Free speech laws are very different in Europe than in the US. They seek to root out hate speech, we protect it under the belief that it is more important to protect free speech for all than to suppress the hateful speech of the few. Theoretically, hate speech can be identified and refuted in the marketplace of ideas. We would also rather keep the burden of proof on the accuser rather than the accused (which incidentally is one of the reasons the Verizon ruling is so troubling):
- Based on a treaty that went into effect in January, Europe is attempting to shut out racist and xenophobic “hate” Web sites.
….The members of the Council of Europe (COE) are signatories to the 2001 Convention on Cybercrime — which was conceived to deal with Internet crime such as virus attacks and Web site hacking. Just last week, 12 out of 44 of the COE’s member States signed an additional protocol to the Convention that has a very different purpose.
….The Council argued, in its report on the new protocol, that it is a necessary response to the fact that “[t]he emergence of international communication networks like the Internet provide certain persons with modern and powerful means to support racism and xenophobia and enables them to disseminate easily and widely expressions containing such ideas.”
….The protocol broadens the treaty’s scope to cover offenses relating to distribution of racist or xenophobic propaganda via computer. According to a COE statement, it will “eliminate racist Web sites from the Internet and define and criminalize hate-speech on computer networks.”
What counts as “racist” or “xenophobic” speech? The protocol reaches “any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, color, descent or national or ethnic origin, as well as religion if used as pretext for any of these factors.”
….European governments may even filter extremist material so that their citizens cannot access it. Or ISPs may end up doing their job for them. As noted above, ISPs are exempt from the protocol if they are unaware of hate speech they unwittingly host. But what if a complaint brings such speech to their attention? In that event, the prudent course for the ISP is to shut down the site, whether or not it truly fits within the protocol, and wait to see if the poster wins a court challenge.
Most ISPs expressly retain the right to remove harmful or offending material in their contracts with their customers, so for them deposting is the safest course: The customer, due to the contract, has no recourse, and the ISP then eliminates any risk.
….The European Court of Human Rights has held, for example, that a state’s actions to restrict the right to freedom of expression may be justified when such ideas or expressions violated the rights of others. According, the ECHR is not thought to conflict with a number of laws that would never pass muster in the U.S., including laws in Spain, Germany and France outlawing Internet “racism” and denial of the Holocaust, and a U.K. law outlawing publication of material likely to incite racial hatred.
The depth of the contrast between U.S. and European law can be illustrated by the case of Gerhard Lauck. Lauck publishes Nazi newspapers and a Nazi Web site from Nebraska with impunity. The site is legal in the U.S., but it is illegal in Germany, which has laws against Nazi propaganda that apply to any Web site Germans can access, wherever it is located. (Jurisdiction over even those sites outside Germany was upheld in a December 2000 German case.)
While the U.S. may be horrified to become a haven for such cyberhatemongers as Lauck, it can at least be proud of being a haven for free speech at the same time. [CNN]