Legislating against Internet race hate

Abstract

The development of the Internet provides social spaces that enable users to promote race hate. It is argued that race hate hurts but its victims are relatively powerless in the face of this growing problem, and states do not appear to be effective in the light of jurisdictional restrictions. In addressing these concerns the Council of Europe has adopted the Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of acts of Racist and Xenophobic Nature Committed through Computer Systems (2003) (‘the Protocol’). Its remit obliges States to legislate or otherwise prohibit the use of computer systems for the dissemination of racist materials. This paper argues that on a number of grounds the Protocol does not stand up to the test of effectiveness. This is because it is couched in terms that prioritise freedom of speech over freedom from racial discrimination. A preferable approach would give more weight to equality and non-discrimination which states are required to defend. Furthermore, since the prohibition of the proliferation of race hate is the Council of Europe's main concern it must make the case for this in the context of institutional racism, rather than as an element in the juggling of rights.

Keywords:

• race
• racial discrimination
• institutional racism
• hate
• hate crime
• cybercrime
• law
• human rights
• Internet

Notes

1. I wish to thank the anonymous reviewers for their comments on this paper. All mistakes remain with the author.

2. Hence the Committee of Experts on Crime in Cyberspace set up in the Council of Europe to design the Cyber-Crime Convention (Convention), decided that concerns expressed by delegates who advocated that freedom of expression would be hampered by content-related offences aimed at the distribution of racist propaganda militated against its inclusion in the Convention. See Explanatory Report of the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, as adopted by the Committee of Ministers on 7 November 2002, at http://conventions.coe.int/Treaty/en/Reports/Html/189.htm, para. 4.

3. Boyle, K. (1992), p. 1.

4. ETS, No. 189, The Additional Protocol to the Convention on Cybercrime Concerning the Criminalisation of acts of a Racist and Xenophobic Nature through Computer systems 2003. See http://conventions.coe.int/treaty/Commun/QueVoulezVous.asp?NT=189&CM=8&DF=10/29/2008&CL=ENG

5. Cyber-race hate is not specifically referred to in the Protocol. The term used in Article 1 is ‘acts of a racist or xenophobic nature’. Article 2 puts the emphasis on ‘racist and xenophobic material’ means 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, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors. The notion of Internet race hate has been discussed in Jones v. Toben [2002] FCA 1150, an Australian case that for the first time applied its Racial Discrimination Act 1975 successfully to the request for removal of Holocaust denial websites constructed by the director of the Adelaide Institute, Frederick Toben. S.18C(1)(a) and (b) refers to an act reasonably likely to offend, insult, humiliate or intimidate another person or groups of persons, that is done on the basis of race, colour, or national or ethnic origin of the person/group.

6. Akdeniz, Y. (2008); on the USA's constitutional position, see Akdeniz, Y. (2006), pp. 10–11.

7. The Explanatory Report, para, 11 (see http://conventions.coe.int/Treaty/EN/Reports/Html/189.htm#FN1) with reference to the Protocol explains that the Council of Europe takes the meaning of freedom of expression from Article 10 of the European Convention on Human Rights. Article 10 states that: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises’. Moreover, Article 10 of the ECHR is applicable not only to information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Handyside v UK [1976] Series A, No. 24, para. 49. Nevertheless, Article 10(2) does make possible the limitations on freedom of expression where it is contrary to the European Convention on Human Rights under certain conditions.

8. See League Against Racism and Antisemitism (LICRA), French Union of Jewish Students, v. Yahoo! Inc. (USA),Yahoo France, Tribunal de Grande Instance de Paris (The County Court of Paris), Interim Court Order, 20 November, 2000, where Yahoo! Inc who took the view that the Tribunal de Grande Instance de Paris decision that they prohibit access to a Nazi auction website could not apply to their services in the USA. Yahoo held to this argument on the basis that the USA Constitution guarantees that Congress will not make law, ‘abridging the freedom of speech,’ according to the First Amendment.

