by Bastiaan Vanacker. El Paso, TX: LFB Scholarly Publishing, 2009. 264pp. Casebound $70.00. ISBN: 9781593323318.
Reviewed by Robert G. Brookshire, Technology Support and Training Management Program, University of South Carolina. Email: brookshire [at] sc.edu.
In April, 2000, La Ligue Internationale Contre le Racisme et l’Antisémitisme (LICRA) and l’Union des Etudiants Juifs de France (UEJF), French nonprofits working against anti-Semitism, brought suit against Yahoo!, Inc. seeking to halt the sale of Nazi memorabilia on Yahoo!’s auction site as well as the publication of MEIN KAMPF and THE PROTOCOLS OF THE ELDERS OF ZION in French on web sites hosted by Yahoo!’s Geocities service. Yahoo! responded that, though these activities may be illegal in France, they were not illegal in the United States, that the Yahoo! auction site was intended for an American audience, and that it was not technically feasible to prevent French Internet users from accessing these sites.
The French court in which the suit was brought disagreed, however, and ordered Yahoo! to stop access to web sites and auctions of Nazi material and warn users of Yahoo! France that searches of Yahoo.com might return results that were illegal in France. Yahoo! should also take steps to block the access of French users to material illegal in France.
Yahoo! replied that it was not technically possible to comply with the court’s order, whereupon the court asked a panel of experts to evaluate the technical feasibility of compliance. The panel reported that it was indeed possible for Yahoo! to prevent most French users from accessing its sites. The French judge ordered Yahoo! to comply with his order within three months or face a fine of 100,000 Francs per day.
Yahoo! took steps to mollify the French court, revamping its auction policies to prohibit the sale of items associated with the Nazis and other hate groups, and removing the link to LES PROTOCOLES DES SAGES DE SION. The company also posted the required warning on the Yahoo! France web site, which still may be found in Yahoo! France’s “Conditions d'utilisation du service” page. Yahoo! continued to sell items such as German stamps and coins from the Nazi era as well as copies of MEIN KAMPF through its auction site.
Yahoo! also asked the U.S. District Court in the Northern District of California to declare the French court’s order unenforceable. The Court agreed, Judge Jeremy Fogel writing that the U. S. Court could not enforce a foreign court’s order that chills protected speech. This decision was reversed on appeal, though, in part because the French nonprofits had never attempted to enforce the French court’s ruling.
The Yahoo! case illustrates the knotty problems raised when nations with conflicting laws confront each other on the Internet. In GLOBAL MEDIUM, LOCAL LAWS: REGULATING CROSS-BORDER HATE SPEECH, Bastiaan Vanacker investigates how [*842] nations with hate speech laws can regulate content on the Internet, particularly content hosted in the United States. Vanacker, on the faculty of the School of Communication at Loyola University in Chicago, has updated and expanded upon material he first addressed in his dissertation at the University of Minnesota.
Vanacker does not settle on a single definition of hate speech; rather, he defines five components those seeking to regulate such speech must take into consideration: the medium, the content, the target, the context, and its effects. With regard to the medium of speech, for example, printed or spoken expressions are often less regulated than activities such as cross burning or marching. Taking context into consideration means that a comedian’s act may receive greater latitude than a politician’s address. When governments regulate hate speech, these restrictions are often justified based on its potential harmful effects. The interplay of these five dimensions means, among other things, that arriving at a clear consensual definition of hate speech is difficult if not impossible.
In his first chapter, Vanacker brings his five dimensions to bear on an analysis of U.S. case law relevant to hate speech, most of which would be classified simply as First Amendment cases. He also reviews the theory or philosophical justifications for free speech beginning with John Stuart Mill, including a broad array of modern writing on the subject.
The second chapter reviews recent cases in the United States concerning speech, especially hate speech, and the Internet. Beginning with RENO v. ACLU, which challenged the Communications Decency Act of 1996, and culminating with PLANNED PARENTHOOD OF COLUMBIA/WILLAMETTE v. AMERICAN COALITION OF LIFE ACTIVISTS, Vanacker demonstrates that courts have sometimes taken the medium and the context of speech into consideration when evaluating the level of protection to be given to speech online. He shows that courts have nevertheless been reluctant to create a consistent doctrine concerning speech on the Internet. Hate speech is generally viewed as protected by U.S. courts.
As Vanacker shows in his third chapter, most other countries, particularly in Europe, have the opposite approach, with international treaties and national laws prohibiting hate speech. The European Union has made efforts to restrict hate speech within its member countries. Germany has extensive limits on hate speech. France’s Pleven law prohibits incitement of discrimination or violence based on nationality, race, religion, or ethnicity, and a newer law prohibits Holocaust denial. Britain’s Race Relations Act prohibits speech in which “hatred is likely to be stirred up against any racial group,” though prosecutions under the act are rare.
