Advanced Course on the International Protection of Human Rights, 17-28 August 2009, Institute for Human Rights, Turku/ Åbo, Finland
The Fight against Terrorism and its impact on the media, the cyberspace and freedom of expression
Felicitas Kaape, M.A.
As a response to the attacks committed on September 11th 2001 many countries all over the world have implemented new or revised old anti-terrorism policies and legislations. Shocked by the ever-present threat of new attacks many of these countries choose to create a canon of far reaching laws while paying little attention to human rights concerns. Since terrorists discovered how to exploit the right to freedom of expression for their purposes, by using the media and the Internet to disseminate their ideologies, recruit and call for action, States had to find ways to prevent this abuse. The effects of anti-terrorism legislation and efforts since 2001 had a deep impact on the media, especially on their ability to collect and spread information.
The adoption of new laws on prohibiting speech that is considered defamatory, “extremist” or supporting of terrorism has extremely challenged the human right to freedom of expression. Originally anti-terrorism laws were meant to protect human rights, as all governments have an obligation to protect persons within their jurisdiction from the threat of terrorism, in particular to take measures, which are likely to prevent terrorist acts. Terrorism has a destructive impact on human beings as it threatens their dignity and security, endangers and takes innocent lives, jeopardises fundamental freedoms, undermines pluralistic civil society and tempts to destroy its democratic basis.
However, often these new laws go too far and limit the free enjoyment of human rights, for example by suppressing political and controversial speech that has no extremist or terroristic purpose. Grotesquely by doing this, they indirectly even support the intentions pursued by terrorist acts as they may hinder the formation of public opinion and question the essential foundations of a democratic society.1
Certainly, an effective counter-terrorism strategy is more than necessary but to what extent should human rights infringements be justified by it? Freedom of expression is a core value for any democracy and democratisation process.2 It helps to distinguish these democracies from their “enemies” and its enjoyment is linked with many other fundamental rights, including the right to freedom of thought, conscience, religion, belief, opinion and human dignity. It should not be forgotten that human rights are genuinely meant to protect individuals and not political systems and their actions. It is therefore dangerous to restrict these rights for national security reasons.
II. Legal Framework
1) International provisions to guarantee the freedom of expression and the rules regarding permissible restrictions
Freedom of expression constitutes one of the essential foundations of a democratic society and is as such protected by international human right laws, namely in Art.19 of the International Covenant on Civil and Political Rights (ICCPR) and in Art.19 of the Universal Declaration on Human Rights (UDHR). It is also protected in all three regional human rights treaties, in Art.10 of the European Convention on Human Rights (ECHR), Art.13 of the American Convention of Human Rights (ACHR) and in Art.9 of the African Charter on Human and Peoples’ Rights (ACHPR).
Art.19 ICCPR for instance protects the right to hold an opinion and freedom of expression. The latter denotes the freedom to actively seek, receive and impart information and ideas. Every communicable type of subjective idea and opinion, of value neutral news and information, art works, political commentary regardless of how critical, falls under the scope of application of Art.19.3
It is however not an absolute right. Any limitations must remain within strictly defined parameters. Art.19 (3) ICCPR lays down the conditions, which any restriction on freedom of expression must meet. A similar formulation can be found in the ACHR and ECHR. Over the time a so called three part test has been developed: restrictions must be provided by law, serve one of the purposes listed in Art.19 (3) and be necessary, justified and proportional to attend this purpose.4 The laws have to be accessible and formulated with sufficient precision to enable the citizen to regulate his conduct.5
In the context of anti-terrorism laws this “foreseeability” raises concern when using vague terms such as “promotion”, “apology” or “glorification” of terrorist acts, as well as in the domain of penalisation of indirect incitement.6 The media reporting about political speech or analysing terroristic behaviour can especially be affected here. The right to freedom of expression implies that it should be possible to scrutinise, openly debate and criticize institutions, belief systems and measures. Many countries target a particular political or other opinion and in that way restrict the free flow of information and the formation of opinion.