9. World Conference against Racism (2002) refers to victims of racial discrimination as Africans and those of African descent, Asians and those of Asian descent, indigenous peoples, migrants, refugees and asylum seekers, returnees and internally displaced persons, mixed ethnic and racial origin, religious groups such as Jewish and Muslim peoples, Arabs, linguistic minorities and those who suffer from discrimination because they are infected or affected by HIV/AIDS, paras. 31–75. Article 4 ICERD refers to race, colour or ethnic origin, whilst Article 1 includes descent and national origin (albeit in the context of defining racial discrimination). Article 2 of the Universal Declaration of Human Rights refers to race, colour, language, religion, national or social origin and birth or other status.

10. Boyle, K. (1992), p. 1. In the context of racial discrimination Article 1(1) of ICERD ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.

11. Fredman, S. (2001), p. 14.

12. For example the use of non-discrimination legislation to challenge rules that are racial discriminatory in impact, see Griggs v. Duke 401 US 424 (1971) and Mandla v. Lee [1983] IRLR 209 HL.

13. Fredman, S. (2001) writes that equality as consistent treatment between groups ‘does little to address the redistributive and restructuring goals of equality’, p. 23.

14. Brennan, F. (2008).

15. Macpherson, W., Sir (1999), para. 6.34.

16. Carmichael, S., & Hamilton, C. (1967), p. 4.

17. See recommendations of Sir William Macpherson in the Stephen Lawrence Inquiry, chapter 47.

18. The World Conference Against Racism (2002), para. 145 reads ‘Urges States to implement legal sanctions, in accordance with relevant international human rights law, in respect of incitement to racial hatred through new information and communications technologies, including the Internet, and further urges them to apply all relevant human rights instruments to which they are parties, in particular the International Convention on the Elimination of All Forms of Racial Discrimination, to racism on the Internet’.

19. Ibid.

20. League Against Racism and Antisemitism (LICRA), French Union of Jewish Students, v. Yahoo Inc. (USA), Yahoo France, Tribunal de Grande Instance de Paris (The County Court of Paris), Interim Court Order, 20 November, 2000.

21. The Additional Protocol (2003).

22. General Assembly, Consultation on the use of the Internet for the purpose of incitement to racial hatred, racial propaganda and Xenophobia, A/CONF.189PC.1/5, 5 April 2000. Systematic discrimination can be seen as a violation of human rights, this could include ‘persecution on social, racial, religious or cultural grounds in a systematic manner or on a large scale’, such discrimination could also be seen as a ‘Crime against the Peace and Security of Mankind, which can be perpetrated by officials or private individuals’. See Economic and Social Council, Commission on Human Rights (1999).

23. See para. 19 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005, which includes restitution e.g., ‘the enjoyment of human rights, identity, family life and citizenship …’

24. The Convention was opened for signature in Budapest on the 23 November 2001, Treaty Office http://conventions.coe.int

25. Council of Europe (2003). Retrieved August 2, 2008, from http://conventions.coe.int/Treaty/en/Reports/Html/185.htm

26. Ibid. ‘Cyber-stalking’ as both a traditional form of harassment and cyber harassment where the perpetrator remains anonymous. This is a ‘shield’ the Internet provides for cyber-stalkers, Salter & Bryden (in press).

27. Council of Europe, Additional protocol to the convention on cybercrime, concerning the criminalisation of acts of racist and xenophobic nature committed through computer systems 2003. Retrieved August 5, 2008, from http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=189&CM=8&DF=&CL=ENG, hereinafter Protocol.

28. Para. 3 of the Explanatory Report of the Additional Protocol. Retrieved August 5, 2008, from http://conventions.coe.int/Treaty/en/Reports/Html/189.htm

29. At the time of writing there are 47 Member States, 1 applicant country (Belarus) and 5 observer countries of the Council of Europe. See http://www.coe.int/T/e/Com/about_coe/

30. Articles 2–13 of the Convention.

31. Para. 7 of the Protocol.

32. The question of jurisdiction is discussed later in this paper.

33. Kaplan et al. (2003).

34. Ibid, pp.12–13.

35. Article 2(1) of the Protocol.

36. Article 3(1) of the Protocol.

37. Articles 4(1) and 5(1) of the Protocol.

38. Article 6 of the Protocol includes grossly minimising, approving or justifying such acts constituting genocide or crimes against humanity.

