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Fear and loathing on the Internet. (Tech Talk).

Racist or xenophobic material is anathema to most reasonable people, but it is grudgingly tolerated in the United States with a nod to the First Amendment Not so in many parts of Europe. And the global sweep of the Internet has complicated the issue.

Now, the Council of Europe has issued a preliminary draft of an addendum to last year's Cybercrime Treaty that would criminalize the placement of racist or xenophobic content on the Internet. Though the preliminary draft acknowledges "a proper balance between freedom of expression and an effective fight against acts of a racist or xenophobic nature through computer networks," the addendum nonetheless would make it a criminal offense to offer, make available, distribute, transmit, or produce racist or xenophobic material with a computer or through computer network.

According to a statement by Henrik W. K. Kaspersen, chairman of the Committee of Experts on the Criminalisation of Acts of Racist or Xenophobic Nature Committed through Computer Networks, "a large part of the countries that negotiated the cybercrime Convention" last year wanted to establish a provision that would ban hate materials.

The addendum, Kaspersen writes, will "harmonise criminal law with regard to the dissemination of racist and xenophobic material," and it will also expand the mutual assistance and investigative powers provisions of the original cybercrime treaty to cover hate material.

The United States, which had observer status for the drafting of the treaty, has yet to ratify the original cybercrime treaty and is not likely to agree to the addendum, says Brian Hengesbaugh, an attorney with Baker & McKenzie's Chicago office. Hengesbaugh, who is familiar with the treaty from his previous position with the U.S. Department of Commerce, says that while the final form of the addendum is not yet known, "the idea is that there would be restrictions on racist and xenophobic speech that most likely would come at least partially into conflict with freedom-of-speech rights in this country."

But First Amendment concerns are not the only reason the addendum is causing contention. It also carries some potentially serious implications for businesses that operate in cyberspace, especially those allowing third parties to post content--such as an Internet service provider (ISP) or an online auctionhouse.

"For example," Hengesbaugh says, "it might be really tough on ISPs if it comes out that they are generally responsible for anything going through their systems. Clearly, there's no way as a practical matter that they could really police everything."

Clint Smith, president of the U.S. Internet Service Provider Association (US ISPA), wrote the council, urging that it consider "existing legal frameworks for limiting intermediary liability adopted in the EU E-Commerce Directive...and various national laws." Smith also expressed concern that nongovernmental parties were not consulted in the drafting of the addendum to the treaty.

The recent announcement by a Paris court that it would bring Yahoo and its former chief executive to trial for allegedly condoning war crimes (because the company was deemed to be running afoul of French laws barring the exhibit or sale of Nazi books and memorabilia) may be only the beginning of a spate of similar lawsuits around the world if the addendum is agreed to as part of the treaty, says E-Hengesbaugh.

The addendum "signals there may be more coordinated efforts to develop content restrictions," Hengesbaugh says. "[Those] could impinge on even he most ordinary businesses that are doing business on the Internet."
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Title Annotation:international policy on racism and xenophobia on the Internet
Author:Piazza, Peter
Publication:Security Management
Article Type:Brief Article
Geographic Code:1USA
Date:May 1, 2002
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