WCAR
Think Papers
A joint project of Human
Rights Documentation Center (HRDC), International Service for Human Rights
(ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)
WCAR
Think Paper II:
Regulation of Racism on the Internet: The
existing debate on freedom of speech and the missing debate on the work of
human rights defenders
One
of the major issues at the World Conference Against Racism (WCAR) will be the
regulation of hate speech and racist propaganda on the Internet. The subject of racism on the Internet has
been a growing concern within UN standard-setting procedures, as reflected in
United Nations-sponsored expert seminars, resolutions by the Commission of
Human Rights and activities of the Office of the High Commissioner for Human
Rights. Accordingly, the official U.N.
background paper for the WCAR promises that “the World Conference will focus
attention on the misuse of the new technologies, in particular the Internet.”[1]
The issue of Internet
regulation will prove to be highly contentious because of a particular set of
competing concerns: the rights to freedom of opinion, expression, assembly and
association. The political alignment of
States on this issue may best be predicted, or anticipated, by analysing their
official positions with regard to Article 4 of the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD).
Under Article 4 of ICERD,
States Parties are obligated to punish “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.” (See Box below). However, several States Parties have entered reservations and
declarations regarding Article 4. In
fact, compared with all other articles
of ICERD, Article 4 has received the
second highest number of reservations and declarations.[2] As of 12 January 1999, 18 of the 153 States Parties had entered
reservations or declarations to Article 4.[3]
Article 4
International
Convention on the Elimination of All Forms of Racial Discrimination
States Parties condemn all propaganda and
all organizations which are based on ideas or theories of superiority of one race
or group of persons of one colour or ethnic origin, or which attempt to justify
or promote racial hatred and discrimination in any form, and undertake to adopt
immediate and positive measures designed to eradicate all incitement to, or
acts of, such 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, inter alia:
(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 organized
and all other propaganda activities, which promote and incite racial
discrimination, and shall recognize participation in such organizations or
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.
Based on an examination of
the pattern of reservations and declarations to Article 4, members of the
Western Europe and Others Group can be expected to provide some of the
strongest opposition to regulating racial discrimination on the Internet. A number of States within this Group (Austria, Belgium, France, Italy, Malta,
Monaco, Switzerland and the United Kingdom) have submitted declarations, or
statements of interpretation, which attempt to limit their obligations under
Article 4. These declarations contend
that the “due regard” clause of Article 4 means that a government’s ability to
pass legislation pursuant to Article 4 is limited, because such actions must
not unduly burden the rights to
freedom of opinion, expression, assembly and association.
Despite the almost uniform
language in these declarations, the above States will likely vary in the degree
to which they are willing to oppose regulations on racist speech at the
WCAR. France and Italy, for example,
subsequent to making their reservations and declarations to Article 4, enacted
legislation banning racist speech and racist organisations.[4] In 1995, the Government of
Italy even indicated it was considering formally withdrawing its reservation in
light of its changed appreciation of the issue,[5] though it has yet to take
such action.[6] These developments indicate that the alignment of States on the
issue is fluid and possibly subject to manipulation at the WCAR.
Australia, also a member of the Western
Europe and Others Group, has adopted a middle, though somewhat ambiguous,
position. The Government of Australia
entered a declaration regarding Article 4, which states that “Australia is not
at present in a position specifically to treat as offences all the matters
covered by article 4 (a) . . . It is the intention of the Australian Government,
at the first suitable moment, to seek from Parliament legislation specifically
implementing the terms of article 4(a).”
In its States Parties Report to CERD in 1999, the Government of
Australia explained that it had recently introduced civil
penalties in accordance with Article 4, but, the Government also stated that
because Article 4 envisions criminal sanctions, “[t]he Government . . . is not
in a position to remove the reservation.”[7]
The United States of America, probably the most politically powerful
member of the Western Europe and Others Group, can be expected to adopt the
most oppositional stance to Internet regulation, as reflected in its almost
wholesale reservation to Article 4. The
United States reservation states that the U.S. Constitution guarantees
extensive protections for the rights to freedom of speech, expression and
association and that the Government of the United States, therefore, “does not
accept any obligation under this Convention, in particular under articles 4 and
7, to restrict those rights . . . to the extent that they are protected by the
Constitution and laws of the United States.”
Notably in line with this view, the U.S. Supreme Court recently struck
down an attempt to regulate pornography on the Internet holding that the
regulation violated the First Amendment.[8] According to these indications, the United States should be
expected to dig in its heels at the WCAR when the issue of Internet regulation
is discussed and will likely try to marshal others to support its position.
The
opposition of the Western Europe and Others Group to regulation of the Internet
will likely be joined by those States in other regions which have also
submitted reservations or declarations to Article 4. The list of these States, however, is short: Fiji,
Japan, Nepal, Papua New Guinea and Tonga (Asia Group); Antigua and Barbuda, Bahamas and
Barbados (Latin America Group).[9] No State within the Africa
Group or the Eastern Europe Group has entered a reservation or declaration to
Article 4.
Finally,
it is important to note, more as a legal rather than a political matter, that
the Committee on the Elimination of Racial Discrimination has issued an
official interpretation of Article 4, which runs counter to the sentiment
expressed by those States opposing regulation.