39. Explanatory Report available at http://conventions.coe.int/Treaty/en/Reports/Html/189.htm, para. 32.

40. Ibid.

41. Ibid, para. 27.

42. See the preamble to the Protocol at http://conventions.coe.int/Treaty/en/Treaties/Html/189.htm

43. The CoE comprises of a number of elements that drive its work. Decision-making is maintained by the Committee of Ministers which consists of 47 Foreign Ministers, 636 members of the Parliamentary Assembly represent the 47 national parliaments as the core motivating power for cooperation at the European level. Furthermore, the Congress of Local and Regional Authorities form the ‘voice of Europe's regions and municipalities’. See About the council of Europe. Retrieved January 3, 2008, from http://www.coe.int/T/e/Com/about_coe/

44. About the council of Europe. Retrieved January 3, 2008, from http://www.coe.int/T/e/Com/about_coe/. This political mandate was defined by the third Summit of Heads of State and Government, Warsaw 2005.

45. A short history of the council of Europe, see http://www.coe.int/T/E/Com/About_Coe/10_points_intro.asp

46. See preamble to the Protocol.

47. This is a phrase used in school playgrounds to establish that words do not hurt. According to Neu, this is a fallacy. For many people insults cause pain and injury, see Neu, J. (2009).

48. See Neu, J. (2009).

49. See Kennedy, R. (2002).

50. To ‘Welch’ is to refuse payment but the word has come to mean a denigrating word for the Welsh. See http://www.etymonline.com/index.php?search=welch&searchmode=none. Retrieved November 3, 2008.

51. The word ‘gyp’ means to cheat or swindle. ‘Gyp’ has its origins in the word Gypsy, a word originated from Egyptian, http://www.etymonline.com/index.php?search=gyp&searchmode=none. Retrieved November 3, 2008.

52. The word ‘hunk’ means sexually appealing, see http://www.etymonline.com/index.php?search=hunk&searchmode=none but was used as hate speech against Hungarians according to Neu, J. (2009), p. 23.

53. The word ‘niggardly’ appears to have its origins in the meaning for stingy or tight-fisted, see http://www.etymonline.com/index.php?search=niggardly&searchmode=none. Retrieved on November 3, 2008.

54. Critical Race Theory appears to have originated in the United States through the work of academic scholars like Bell, D. (2008), whose work first appeared in the 1970s, here he took a critical look at issues of race and racism in the USA and the relationship between this and the law.

55. Matsuda et al. (1993).

56. Virginia v. Black US Supreme Court April 7 [2003].

57. Justice O'Connor in Virginia v. Black US Supreme Court, see http://www.law.cornell.edu/supct/html/01-1107.ZO.html, Cornell University Law School, Supreme Court Collection.

58. [1998] AC 147.

59. R v Ireland and Burstow [1998] AC 147, at 162.

60. Ashworth, A. (1999), pp. 326–329.

61. Bowling writes that in Nottingham (UK) in 1958 a crowd descended on the streets shouting this, whilst the people to whom these words were aimed stayed inside their houses. See Bowling, B. (1999), p. 30.

62. Bullard, S. (1996); Blee, K.M. (2005), pp. 421–433.

63. It has been argued that an Internet surfer must actively seek information, see Orwick, B., & Settles, D. The schools' response to online bullying. Available at: http://www.kysafeschools.org/pdfs&docs/clearpdf/issuesbriefs/onlinebullying.pdf

64. Reed, C. (2008).

65. Which covers indecent or grossly offensive messages, section 1(1)(a) of the Act.

66. Provides that a person who ‘pursues a course of conduct’ (that amounts to harassment, s.1.) is guilty of a criminal offence.

