More on cross-border censorship
Free Online Scholarship (FOS) Newsletter
January 23, 2002
by Peter Suber
On November 20, 2000, a French court ruled that French laws against hate speech prohibit Yahoo from selling Nazi artifacts on auction pages served to French citizens.  Just about a year later, November 7, 2001, a U.S. court ruled that it would be unconstitutional for any U.S. court to enforce a French restraint on U.S. speech (see FOSN for 11/16/01).  The French plaintiffs have appealed to the Ninth Circuit Court of Appeals (see FOSN for 12/12/01); the appeal is still pending and we'll hear more about it in due course.  Remember that the law being hammered out here isn't just about online auctions that cross national boundaries.  It's about offensive content of any kind that crosses national boundaries, such as online scholarship about Tiananmen Square, sexuality, or evolution.  It affects scholars as much as antique dealers.

I recently learned that in October 2001, the Council of Europe was already crafting another sort of response to cases of cross-border offense.  In October, the Council of Europe proposed to protect nations like France with a protocol that prohibits hate speech and introduces a new method of stopping it.  Some signers of the protocol (call them "Type A" countries) might agree to the binding prohibition of hate speech.  Other signers ("Type B" countries) might have strong free-speech rules incompatible with the binding prohibition of hate speech and could sign a weaker clause of the agreement.  The protocol would prevent Type B countries from disseminating hate speech from internet sites within their jurisdiction "aimed exclusively at an audience in a less permissive state", i.e. an audience in a Type A country.  See Document 9263, Section II.E.16 (link below).

Of course this wouldn't reverse the Nazi auction decision unless the U.S. signed on to the new protocol.  But what's interesting is the two-tiered strategy:  prohibit hate speech in one kind of country and in other countries prohibit hateful broadcasts "aimed exclusively" at nations of the first kind.  The second tier allows more freedom than the first (broadcasts to other audiences, broadcasts to one's own citizens), and consequently may tempt nations to sign on that would not have signed on to a monolithic strategy of prohibition.

The problem with the second tier is that it tells nations whose free-speech rules aren't compatible with a ban on hate speech:  don't use your freedom to offend people protected by censorship elsewhere.  Or, don't take advantage of your freedom or let citizens of censored countries take advantage of your freedom.  Will a nation whose free-speech rules are so strong that they do not permit the prohibition of hate speech agree to cooperate with censorship in other countries?  Time will tell.

The protocol doesn't exactly say that citizens of less free countries wouldn't benefit from broadcasts from the more free countries, but it does try to ban a subset of those broadcasts in deference to the lawmakers who have decided that less freedom is better than more.  In short, it puts sovereignty ahead of freedom.  How many countries with strong free-speech rules will do the same?

Document 9263, proposing the new protocol
(Thanks to GILC Alert.)


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