Additionally in its explanatory report the Council of Europe insists that a specific intent to incite the commission of a terrorist act as well as a concrete danger need to result from the incitement.7 Countries are asked to specify the nature of the threat and submit details of the alleged charges.8
Art.20 ICCPR differs from the permissible purposes for interference in Art.19 (3) as it imposes a clear duty upon States.9 States have to prohibit by law any propaganda for war and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.10 Problematically here as well there is no international agreed definition of propaganda, war or hate speech.11 Definitions are mainly influenced by cultural circumstances.12
The margin of discretion to define these terms leaves enough space for countries to muzzle opposition and dissenting voices, silence minorities and reinforce the dominant political and social discourse and ideology. Due to their history, ongoing conflicts13 and religious views, the range of definition of what can be considered as hate speech or not, varies according to the country in question. Instead of banning controversial speech, States should concentrate on strengthening their democracies thanks to independent media coverage and a fair and efficient disclosure of information. Long-term results should also be rendered possible by according equal rights to minorities, by fighting discrimination and by fostering their integration.
2) Regulations combating the incitement to terrorism
a. United Nations
Only two weeks after the terrorist attacks of 9/11 the United Nations Security Council adopted resolution S/Res/1373 (2001) that calls upon Member States to fight terrorism, to share all necessary information and declares that inciting terrorist acts is contrary to the purposes and principles of the United Nations. No specific definition of inciting terrorist acts was given.
In 2005 the Security Council adopted a second resolution S/Res/1624 (2005) which contains more detailed provisions. In its PP4 it condemns inter alia the incitement of terrorist acts, repudiates attempts at their justification or glorification (apology) that may incite further terrorist acts. Furthermore the resolution calls in OP1 upon Member States to prohibit by law the incitement to commit a terrorist act or acts and prevent such conduct.
Although the resolution recalls in PP6 Art.19 UDHR and Art.19 ICCPR, the absence of an agreed definition of “terrorism” in international law leaves a broad margin of discretionary power to States in prohibiting and preventing incitement and apology. The scope of these resolutions concerning possible restriction on human rights, especially freedom of speech remains therefore very wide and has often been criticized. The High Commissioner for Human Rights noted that proscribing incitement to terrorism is integral to the protection of national security and public order, which are both set out as legitimate grounds for limiting freedom of expression in Art.19 (3) ICCPR, but great care must be taken to ensure that any of these restrictions are necessary and proportional.14
b. Council of Europe
Before the entry into force of the EuropeanConvention on the Prevention of Terrorism (ECPT) in June 2007, ratified by 15 Member States, the Council of Europe adopted two declarations on the protection of freedom of expression while countering terrorism.15 The Council of Europe as well as the European Court of Human Rights (ECtHR) made sure that the provisions were in conformity with Art 10 ECHR and that any restriction must fall under the exemptions of its paragraph. (2).16
The main concern of the drafters of the ECPT was to codify a new offence of “indirect provocation to commit a criminal offence”.17 The ECPT goes further than the Security Council Resolution as it defines “public provocation to commit a terrorist offence” in Art.5 (1) and calls in its para. (2) upon States to adopt measures to punish these offences under criminal law.
The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism believes that: “Art.5 represents a best practice in defining the proscription of the incitement to terrorism. It establishes incitement as a primary offence and properly confines its three elements: an act of communication; a subjective intention to incite terrorism; and an additional objective danger that it will do so. The objective requirement separates the incitement to terrorism from more vague notions such as “glorification” of terrorism.”18 The objectiveness of the danger might be influenced though by the subjectivity of the decision maker, especially in ex-ante judgements and prognoses.
Although only intentional and unlawful acts shall be criminalized, the terminology “public provocation” and “causes a danger” remains as States are inclined to criminalize glorification and apology statement which may not go as far as to incite or promote the commission of acts but might nevertheless applaud past acts. It appears to be difficult to ask for an adoption of new counter terrorism legislations without specifying the element of the crime and for example delineating the form of danger.