67. In R v. Debnath [2005] EWCA Crim 3472. Also see Lowde The Times, 29 June 200.

68. Section 7(3). Conduct includes ‘speech’, s. 7(4).

69. Reed, C. (2008), p. 2.

70. This is an extrapolation from an incident where a teacher allegedly asked a black school child of 10 years old to read out a poem entitled ‘Niggah’ and asked him to explain why black people could use the word but white people could not, see The Voice Online, 15 December 2008. Retrieved 19 December, 2008, from http://www.voice-online.co.uk/content.php?show=14836

71. [2000] Div CT LTL 7/2/2000 (Feb. 3).

72. [2001] CA ECWA, [2001] 1WLR 1352.

73. Nick Griffin of the British National Party was acquitted of inciting racial hatred under the Public Order Act 1986, see The Crown Prosecution Service at: http://www.cps.gov.uk/news/pressreleases/archive/2006/165_06.html. Retrieved December 19, 2008.

74. Orwick, B., & Settles, D.

75. Ibid, p. 1.

76. Lawrence, F.M. (1999).

77. Defined as a ‘crime committed as an act of prejudice.’ see Lawrence, F.M. (1999), p. 9.

78. Ibid, p. 11.

79. Research on the use of potential racial incitement on the Internet reveals that the host sites are mainly outside the UK, Internet Watch Foundation, Corporate Plan 2005–2007. Available at http://www.iwf.org.uk/corporate/page.128.275.htm#Trends_in_criminally_racist_content_allegations

80. Lawrence, F.M. (1999), p. 9.

81. See preamble to the Protocol.

82. Universal Declaration of Human Rights 1948–1998.

83. Lawrence, F.M. (1999).

84. Ibid., p. 9.

85. Ibid.

86. Ibid.

87. Human Rights and Legal Affairs (29 April 2008). The European Commission against Racism and Intolerance Publishes News Reports on Liechtenstein, Malta, Moldova, San Marino and Serbia, Press Release. August 12, 2008, Council of Europe. Available at http://www.coe.int/t/e/human_rights/ecri/1-ECRI/5-Current_events/51-eng_29_04_2008.asp#TopOfPage

88. Human Rights First, retrieved August 12, 2008, from http://www.humanrightsfirst.org/

89. Human Rights First, 2007 Hate Crime Survey – Companion Survey on Islamophobia. Retrieved August 12, 2008, from http://www.humanrightsfirst.org/

90. Human Rights First, Companion Survey on Homophobia. Retrieved August 12, 2008, from http://www.humanrightsfirst.org/

91. Human Rights First. 2007 Hate Crime Survey – Companion Survey on Homophobia – Statistics on Violence Based on Sexual Orientation. Retrieved August 12, 2008, from http://www.humanrightsfirst.org/

92. Human Rights First, A Ten-Point Plan for Reducing Hate Crimes. Retrieved August 12, 2008, from http://www.humanrightsfirst.org/discrimination/hate-crime/topten.asp

93. The Star of David, also known as the ‘Magden David’ is linked with Judaism, this symbol was worn by Jewish people at the insistence of the German state during the Nazi era as a way to both identify and persecute Jews, see the Jewish Virtual Library. Retrieved August 28, 2008, from http://www.jewishvirtuallibrary.org/jsource/Judaism/star.html

94. Human Rights First. 2007 Hate Crime Survey – Companion Survey on Homophobia – Introduction. Retrieved August 12, 2008, from http://www.humanrightsfirst.org/discrimination/hate-crime/homophobia/intro.asp

95. Human Rights First, A Ten-Point Plan for Reducing Hate Crimes. Retrieved August12, 2008, from http://www.humanrightsfirst.org/discrimination/hate-crime/topten.asp

