Hate crime in cyberspace: the challenges of substantive criminal law

Abstract

Hate crime evokes hate speech, but to assimilate one with the other would not do justice to the diversity of behaviours encompassed by the expression ‘hate crime’. A first overview of the notion is necessary in order to highlight the key features of offences involving hatred. A particular emphasis will be given to the specificity of cyberspace hate crimes both in the UK and in France. This comparison will enable us to tackle the main issue cyber-hate raises: that of the legitimacy and practicality of criminalizing behaviours related to hatred on the Internet. The debates may not be specific to hate crimes but they are acute for at an international level, crime notably limits a freedom of expression which does not have the same meaning both legally and culturally. The Convention on cybercrime will also be looked at, especially that its critics argue that it did not go far enough into protecting victims of hate crimes at an international level.

Keywords:

• hatecrime
• hatred
• hate speech
• comparative law
• Second Life
• virtual worlds

Notes

1. For the UK, Lawrence, F. (2002). Racial violence on a small island: Bias crime in a multicultural society. In P. Iganski (Ed.), The hate debate – Should hate be punished as a crime? London: Profile Books in association with the Institute for Jewish Policy Research, pp. 36, 40–41; Shakespeare's Merchant of Venice with the character of Shylock is a powerful reminder of the Jews' precarious situation in Europe. Other prejudices relate to homosexuality, gender, handicap, age, etc.

2. Petrosino, C. (1999). Connecting the past to the future: Hate crime in America. Journal of Contemporary Criminal Justice, 15, 22, 27. The author argues the first hate crimes were against Native Americans. Perhaps surprisingly, some US studies trace the birth of hate crime legislation back to the drafting of the Constitution, when reference to slavery was taken out of the first draft of the Constitution, even though to give it full effect took two centuries, culminating in a President being black. Hall, N. (2005), pp. 45–47.

3. Turkey, for example, condemns incitement to hatred on the grounds of social class and region. The OSCE database, legislationline. Retrieved on December 6, 2008, from http://www.legislationline.org/topics/country/50/topic/4

4. England, in chronological order, Public Order Act 1936, s. 5A replaced by Public Order Act 1986 (c. 64), s. 4, 4A, 5, s. 17–23; Crime and Disorder Act 1998 (c. 37) s. 28–32; Anti-terrorism Crime and Security Act 2001 (c. 24) part 5, s. 39; Racial and Religious Hatred Act 2006 (c. 1); Criminal Justice Immigration Act 2008 (c. 4) s. 74; France, Article 24(6) Loi 29 July 1881 on Freedom of the Press, added by loi 1 July 1972; Article 24(7) Loi 29 July 1881, added by Loi 30 December 2004).

5. England, Powers of Criminal Courts (Sentencing Act) Act 2000, s. 153; Criminal Justice Act 2003 (c. 44), s. 145–146; France, Loi n. 2003-88, 3 February 2003 modifying Articles 221-4 (murder), 222-3 (torture and barbaric actions), 222-8 (assault resulting in unintentional death), 222-10,‐12,‐13 (assault with permanent disability or temporary sick leave), 322–2 (destruction, degradation or deterioration of another's property), 322–3 (idem but property is place of worship), and 322‐8CP (arson); Loi 2003–239, 18 March 2003, adding sexual orientation to 221‐4, 222‐3, 222‐8, 222‐10,‐12,‐13, 222-24CP and 222-30; Loi n. 2004-904, 9 March 2004, modifying Articles 222-18-1CP (threats), 311-4(9) (theft), 312-2(3) (extortion).

6. Linden Lab offers a Linden Dollars prize worth 10,000 US dollars. Retrieved December 6, 2008 from http://lindenlab.com/lindenprize#eligibility; see Second Life's own pages on sale of virtual land, retrieved December 7, 2008, from http://secondlife.com/land/. On the resulting costs for players, see the summary of an online discussion in France, http://www.jeuxonline.info/article/fdi_dossier04. On crimes related to economics of other ‘games’, see Steinkuehler, 2006.

7. Retrieved December 6, 2008, from http://secondlife.com/corporate/tos.php

8. Cox v. Riley (1986) 36 Cr. App. Rep. 54; R. v. Whiteley, [1991] 93 Cr. App. R. 25, [1992] E.C.C. 485, [1993] F.S.R. 168.