III. Problems posed
One of the major problems appears to be the lack of definition of key notions, such as terrorism, incitement, apology and glorification. Therefore these terms can be applied in many contexts. The increasing trend to criminalize speech, which could be considered to be supporting of terrorism, poses new challenges to the media. In Turkey for instance the Terrorism Act and Criminal Code punishes everyone who discourages people from joining the armed forces or for discussing the policies of the PKK.19
Counter-terrorism laws can especially be used to limit the access and gathering of information and penalise the dissemination of news, possessing and not revelation of information.20 They can also justify the media’s surveillance. Especially in times of terrorist threats other safeguards that protect human rights, such as notification requirements, are themselves restricted for security reasons.21 The following examples shall display how wide reaching the consequences can be:
- Italian anti-terrorism officials raided the offices and homes of journalists who where investigating on anti-terrorism abuses.22 The same happened in Germany, where journalists published secret investigation results.23
- In the United Kingdom a journalist was arrested under the Official Secrets Act after publishing internal police information on mistaken shooting in a counter-terrorism case.24
-The Russia anti-terror law prohibits journalists from discussing counter-terrorism operations in general.25
- The United States inhibited the press to obtain specific information about the war in Afghanistan, justified by national security premises and hoped in that way to not loose the approbation of its people. All interviews with Taliban leaders where strictly forbidden and the journalists had to hand out all the information they previously had obtained.26
Frequently the media practices self-censorship to avoid sentences or censorship by the State.27 The European Court of Justice in its jurisdiction affirmed that States were allowed to effectuate ex-ante censorship on the basis of national security, especially when the measures taken aimed at preventing terrorism.28
The role of the media should not be underestimated in the fight against terrorism. The root causes of terrorism often lie in misunderstandings, stereotyping, racism, discrimination, and exclusionism. The media can help to promote a better understanding of these issues and promote tolerance and a better awareness of the different cultures. Instead of censoring it should be made sure that their workforce is diverse and reasonably representative of the society as a whole. Recognising the importance of the media, States should as well take measures positive to protect it against measures taken by non-governmental organisation. Especially in Spain for example, Eta (Euskadi ta Askatasuna) aims at intimidating the media when it publishes critical reports about them and tries to forbid to call it a terrorist organisation. Several journalists were threatened and media headquarters became targets of attacks.29 Controlling the news is a key goal for ETA and journalists considered as “enemies of the cause” are among its potential targets.
IV. Hate speech and incitement cases - where to draw the line?
Limitations and non-limitations to the right to freedom of expression appear sometimes as a vicious circle. This leads us to a nowadays very prominent issue: hate speech and incitement to terrorism.
International law as already mentioned above imposes one clear positive duty upon States as far as the restriction of freedom of expression is concerned. This duty is codified in Art. 20 ICCPR and prohibits propaganda of war and advocacy of national, racial and religion hatred that constitutes incitement to discrimination, hostility or violence. This prohibition is a clear consequence of the atrocities committed during World War II. However there is no agreed definition of propaganda or hate speech in international law.30 This can be explained by the fact that its definition will extremely vary according to the country in question. It may also be one of the main reasons why the International Convention on the Elimination of Racial Discrimination (ICERD) opted for a far-reaching and non-concrete protection against hate speech.31
Unlike the ICERD, the approach chosen by US legislations is rather tolerant. Hate speech is protected under the right to freedom of expression unless the speech actually incites to violence and will likely give rise to imminent violence. Contrary to the policy followed by the US Patriot Act this US law is very liberal when it comes to freedom of expression. Even speech advocating violence and filled with racial insults, will be protected absent a showing that violence is likely to occur virtually immediately.32
This is not the case for the Islamic World for instance, where any blasphemous statement creates incredible anger and is considered as a crime. In the Muslim World it is a governments duty to protect the religion and apostasy can be justification when restricting human rights.
The European Countries such as Germany for instance, because of its historical past, are less tolerant when it comes to hate speech.33 Although until now there is no common definition for hate speech among Member States of the European Union, the Council of Europe has issued a recommendation on this subject and describes the term “hate speech” as follows: “covering all forms of expression which spread, incite promote or justify racial hatred, xenophobia, anti-Semitism or others forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”34 How can hate speech be related to terrorism? It is acknowledged that Art. 20 ICCPR may also be used as a basis to prevent abuse of freedom of expression for a terrorist cause as well as to prevent the imputation of terrorist tendencies to particular communities, which may amount to incitement, discrimination and hostility of violence against members of those communities.35 In this context it should be interesting to analyse the consequences hate speech and racial discrimination can have and find a linkage between hate speech and terrorism. It also leads to the question whether restrictions of the right to freedom of expression are likely to encourage terrorism or contrary whether no restrictions and therefore exaggeratedly said “tolerated hate speech” can be considered as incitement to terrorism.
To answer this question we will have to look at some of the reasons that lead to terrorism.