96. Ibid.

97. Macpherson, Sir W. (1999), para. 6.34.

98. Article 1 of the Protocol.

99. Article 2(1) of the Protocol.

100. Ibid.

101. Ibid.

102. Ibid., Article 3.

103. Ibid., Article 4.

104. Ibid., Article 5.

105. Explanatory Report of the Additional Protocol.

106. Ibid.

107. Ibid.

108. Ibid.

109. Ibid.

110. Brennan, F. ‘Ethnic minority representation on juries – A missed opportunity’, Internet Journal of Criminology. Retrieved December 12, 2008, from http://www.Internetjournalofcriminology.com/ijcarticles.html

111. The Crown Prosecution Service, see http://www.cps.gov.uk/news/pressreleases/archive/2006/165_06.html

112. Jenkins, S. (2006, February 5), The Times (online), where he critically engages with the narrative over the publication of cartoons in a Danish newspaper that sought to ridicule the Prophet Mohammad.

113. Gledhill R. (2006, May 23), The Times online, discusses the legacy of this book which took a critical view of Islam.

114. However there is a ‘defence’ of right where material is used for legitimate purposes such as under legislative authority, see para. 24 of the Explanatory Report to the Protocol.

115. Article 2(1) of the Protocol.

116. Ibid., para. 18.

117. See the Recital to ICERD that states: ‘Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere’.

118. Solomos, J. (1993).

119. Ibid., pp. 8–9.

120. Wistrich, R.S. (1997–1998); The Stephen Roth Institute for the Study of Contemporary Antisemitism and Racism, see http://www.tau.ac.il/Anti-Semitism/articles.htm

121. Fanon, F. (2000), pp. 257–66).

122. Ibid, p. 257.

123. Petrova, D. (2001), pp. 45–76, at p. 45).

124. Fredman, S. (2001), p. 10.

125. Ibid.

126. Hochschild, A. (2006); Williams, E. (1994).

127. Holocaust Memorial Centre. History of the Holocaust. Retrieved August 18, 2008, from http://www.jewishvirtuallibrary.org/jsource/Holocaust/history.html

128. Cutler, J.E. (1905).

129. Dubow, S. (1995).

130. Macpherson, Sir W. (1999); Bowling, B. (1999); Hall, N. (2005).

131. Recital 6 of the Council Directive 2000/43/EC, 29 June 2000 (Race Directive). However, unlike the Race Directive the Protocol goes further by including categories that go beyond merely racial and ethnic origin.

132. 481 US 604 (Sup Ct 1987).

133. [1983] A.C. 548, HL.

134. Mandla v. Dowell Lee [1983] 2 A.C. 548, HL, p. 562.

135. Fekete, L. (2001), pp. 22–23.

136. Crown Suppliers v. Dawkins [1993] ICR 517, Rastafarians were not recognised by the English courts as an ethnic group because they were not perceived to have a sufficiently long history. In Harris v. NKL, Automotive 3 October 2007, UKEAT/1034/07/DM, the appellate court found that Rastafarians could be protected from discrimination on the grounds of religion under the Employment Equality (Religion and Belief) Regulations 2003 on the basis that Rastafarianism constitutes a philosophical belief similar to a religious belief.

137. Koopmans, R. (1999), pp. 625–696.

138. Silverman, M. (1992).

139. Ibid.

140. Ibid., p. 1.

141. Article 2(1) of the Protocol.

142. Paragraph 21 of the Explanatory Memorandum.

143. Ibid.

144. The Runnymede Trust ‘is an independent research and social policy agency’, Runnymede Trust, Islamophobia: A Challenge for us All, Summary, 1997.

145. Ibid., p. 2.

146. Articles 3–6 of the Protocol.

147. Article 7 of the Protocol.

148. Paragraph 24 of the Explanatory Report on the Protocol.

149. Paragraph 39 of the Explanatory Report, Article 3 (1) of the Protocol and Article 25 of the Explanatory Report.

150. Paragraph 33 of the Explanatory Report.

151. Schjolberg, A., & Hubbard, M. (2005).

152. Ibid., p. 5.

153. Leahy, P. (1999)

154. Ashworth, A. (2006), p. 181.

155. Ibid., p. 175.

156. R v. Nedrick [1986] AC 455, approved by the House of Lords in R v. Woollin [1999] AC 82.

157. Taylor, G. (2004), pp. 99–127.

158. Danner, A.M. (2002).

159. R v. Cunningham [1982] AC 566, HL.

160. R v. Caldwell [1981] 1 All ER 961.

161. Ibid.

162. Ashworth, A. (2006), p.185. This version of recklessness has attracted wide criticism for its harshness on defendants because it is an objective test that takes little account of the frailty of the human condition, see R v. G [2004] 1 AC 1034.

