European, U.S. laws clash on policing online hate speechby alina dain sharon, jns.org
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Last October, the hashtag #unbonjuif (#agoodjew) was trending as the third-most tweeted subject in France. Users jumped on the chance to tweet phrases like “a good Jew is a dead Jew,” ultimately forcing the French Jewish students’ union to file a lawsuit against Twitter for allowing that content to appear.
When a French court decided in January that the San Francisco–based Twitter must reveal the identities of users who sent out those anti-Semitic tweets, a cross-continental debate ensued on the difficulty of defining and policing anti-Semitism online.
“Social media is becoming more and more of a problem for us if you look at anti-Semitism,” said Ronald Eissens, co-founder of the Dutch anti-racism group Magenta and the International Network Against CyberHate, which has members in 20 countries. “There’s a lot of it around. Prosecution is a lot harder because most social media are based firmly in the U.S.”
In 2000, France prosecuted the Sunnyvale-based Yahoo for selling Nazi memorabilia online. In France, it is illegal to display such items unless they are in a theatrical or museum setting. A French court ruled at the time that Yahoo had to make the auction site inaccessible to French users or pay a fine. Although it never legally accepted the French ruling, Yahoo eventually removed the auction.
Then, in 2012, Twitter, Facebook and YouTube complied with German law by either taking down material posted by a neo-Nazi group or by blocking users in Germany from access to the content, according to the New York Times.
Additional broad laws have been passed on racism and cyberhate. The Council of Europe’s Additional Protocol to the Convention on Cybercrime was passed in 2003 and went into effect in 2006. The protocol criminalized racist and xenophobic acts committed through computer systems. The European Framework Decision on Combatting Racism and Xenophobia was passed in 2008.
In 2005, the European Union Monitoring Centre on Racism and Xenophobia’s working definition of anti-Semitism was released, defining the phenomenon as “a certain perception of Jews, which may be expressed as hatred toward Jews.”
Additionally, the definition specified that anti-Semitic “manifestations could also target the state of Israel, conceived as Jewish collectivity.”
Though that definition was never legally binding, various international bodies, several law enforcement agencies and European courts have used it in their investigations. It is essentially meant to “help police forces who are monitoring anti-Semitism on the ground to have a better understanding of what anti-Semitism is,” said Kenneth Stern, the American Jewish Committee’s specialist on anti-Semitism and extremism.
Under the First Amendment, hate speech in the U.S. must be likely to cause violence or harm before it can be deemed criminal. But in the European Union, speech can be prohibited even if it is only abusive, insulting or likely to disturb public order, noted Talia Naamat, legal researcher at the Kantor Center for the Study of Contemporary European Jewry in Jerusalem.
There are many laws on Holocaust denial in Europe, including in Germany, Belgium and Austria, where British Holocaust denier David Irving was convicted and imprisoned in 2006. European laws on the issue, however, are not uniformly applied across the EU. Even the European Court of Human Rights does not offer an accepted definition for “hate speech.”
Prosecutors therefore exercise a great amount of discretion, as do law enforcement officers, who must decide whether to classify the act as a hate crime, and judges, who must assess which action or speech is likely to disturb public order. “That assessment can be subjective,” Naamat said.
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