Besides poverty and destitution that can produce feelings of alienation, desperation, unfairness and a good ground for recruitments; also the lack of democratic institution, political freedoms and civil liberties can be one of the main reasons for terrorism. Another cause and more relevant in this context might be the ethnic, national and religious discrimination being a main factor that encourages the rising of terrorism.36 Disrespect, intolerance and suppression create great anger that makes people commit criminal acts not only to fight for their social acceptance but also to make a broader public aware of them.
1) Incitement to terrorism? (1) – The Muhammad Caricature
Exemplary in this context, we might remember the Mohammed caricature printed by the Danish newspaper Jyllands-Posten on September 30th 2005.37 The drawings were accompanied by a text explaining that the newspaper had invited members of the Danish Newspaper Illustrators’ Union to draw the prophet Mohammed as they see him. The article was entitled “Muhammeds ansigt” (The Face of Muhammad) and surrounded by twelve drawings. The introduction to the article was headed “Freedom of expression”. The caricature considered as being the most offensive showed the face of a grim-looking bearded man with a turban shaped like a bomb ready to explode.38
The publication led to violent escalations in many parts of the world and was followed by an extended discussion on the topic of freedom of speech vis-à-vis the protection of religious feelings and the protection of minorities. One side feared that it would loose values that were deeply held, such as individual freedoms and freedom of expression. The other side was outraged because it perceived a lack of respect for religious beliefs. As a result the Danish embassies in Beirut and Syria were set into fire and in October 2008 Ekstra Bladet39 published excerpts from an interview with Taliban spokesperson Qari Yousuf Ahmadi saying Danish troops in the Oruzgan Province are a primary target of the Taliban. Several death threats and reward offers for killing those responsible for the cartoons were made.
Relevant in this context, the publication of the drawings caused a number of private associations to file a report with the police claiming that Jyllands-Posten had committed an offence under sections140 (prohibition against blasphemy) and 266 (b) (prohibition against hate speech) of the Danish Criminal Code.
The Regional Public Prosecutor, referring to section 749 subsection2 of the Administration of Justice Act, decided to discontinue the investigation. He stated that: “the right to freedom of speech must be taken into consideration; and that the right to freedom of speech must be exercised with the necessary respect for other human rights, including the right to protection against discrimination, insult and degradation. Based on an overall assessment of the article in Jyllands-Posten, the Regional Public Prosecutor does not find that there is a reasonable suspicion that a criminal offence indictable by the state has been committed. Furthermore under Danish law journalists enjoy extended editorial freedom when it comes to subjects of public interest,”40 His decision was backed up by the Office of the Director of Public Prosecution on March 15th 2006, stating that persons who exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or minority, must also tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.41
Certainly the Muhammad caricatures touch a very sensitive issue, as they not only use the personality of a prophet for a social critique but represent him under unfavorable “circumstance”. Under German Law the criterion to differentiate unpermitted defamation (Schmähkritik)42 and permissible speech lies in the intent of the speech. If the “insult” is the main reason for its publication it should be forbidden. Is the message transmitted behind it, let it be it a social critic for example, the main reason, then there are no objections against it. The latter one seems to be applicable here. Muhammad only serves as a mean to convey a critical statement about an ongoing situation. Caricatures are provocative and disrespectful by nature. The ECtHR describes satire as a form of artistic expression and social comment, which by exaggerating and distorting reality, is intentionally provocative.43 This is the case here. The publication certainly raised many negative feeling against Denmark and certainly augmented the likelihood of a terrorist attack to be committed. On the other hand, if we want free speech, which is permissible under national law, we will have to take a risk and be convinced that democracy will bring us further.
2) Incitement to terrorism? (2) Banning oppositional speech
Under the pretext of assuring national security countries implemented extensive anti-terrorism legislation that opened the door for a wide misuse. They made it possible to censor political and controversial speech that has no terrorist or extremist purpose. It is particularly the case in countries with a strong opposition or in countries like Turkey for instance that have ongoing domestic conflicts caused by liberation struggles lead by the Kurdistan Worker’s Party (PKK)44.
The Turkish Terrorism Act 2000 as well as its Criminal Code forbid and sanction the announcement by a newspaper that a terrorist offence will be committed.45 It prohibits any kind of written propaganda that aims at undermining the territorial integrity of the Republic of Turkey. Under this pretext, reporters of the newspaper Hurriyet have been fined 54.000,- Euro by the Istanbul’s 10th High Criminal Court for an interview conducted with the PKK.46 First, the Terrorism Act forbids journalists to hold meetings with organisations considered as terrorist.47 Secondly, they reported about the life of the militants in Northern Iraq and their changing values.
