The Internet is wonderfully versatile, which is why everyone is turning to it for information and trade. The trouble is, so are criminals. All sorts of crimes are committed using the net, from straightforward hacking to industrial espionage, sabotage, fraud, infringement of copyright, illegal gambling and trade in narcotics, medicines and armaments. The web is also used to peddle child pornography. And it is a vehicle for the dissemination of hate literature.
Neo-nazi groups have taken advantage of the Internet to spread their doctrine. Their campaigns, which specifically target young people, encourage racist violence and propagate revisionist lies about the Holocaust. Hateful songs and children’s games can be downloaded; one game allows the child to assume the role of a concentration camp commandant.
The producers of this material – like others who misuse the Internet – are often not brought to book. This is mainly because the anonymity of the Internet makes it difficult to identify those responsible. If offenders are traced, they are frequently to be found in foreign countries, and prosecuting them requires lengthy co-operation and extradition procedures. In any case, such procedures are pointless if the action for which they are being pursued is legal in their country of residence. This problem has special relevance to the spread of hate literature coming via the United States, where action of this kind is not merely largely unpunished, but is protected by freedom of expression rights.
So far, nation states wishing to do something about illegal web material being accessed on their territory appear to try either one of two approaches: they attempt to protect themselves against the illegal content by blocking it on their territory, or they try and extend their own criminal jurisdiction to the territory of origin of the material. The first approach was tried in Germany when the head of CompuServe Deutschland, an Internet company, was required to filter out child pornography coming through to German users from the United States.
The second approach was tried recently by France in another widely discussed case, in which a French judge demanded that the US company Yahoo Inc. control access by French users to American sites selling Nazi memorabilia, such as by blocking IP numbers coming from France. And in a new decision of Germany’s Federal High Court on 12 December 2000, an Australian citizen was convicted for publishing Holocaust lies and hate speeches on a web site hosted on an Australian server. The person was acting only in Australia, and was arrested while on a visit to Germany.
The object pursued by the law in all these cases is the same: to remove offensive material from the World Wide Web. However justifiable on moral grounds, laws and judgements must take full account of technical realities; rules must at least stand a chance of working if they are to gain respect. Otherwise, those responsible for the offending material would not take the prospect of prosecution seriously and the public – and their political leaders – would feel dissatisfied. What matters is to find truly effective solutions. That means looking closely at the technical resources available to those working on the Internet, particularly the service providers.
For technical control to work, the persons responsible for the web infrastructure must be identified according to their function. Three function types are of interest here: first, there are the network providers, like a telecom company; second, the access providers (Compuserve Deutschland was acting as an access provider in the German case); and third, the host service providers that operate the servers and stores the data, such as Yahoo.
It is quite impossible for the first two, the network and access providers, to control and block content sent over the Internet, which is why they are on the whole exempt from criminal responsibility under the e-commerce directive of the EU and most European national laws. This is because of the large volume of data carried on the Internet, the encryption of data, and the impossibility of real-time control of the material transmitted.
Comprehensive control would also be undesirable from the legal/political point of view: the same Internet nodes are used to transfer not only public information, but also private mail and other confidential data. Filtering would therefore only provide an effective solution if it could control everything and if encryption were forbidden. This would not only amount to a massive violation of the secrecy of telecommunications, but would also require total surveillance of the public. Apart from being quite inconceivable in a democratic state founded on the rule of law, it probably would not work anyway.
Besides prosecution of the authors of illegal contents (the so-called content providers), effective solutions depend therefore on the host service providers, who may unwittingly be storing illegal material over long periods. The host service providers cannot control all stored data. However, they may be required, upon discovering or more especially being told (often by users) about the presence of the illegal material, to check the data in question and, if it violates the law, to remove it or make it inaccessible. This, experts agree, is the most effective instrument in the fight against illegal material on the web. Thus, under European Union regulations (article 15 paragraph 1 of the e-commerce directives), the host service providers are not required to take active measures to control the material, as this would be hard to implement, but only to accept responsibility once they know they are providing illegal data.
Extending the law abroad
But how can host service and content providers observe not only their own country’s laws, but also those of all the countries in which the material they supply may be accessed? From a technical standpoint, it would be possible – if in a crude and limited way – for the host service provider to apply blocking measures, since at present around two thirds of Internet users can be located by their IP (Internet Protocol) numbers. However, users can easily circumvent these identification measures (by resorting to a suitable international access provider, such as AOL or IBM, which does not differentiate its members by country IPs, or by using a foreign proxy server to disguise origin).
There is also the complication of knowing the legislation of all the countries (and sub-sets of countries) from which the material they offer can be accessed. For instance, for blocking to work, the Chinese would not be given access to political opinion pages, while citizens of some Islamic states would not get advertisements for alcoholic beverages. Above all, an “extraterritorial application” of criminal law cannot be enforced in practice if the prosecuted actions by one state are legal in the other state.
One possible way of apportioning responsibility might be to focus on e-business suppliers. When these are involved in a transaction with a foreign client, they are not confronted with the legislation of all web user countries and their sensitivities, but with the specific legislation of their client. In other words, the purveyors of Nazi memorabilia to clients in France or Germany may, unlike the WWW supplier, be subject to stringent obligations to respect the law of the state in which its statement of intent, services, or goods have been received. Nazi memorabilia coming from abroad, or money sent for payment, can also be seized, helping enforcement.
The basic point is that national laws can in general only be applied to the World Wide Web in a limited way. Consequently, if certain sites – such as markets for Nazi insignia – are protected in the United States by freedom of expression and are illegal in Germany, then in free democracies it is only possible in exceptional and specific circumstances to prevent this content from being hosted on U.S. servers and accessed by European users. As a result, the fight against illegal material on the Internet must concentrate on international co-operation and other non-legalistic solutions.
However, harmonising legal provisions with the aim of halting the spread of hate material on the Internet would be difficult, given the US freedom of expression rights. Determined Europeans could try to persuade their American friends of the negative effects the spread of Nazi propaganda and hate literature is having in Europe, particularly on the young. Compromise regarding the harmonisation of laws would be required from all sides. This would demand considerable co-operation and goodwill, in particular when it comes to enforcement and intervention.
Another approach would be for internationally active online services, Internet providers, search engines, and e-businesses to take a lead by drawing up “codes of conduct” that would be recognised throughout the world. The guarantee of freedom of expression in the United States does not necessarily prevent an enterprise from barring materials it regards as morally reprehensible, particularly if those materials are illegal in other major democratic countries. International businesses could not only ban hate material on the Internet, but also help the prosecuting authorities in tracing those responsible for Internet crime.
Education of Internet users is also important. More pages should be provided so that schoolchildren browsing for information on the Holocaust should not be confronted just with sites propagating the lies of Nazi groups, nor indeed the pages of unhelpful anti-Nazi sites, as they often do today, but objective, educational material as well. In this regard initiatives like the German government’s web school project, “Schulen ans Netz”, can play an important role in helping children not only to find what they want, but become immune to expressions of hatred as well.
* Professor Sieber was the defence lawyer of the CEO of CompuServe Germany in his acquittal by the Landgericht Munich.
• Sieber, U., “Verantwortlichkeit im Internet”, C. H. Beck eds, Munich 1999.
©OECD Observer No 224, January 2001