Council of Europe Works to Criminalize Political Expression

The Council of Europe is pushing to extend the Cybercrime Convention to impose criminal sanctions on what it considers to be unacceptable forms of political or religious expression. The Cybercrime Convention was originally negotiated to respond to transnational problems such as theft of data, breaking into computers, computer-based financial fraud and the like. But now the Council is engaged in bulk unsolicited emails to promote the idea that web site content that is insulting or xenophobic is a cybercrime of the same order.

The bulk emails were sent to promote an April 1st meeting in Strasbourg, where the Council will promote its “Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.” Note the less than honest language: what the Council is targeting are not harmful “acts” of racism or xeonophobia, but the distribution of “written material, ideas or theories” which “insult publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.”

There is, of course, legitimate grounds to sanction incitement to violence, particularly when there is a clear and immediate connection between a speech act and physical acts of violence. But most of the “Additional Protocol” is not concerned with acts. And transnational authorities are not in a good position to prevent or respond to such acts.

The protocol also proposes to ban any discourse which denies or “grossly minimizes” officially designated acts of genocide. The CoE pays frequent lip service to the ideals of freedom of expression. It is disappointing to see that they don't really believe in it. Essentially, the Council proposes a strategy of global censorship to respond to misguided ideas. Instead of refuting these ideas and mobilizing people against them, it wants to forcibly suppress their expression or lock up the people who voice them. The CoE proposals are based on the idea that governments can establish truth, and can legitimately suppress any expression of ideas or theories that dispute or fail to conform to the officially designated truths. This is a method that has no demonstrable record of success, but inevitably brings major chilling effects and spillover restraints on legitimate forms of political expression. It is likely, for example, that both the Danish newspaper cartoons that offended many Muslims AND the expressions of outrage by Muslims that resulted from publication of the cartoons would have been considered illegal under such regulations. An international effort to censor Internet discourse based on such standards, if applied consistently and systematically, would result in an incredibly burdensome and interventionist state and lead to widespread self-censorship. More likely, the power would be used in inconsistent and discriminatory ways to suppress unpopular views and minorities. CoE is engaged in a futile attempt to use the blunt instrument of censorship to promote social peace and civil discourse. It won't work.
You can express your opinion to the Council of Europe by emailing Estelle Steiner at Estelle.STEINER@coe.int

