Academic journal article Washington and Lee Law Review

Internet Hate Speech: The European Framework and the Emerging American Haven

Academic journal article Washington and Lee Law Review

Internet Hate Speech: The European Framework and the Emerging American Haven

Article excerpt

In this advance, the frontier is the outer edge of the wave-the meeting point between savagery and civilization.

Frederick Jackson Turner, The Closing of the American Frontier.1

I. Introduction

The civilization of the Internet has been the great quandary facing Internet regulators over the past decade. The Internet, like Turner's frontier,2 was not a tabula rasa-at its formation, traditional laws were still available.3 But the Internet raised new problems that made the enforcement of old laws problematic, and the Internet soon developed its reputation as an entity free from government regulation.4 The greatest obstacles to enforcement of traditional laws are the Internet's anonymity and its multijurisdictionality.5 Anonymity makes it hard for local prosecutors and victims to discover the identity of the party responsible for illegal conduct.6 Even if the party can be identified, however, multijurisdictionality means that the prosecutor or victim may not have jurisdiction or face great obstacles in bringing suit against the offending party.7

The problem with enforcement of the inherited laws was not so much a product of a defect in the language of the laws as it was a product of the inherent structure of the Internet.8 As a result, it should come as no surprise that despite unilateral efforts by the United States and almost every other nation to attempt to civilize the Internet, "the closing of the Internet frontier" remains far from a reality. Although governments have extended traditional laws to the Internet and have attempted to pass new laws regulating the Internet, these laws have had limited effectiveness reigning in unwanted conduct.9

The global accessibility of information on the Internet allows an individual or a business that disagrees with the rules in one jurisdiction to move to a more lenient country and resume its business with its website remaining accessible for viewing in the country it fled.10 The global nature of the Internet results in those countries with less civilized Internet standards becoming havens for actors who wish to continue their "savage" manners untouched by the laws of the objecting country.

The "haven" problem can generally be avoided in two ways. The first is for the victimized country to attempt to block odious content from reaching its Internet browsers. Spain has recently implemented this approach by passing legislation authorizing judges to block sites that do not comply with Spanish national law. ' ' This approach, however, is onerous on the victimized country, as it forces the country to search out the content and block it, without placing a deterrent on the producer of the content to refrain from putting the content on the Internet in the first place.

The other option to solve the "haven" problem is in the form of regional and multilateral efforts to regulate the Internet. The greatest benefit of a multilateral compact is its ability to negate the multijurisdiction problem. If the offending party is located in a country also a party to the multilateral compact, it becomes much easier for the victimized country to push the host country to take action against the offender or to extradite the offender to the victimized country. The removal of the multijurisdiction obstacle, it is hoped, will make the laws much easier to enforce and is seen as more efficient than unilateral blocking of sites because it attempts to deter the objectionable content from being placed on the Internet from the outset.12

The first major multilateral compact aimed at Internet crimes was the Council of Europe's Convention on Cybercrime.13 The purpose of the Convention on Cybercrime is to pursue "a common criminal policy aimed at the protection of society against Cybercrime ... by adopting appropriate legislation and fostering international co-operation" that defends copyright holders by making the laws more uniform and providing for international cooperation in enforcement. …

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