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IRIS 2003-1:3/3

Committee of Ministers

Adoption of Anti-racism Protocol to Cybercrime Convention

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Tarlach McGonagle

Institute for Information Law (IViR), University of Amsterdam

On 7 November 2002 the Council of Europe's Committee of Ministers adopted an additional protocol to supplement the Cybercrime Convention, by providing for the criminalisation of acts of a racist and xenophobic nature committed through computer systems. This marks the culmination of a process of elaboration that was conceived even before the finalisation of the text of the Cybercrime Convention itself (see IRIS 2001-5:3, IRIS 2001-7:2, IRIS 2001-9:4, IRIS 2001-10:3, IRIS 2002-1:3 and IRIS 2002-3:3).

The preambular section of the Additional Protocol acknowledges that one of the issues which weighed on the drafting process was the difficult balancing act to be performed between "freedom of expression and an effective fight against acts of a racist and xenophobic nature". Relevant international standards are also mentioned as having informed the drafting process.

The drafters have opted for a broad definition of "racist and xenophobic material": it encompasses "any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors" (Article 2).

The Additional Protocol enjoins States Parties to adopt the legislative and other measures necessary to criminalise under their national systems of law a number of activities, "when committed intentionally and without right" via computer systems, including the dissemination of racist and xenophobic material (Article 3); making racist and xenophobic motivated threats (Article 4) and racist and xenophobic motivated insults (Article 5). The latter two offences specify as one of their constituent elements that the threats or insults respectively would target: "(i) persons for the reason that they belong to a group, distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors, or (ii) a group of persons which is distinguished by any of these characteristics".

The collective dimension to racial or xenophobic threats and insults reverberates in the Additional Protocol's provision on denial, gross minimisation, approval or justification of genocide or crimes against humanity (Article 6). This is true insofar as the purpose of Article 6, as outlined in the Explanatory Report to the Additional Protocol, is to prevent (the memory of) victims of such atrocities from being insulted and thereby eroding human dignity.

The final substantive provision of the Protocol (Article 7) focuses on aiding and abetting the commission of any of the offences set out in the Protocol.

The entry into force of the Protocol is contingent on the expression by five signatory States of the Cybercrime Convention proper of their consent to be bound by its provisions.

References
"The Council of Europe fights against racism and xenophobia on the Internet", Press Release of the Council of Europe, 7 November 2002 EN
 http://merlin.obs.coe.int/redirect.php?id=1188
 
Additional Protocol to the Convention on Cybercrime concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (& Explanatory Report), PC-RX(2002)24 (provisional version) of 7 November 2002 EN
 http://merlin.obs.coe.int/redirect.php?id=1189