This article will be critiquing the notion that because regulation by law is deemed infeasible, over-restrictive or simply not appropriate, the alternative is non-regulation or some form of self-regulation. The emphasis will be on hate material on the Internet.
It has been argued that it is infeasible or inappropriate to regulate the Internet because cyberspace is a different terrain from real space. It is not merely the case that cyberspace is tantamount to terra nullius because it exists in a distinct (intangible) space from real (physical) space.
According to Barlow, ‘It is an act of nature and it grows itself through our collective actions’, with its own culture, ethics and unwritten codes.
However, one must question Barlow. Where does he derive the authority and the legitimacy to create this so-called utopian Declaration of the Independence of Cyberspace?
A similar criticism was mounted against the original American Declaration of Independence. Derrida is apt to highlight that anterior to the signing and coming into force of the document (effectively giving birth to the legal entity of America); there was a distinct reference to “in the name of the people”. Critically, the American “people” did not technically and legally exist as an entity beforehand. Accordingly, the validity and authority of the document was questioned.
Barlow condemns the ‘Governments of the Industrial World’ for their tyrannies and suggests that in cyberspace there is unfettered expression of speech ‘where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.’
While the Internet arguably empowers others to express their thoughts, in a way that traditional media outlets could not, be reminded “with great power comes great responsibility”.
Johnson and Post argue that because cyberspace is distinct from real space, cyberspace requires its own regulation. One of the reasons – inter alia – posited is that traditional national based laws would lack the necessary legitimacy because there is an absence of ‘the consent of the governed’. This is a desideratum because as Foucault put it ‘power comes from below’.
However, the idea that the laws in real space are somehow, paralysed in cyberspace has been described by Reed as ‘the Cyberspace fallacy’. According to Reed, this is untenable because the actors involved ‘have a real-world existence, and are located in one or more legal jurisdictions’.
Some are inclined to think legal regulation over restrictive. Batir for example, shows that the toughest laws criminalising Nazi speech are found in countries ‘scarred by the holocaust’. There is ample legal provision (or committees) developed overtime both nationally and internationally designed to combat hatred. Historically, the UK stance has been that incitement to racial hatred is illegal, not hate speech per se.
However, to conclude that the laws regulating hate speech are simply overly restrictive, fails to appreciate the nuances and the distinct attitudes to the values and the rights of free speech globally. Balkin distinguishes between free speech rights and free speech values. The former are legally enforceable rights whereas the latter refers to values promoted ‘through legislative and administrative regulation and through technological design.’
Bearing this in mind, in America, the values of free speech are deeply enshrined in the First Amendment. Zoller asserts that in America, free speech is regarded as a ‘sacred right’, whereas in Europe it is ‘precious right’; which means the right may be derogated from when necessary. Bell argued that a corollary of deifying the right of free speech is that racist and other hateful discourses remain largely unpunished in America.
The case of Yahoo! demonstrates the difficulty with trying to regulate online material across national borders. According to O’Brien, ‘Self-regulation of the Internet is one option that has been strongly favoured, especially during the 1990s, for addressing the issue of pornography, race-hate speech and other Internet-derived material deemed undesirable.’ It has also been suggested that self-regulation is effective in America.
However, one should question this particularly considering the negative social impact on internet users. The high suicide rates, for example associated with cyber hate may be indicative of a system where self-regulation is not as effective as believed.
Roland and Macdonald have similarly suggested the option of non-regulation. However, there are flaws with this approach. Non-regulation could arguably exponentially increase the levels of online abuse and hate. This is most played out in the deep web, where complete anonymity is almost guaranteed.
Rather, it is submitted that the best way to regulate and combat cyber-hate is a combination of different approaches including: the cooperation of the internet community and internet service providers; using notice and take down procedures as well as hotlines for reporting cyber-hate; a coalition of international efforts establishing legal norms that respect national conventions but ensure cooperation between agencies and governments.
CAN THERE BE A REGULATORYCONSENSUS?
