Tackling Racism on the Internet.

By Dr Peter Jepson

Email: law@peterjepson.com

The Internet is a global network of connected computers, belonging to different individuals and organisations. These organisations include governments, universities, schools, libraries[f1], large and small businesses.

Any individual with access to a computer and a modem could surf the Internet and make use of Newsgroups, ëBBSís - bulletin boardsí where an organisation can ëpostí information that can be read by subscribers or browsers. This same individual can also access the ëWorld-Wide Webí, which is like an encyclopedia of interconnected pages, to obtain and publish information - with information on the Internet varying from an individual's poetry to Her Majestyís Government Treasury Department news release on the Scott Report[f2].

The roots of the Internet go back to 1969 when the Advanced Research Project Agency (ARPA) in the United States commissioned work on the ëARPAnetí, en experimental wide area computer network designed to withstand the effects of a nuclear strike. By 1971 there were 23 hosts on the network, 1981 it had reached 800 and in 1996 the number of hosts reached 9.4 million, with an estimated 200 million world-wide users by 1999[f3].

Many users of the Internet regard its freedom as paramount. There exists a ëBlue Ribbon Campaign for Online Free Speechí[f4] with emphasis placed upon the fact that the Internet enables the individual to display his talents before the world. Certainly, there is a great deal of value in an instrument that enables an individual to write a poem and place it on a world-wide stage for millions of readers to see. The freedom this gives to the individual is clear to see - he is not dependent upon an editor or publisher to obtain recognition.

The Internet is also fast becoming a business tool. You can obtain information on anything from the financial pages of the Daily Telegraph[f5] to the dog food Pedigree Chum. It is possible to download computer software[f6] and copies of articles from publications[f7]. Some of this information is free, while in many instances you can provide details of your credit card and goods ordered will be delivered or, where possible, downloaded direct to you via your computer.

Perhaps an example of the potential abuse that can occur can be found in relation to the "McLibel Case". This case involves the longest running libel case in legal history. In 1984 a six-page leaflet was distributed, outside a McDonaldís branch, entitled "Whatís Wrong With McDonaldís": accusing the fast food giant of cruelty to animals and destroying rain forests. The leaflet, produced by London Greenpeace, also alleged that McDonaldís had been promoting a diet that has been linked to cancer, diabetes and other illnesses. McDonaldís have emphatically denied the allegations and, since London Greenpeace is not a legal entity, took proceedings against five defendants. Three of the defendants apologised and said the allegations were untrue, but Dave Morise and Helen Steel defended themselves in a High Court case that has passed its 222nd day[f8]. During the courts' proceedings, before Mr. Justice Bell, it had been possible to access the Internet and read the offending leaflet in full[f9], with the Holland based main server being outside the jurisdiction of the UK Courts. It has been estimated there have been 750,000 visits to the ëMcLibel Internet Siteí within the first month of it being opened[f10]. Not only can each of the people who link to the ëMcLibel Internet Siteí read the material, they can also print a copy for others to read.

An unfettered publication of this type, during legal proceedings, could amount to a contempt of court[f11]. It certainly makes a mockery of the proceedings, since legal costs alone is expected to reach millions of pounds. Indeed, this point can be established by the award of £60,000 compensation to McDonaldís, with it being difficult to see how they will collect the money from two unemployed workers with no known financial nest egg.