One comment

  1. Anonymous

    Milton,
    You seem to have just discovered the CoE cybercrime Convention (adopted in 2001, entered into force in July 2004) and its additional Protocol on racism and xenophobia (adopted in 2003, entered into force in March 2006).
    You also seem to ignore that the April conference (April 1-2, 2008 in Strasbourg, see program at: http://tinyurl.com/2cslz6) is just one in a series organized in the framework of the CoE Octopus programme against corruption and organised crime in Europe (cybercrime section, see: http://tinyurl.com/yu9753).
    This conference series aim at mainly promoting the Cybercrime Convention, not specifically its additional Protocol.
    For an analysis of this promotion activities by the CoE and a report of the 2007 conference, see: http://www.edri.org/edrigram/number5.12/cybercrime-convention-dangerous.
    Moreover, you seem to ignore the whole history of the Cybercrime Convention (and, later, the Protocol) discussion and adoption process, and the history of the opposition to this process.
    See, for reference, the actions of the Global Internet Liberty Campaign coalition (GILC: http://www.gilc.org) and its dedicated website (http://www.treatywatch.org).
    See also the website of my own organization (informations and documents in French and in English), which dedicated webpages to the Convention (http://www.iris.sgdg.org/actions/cybercrime) and to its Protocol (http://www.iris.sgdg.org/actions/cybercrime/pc-rx). These are additional informations, since we were part of the GILC coalition.
    This, simply to help you and the readers of your post on IGP blog understand that this conference is not the result of a sudden interest from the CoE in promoting the fight against racism and xenophobia.
    There are other comments in your post that should be corrected. Most important one is that you say that the cybercrime Convention “was originally negotiated to respond to transnational problems such as theft of data, breaking into computers, computer-based financial fraud and the like”.
    This ignores the fact that the Convention already criminalizes “content-related offences” (Internet child pornography, in its article 9) as well as “offences related to infringements of copyright and related rights” (article 10).
    The existence of the Protocol is due to the fact that, during the negotiations of the text of the Convention, some governments didn't agree on introducing provisions regarding offences related to racism and xenophobia, while strongly pushing towards the adoption of the Convention on other issues (those dealt with in the Convention itself).
    It has then been agreed that “controversial” provisions would be introduced in an additional Protocol, so that a state may ratify the Convention without even having to sign the Protocol. Among these governments was the US government.
    I should precise at this step that some non CoE member states were associated since the earlier steps to the drafting of the Convention (i.e. participated in the negotiations of the text), and these states were USA, Canada, Japan and South Africa. They all signed the Convention as soon as it has been adopted in Budapest in November 2001, and among them only the USA ratified the Convention in September 2006.
    Let me now come to your substantive comments on the Protocol content itself. I'm afraid your quick analysis is strongly biased by an US-centric view of freedom of expression and more specifically on how to deal with racism and xenophobia.
    What you qualify as a “less than honest language” is actually deeply rooted in a historical, philosophical and social conception of human rights, determined by a holistic understanding of human rights, which sets limits to freedom of expression when human dignity is at stake. And this conception has found its translation in legal provisions, at the International, many regional, and even more national levels.
    When you say: “There is, of course, legitimate grounds to sanction incitement to violence, particularly when there is a clear and immediate connection between a speech act and physical acts of violence. But most of the “Additional Protocol” is not concerned with acts.”, you're simply taking for granted that the US law (and its socio-cultural bases) should be the unique and global analysis framework — and legal basis as well. Fortunately, this is not exactly the case..
    Other conceptions do exist. They consider that expressions of racism and xenophobia are not just mere expressions of opinions, but are acts, and they are acts of violence/incitement to violence. A violence which hurts, badly. These conceptions are translated into many legislations.
    Although you consider that “The CoE proposals are based on the idea that governments can establish truth”. This, in my opinion, should only apply to holocaust (and other genocide) denial, but not to racism and xenophobia. This is because historical truth may only be established by historians, not by governments or by courts.
    Now let's come to the reason why your comments have been posted on the IGP blog, i.e. the international governance impact of the Protocol. Actually, this impact is not in the substantive provisions of the Protocol, but rather in its Chapter III (“Relations between the Convention and this Protocol”). Thus, the problem is rather with the Convention (and namely its procedural provisions, which are numerous and important (articles 14 to 22: procedural law, and articles 23 to 35 of the Convention: international cooperation) than with the Protocol itself. And you should better, in my opinion, fight the CoE efforts to promote this Convention rather than the Protocol itself.. and, BTW, you wont feel alone doing this.
    There are indeed possibilities to combine the respect for freedom of expression and other human rights and the respect for different social and legal conceptions – which all are legitimate – while combating racism and xenophobia on the Internet. It's actually a conflict of jurisdictions issue. If interested, you may find e.g. some analysis and practical recommendations at: http://www-polytic.lip6.fr/article.php3?id_article=127.
    Finally, you should leave alone this poor person who is simply the CoE press contact! Run a campaign and target the head of the cybercrime unit if you want so, but don't incite people to simply spam and insult her..
    Meryem Marzouki

    Meryem Marzouki
    – Researcher – LIP6/PolyTIC-CNRS Laboratory
    104 avenue du Président Kennedy – 75016 Paris – France
    Meryem.Marzouki@lip6.frhttp://www-polytic.lip6.fr
    – President, IRIS (Imaginons un réseau Internet solidaire)
    40 rue de la Justice – 75020 Paris, France
    Meryem.Marzouki@iris.sgdg.orghttp://www.iris.sgdg.org