In its General Recommendation XV(42), issued in 1993, the Committee
stated, in part:
“When
the International Convention on the Elimination of All Forms of Racial
Discrimination was being adopted, article 4 was regarded as central to the
struggle against racial discrimination.
. . .
In the opinion of the Committee, the
prohibition of the dissemination of all ideas based upon racial superiority or
hatred is compatible with the right to freedom of opinion and expression. This
right is embodied in article 19 of the Universal Declaration of Human Rights
and is recalled in article 5 (d) (viii) of the International Convention on the
Elimination of All Forms of Racial Discrimination. Its relevance to article 4
is noted in the article itself. The citizen's exercise of this right carries
special duties and responsibilities, specified in article 29, paragraph 2, of
the Universal Declaration, among which the obligation not to disseminate racist
ideas is of particular importance. The Committee wishes, furthermore, to draw
to the attention of States Parties article 20 of the International Covenant on
Civil and Political Rights, according to which any advocacy of national, racial
or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.”[10]
Curiously, some States (e.g., Japan) ratified the Convention and entered their declaration -- with an interpretation of Article 4 contrary to CERD’s -- after General Recommendation XV(42) was issued. The legal validity of such a declaration is, therefore, questionable.
One issue has thus far been largely
overlooked in the discussions of regulating the Internet: the potential effect
on governmental interference in the work of human rights defenders. The expert seminar discussions have focused
primarily on (i) abstract values in freedom of speech and (ii) the Western
States’ claim that more speech, not less, is the best way to expose and combat
racist sentiments. Missing from these
deliberations is the perspective of frontline human rights defenders concerned
with government’s power to monitor and regulate the work they perform on the
Internet. This is an added reason, and
a critically important one, that the perspective of frontline NGOs must be
fully represented at the preparatory meetings before the conference and at the
WCAR itself.
In
many countries, especially non-democratic ones, there is more to fear from
governmental abuse in controlling the content of and access to the Internet
than there is from the Internet’s misuse by private individuals. In the context of addressing hate speech and
other problems on the Internet, the Special Rapporteur on the
Protection and Promotion of the Right to Freedom of Opinion and Expression
concluded: “The instinct or tendency of
Governments to consider regulation rather than enhancing and increasing access
to the Internet is, therefore, to be strongly checked.”[11] In his subsequent report, the Special
Rapporteur explained that “[Government] measures have included, in certain
countries, the requirement that the information accessible through the Internet
be ‘trustworthy’ and in line with the country's ‘ethical principles’, or
efforts to control information viewed as threatening to political stability and
undermining the predominant culture, or some proposals by State police to
monitor all data sent over the Internet within national boundaries.”[12] It is in this context that participants at
the WCAR should be especially conscious of the implications in promoting
governmental control over the Internet.
Only with the full participation of national human rights defenders in
the deliberative process can all these considerations be adequately taken into
account.
[1] Office of the High Commissioner for Human Rights, www.un.org/rights/racism/facts1.htm.
[2] Article 22 (concerning the settlement of disputes) has received the highest number of reservations and declarations.
[3] The United Nations Seminar to Assess the Implementation of the ICERD, held on 9-13 September 1996, produced especially informative background papers concerning obligations and reservations under Article 4. See, e.g., Lusi Valencia Rodriguez (Member of CERD), Implementation of Articles 4 and 6 of ICERD Limits and Perspectives, HR/GENEVA/1996/SEM.1/BP.2; Vera Gowlland-Debbas (Professor Graduate Institute of International Studies, Geneva), Effects of Reservations to Article 4 of ICERD on the Fight Against Racism and Racial Discrimination, HR/GENEVA/1996/SEM.1/BP.4. See also CERD/C/60/Rev.3 (12 Feb. 1999).
[4] See, e.g., CERD/C/SR.1077, para. 11, 08/03/95 (Summary Record paraphrasing Country Rapporteur comment that “the Government of Italy was to be congratulated on its recent legislative reforms, which went a long way towards removing the need for Italy's reservation to article 4 of the Convention”); Gowlland-Debbas, supra at pp. 29-31.
[5] CERD/C/SR.1077, para. 11, 08/03/95 (Summary Record).
[6] CERD/C/SR.1316, para. 16, 04/05/99 (Summary
Record).
[7] CERD/C/335/Add.2, para. 416.
[8] Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329 (1997). It is worth noting, however, that the U.S. Congress’s decision to pass such legislation indicates some willingness in U.S. political circles to regulate offensive material on the Internet.
[9] Nepal’s declaration is unique because it makes reference to the Universal Declaration of Human Rights (UDHR), but does not specifically mention the freedoms of opinion, expression, assembly or association. The declarations of Antigua and Barbuda and Barbados are also different in kind. Neither State’s declaration references the UDHR or limitations of freedom of opinion, expression, etc. Both States just submit that, under their interpretation, Article 4 requires a party to enact measures “only where it is considered that the need arises to enact such legislation.”
[10] The Committee’s General Recommendation followed influential reports prepared by members of the Sub-Commission on the topic of freedom of opinion and expression which had reached similar conclusions. See E/CN.4/Sub.2/1990/11 & E/CN.4/Sub.2/1991/9.
[11] E/CN.4/1999/64, para. 34.
[12] E/CN.4/2000/63, para. 56.