While this McLibel case may be a non-typical illustration of the use of the Internet, it is clear governments are becoming increasingly concerned about the potential abuse of freedom on the Internet. In Germany government officials investigated the transmission of illegal pornographic material on the Internet resulting in Compuserve, the worldís leading global server, suspending 200 Internet Services. This action being taken following the raiding of CompuServeís German Office and government officials identifying 200 services as being illegal under German Law[f12]. The service was later re-introduced after Compuserve introduced new controls that enable parents to restrict the access of children to pornographic sites on the Internet[f13]. In the United States a ëCommunications Decency Act of 1996í was passed making the ëserverí, whether domestic or foreign, legally responsible for ensuring that a person under the age of 18 does: not have access to sexual or excretory activities or organs in terms which are íindecentí or ëpatently offensiveí by ëcontemporary community standardsí. This act, though, has been declared unconstitutional by the US Supreme Court, in the case of Janet Reno, Attorney General of the United States et al v American Civil Liberties Union et al[f14], which held that the legislation breached the First Amendment of the US constitution. In doing so, the Supreme Court declared that the interest of encouraging freedom of expression in a democratic society ëoutweighs any theoretical but unproven benefit of censorshipí. They did this by pointing out that users cannot accidentally walk into indecent material they need to make a conscious decision to locate it and to overcome the variety of warning signs which exist ñ with ëalmost all sexually explicit imagesí being ëpreceded by warnings as to the contentí. In this sense, the court was accepting the principle of a counter message ñ in that the warning signs themselves portray a message that sexually explicit material is ahead and juveniles should not enter. Indeed, without the existence of such counter messages it seems probable the outcome would have been very different. This can be deduced from the majority judgement of Justice Stevens who distinguished the case of Ginsberg[f15] because that case had involved a radio medium which ëas a matter of historyí had received limited First Amendment protection because ëwarnings could not adequately protect the listener from the unexpected program contentí.

So far as the UK is concerned, the Labour Party Womenís Spokesperson Tessa Jowell MP, no doubt aware that the Obscene Publications Act 1959 (as amended) limits prosecutions to the transmission of data, has talked about the need for an "equivalent act" in the UK[f16]. Whatever the prospects of a Labour Government introducing legislation to deal with pornography on the Internet[f17] - by prosecuting the Internet ëserversí - question marks must exist over such an approach on three fundamental grounds: (1) How can it be established that the server has knowledge, which goes to mens rea, with regards to who is using the data (he may provide an adult with a password, but he cannot possibly know the identity or age of a computer/modem user)? (2) How can a server have knowledge of the content of millions of words of data, to and from thousands of users, which may be served in any one minute (it is like blaming British Telecom because someone may swear over the telephone)? (3) How does this type of legislation deal with the individual, who has the resources, and is able to bypass UK based servers by obtaining direct connection to the Internet?

The European Unionís Council of Ministers Consultative Commission on Racism and Xenophobia has also set its sights on cleaning up the Internet "from the evil of its racist filth"[f18]. Indeed, as Glyn Ford MEP has remarked:

"The propagation of racial hate, anti-Semitism and nazism is growing and the young are dangerously susceptible to being influenced by this propaganda because it is dressed up in Internet Technology".

One of the biggest Internet providers in Germany - Webcom - have cut off access to Ernst Zundel, the German-Canadian nazi who used the site to deny the Holocaust[f19]. This decision of Webcom came after prosecutors said they were considering bringing incitement charges against the company for facilitating the distribution of neo-nazi propaganda on the Internet. This action, though, is reported to have failed as students of a number of US universities made copies of Zundelís web site available world wide - on the grounds that they are upholding free speech and the first amendment.

This indeed highlights the problem of policing the Internet. Because it has world-wide distribution it is not really possible for nation states, and even the European Union, to impose effective restrictions. An illustration of this can be found in the existence of Dutch Law that enables the prosecution of Dutch users who post racist material on the Internet[f20]. This only applies to the jurisdiction of the Netherlands Courts and is therefore of little value in stopping users from accessing material put onto the net from within other countries.

A similar problem applies in the UK. A person could be prosecuted under s.19 of the Public Order Act 1986 for the distribution of threatening, abusive or insulting material which, in all the circumstances, is likely to stir up racial hatred. On examining the BNP web page[f21] it would seem that the literature displayed is typical of the vast majority of its material - i.e. while it is racially offensive it is unlikely to be found to be threatening, abusive or insulting. As such, under existing laws BNP leaders are unlikely to face prosecution[f22] for stirring up racial hatred.

Should the law be amended to include Options One (incitement to racial hatred) and Two (including racial offence as a prerequisite) it seems that a great deal of the racist literature that the BNP displayed on the Internet could be in breach The problem though would be that the BNP material is mild[f23] in comparison to some of the pages stemming from the USA. For example, while searching for the BNP web page I came across that of the USA based Stormfront a white racist organisation. Their web site[f24], includes a graffiti page which can only be described as threatening and insulting, while indicating a desire to stir up racial hatred[f25]. This would almost certainly be unlawful, under s.19 of the Public Order Act 1986, if published within the UK - though it seems it may be considered as acceptable under USA laws. In addition, the variety of racist 'Newsgroups' provide a specific Internet forum for militant racists to enjoy. At such locations you can find some of the vilest forms of racial discrimination and hatred imaginable.

