Text of U.N. presentation: demands for Net-censorship

[Declan McCullagh <declan@well.com>]

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.


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