or acts of violence. It is clear that from the juridical point of view, the provisions of Article 4(a) and (b) of ICERD are mandatory rules of internationl law that call for enforcement through competent international tribunals and other state institutions as laid down in Article 6 of ICERD. "Due regard" for the rights to freedom of expression or to freedom of peaceful assembly and association cannot be so construed as to justify failure to prohibit or punish over the Internet dissemination of ideas of racial superiority or hatred and all other propaganda activities which promote and incite racial discrimination or recognise participation in organisations carrying out such activities as an offence punishable by law. INTERNET AND RACIST PROPAGANDA "The Internet is an international network of interconnected computers that enables millions of people to communicate with one another in cyberspace and to access vast amounts of information around the world... It is a unique and wholly new medium of worldwide human communication. So declared the US Supreme Court in its judgement of 26 June 1997 in Reno, Attorney General of the United States et al v American Civil Liberties Union (See US Supreme Court Syllabus) ruling indecent transmission (pornography) on the Internet as unconstitutional on the ground that it abridged freedom of speech protected by the First Amendment. The Supreme Court estimated that the "host" computers -- those that store information and relay communications, to number 9,400,000, roughly 60% of these hosts being located in the United States. It is estimated that about 40 million people use the Internet and that this number is expected to grow exponentially to 200 million by 1999. The Supreme Court judgement provides other valuable information about the Internet which is summarised below: Individuals can obtain access to the Internet from many different sources, generally the hosts themselves or entitles with a host affiliation. Most colleges and universities provide access to their students and faculty and many corporations to their employees. Many communities and local libraries provide free access. Several major on-line services such as America on-line. Compuserve, the Microsoft, Network and Prodigy offer access to their own proprietary networks as well as a link to the much larger resources of the Internet. These commercial on-line services had by the middle of 1996 almost 12 million consumers. Anyone with access to the internet can communicate and retrieve information through electronic mail (E-mail) automatic mailing list services ("mail exploders" or listservs"), "newsgroups", "chat rooms" and "World Wide Web". All of these methods can be used to transmit text; most can transmit sound, pictures and moving video images. Taken together these tools constitute a unique medium known to users as cyberspace--located in no particular geographical location, but available to anyone, anywhere in the world with access to the Internet. The World Wide Web is the best known category of communication over the Internet. It allows users to search for and retrieve information stored in remote computers, as well as to communicate back, in some cases, to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Elaborate documents known as web pages have their own addresses which frequently contain information and allow the viewer to communicate with the page's (or the site's) author. Any person or organisation with a computer connected to the Internet can publish information and make it available to all other Internet users or confine access to a selected group. No single organisation controls any membership in the Web nor is there any centralised point from which individual Web sites or services can be blocked from the Web. Unlike communications received by radio or television, receipt of information from the Internet requires a series of more deliberate and directed steps than merely turning a dial. According to the Tel Aviv University paper (HR Geneva A/1996/SEM1) Anti-semitism on the Internet: the most widely used systems for the dissemination of anti-semitism over the Internet today are the World Wide Web and Usenet, with lesser use of mailing lists, FTP and Gopher. World Wide Web The World Wide Web (WWW) is a global information system made up of a body of software and a set of protocols and conventions which uses hypertext and multimedia techniques to provide easy access to information through the Internet. The programs for accessing and viewing information in WWW are called "browsers". The most popular WWW browser today is Netscape Navigator. Using a browser, one can access information specially prepared for WWW using the Hyper Text Transfer Protocol (HTTP), as well as other systems such as FTP, Gopher and Usenet news. WWW browsers use an addressing system called Uniform Resources Locators (URL) to request information. Thus, if one encounters offensive material in WWW, there is an address for complaints. USENET Usenet is a worldwide distributed discussion system. It consists of a set of "newsgroups" with names that are classified by subject. There are thousands of newsgroups covering a very wide range of topics. Thus, it is often impossible to determine the true identity of the sender of a Usenet article. Moreover, one can make it appear that the message actually came from someone else. Electronic mailing lists are also used. And there is the E-mail for person to person private communication, which can be made more secure by encryption. Racist organisations, neo-Nazis and hate groups have established propaganda sites on the World Wide Web (WWW) - Working Papers (HR Geneva/1996 SEM 1 WP2 and WP3) prepared by the Anti-Defamation League of the United States, provide a survey of extremist material on WWW which sows racial hatred against Jews, blacks, Asians, Latin Americans and foreigners, proclaims white supremacy, and spreads propaganda to justify racial separatism and even an apocalyptic race war waged with weapons of mass destruction. Article 4 of ICERD is as much applicable to the dissemination on the Internet of ideas of racial superiority or hatred and other racist propaganda as it is to such offences and illegal acts in the press, radio, television or any other media. While an opinion on racial supremacy held by an individual or a group may be an absolute right, once such an opinion is broadcast, , it become an act or behaviour. This behaviour transgresses, just as an act of racial discrimination does, national as well as international law which call for legal penalties. Most State Parties take this position. The case of the United States is sui generis because of the First Amendment which guarantees virtually absolute freedom of speech. "Chat room" talk on the Internet by persons holding racist convictions could well lead to advocacy of ideas of white racist supremacy. Participation in such gatherings could thus be deemed culpable under Article 4(b) of ICERD. The enforcement of the provisions of Article 4 and Article 6 to assure remedies to, and reparation for any damage suffered by, a victim of racist propaganda or racial discrimination on the Internet however present some technical problems. Internet telecommunication though not as invasive as radio or television as it does not appear on one's computer screen unbidden, has today over a 100 million users worldwide and this figure is growing exponentially. Internet has no sender who distributes offensive material to specific recipients. It allows the speakers and listeners to mask their identities. In the United States, anti-semitic and racist speech on the Internet is protected by the First Amendment guarantee of freedom of expression. Consequently, material that is treated as illegal in most other democracies outside the US, including racist and defamatory statements, will be presented on the Internet (via US postings) and as a result, would be accessible to virtually everyone around the globe, regardless of existing local laws and mores. (HR Geneva/1996/SEM1 p.6 Background paper 3 of Simon Wiesental Centre). As the Supreme Court judgement referred to above says, while the "chat rooms" and Web Sites for example, exist at fixed geographical locations on the Internet, users can transmit and receive messages on it without revealing anything about their identities. Abbreviations that make up an Internet address might be a deception. To what extent can democratic governments regulate the material that passes through the Net? The Internet providers, can, if they wish, refuse service. They can also screen content appropriately with the aid of technologies that are evolving rapidly. The Economist in its issue of October 19th, 1996 (page 15) states: "Governments need to force Internet service providers, many of which will in future be big telephone companies, to take responsibility for what they knowingly carry on their sites". This in no way implies that racist talk should not also be dealt with by monitoring and refutation. Furthermore, all Internet traffic should be compelled to make known its electronic signature and source address on all messages so that it could not longer enjoy impunity. To draw a dividing line between what is to be permitted and prohibited on the Internet, the relevant provisions of the Universal Declaration of Human Rights, but also those of the International Convenant on Civil and Political Rights as well as the International Convention on the Elimination of All Forms of Racial Discrimination, in particular Article 4, must also be taken into account. ###