The American laissez faire approach to hate speech clashes directly with European regulations on the Internet, as Europeans can both create and access hate speech web sites hosted in the United States. Vanacker describes legal challenges by both governmental and nongovernmental actors in Europe to hate speech appearing on the Internet in the fourth chapter of GLOBAL MEDIUM, LOCAL LAWS. He reviews the Yahoo! case outlined above and its aftermath, as well as challenges to [*843] CompuServe and other Internet service providers. German and European Union telecommunications laws have been put in place in attempts to regulate speech that is illegal in their jurisdictions but with only limited success. Britain has tried a different approach. The Internet Watch Foundation (IWF), a nonprofit agency, maintains a hotline for complaints about illegal online content. Though mostly concerned with child pornography, the hotline has taken action against racist content by asking service providers to remove material hosted on their servers. The IWF has had only limited effect outside the U.K., however.
In chapter five, Vanacker presents his recommendations for normative criteria that could form the basis of international hate speech regulation. His first proposal is that any regulation should respect the layered structure of the Internet. This idea is borrowed from a NOTRE DAME LAW REVIEW article by Lawrence Solum and Minn Chung. Solum and Chung present a modification of the International Standards Organizations Open Systems Interconnection (OSI) Model. In contrast to the OSI Model’s seven layers (application, presentation, session, transport, network, data link, and physical), Solum and Chung’s model consists of six layers: content, application, transport, Internet Protocol, link, and physical. Solum and Chung argue that any regulation of the Internet should respect this layered structure, so that attempts to regulate content, for example, should not be enforced at lower layers. The French court in the Yahoo! case sought to violate the integrity of the Internet’s layers, for instance, by asking Yahoo! to restrict access to content by examining users’ Internet Protocol addresses.
The second of Vanacker’s criteria is that nations should respect local Internet regulations arrived at through a representative democratic process. At what point should regulators attempt to enforce their rules? Vanacker, following Jonathan Zittrain, identifies four loci of control: the source of the content, the source’s Internet service provider (ISP), the destination of the material, and the destination’s ISP. If any of these loci reside within the regulator’s jurisdiction, this is where the regulation should take place. In addition, Vanacker suggests that regulators can appropriately seek enforcement of content from providers outside their jurisdiction if the content is deliberately targeted at an audience within the regulators’ authority.
The final principle Vanacker presents is that regulation should be effective. By this, he means that regulation not only should work, but that it should not be overly broad, it should be technically feasible, and the content being regulated should be illegal, with content providers having the ability to appeal judgments against them.
In his final chapter, Vanacker applies his three principles to many different proposals made by scholars, governments, and Internet companies to regulating hate speech. He finds that most fail to be consistent with these principles. Vanacker recommends, in addition to the regulation of content providers and ISPs within their jurisdictions, the creation of hotlines similar to those in Britain, regulating search engines, and working with American anti-hate groups and ISPs to [*844] remove objectionable content. These strategies would limit the availability of hate speech in places where it is illegal while further research on the nature, extent, and effects of online hate speech is conducted.
Generally, Vanacker’s arguments are compelling, as he thoroughly examines the arguments for and against every point of view he discusses. American civil libertarians will take issue with the basic premise that speech on the Internet requires some kind of regulation, but Vanacker is really more concerned with how European and other regulators may regulate the Internet, not whether they ought to do so.
Computer professionals will take issue with Vanacker’s principle that regulations should not violate the layered structure of the Internet. The layers that Vanacker describes are merely a logical model of how the Internet works. Much of the hardware and software that we use daily, such as firewalls that block viruses and filters that winnow out valid e-mail from spam, “violate” this layered structure. From a technical point of view, there is no convincing reason why Internet regulations should be more respectful of the OSI model than is ordinary hardware or software. The loss of this criterion does not negate the validity of his other principles, however, as each stands independently of the others.
GLOBAL MEDIUM, LOCAL LAWS is a significant book not only because of its subject, but also because it illuminates the larger problem of international regulation of the Internet. As it continues to grow in importance as a vehicle for commerce and communication, the Internet will generate complex problems that challenge various nations’ fundamental legal principles. Bastiaan Vanacker has made a significant contribution by his clear, penetrating analysis of a particularly knotty example of the kinds of issues we will be confronting in the future.
International Telecommunication Union. INFORMATION TECHNOLOGY OPEN SYSTEMS INTERCONNECTION BASIC REFERENCE MODEL: THE BASIC MODEL. http://www.itu.int/rec/T-REC-X.200-199407-I/en/
Solum, Lawrence B. and Minn Chung. 2004. “The Layers Principle: Internet Architecture and the Law.” NOTRE DAME LAW REVIEW 79 (April): 815-948.
Zittrain, Jonathan. 2003. “Internet Points of Control.” BOSTON COLLEGE LAW REVIEW 44 (March): 653-88.
PLANNED PARENTHOOD OF COLUMBIA/WILAMETTE, INC. v. AMERICAN COALITION OF LIFE ACTIVISTS 290 F.3d 1058 (2002).
RENO v. ACLU 521 U.S. 844 (1997).
YAHOO! INC. v. La LIGUE CONTRE LE RACISME ET L’ANTISÉMITISME, 169 F. Supp. 2d 1168 (N. D. Cal. 2001).
© Copyright 2009 by the author, Robert G. Brookshire.