Doc. 9607
21 October 2002
Racism and xenophobia in cyberspace
Recommendation 1543 (2001)
Reply from the Committee of Ministers
adopted at the 812th meeting of the Ministers’ Deputies (16 October 2002)
1. The Committee of Ministers welcomes the continued efforts made by the Parliamentary Assembly to ensure that the ongoing work in the Council of Europe to prevent and combat racism and xenophobia in cyberspace is proceeded with as speedily and efficiently as possible. The Committee of Ministers fully shares the concerns of the Assembly on these issues, which it has demonstrated inter alia through its decision of 19 September 2001 to set up an ad hoc Committee of Experts on the criminalisation of acts of a racist or xenophobic nature committed through computer networks (PC-RX), to prepare a draft additional Protocol to the Convention on Cybercrime (ETS 185).
2. In conformity with its terms of reference and in line with the Assembly’s Recommendation, the PCRX Committee completed its work by 30 April 2002. The draft Protocol was approved by the European Committee on Crime Problems (CDPC) in June 2002 and submitted to the Committee of Ministers for adoption. The Committee of Ministers decided on 17 July 2002 to transmit the text of the draft Protocol to the Parliamentary Assembly for an opinion (805th meeting, item 10.1). The opinion, which was adopted on 27 September 2002, has been considered by the Ministers’ Deputies in the context of the examination of the draft Protocol (812th meeting, 16 October 2002, item 10.1). The draft Protocol was approved by the Deputies in the same meeting with a view to its adoption by the Committee of Ministers at the 111th session (6-7 November 2002).
3. As the terms of reference of the PC-RX Committee were adopted by the Committee of Ministers before the Assembly’s Recommendation, the proposal to deal with unlawful hosting (paragraph 8.ii of the Recommendation) was not taken into account in these. However, although the draft Protocol does not specifically address the issue of unlawful hosting, the draft Explanatory Report clarifies the situation with regard to service providers. Paragraph 25 states that: “it is not sufficient, for example, for a service provider to be held criminally liable under this provision, that such a service provider served as a conduit for or hosted a website or newsroom containing such material, without the required intent under domestic law in the particular case. Moreover, a service provider is not required to monitor conduct to avoid criminal liability.”
4. The Committee of Ministers would like to point out that the criminalisation of certain types of conduct by the draft Protocol, (cf Articles 3-7) will largely serve the purposes indicated by the Assembly, ie. “to eliminate racist sites from the Internet and to encourage the effective prosecution of those responsible”. The very idea of the draft Protocol, as stated in the Preamble (6th paragraph), stems from the consideration that “national and international law need to provide adequate legal responses to propaganda of a racist and xenophobic nature through computer systems”.
5. However, the Preamble to the draft Protocol also underlines “the need to ensure a proper balance between freedom of expression and an effective fight against acts of a racist and xenophobic nature”. In this respect, the Committee of Ministers recalls that any initiative taken in this field has to comply with Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights.
6. The Committee of Ministers notes the concern of the Assembly, that has also been shared by the European Commission against Racism and Intolerance (ECRI), that an additional Protocol to the Convention on Cyber-crime would only be effective if all states which host racist sites and hate messages become party to the Protocol. In this respect, it entirely agrees with the view of the Assembly that “a dialogue must be initiated with all service providers to convince them of the need to take steps themselves to combat the existence of racist sites” (paragraph 4). Only with the active participation of service providers and representatives of other interested parties such as the education sector will it be possible to achieve tangible and lasting results in the fight against the dissemination of racism and xenophobia in cyberspace.
7. However, efforts to raise the awareness of the Internet industry must not be confined to highlighting its responsibilities. As indicated in the Assembly Recommendation, they must also involve promoting on the widest possible geographical basis (paragraph 4) examples of good practices developed by the industry to prevent, or at least restrict, the dissemination of racist or xenophobic messages in cyberspace. In view of the global nature of the new communication networks, a related objective must also be to foster exchanges of information and co-operation at cross-border level, both between bodies representing the Internet sector and between them and public authorities, with a view to combating the dissemination of such messages.
8. Those are the aims of Recommendation (2001) 8 on self-regulation concerning cyber content, which the Committee of Ministers adopted in September 2001 and which refers to several of the means mentioned in the Assembly Recommendation for encouraging “self-disciplinary efforts” (paragraph 5).The Committee of Ministers believes that the Parliamentary Assembly could play a useful part in helping publicise and implement Recommendation (2001) 8 in the member states.
9. On the other hand, the Committee of Ministers has some reservations at this stage about the suggestion made by the Parliamentary Assembly in the Recommendation that a consultation or joint regulation body could be set up within the Council of Europe (paragraph 6). It believes that any co-regulatory initiative should be based on a clear desire and a joint decision by the authorities and the Internet sector. For the time being, however, it appears unlikely that the industry would admit that there is any particular need for such a body at the European level. There is also the question of the feasibility of an initiative of this kind, given that the establishment of such a body could require substantial financial and human resources.
10. Lastly, the Committee of Ministers shares the view expressed by the Parliamentary Assembly about the importance of educating and training the public (paragraph 7). In this connection, it would like to draw the Assembly’s attention to Chapter VI (User information and awareness) of the Committee of Ministers’ Recommendation (2001) 8. The Committee of Ministers will keep the Assembly informed about the work that is being carried out in this field by the Steering Committee on the Mass Media.