Regulating cyber hate speech is a challenge to
legislators, due to the practical limitations of the law. [1] This paper will
demonstrate firstly, the necessity of regulation, and the ineffectiveness of
unilateral and multilateral laws, such as the Additional Protocol on the Cyber
Crime Convention[2]
(Additional Protocol). Whilst examining the First Amendment of the American
Constitution (First Amendment), this paper will reason that the U.S. exists as
a hate speech haven. Lastly, this paper will show while the above is true, hate
speech is no more unregulable because of this, as a technological approach can provide
a solution.
The Harm in Hate Speech
If
hate speech is inherently harmful, it should follow that it necessitates
regulation. Waldron takes this view, submitting that regulation provides public
protection, ensuring dignity, security and assurance to governed citizens.[3] Post concurs, stating hate
speech has the ability to cause harm collectively to society, as well as to
individuals.[4]
It has been argued that if left unregulated, hate speech ‘could cause society
to lose its civility’.[5] Indeed, the dangers of
Internet hate speech were exemplified when Benjamin Smith was influenced to conduct
a killing spree after viewing hate content online.[6] However, whilst most
countries recognise the need to regulate hate speech,[7] regulatory power of
national government has faced significant barriers due to the global infrastructure
of the Internet.[8]
The
lack of geographical borders augments the difficulties of regulation. Subsequently,
the harms of hate speech are amplified, as the Internet captures a much larger audience
than traditional crime methods.[9] Yet unilateral legal
approaches have been ineffective, as jurisdictional differences render laws
unenforceable extraterritorially.[10] It is perhaps unsurprising
then, where multilateral pursuits to address hate speech have seen fruition, they
have prima facie sought praise. Nemes
consequently heralded the Additional Protocol as ‘one of the most significant
advances’ in regulating hate speech online.[11] According to Rorive,
international agreements are ‘a logical way to escape’ the jurisdictional
dead-end of the Internet.[12] Why then, did Leiter
write 8 years after the Additional Protocol’s conception, that the Internet
continues to be littered full of ‘cess-pools’ of hate speech?[13] The multilateral
approach, although theoretically advantageous, is ultimately flawed.
The
Ineffectiveness of Law
This second part will attempt to answer Leiter,
showing the inadequacy of both unilateral and multilateral legal regulation.
The failings of traditional laws are primarily attributed to the First
Amendment, and the omission of the U.S. to sign and implement the Addition
Protocol.[14]
The First Amendment provides that it shall create ‘no law…abridging the freedom of speech’.[15] Thus, the U.S. provides arguably the highest protection to
expression, and consequently invokes a liberal approach toward racist speech.[16] The implication of this
is that websites blocked through unilateral law can simply re-appear on an
Internet Service Provider (ISP) in the U.S.[17] Hence, unilateral efforts
are simply not an effective regulatory solution.[18] As Foxman and Wolf state,
‘like chasing cockroaches, squashing one offending website, page, or service
provider does not solve the problem’.[19]
The ineffectiveness of unilateral law was
epitomised in LICRA v Yahoo![20] where Yahoo! received a
French court order to filter offensive content to French citizens. Refusing to enforce
the order, U.S. Judge Fogel ruled ‘this
court may not enforce a foreign order that violates the protections of the
United States Constitution by chilling protected speech that occurs
simultaneously within our borders’.[21] Despite Yahoo! ultimately
restricting the offensive content, it is argued that failures to enforce transnational
laws have had a trivialising effect on law.[22] Consequently a unilateral
application of local law is perhaps more costly than it is worth.[23] Barendt finds this
‘unacceptable’,[24]
to which Hopkins concurs, opining that such laws may continue to be ineffective
unless crime standardisation is achieved.[25] This is unlikely to
become a reality, as it would ‘infringe upon domestic legal regimes and
cultures’,[26]
as was evident in the Yahoo! litigation.