9. Statutory Instrument was published only on 24 September 2008. The Police and Justice Act 2006 (Commencement No. 9) Order 2008. Available at http://www.opsi.gov.uk/si/si2008/uksi_20082503_en_1

10. Respectively Police and Justice Act 2006 (PJA) s. 35 and Serious Crime Act 2007, s. 61 amending PJA, s. 35.

11. Metasecurity, aiming to ensure security in virtual worlds, called for studies to be done on White hate groups (8 July 2008). Retrieved December 6, 2008, from http://metasecurity.net/2008/07/08/white-hate-groups-in-second-life-should-be-studied/

12. Note that in some cases, terrorism law may supersede hate crime legislation. Bray & Konsynski, 2008.

13. Conseil d'Etat. 17 février 1992, Eglise de scientologie de Paris. – Req. n0 86954, RFDA, 1992, p. 359; AJDA, 1992, obs. C. Devès.

14. DPP v Lennnon [2006] EWHC 1201 (Admin); [2006] All ER (D) 147; Fafinsky, S. (2007, February 2). Cybercrime. NLJ 157(7258), 159.

15. Contrary to what it may imply, the general definition of the racial and religious hatred in Article 132-76CP and because of the victim's sexual orientation in Article 132-77 CP, should not be interpreted as making hatred an aggravating circumstance to all offences. The mistake seems to have been made in the 2008 Report by the EU Agency for Fundamental Rights, De Schutter, O. (2008). Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States, pp. 121–2. Retrieved December 6, 2008, from http://fra.europa.eu/fra/material/pub/comparativestudy/FRA_hdgso_part1_en.pdf

16. Section 4(1) included the notion of ‘things in action’ and intended to widen it by stating that ‘‘Property’ includes money and all other property, real or personal, including things in action and other intangible property'.

17. Oxford v. Moss (1978) 68 Cr. App. R. 183 (DC).

18. The case has been filed on 24 October 2007 at the NY Eastern District Court: Eros, LLC, Linda Baca, Teasa Copprue, Shannon Grei, Kasi Lewis and De Designs, Inc v. Thomas Simon and John Does. Available at http://dockets.justia.com/docket/court-nyedce/case_no-1:2007cv04447/case_id-274521

19. Notably Lawtoska & Hunter, 2004, p. 50; Lawtoska, 2008, pp. 915–917; Duranske, 2008; Forum des droits de l'internet, 2007b, p. 46. About the lawsuits in Second Life for trademarks, Duranske, 2007.

20. For the original document in Dutch (which the author cannot read), see http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BG0939&u_ljn=BG0939 and the Google translation provided by VeeJay Burns (2008, October 26). ‘Court Ruling in the RuneScape Case (2)’. Retrieved December 6, 2008, from http://blog.mindblizzard.com/2008/10/court-ruling-in-runescape-case_26.html; this secondary source appears reliable though. Modine, A., 2008; Masnick, M., 2008.

21. This common law concept does not exist in French law.

22. England & Wales: Ferens v. O'Brien (1883) 11 QBD 21; Firth (1869) 11 Cox 234. France: Cass. crim. 3 aoÛt 1912, Bull. crim., no 450, DP 1913.1.439, S. 1913.1.337, note J.-A. Roux; 8 janv. 1958, JCP 1958. II. 10546, note H. Delpech, Rev. sc. crim. 1958.858, obs. P. Bouzat; 10 avr. 1964, Bull. crim., no 108.

23. The Dutch Criminal Code is historically based on the French criminal code.

24. Section 13 Theft Act 1968; France, since 1992, Article 313-1CP (no equivalent in the previous code dating form 1810).

25. See another case where the police in November 2007 arrested a 17-year-old teenager for stealing virtual furniture bought in euros (4000 euros, about £2840) in Habbo Hotel ( http://www.habbo.com/) (2007, November 14). ‘Virtual theft’ leads to arrest. BBC. Retrieved December 6, 2008, from http://news.bbc.co.uk/1/hi/technology/7094764.stm; see on similar line, Rowan, 2004.

26. The artefacts or intangible property can just develop out of hours spent playing with no possibility to exchange them for currencies in the real world. See for example, the case of Frasier (as cited in Williams, 2004, p. 21).