163. State v. Belanger (1997), see Kaplan et al (2003), p. 8.

164. Case No. IT-93-1-T Prosecutor v Dusko Tadic a/k/a ‘Dule’, 7 May 1997, International Tribunal for the Prosecution of Persons Responsible for Serious Violations International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991.

165. Danner, A.M. (2002), p. 24.

166. Ibid.

167. Paragraph 25 of the Explanatory Report to the Protocol.

168. State of Winconsin Court of Appeal Decision, Appeal No2008AP29, 6 November 2008.

169. See http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=34520

170. Trotman v. North Yorkshire County Council [1999] IRLR 98.

171. See ‘The general issues of Internet Service Providers liability’. Retrieved December 22, 2008, from http://www.jisclegal.ac.uk/pdfs/isp_liability.pdf

172. League Against Racism and Antisemitism (LICRA), French Union of Jewish Students, v Yahoo! Inc. (USA),Yahoo! France, Tribunal de Grande Instance de Paris (The County Court of Paris), Interim Court Order, 20 November, 2000.

173. [1999] 4 All ER 342, [2001] QB 201.

174. See ‘The general issues of Internet Service Providers liability’. Retrieved December 21, 2008, from http://www.jisclegal.ac.uk/pdfs/isp_liability.pdf. The defendants sought to rely on provision of the Defamation Act 1996.

175. Marcus, B. (16 June, 2004). Meeting on the Relationship between Racist, Xenophobic and Anti-Semitic Propaganda on the Internet and Hate Crimes. Paris: OSCE, PC.DEL/503/04, p. 1.

176. R v G [2004] 1 AC 1034.

177. 1948–1998.

178. McRae, T. (2005), Rise of the cybermen. BBC News, available at http://www.bbc.co.uk/doctorwho/news/cult/news/drwho/2005/11/10/26933.shtml

179. See the preambles to both instruments.

180. Such as the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms; the 1966 United Nations International Covenant on Civil and Political Rights; the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965; the European Union Joint Action of 15 July 1996, adopted by the Council on the basis of Article K.3 of the Treaty on European Union.

181. The European Convention on Human Rights and the International Covenant on Civil and Political Rights contain provisions that contain limits to freedom of expression.

182. Paragraph 11 of the Explanatory Report of the Additional Protocol.

183. Ibid.

184. Ibid.

185. Article 3(1) of the Protocol.

186. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

187. Paragraph 11 of the Explanatory Report of the Additional Protocol.

188. Article 3(1) of the Protocol.

189. Handyside v. United Kingdom (5493/72) [1976] ECHR 5 (7 December 1976), Series A, No. 24, the ECHR found that the UK had violated the applicants right to freedom of expression under Article 10 of the ECHR when a prosecution was brought against him under the obscene publications provisions for the publication of a book entitled ‘The Little Red School Book’, that advocated that the young should adopt a liberal attitude towards sex, para. 49.

190. Handyside v. United Kingdom, para. 49.

191. United Nations, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration and Programme of Action, foreword by Mary Robinson, New York, 2002, also see the United Nations Declaration on the Elimination of all forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)).

