James Banks (Sheffield Hallam University) has just published European Regulation of Cross-Border Hate Speech in Cyberspace: The Limits of Legislation (2011) 19 European Journal of Crime, Criminal Law and Criminal Justice 1-13 (SSRN | Ingenta). This is the abstract:
This article examines the complexities of regulating hate speech on the Internet through legal frameworks. It demonstrates the limitations of unilateral national content legislation and the difficulties inherent in multilateral efforts to regulate the Internet. The article highlights how the US commitment to free speech has undermined European efforts to construct a truly international regulatory system. It is argued that a broad coalition of citizens, industry and government, employing technological, educational and legal frameworks, may offer the most effective approach through which to limit the effects of hate speech originating from outside of European borders.
In particular, he considers that the Additional Protocol on Xenophobia and Racism (ETS 189) to the Council of Europe’s Convention on Cybercrime (ETS 185), whilst a laudatory endeavour, is undermined by US adherence to the First Amendment, so that “the law alone may not be the most appropriate mechanism through which to counteract hate speech online”. He therefore advocates recourse to a combination of technological regulation (eg, ISP self-regulation; voluntary filtering) and the education of web users to minimise the transmission and reception of online hate speech. He concludes:
By combining legal intervention with technological regulatory mechanisms – monitoring, IPS user agreements, user end software and hotlines – the harm caused by online hate can be diminished. Moreover, through the careful integra- tion of law, technology, education and guidance, a reduction in the dissemination and impact of online hate speech can be achieved without adversely affecting the free flow of knowledge, ideas and information online. As Bailey [“Strategic Alliances. The inter-related roles of citizens, industry and government in combating Internet hate” Canadian Issues, Spring (2006) 56 at 58] neatly summarises, ‘broad-based efforts involving strategic alliances among citizens, citizen coalitions, industry and government provide a strong foundation from which to engage in visible, publicly accountable action against cyberhate.’ For such an alliance to operate effectively, governments, businesses and citizenry must all engage in individual and collective solutions to minimising online hate speech.
If the right to freedom of expression means that the law cannot impose solutions to the problems associated with hate speech, then Banks is absolutely right to seek solutions elsewhere. However, his argument that technology can be used benignly to bring about changes in human nature and the human condition is a classic utopian solution. As such, it is both attractive in principle and unattainable in reality. As with Thomas More’s Utopia (from which the picture above left is taken), Banks’s call for a combination of technological regulation and the education of web users would certainly conduce to A Fruitful and Pleasant Work of the Best State of a Public Weal, it is just as unrealistic as More’s New Isle Called Utopia. There may be very well be a starting point in his suggestions, but we shall have to seek further if we are to find workable non-legal solutions to hate speech.