Recent cases such as R v Sheppard[27] demonstrate how the U.S.
continues to undermine legal approaches. It is submitted that multilateral laws
fall foul of the same problem. As the U.S. has refused to ratify the Additional
Protocol, there seems little reason to think it may have a substantive effect
on regulating hate speech in future cases. Consequently, further judicial
stalemates are likely to continue.[28]
It is argued that the U.S has promoted the
First Amendment as a ‘global speech norm’.[29] In Reno v ACLU, the U.S. Supreme Court ruled that the Internet is ‘entitled to the highest protection from
governmental intrusion’.[30] Considering this, the
U.S. treats the Internet uniquely, failing to realise Waldrons assertions of
the harm in hate speech. This special treatment was exemplified in Bachellar v Maryland[31] where the Supreme Court
ruled that the ‘public expression of
ideas may not be prohibited merely because the ideas are themselves offensive
to some of their hearers’.[32] A multilateral legal
framework would necessitate the approval of the U.S., otherwise enforcement
would most likely fail in the same way as the Yahoo! litigation did. Approval would be very unlikely, as Vick highlights
the futility of the U.S. signing a multilateral law combating hate speech.[33] The superlative
hierarchical position of the Constitution means the U.S. ‘cannot agree to any treaty provision that would offend the First
Amendment’.[34]
Therefore, it would simply be ruled unconstitutional. As such limitations to
speech are virtually non-existent in the U.S., without a serious prospect of
change, this paper concludes that it is a hate speech haven.
Defenders of free speech have argued that as
the First Amendment is subject to exception, it provides some protection from
harm.[35] Most relevant, is that
speech may be exempt from constitutional protection if it is considered
‘fighting words’[36]
requiring speech to be so offensive that it causes immediate violence as a
reactionary response. It further requires that speech is directed at those
physically present, who would be induced into violence that an ordinary person
could not control.[37] Yet Nemes points out, the
narrowness of this exception is unreflective of hate speech victims, who are
more likely to withdraw rather than respond aggressively.[38] Furthermore, as authors
of hate speech are ‘rarely in the physical presence of someone who might be provoked’[39] it fails to fulfil the
captive audience requirement; ‘people are free to leave the vicinity of a
computer screen.’[40] Clearly, the exception
will seldom apply to Internet. Even outside of Internet spheres, there has
never been a sustained conviction under the fighting words exception.[41] Thus, it seems it does little
to mitigate the harms that may arise from such highly protected expressional
freedom. As the U.S. continues to exercise dominance on global speech
regulation, it may seem that the Additional Protocol is powerless without the
support of the U.S. Ultimately, the Additional Protocol serves as nothing more
than a symbolic public condemnation of bigotry.[42]
A Technical Solution
Although the failures of legal regulation are
significant, to say that hate speech is unregulable is possibly inaccurate.[43] Where legal controls
alone may be ineffective,[44] a technological approach
may be more appropriate. Thus, the development of software filtering hate
speech might be a remedy, enabling states to control the distribution of
information depending on geographical destinations.[45] The implementation of
such technology could resolve international differences through ‘zoning’.[46] Such a method would see
states block extraterritorial material contrary to national laws using location
technology and IP addresses to filter incoming odious material.[47] As opposed to court
ordered website blocking, ‘receiving states’ could effectively filter all
undesired content automatically.[48] This would perhaps solve
the issue in the Yahoo! dispute,
whilst remaining compliant with the legal and cultural standards of the
jurisdiction in which content is displayed.