27. Outside Second Life, see the study on relationships Li, Jackson, & Trees, 2008, pp. 86–87.

28. Second Life was invaded by porn after a few years of its existence. A French charity asked the Paris First Instance Court for the materials to be forbidden, as a matter of urgency. The claim was rejected on the basis that the charity had not contacted Linden Lab which therefore could not take appropriate measures. The claim was not rejected on the basis that criminal law could not apply. TGI Paris (Ordonnance de référé) 2 July 2007. Available at http://www.juriscom.net/jpt/visu.php?ID=1001; Bray & Konsynski, 2008, p. 23.

29. Submitted by Anonymous on Sat, 06/16/2007 - 17:03 on Your2ndPlace blog: ‘Well … I'm a resident of Second Life. I purchased lindens outside the LindenXchange because I couldn't purchase lindens within it because I kept getting error messages with their billing system. When I purchased over 100k and a few days later I was banned. I was banned for having illegally obtained linden dollar. They claimed that the seller used fraudulent means to obtain the lindens I bought from them. I lost the lindens and had 150% assess forced on me. I'm having to pay them as my account is now negative balance. They wrote to me “We re-open your account with reluctance”. People aren't protected by the lindens if they are the victim of fraud within their game. They also aren't protected when people use fraudulent means through their own billing system to obtain lindens, You are responsible’ (our emphasis added). Retrieved December 6, 2008 from http://www.your2ndplace.com/node/158

30. Jones, 2008; for other frauds, see SL Herald (2007, March 7). Gangs, Con Artist Capitalizes on LL's Slow Rez Bug. Available at http://foo.secondlifeherald.com/slh/2007/03/con_artist_capi.html

31. See also Wu, Fore, Wang & Sik Ying Ho, 2007, p. 78. The SL newspaper, SLHerald, ‘Post 6 Grrrl – Marx Dudek’ (2008, November 18) which describes the Kowloon sim or area in SL as follow: the Kowloon sim ‘attempts to recreate the look and feel of the old Kowloon Walled City of Hong Kong. Tall and deep, cramped and expansive, dark and bright, ancient and futuristic, it embodies so much of what maintains my fascination with Second Life. It's a place I can disappear into, a place where the virtual feels almost tangible’ (our emphasis). Available at http://foo.secondlifeherald.com/slh/2008/11/post-6-grrrl–.html

32. For Second Life: Duranske, 2007b; Williams, 2000, p. 97; Lastowka & Hunter, 2004, p. 67. Note that it is contrary to the terms and conditions the players agree to abide with.

33. (2008, October 24).Woman jailed after ‘killing’ virtual husband. The Independent. Available at http://www.independent.co.uk/life-style/gadgets-and-tech/news/woman-jailed-after-killing-virtual-husband-972457.html; more details are provided elsewhere, notably Masnick, M. (2008), October 23. That was fast: Woman arrested for virtual murder of virtual husband. Available at http://www.techdirt.com/articles/20081023/1023292625.shtml; (2008, October 24). Woman arrested for killing virtual reality husband. Available at http://maestro-sec.com/blogs/2008/10/woman-arrested-for-killing-virtual-reality-husband/ ; and for the lawyer S. Brenner's comments (2007, October 24). Virtual divorce=Virtual murder. Available at http://cyb3rcrim3.blogspot.com/2008/10/virtual-divorce-virtual-murder.html

34. An Australian study, for example, found that only 26% of cases progressed to offline harassment in Australia; 13% of online abuse was reported to have started in chat rooms or on message boards. 11% of harassment began through instant messages, 7% began on websites, 4% began through newsgroups and 8% beginning through some other means. Philips & Morrissey, 2004, p. 74.

35. For examples, see also Ellison & Akdeniz, 1998, pp. 30–31. For an analysis of US cases, Volokh, 2001.

36. R. v. Debnath (CA) 2 December 2005 [2005] EWCA Crim 3472. For a similar method using e-mails apparently sent by the victim but sent by the author, Webb Johnson v. DPP (QBD) December 2005 [2005] EWHC 3123 (Adm), although the use of Internet was secondary in this instance. For US cases involving hatred, Levin, 2002, pp. 981–982.

37. US. v. Alkabaz (1997) 104 F. 3d, at 1495.

38. Alkabaz, 104 F. 3d, at 1492.

39. Title 18, United States Code, Section 875(c) states that transmission ‘in interstate or foreign commerce [of] any communication containing any threat to kidnap any person or any threat to injure the person of another’.

