Regulating Hate Speech in Cyberspace: Issues of Desirability and Efficacy

Abstract

Cyber-libertarians advocate a free and unfettered cyberspace, unencumbered by regulation. Despite this idealised view, nations around the world are asserting their right to enforce individual regimes of content regulation. Universal agreement on Internet content regulation is almost impossible to obtain. Even in an area that is universally abhorrent--child pornography--the First Amendment to the United States Constitution stands as a stumbling block to effective government regulation. When the content under discussion concerns hate speech, consensus becomes more elusive. There are those who argue that freedom of speech principles preclude censorship of opinion, and that more speech is the best antidote to racist views. Others argue that hate speech silences minority opinion and is really an equality issue, which if not addressed, runs counter to International Human Rights principles. Nations such as Germany and France have prohibited hate speech on the Internet, and have brought both criminal and civil penalties against defendants. However, enforcement is fraught with difficulties, especially when the defendants are not nationals, and when the content emanates from foreign jurisdictions. The Council of Europe has recently moved to include an additional Protocol to the Convention on Cybercrime. This Protocol would cover offences of racist or xenophobic propaganda, making them subject to reciprocal enforcement provisions by Member States. Whether international efforts can succeed where a piecemeal approach has failed is yet to be seen. Although the United States and its First Amendment currently present the greatest obstacle to hate speech regulation, technological advances as well as judicial development in First Amendment jurisprudence may yet provide an avenue for regulating hate speech in cyberspace.