Searchlight[f26] has undertaken research into ëHate on the Internet[f27]í producing evidence of full-colour web pages which show and incite skinheads to beat up blacks and even give details of how to make bombs. With networks from Austria, Germany, Netherlands, Norway, and the USA - representing just a few of the countries where militant racists operate from to spread their message world-wide.

It seems rather pointless to introduce legislation that could outlaw a comparatively mild UK distributed BNP world wide web page when material emanating from other countries is far more extreme and racially offensive. This particularly applies when it is just as easy to obtain the information from these other countries as it is from the UK.

Quite apart from the fact that the BNP could get around the legislation by operating from, say, Norway[f28] it seems a futile exercise to try to tackle such problems in isolation. Indeed, such is the extent of the problem it seems evident that only world wide action via the United Nations could have any impact, and even then it could only be as good as its weakest link. For, if the first amendment enables distribution in the US it also enables distribution in the United Kingdom - it not being possible to isolate the UK from the telephone linked network. The law cannot blame the reader of the material since he is possibly unaware of the content of the web page until he reads it. He may have an idea of what it may contain from earlier references, but its exact content could only be known after reading.

There would be no value in trying to invent some computer web edition of the V-chip[f29] so that parents could exclude certain web pages from viewing, since it would involve removing certain words like race, black or white from the computer's dictionary. In any event it is not just the distribution of the material to children that is of concern. It is the use of racially offensive material to incite racial discrimination or hatred amongst people of all ages.

What could be done, however, is to introduce into computer software/hardware a program that alerts the browser to a web equal opportunities statement when certain related words appear. For example, it must be possible to include a chip in any computer/modem that would produce an alert message when words like ëraceí appear in any Internet article. This alert message could reflect the values of an equal opportunities statement such as - ësay no to racismí or ëcommitted to equality of opportunityí.

Clearly, this kind of approach should at least alert the potential reader of the web pages that the material might be racially offensive. It would establish some means of producing a counter message to the racist material on display, and it may also be welcomed by the cyperspace industry as network servers and companies try to provide a means of providing freedom with responsibility. It is even possible that companies like Microsoft would introduce alert messages into their word processing software so as to help

educate the public of the need to respect the ideal of equality of opportunity when they write articles.

Restricting freedom of racist expression over the Internet seems doomed to failure. Irrespective of the conflicts that may exist over issues like a possible breach of the European Convention on Human Rights etc, it seems that one nation or continent in isolation cannot address the freedom of the Internet. Even a grand body like the United Nations could only be as strong as its weakest link. For these reasons it seems that a price society must pay for this advancement in computer technology is that militant racists will be able to exploit its use and spread their evil message. Just as it is not practical to deny the use of the car because it can be used to transport evil, so it is not practical to deny the use of the computer. As I have argued, the only viable solution to abuse of the Internet by militant racists is to try and adapt the computer technology so as to provide a suitable counter message. In effect, responding to racist material, or material that has the potential for being racist, with a message that can ësay no to racismí.

 Written by Peter Jepson (24-9-98).

 Footnotes:

1ëMillennium plea for Librariesí - The Guardian, 21st March 96 - gives news of a £45m lottery fund bid, to the Millennium Commission, so all public libraries can be connected to the Internet. Hounslow Councilís main library already provides the Internet Service to the public. Students at schools and universities can also often make use of the Internet Service "for study purposes".

2ëScott clears Waldegrave of intent to misleadí - http://www.hm-treasury.gov.uk (16th March 96).

3 See comments of Justice Stevens in the USA Supreme Court decision in Janet Reno, Attorney General of the United States, et al, Appellants v American Liberties Union et al ñ case No 96-511.

4 http://www.eff.org/blueribbon.html (Mar 96).

5 http://www.telegraph.co.uk (Mar 96).