192. No one shall be subject to torture or to inhuman or degrading treatment or punishment.

193. Cahn, C. (August 2005). ‘Roma rights, racial discrimination and ESC rights’. Retrieved December 23, 2008, from http://www.coe.int/t/dg3/romatravellers/Documentation/discrimination/RomaESC_en.asp

194. Ibid.

195. Council Directive 2000/43/EC.

196. Article 2(3) Council Directive 2000/43/EC.

197. Article 3(1)(h) Council Directive 2000/43/EC.

198. McGonagle, T. (2001), see http://www.ivir.nl/publications/mcgonagle/difficultsymbiosis.html, pp. 135–136.

199. Ibid., p. 135.

200. Ibid.

201. Faurisson v. France decision of 8 November 1996, Communication No. 550/1993, Ross v. Canada decision of 18 October 2000, Communication No. 736/1997 and J.R.T. and the W. G. Party v Canada decision of 6 April 1983, Communication No. 104/1981.

202. McGonagle, T. (2001), pp. 135–136.

203. 21 December 1965 (entry into force on 4 January 1969).

204. 23 September 1994, Series A, No. 298.

205. See Summary, 23 September 1994, Series A, No. 298. August 22 2008. Available at http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/ac6f5011c933625bc1256640004c2957?OpenDocument

206. McGonagle, T. (2001), pp. 135–136.

207. Glimmerveen & Hagenbeek v. Netherlands, Appn. Nos. 8348/78 & 8406/78, ECommHR, Decision 11 October 1979, Decision and Reports 18, 187, a case where racist leaflets were distributed but the case was declared inadmissible under Article 17 (the prohibition of abuse of rights).

208. Feldek v. Slovakia Decision of 12 July 2001, where the national authorities restrictions on the activities of a journalist's reference to an official's fascist past was held to be a breach of Article 10 ECHR.

209. McGonagle, T. (2001), p. 135.

210. Vogt v. Germany [1995], App. No. 17851/91, publication no. A323.

211. Wille v. Liechtenstein [1999], 593 EHHR.

212. C1102/05, 27 February 2005.

213. Aslef v UK C1102/05, 27 February 2005, para. 39.

214. Foster, S. (2008).

215. Jersild v. Denmark, 23 September 1994, Series A, No. 298.

216. Ibid.

217 Aslef v. UK, C1102/05, 27 February 2005, para. 43.

218. Ibid.

219. Foster, S. (2008), p. 31.

220. Webb, R. (2001).

221. Ibid., p. 10.

222. Article 194, 21st law modifying the Criminal Code.

223. Law no.148 amendment of the 1945 law prohibiting the National Socialist German Workers Party and the advocacy of Nazi objectives.

224. Article 261bis of the Swiss Penal Code 1994.

225. Also see Belgium – la loi anti-negationiste 1995; France – Article 24b, la loi Gayssot 1990; Israel – Prohibition Law no. 1187, 1986.

226. Webb, R. (2001), p. 9.

227. Article 9 provides for states to express consent to be bound by the Additional Protocol.

228. Penfold, C. (2001), 2.

229. See http://searchsoa.techtarget.com/sDefinition/0,,sid26_gci211883,00.html

230. Chon, M.

231. Reno v. ACLU, 521 U.S. 844 m(1997) U.S. Supreme Court.

232. Ibid., per Justice John Paul Stevens, p. 850.

233. Ibid.

234. Atkin et al. (1998), 470–490, at 475.

235. James et al. (1995), 30–50.

236. Gibson, W. (1984); see Chon, M.

237. Ibid.

238. See http://w3.aces.uiuc.edu/AIM/scale/intro/whatiscyberspace.html. Retrieved August 28, 2008.

239. Chon, M.

240. Ibid.

241. Ibid. Although in Yahoo v France [2000] and in R v Smith [2004] ECWA Crim 631.

242. Ibid.

243. Ibid.

244. Reno v ACLU 521 U.S. 844 m(1997) U.S. Supreme Court.

245. Ibid.

246. Ibid.

247. Ibid.

248. Mills, C.W. (1997), p. 3.

249. Strangelove, M. (1994).

250. Ibid.

251. Chon, M.

252. Ibid.

253. Lee, S. (1987).

254. Mill, J.S. (1859.

255. See 1957 Report of the Wolfenden Committee on Homosexual Offences and Prostitution.

256. Lord Devlin (1968).

257. Mills, C.W. (1997), p. 3.