40. Alkabaz, 104 F. 3d, at 1507.

41. The Court avoided any discussion of First Amendment's issues; for a discussion of the federal courts' interpretation of the First Amendment with regards to the exception of ‘true threats’. See Persellin, 2001, pp. 994, 1020–1024.

42. Alkabaz, 104 F. 3d, at 1493.

43. In that sense and for a feminist analysis of this case, see Persellin, at 1025–33; contra, because of free speech, Godwin, 1995; for a criminal law analysis, Brenner, 2006.

44. [2008] EWHC 438 (Admin).

45. The word ‘beurs’ (feminine, ‘beurettes’) refers to the second generation of Arabo-Muslim population whose parents have emigrated from North Africa to France in the sixties.

46. T. corr. St Quentin 17 October 2006. Available at http://www.legalis.net/jurisprudence-decision.php3?id_article=1795

47. R. v. Pearce (1981) 72 Cr. App. R. 295.

48. R. v. Morse (1986) 8 Cr. App. R. (S.) 369.

49. Attorney-General's Reference 148 to 155 of 2001 [2002] EWCA Crim 1313; R. v. Greenall [2004] EWCA Crim 3430, paras. 11 & 21. On the analysis of the phenomenon which may have been amplified by the media, see Fafinski, 2007, p. 123; also the enlightening pages of Roversi on Italian hooliganism, 2008, pp. 45–48.

50. R. v. Greenall.

51. Somchai Liangsiriprasert v. United States Government (1990) 92 Cr App R 77, PC; Re Goatley [2002] EWHC 1209 (Admin).

52. Note that the word ‘complot’ which in English is closest to ‘conspiracy’ in its ordinary meaning refers to quite a different offence, that of article 412-1CP against the fundamental interests of the Nation and requiring, for the author to be punished, a material act which cannot be solely publications or writings circulated. Crim. 26 April 1817 Bull. crim. 33. Publications or writings would raise criminal liability only as an accomplice and obviously if the principal offence is committed.

53. Article 450-1(1) refers to preparation of offences sanctioned by at least five years imprisonment, but Article 450(3) also sanctions when the offences are punished by less than 5 years imprisonment. For conspiracy to commit a terrorist act, see the specific Article 421-2-1CP (loi 22 July 1996).

54. Cass. crim. 6 nov. 1986, D. 1987. 237, obs. J. Pradel, Gaz. Pal. 1987. 1, somm. 200, JCP 1987. IV. 15.

55. Crim. 11 July 1995 Gaz. Pal. 1995. 2. Chron. 574, Doucet; Culioli, & Gioanni, 2007: 50–53.

56. A. Vitu, obs. sous Cass. crim. 23 avr. 1981, Rev. sc. crim. 1982. 609 ; see also Cass. crim. 20 févr. 1990, Bull. crim., no 84, D. 1990, IR 101, D. 1991. 395, note A. Fournier. Culioli & Gioanni, 2007, p. 48.

57. Compare with the narrow wording of the original Section 7(2) Protection of Children Act 1978 for which a ‘photograph’ is ‘an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film’. R. v. Alban Fellows and Stephen Arnold 1996 [1997] 1 Cr. App. R. 244. Id. original s. 160(1) Criminal Justice Act 1988. The decision led to both Acts being amended in 1994 to include the word ‘pseudo-photograph’ (Criminal Justice and Public Order Act 1994). The Protection of Children Act 1978 has also been amended by Criminal Justice and Immigration Act 2008, s. 69(3)(4).

58. Not mentioning obscene materials both virtual and real images, notably of children, Duranske, 2007c.

59. Crim. 3 April 1995 Bull. crim. 142 D. 1995 somm. 320 obs. Pradel; RSC 1996 obs. Bouloc; T. corr. Le Mans 16 February 1998 JCP 1999 II 10 011, note Frayssinet.

60. Crim. 28 September 2005 Bull. crim. 248 D. 2005 Pan. 2991 obs. Roujou de Boubée. On the issue of tangibility, see Maistre de Chambon, 1996, pp. 22–23; Kraftchik, 2005, pp. 67–71.

61. The prosecutions for possession of indecent photographs of children are far more numerous than those for inflammatory materials. See Akdeniz, 2007a, pp. 275–276.