However, this approach has found criticism, as
it has been argued that technological solutions are ‘limited’, citing the failure
of the ‘HateFilter’ software showcasing the inability of regulation to keep up
with the evolution of the Internet.[49] Yet Watt argues, as
technologies improve, filtering techniques will become more competent at
effectively regulating.[50] The challenge of
regulating web 2.0 technologies is significant,[51] yet if such technologies
were given time to mature and develop, it is submitted they would become
increasingly effective at regulating undesirable content. For example, YouTube
developed a sophisticated pornography filter, eliminating explicit content
before it reached users, with a significant rate of success.[52] It seems reasonable to
think that this technology could apply to hate speech within other Internet areas
too. Such a solution is opposed further, in fear that over-regulation would
become a consequence of any technological inadequacy.[53] Yet Leiter submits that
any over-regulation from better regulation is ‘offset many times over’
considering the harm that hate speech inflicts.[54] While technological solutions
may be imperfect, they are perhaps more desirable than relying on law to ‘solve
the riddle of international conflicts.’[55]
The dichotomy of who should regulate is perhaps
a more difficult discussion. Cohen-Almagor submits that regulation should be imposed
privately.[56]
However, regulation left solely to the devices of companies such as Google lack
accountability and public scrutiny, and simply award more power to those who
already assert great control over the Internet.[57] Also, the economic burden
of implementing regulation, coupled with the lack of incentives from legal
requirements means there is actually little encouragement for this to occur
effectively.[58]
Rather, moral incentives are far more prominent to ensure State implementation.
This might be more appropriate, as political accountability could provide
safeguards from excessive censorship. State regulation also allows the
tailoring of regulation to fit its conception of public welfare, and the issue
of over-regulation may be avoided by burdening the cost to the State.[59] Whereas this may be
appropriate for European Countries, hate speech in the U.S. would remain an
issue.
This approach is unlikely to be popular among
cyber-libertarians. The interaction between netizens and state is central to
the legitimacy and thus success of regulation.[60] Consequently,
transparency is crucial to ensure such legitimacy of any method of regulation,[61] and could ensue, if
effectively communicated to the public.[62] This paper ultimately
concurs with Banks; the most effective regulation is one that utilises
‘governments, business and citizenry to engage in an individual and collective
effort to minimise online hate speech.’[63] While a technological
solution is preferred, law and other regulatory methods should be incorporated
to provide satisfactory regulation.
Conclusion
In conclusion, it is clear to see that while
hate speech should be regulated, both unilateral and multilateral legal
approaches are insufficient. This paper concurs with the statement that the
U.S. is a hate speech haven, and while the Additional Protocol has a symbolic
significance, it is unable to regulate effectively due to the conflict with the
First Amendment. However this paper does not find hate speech to be more
unregulable because of this ineffectiveness. A technology-based, state imposed
filtering system, if implemented correctly, could provide an adequate solution.
[1] Abraham
H. Foxman & Christopher Wolf, Viral
Hate: Containing its Spread on the Internet (Palgrave Macmillan, 2013) 71.
[2] Council
of Europe, ‘Additional Protocol to the Convention on Cybercrime, Concerning the
Criminalisation of Acts of Racist and Xenophobic Nature Committed Through
Computer Systems, [2003]
[3] Jeremy
Waldron, The Harm in Hate Speech (Harvard
University Press, 2012) 16.
[4] Robert
C. Post, ‘Racist Speech, Democracy, and the First Amendment’, (1991) 31
Wm.& Mary L.Rev. 267, 236-327.
[5] Irene
Nemes, ‘Regulating Hate Speech in Cyberspace: Issues of Desirability and
Efficacy’, (2002) 11 (3) I.& C.T.L. 193, 197.
[6] ‘US
Comment on the Internet’s Influence Following Benjamin Smith’s shooting spree’ The Independent (London, 8 July 1999) <http://www.independent.co.uk/arts-entertainment/monitor-us-comment-on-the-internets-influence-following-benjamin-smiths-shooting-spree-1104911.html>
[7] Yulia
Timofeeva, ‘Hate Speech Online: Restricted or Protected? Comparison of
Regulations in the United States and Germany’, (2003) 12(2) J.Transnat’l
L.& Pol’y 253, 254.
[8] Ben
Wagner, ‘Governing Internet Expression: How Public and Private Regulation Shape
Expression Governance’, (2013) 10 Journal of Information Technology &
Politics 389, 390.
[9] Shannon
L. Hopkins, ‘Cybercrime Convention: A Positive Beginning to a Long Road Ahead’,
(2003) 2 JTHTL 101, 102.