The article was construed as publishing the comments of a terrorist organisation, as well as doing propaganda for the PKK, although it quoted the militants saying: “We do not want an independent Turkey.” Even though no specific intent to incite a terrorist act to be commitment became evident and declaring that it was a serious newsreport protected by the right to freedom of expression, the journalists were convicted. Many similar cases have occurred in Turkey and were then brought to the European Court of Human Rights.48 In a similar case presented to the ECHR a writer has been convicted under Anti-Terrorism legislation for publishing a book criticising the States official ideology, describing Turkey’s colonialist behaviours against Kurdistan.49 The book was censored because it aimed at supporting the ideologies of the PKK and therefore incited to violence. The ECHR considered the book as being an academic study about Turkey’s development from a historical perspective and it is the readers right to be informed from another perspective than the States about the situation ins South Eastern Turkey.50 The Court found that there has been a violation of Art. 10 ECHR.
3) Incitement to terrorism? No violation of the ECHR
In its judgements the ECtHR focuses a lot on the circumstances in which a statement had been made. The adjective “necessary” within the meaning of Art. 10 para. (2) ECHR implies the existence of “pressing social need” to restrict the right to freedom of Expression.51 The interference complained of has to be looked at in the light of the case as a whole, and it has to be determined whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient".52 In the following two cases the ECtHR ruled that there has been no violation of Art. 10 ECHR.
In the Zana vs. Turkey53 case the former mayor of a city of the South East of Turkey was imprisoned because being interviewed by a major national newspaper he said: “I support the PKK national liberation movement; on the other hand, I am not in favor of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake.“ The statement coincided with murderous attacks carried out by the PKK on civilians in the South East of Turkey and had to be regarded as likely to exacerbate an already explosive situation in that region. 54The ECtHR based its decision on the ambiguity of the message and its dangerousness in the context of the extreme tension in South East of Turkey at that time.
Recently the European Court of Human Rights had to decide over the publication of a caricature by the French Cartoonist Denis Leroy in the newspaper Ekaitza, in the Basque region of France.55 It represented the attack on the twin towers of the World Trade Centre, with a caption, which parodied the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it”. The drawing was published in the newspaper on 13 September 2001 after it had been submitted two days before. The French authorities prosecuted both the cartoonist and the magazine. National courts convicted Leroy to pay a 1500 euro fine for apology of terrorism under Art. 24, section 6 of the French Press Act.
The Court of Appeal in Pau stated that by making a direct allusion to the attacks of September 11 and attributing these to a well-known organization and by idealizing this act, the cartoonist justified the use of terrorism and indirectly encourages the reader to evaluate positively the commission of this criminal act.
The ECHR backed up the ruling of the French Court, as it believed that the measure imposed on the applicant had not been disproportionate to the legitimate aim pursued. It had to be recognized that the drawing had assumed a special significance in the circumstances of the case, as the applicant submitted his drawing on the day of the attacks and it was published on 13th September, with no precautions on his part as to the language used. In the Court’s opinion, the date of publication - was such as to increase the applicant’s responsibility in his account of, and even support for, a tragic event, whether considered from an artistic or a journalistic perspective. In addition, the impact of such a message in a politically sensitive region, namely the Basque Country, was not to be overlooked; the Court noted that the drawing’s publication had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in the region. 56
In a way the decision of the Court appears to be surprising. Certainly the circumstances of the publication were unsensitive but Leroy claimed that his intention behind the caricature was his anti-Americanism, which was governed by political and activist expression and was therefore the pure expression of his opinion57. It is not clear, why the court only mentioned, but did not apply its definition of caricature and satire as in the case cited above, Vereinigung Bildender Künstler v. Austria but found the caricature was glorifying terrorism and the destruction of US imperialism through an act of violence.58 The main argument against a violation of Art. 10 ECHR are the circumstances in which the caricature was published. The author has not been precautious as to the language used (dreamed of it) and sensitive towards the victims of the attacks. Journalists bear a certain responsibility when it comes to the reactions their publications. The caricature was published in the political sensitive area of the Basque Country and had an impact on the public order there.