6 Microsoft on http://www.microsoft.com (Mar 96).

7 e.g. on http://ngwwmall.co/frontier/bnp/ (Mar 96) the BNP produce a library of popular articles. The articles can then be downloaded. There is also a Banned Media and Organisations List at http://www.gsu.edu/~hisjwbx/ (Mar 96) where it is possible to obtain copies of banned articles - many of which are nationalist.

8 The ëMcLibelí Case - New Law Journal [1996] 363. See also ëFast Track Justiceí - Sein Enright NLJ [1996] 487.

9 http://www.mcspotlight.org/ (Mar 96).

10 ëMcLibel Internet Site hit by thousand worldwide.í - Tribune 15th March 96.

11 While this may be contempt under UK law, it could well be acceptable in many European Countries. For a discussion on Contempt of Court see Chapter 16 - Civil Liberties and Human Rights in England & Wales by David Feldman - published 1993.

12 Times Newspaper - 29th December 95.

13 ëAttempt to block Zundal Failsí - Searchlight March 96. This pornographic parental control can be found by searching for ëCyberPatrolí on the Internet (ref: http://cybernet.co.nz//cyberpatrol/wwelcome.html) (Mar 96). For a review of various commercial software/internet censorship controls, such as ëCybersitterí and ëNet Nannyí, see ëSensible Censorshipí - PC Advisor June 96.

14 Case No 96-511 decided June 26, 1997.

15 Ginsberg v New York, 390 U.S. 629, 633 (1968).

16 ëNatural Porn Killersí - Mike McCormack - .net - April 96. In 'Action Promised over Internet Racism' The Times 16th Sept 98 the Home Secretary indicated that new laws were not needed and that the National Criminal Intelligence Service will tackle racism on the net by liaison with police authorities in other countries to try and get them to persuade Internet Service Provides to remove racist sites.

17 Child pornography is dealt with under the Protection of Children Act 1978 and s.160 of the Criminal Justice Act 1988 ñ both amended by the Criminal Justice and Public Order Act 1994 so as to deal with computer data.

18 ëEC targets racism on the Internetí - Glyn Ford MEP - Searchlight March 1996.

19 Under German Law it is illegal to deny the Holocaust.

20 Searchlight March 96.

21 http://ngwwmall.co/frontier/bnp/ (Mar 96).

22 One article - ëDoing the enemyís workí by BNP Leader John Tyndall did refer to "sending blacks home in body bags". This Tyndall argued is a breach of the Public Order Act 1986 and is typical of the illegal activities of Combat 18 (the article is an attack upon Combat 18 - urging BNP members not to join them).

23 An example is a BNP article written for, and at the request of, Bath Universityís student magazine ëSpikeí. As a result of internal politics the article was not published due to a likely breach of "union policy". Consequently, the BNP reproduced the article on the Internet (26th January 1996). While the article can be considered as racially offensive it cannot be regarded as being unlawful the Public Order Act..

24 http://www.stormfront.org

25 For an example of such disgusting racist material that is threatening and could stir up racial hatred (this is just one extract from 13 pages of racist material which taken as a whole does clearly stir up racial hatred: "Well Dave, you know how I feel about our in-house Mud Monkey. Hell there is nothing worse that getting so mad at a little nigger like that, and then you not able to beat him or shoot him. Frustrating isn't it. Can I kick him in the ass on the way out?" Your German Comrade Eoroman/MB. Taken from www.stormfront.org on the 5th Sept 98 (there are links to the BNP web site from this location).

26 London based International Anti-Fascist organisation.

27 Article written by Louise Bernstein - Searchlight, March 1996.

28 At one stage in 1994 the BNP sent messages from Norway onto British bulletin boardís announcing that it has banned cross-membership with the violent terror organisation Combat 18.

29 This is a computer chip, which can be installed in a television, enabling parents to exclude violent and/or sexual program from their domestic TV screens. In the USA, Vice-President Gore has given his personal support to a business funded web-site that encourages parents to use CyberSitter, and other software applications, which prevent the computer from displaying web pages that display certain words. This could mean that pages which that display sex are acceptable, but sexual not? See ëCybersitter: Where do we want you to go today?í ñ Web page of Cyberights & Cyber-liberties ñ http://www.leeds.ac.uk/law/pgs/yaman/yaman.htm .