[10]
James
Banks, ‘European Regulation of Cross-border Hate Speech in Cyberspace: The
limits of Legislation’, (2011) 19 European Journal of Crime, Criminal Law and
Criminal Justice 1, 6.
[11] Nemes
(n 5) 200.
[12]
Isabelle Rorive, ‘Strategies to Tackle Racism and Xenophobia on the Internet –
Where are we in Europe?’, (2002) 7 I.J.C.L.P 1, 5.
[13] Brian
Leiter, ‘Cleaning Cyber-Cesspools: Google
and Free Speech’ in Saul Levmore and Martha Nussbaum (eds), The Offensive Internet (Harvard
University Press, 2010).
[14] Foxman
and Wolf, (n 1) 81.
[15] U.S.
CONST. amend 1.
[16] Jeremy Lipschultz,
Free Expression in the Age of the
Internet (Westview Press, 2000) 56.
[17] Foxman
and Wolf (n 1) 82.
[18] Tarlach McGonagle, ‘The Council Of Europe
Against Online Hate Speech’, 30 <http://www.coe.int/t/dghl/standardsetting/media/belgrade2013/McGonagle%20-%20The%20Council%20of%20Europe%20against%20online%20hate%20speech.pdf>
[19] Foxman
and Wolf (n 1) 82.
[20] LICRA
et UEJF v Yahoo! Inc. & Yahoo France [2000]
[22] Foxman
and Wolf (n 1) 81.
[23] Matthew
Fagin, ‘Regulating Speech Across Borders: Technology vs. Values’, (2003) 9
Mich. Telecomm. Tech. L. Rev. 395, 428.
[24] Eric
Barendt, Freedom of Speech (2nd
edn, OUP, 2005) 473.
[25] Hopkins
(n 9) 114.
[27] [2010]
EWCA Crim 65
[28] Fagin
(n 23) 428.
[29] Wagner
(n 8) 390.
[31] 397 U.S. 564 [1970].
[33] Douglas
W Vick, ‘Regulating Hatred’ in
Mathias Klang and Andrew Murray (eds) Human
Rights in the Digital Age (Routledge-Cavendish, 2005).
[34] Ibid
[35] Ibid
[36] Chaplinsky
v New Hampshire, 315 U.S. 568 [1942]
[38] Ibid
[39] Vick (n
33)
[40] Barry
Steinhardt, ‘Hate Speech’ in Yaman
Akdeniz, Clive Walker and David Wall, (eds) The
Internet, Law and Society (Pearson Education, 2000) 271.
[41] James
B. Jacobs and Kimblery Potter, Hate
Crimes: Criminal Law and Identity Politics (OUP, 1998) 113.
[43] Ibid 83.
[44] Andrew
Murray, Information Technology Law (2nd
edn, OUP, 2013) 135.
[45] Barendt
(n 24) 473.
[46] Horatia
Watt, ‘Yahoo! Cyber-Collision of Cultures: Who Regulates?’, (2003) 24 Mich. J.
Int’l L. 673, 687
[47] James
Banks, ‘Regulating Hate Speech Online’ (2010) 24(3) International Review of
Law, Computers and Technology, 233, 237.
[50] Watt (n
46)
[51] Murray
(n 44) 128
[52] Foxman
and Wolf (n 1) 105.
[53] Ibid
91-92.
[55] Caitlin
Murphy, ‘International Law and the
Internet: An Ill-Suited Match’ (2002) 25 Hastings Int’l & Comp. L. Rev.
405, 415.
[56] Raphael
Cohen-Almagor, ‘Freedom of Expression, Internet Responsibility, and Business
Ethics: The Yahoo! Saga and Its Implications’ (2012) 106 J. Bus. Ethics 353,
361.
[57] Ian
Brown and Chris Marsden, ‘Regulating Code: Towards Prosumer Law?’ (SSRN 2013)
1-3 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=222463>
[58] Watt (n
46) 693.
[60] Lawrence
Lessig, Code 2.0 (Basic Books, 2006)
122.
[61] Cohen-Almagor
(n 56) 361
[62] Ibid