62. R. v. Atkins (2000) 2 C. App. R. 248.

63. R. v. Porter (CA) [2006] EWCA Crim 560, [2006] 2 Cr. App. R. 25, para. 7; but if deleted from the cache, see Smith v. Jackson [2002] EWCA Crim 683; [2003] 1 Cr.App.R. 21. The offence in Smith v. Jackson was Section 1 Protection of Children Act 1978 (making a photograph of pseudo-photograph).

64. Cass. crim. 5 janv. 2005, no 04-82.524, AJ Pénal 2005. 241, obs. G. Roussel.

65. CA Douai 21 Mars 2002 JCP 2003 IV 2040.

66. Crim. 29 mars 2006 Bull. crim. 94 p. 360.

67. [2005] EWCA Crim 3093, [2006] 1 Cr. App. R. 21. It seems the judge has not been briefed on the technical issues.

68. Article 227-23CP (Act 4 March 2002); on the extensive use of Article 321-1CP prior to the new article 227-23CP, see the 2005 report from the Forum des droits sur l'internet, 2005, pp. 56–68.

69. Only dictatorships will choose to incriminate thoughts as Article 17 of the former USSR Criminal Code reminds us ‘Persons inclined to commit a crime are considered inciters’. Available at http://www.cyberussr.com/rus/uk1-e. html#16

70. DPP v. Maxwell [1978] 3 All ER 1140, 1158. For England, see A-G v. Able, (a ‘sufficient’ connection); Ormerod, 2008, pp. 187–188. ‘Despite some commentators regretting the ‘uncertain and … vanishing quality of causation’ (Ashworth, 2006, p. 422), the law of complicity does not cover thought crimes, i.e. simple act of encouraging without the principal offence having to be committed. Ormerod, 2008, p. 219, para. 8.3.5; American Jurisprudence 2nd: Criminal Law, para. 169, referring to State v. Marr, 113 N.C. App. 774, 440 S.E.2d 275 (1994). For the US, Weisberg, 2000, pp. 17–20.

71. England & Wales: Wolffe, 1986, p. 85; for religious hatred (and sexual orientation), Ormerod, 2008, pp. 1087–1088; Hare, 2006, p. 528. French law: notably Crim. 21 mai 1996 Bull. crim. 210, RSC 1997, 650 obs. Delmas Saint-Hilaire.

72. Articles 24(6 & 7) do not refer to ‘direct incitement’, contrary to Articles 23 and 24(1)(2)(4).

73. Crim. 7 December 1993 Bull. 374.

74. If abusive or insulting language without inciting, it might constitute racial or religious insult (injure). Crim. 12 April 2005 – N° de pourvoi: 04-82507; Crim. 15 March 2005 – N° de pourvoi: 04-84463.

75. About the ‘clear and present danger’ test from which Brandeburg requirements derive, J. Holmes declared its interpretation was a ‘question of proximity and degree’, Schenck, cited in Brandeburg, pp. 450–452. See Douglas concurring in Brandeburg, p. 454. See Mannheimer, 1993, pp. 1528, 1530–1531.

76. Let us not forget that probably 2/3 of the world population does not access the Internet, poverty being the main factor.

77. Compare with obscene materials, Berson & Berson, 2005, p. 29.

78. Cohen v. California, 403 US 15 (1971); Hare, 2005, p. 83.

79. It may be reminded here that Yahoo! is a private company and that its opposition to the French decision to ban the sale may well have less to do with freedom of expression than with earning money. It would be quite interesting to know to which extent the costs and benefits of opposing the Court's decision may have been balanced against those of complying with the judgment when it appeared the French Court would not give way (Goldsmith & Wu, 2006, pp. 5–10: Reidenberg, 2002, pp. 263, 271).

80. The author challenges the idea of the offender being a stranger and explains how the collected data on hate crimes can distort the reality of hate crimes. Most interestingly, his case study 1 shows the positive side of criminalisation because of the symbolic power of criminal. Two offenders were warned, following racial insults. Subsequently, they both chose to apologise to the victim, thus demonstrating that applying criminal law can lead to respect and a sense of community. Mason, 2005–2006, p. 87

81. Reno v. ACLU 117 S. Ct. 2329, 2344.

82. See http://www.vho.org/aaargh/fran/actu/actu06/dixans.html