INTERNET LAW - The European Union Criminalizes Acts of Racism and Xenophobia Committed through Computer Systems

Martha L. Arias, Immigration & Internet Law Attorney, Miami; IBLS Editor
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People have always said that old fashion trends come back; this seems applicable to racism and xenophobia as well. During the world's economic and political crisis, such as the economic crises most countries are experiencing now and the political crises in the Middle East, migration arises and racism and xenophobia comes along. Just recently, France expressed its disappointment with Italy"s policy of issuing temporary resident permits to Tunisian migrants, who later cross to France and other European countries. When migration waves arise, people soon start expressing anger against other races through computer systems and other media. What does the European Union law prescribe about acts of racism and xenophobia committed through computer systems? This article informs on the European policy on this topic.

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 People have always said that old fashion trends come back; this seems applicable to racism and xenophobia as well.  During the world's economic and political crisis, such as the economic crises most countries are experiencing now and the political crises in the Middle East, migration arises and racism and xenophobia comes along. Just recently, France expressed its disappointment with Italy"s policy of issuing temporary resident permits to Tunisian migrants, who later cross to France and other European countries. When migration waves arise, people soon start expressing anger against other races through computer systems and other media.  What does the European Union law prescribe about acts of racism and xenophobia committed through computer systems?  This article informs on the European policy on this topic.

In 2002, the European Convention on Cybercrime (the Convention) was supplemented with a protocol that purports to criminalize "acts of a racist and xenophobic nature committed through computer systems.”  This protocol entered into force in most European countries signatories to the Convention.  The Protocol defines “racist and xenophobic material” as any “written material, any image or any other representation of ideas or theories, which advocated, 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 sued as a pretext for any of these factors.”  The protocol requires member states to take certain measures tending to prohibit and criminalize acts of racism and xenophobia.

For instance, Article 3 of the Protocol requires member states to adopt legislative measures to criminalize, when committed intentionally and without right, the following conducts: distributing or making available racist and xenophobic material through the use of computer systems.  Racist or xenophobic acts that do not incite discrimination or are not associated with hatred or violence may not be criminalized by a member state provided that other effective remedies are available.  Although this is an important mandate in this protocol, the same Article lets member states to reserve the right not to apply this Article if established principles of freedom of expression in a member state’s legislation conflict with the application of this Article.    

The Protocol also orders member states to adopt legislative and other measures to criminalize, when committed intentionally and without right, threats and public insults transmitted through computer systems against (a) persons that belong to a certain group; (b) persons distinguished by race, colour, descent or national or ethnic origin, and religion; and (c) any group of persons distinguished by any of these characteristics.  Protocol Article 4 and 5. 

Perhaps one of the most motivating articles of this Protocol, given the European history, is Article 6.  This article orders member states to criminalize, when committed intentionally and without right, the act of distributing or making available through a computer system material that 'denies, grossly minimizes, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law. . .”  A member state may reserve the right not to apply this article. 

The Protocol also mandates that member states should adopt legislative measures tending to criminalize the act of aiding or abetting the commission of any of the offenses established in this Protocol.   

Therefore, this Protocol to the Convention on Cybercrime orders European countries to penalize acts of racism and xenophobia committed through computer systems such as threats, public insults, and distribution of xenophobic material.  Indeed, the Internet allows fast dissemination of opinions and ideas and criminalizing these types of acts committed through computer systems is a promising step against intercultural hate.  The puzzling issue is the fact that the same Protocol allows member states to reserve the application of some of its mandates; particularly when they conflict with principles of freedom of expression.  Well, when it comes to anti-discrimination legislation, it is similar to financial legislation…there are always loopholes.

Martha L. Arias, Immigration & Internet Law Attorney, Miami; IBLS Editor

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