One of the difficulties associated with regulation or censorship concerns a clash of interests: protecting online users from harm (intimidated minority groups for example) and freedom of expression.
Mill argued that individual autonomy should be restricted when it causes harm to others, while Isocrates argued that freedom of expression is crucial for the development of any society. This sentiment was echoed in Handyside.
Lessig and Resnick have further identified a problematic area of the discrepancies over what constitutes hate or otherwise inappropriate material across borders (a wide ‘margin of interpretation’ if you will):
‘What constitutes “political speech” in the United States (Nazi speech) is banned in Germany; what constitutes “obscene” speech in Tennessee is permitted in Holland…’
While there may be a lack of consensus over what to regulate due to cultural disparities inter alia, there can be a solid consensus that regulation can be appropriately tailored – like the European ‘margin of appreciation’. In other words, there could be a localised, as opposed to globalized form of regulation. The problem with this approach however is that cyberspace transcends space, time and locations.
Alternatively, it could be argued that the internet has its own culture and its users are able, perhaps democratically , to decide what is acceptable or not on the internet. It is argument that online features such as Youtube ‘like’ and ‘dislike’ button can help to achieve this. This argument is perhaps untenable because as Sunstein highlighted, there is hardly homogeneity in cyberspace. The reality is users tend to isolate themselves rather than forming a community.
Lastly, it could be determined that there are ‘self –evident goods’ that transcends culture, time and space. Accordingly, cyber-hate or the sexual exploitation on the Internet is self-evidently ‘bad’ and must be combatted. This argument is not tenuous especially when one considers the European project, which was birthed from a desire to have a ‘United States of Europe’. Through this shared vision, initiatives to combat cyber hate have been produced.
IS LEGAL REGULATION EFFECTIVE?
European states have attempted to create online borders with the aim of regulating online hate speech. However, conflict has arisen when states have attempted to enforce laws extraterritorially (as in the Yahoo! Case).This has been problematic because national laws on hate are very divergent, because of their unique traditions in relation to freedom of expression. For example, in America, the first amendment enshrines the unyielding commitment to free speech.
The inability of states’ national law, to have an effect that extends beyond their national borders has serious ramifications. As demonstrated by Yahoo!, hate speech or material originating in one jurisdiction, can go unregulated, even though the effects are most felt in another location/jurisdiction. This means that offenders can circumvent national laws and avoid the legal consequences or even identification.
The Convention on Cybercrime provided a multilateral framework for dealing with cyber hate inter alia. The US considers the provisions at variance with the First Amendment. Under the additional protocols, offenders may be extradited for hate speech crimes, but the US has constantly undermined the efforts to combat cyber hate on a global scale, because it will not extradite offenders.
Conclusively, the laws are not effective because they do not have a global reach. Will a global cooperation ever be possible and is this even desirable? Perhaps the global stage requires some conscientious objectors in the form of States like the US, refusing to compromise the values of free speech.
What does one intend to do with the offender – the one who perpetuates cyber hate? This is a criminological as well as practical question to ask. Is the intention to punish, deter or rehabilitate the offender?
There should be a new strategy where education plays a major part in reforming the offender as well as in teaching online users how to respond to hate material.
According to Wolf (Founder and Chair, Anti-Defamation League Task Force on Internet Hate):
‘Instead of the law as a first resort, I urge greater focus on education and counter-speech, and greater involvement of Internet intermediaries.’
Additionally, it is argued that an effective campaign aimed at educating children, who are arguably the most impressionable and most vulnerable on the Internet, would be highly effective. This should include a collaborative effort of parents as well as schools, as David Cameron has suggested.
But in the attempt to tackle online hate speech, there is a danger of suppressing human rights; particularly the freedom of expression and this must be avoided. The freedom to express views, even if they shock, offend or disturb is a marker of a truly liberal and democratic society. Repressive censoring as occurring in places like China must be guarded against because it is our precious and sacred right.
By Adetokunbo Hussain (LLB) Oxford Brookes University
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