It is understandable that the circumstances for the publication were certainly not the best. Maybe if the caricature would not have been published in the direct aftermath of the attacks the decision would have been different. To argue with the sensitive area of the Basque country appears to be difficult. In regions with ongoing conflicts over decades this argument would always be valuable for politically provocative statements. And actually why would a provocative statement against America, incite to terrorist attacks in that region and become a danger for the public order the Basque Country? People there fight for independence and are not particularly anti-America.
V. Terrorists and the Internet
The importance of the Internet as a mean of spreading terrorism has often been underestimated. Already in 1998, around half of the thirty organisations designated as “Foreign Terrorist Organisations” under the U.S. Antiterrorism and Effective Death Penalty Act of 1996 maintained websites; by 2000, virtually all terrorist groups had established their presence in the Internet.59
The characteristics of the new medium, such as easy access, little or no regulation, no censorship, or other forms of government control, anonymity of communication and fast flow of information, make it so attractive to political extremists. Terrorists use the Internet in two different ways. Either they try to commit direct cyber attacks, meaning that they focus on network based attacks against critical infrastructure, such as transportation or energy supply by setting viruses into the system,60 or and more relevant in this context, they use the Internet for communication purposes.
The Internet enables terrorists to conduct psychological warfare, gather information, network and coordinate their actions and of course it is a very helpful device for executing propaganda and recruitment strategies.
Through their Internet sites terrorist groups try to catch not only the attention of their current and potential supporters but as well the attention of the international public opinion. Especially international reporters that might report about their activities are the targeted audience. By publishing news about their ideologies and forthcoming actions they not only make sure that journalists get first hand information but also aim at gaining more and more control by manipulating the public debate. In this context the Internet can be used to demoralize the enemy by spreading disinformation, delivering threats intended to install fear and helplessness and to disseminate horrific images. Terrorists seek to stimulate public debate in their enemies state, change public opinion and weaken the public support for the government. Especially for young people the sites appear to be very impressive. Terrorist convince with their strong willingness to combat unfairness and motivate them to join in.
The issue raises several concerns. The question is how to react against this abuse without punishing the wrong “users” and challenging the basic principles of democracy. This growing misuse and manipulation of modern communications by terrorists led governments and several media organisations to consider certain steps in response. These include limiting terrorists’ access to the conventional mass media, reducing and censoring news coverage of their acts and minimizing the terrorist’s capacity for manipulating the media.61 More and more countries decided to close down specific sites and conduct online searches and supervisions. It seems important to notice at this point that online searches and surveillance primarily interfere with the right to privacy. Only in a second step, when the information is evaluated and the “surveillee” convicted for the content of the information the right to freedom of expression comes into play.
Certainly supervisions are necessary but should be submitted to certain restrictions. Due to the vastness of the Internet it seems to be impossible to implement reasonable and proportional measures. Where should the line be drawn between forbidding propaganda and incitement to terrorism and allowing objective reports or amateur websites that do no follow a specific intend to incite the execution of a terrorist act? It should also not be forgotten, that by closing down these sites, governments also jeopardize the freedom of the press and the right to free flow of information.
Furthermore countries usually criticised for not respecting human rights and freedom of expression – such as Turkey and China62 for example – have become schizophrenic about the Internet. At first hand they have encouraged its growth as a tool of state propaganda or economic interests but at the same time moved to control it and clamp down on criticism, argument and hopes for democracy expressed online. Since September 11 these countries have taken advantage of the international drive against terrorism to strengthen the police and legal machinery they have installed to put the Internet under surveillance.63
In the United States for instance the campaign to get control over the Internet began right after the September 11 attacks.64 FBI agents confiscated details of possible e-mail messages between the terrorists, especially those that included the word “Allah” and tried to install the newly created Carnivore surveillance system on the main ISP’s based in the US.65 It became the first major electronic surveillance software to be used by a national police force. The monitoring of the data was legalised by the “US Patriot Act”. This anti-terrorist measure allows the FBI to monitor the flow of email-messages and store records of Web activity by people suspected of having contact with foreign power.
The system not only raises concerns in relation to the Fourth Amendment66 protection against unreasonable search and seizure, as it does not filter out what is actually needed but it also seems to be incompatible with the principle of sovereignty of States, if a country conducts surveillance of the Internet in another country. The US justice department for instance reserved the right to prosecute Internet hackers, whether or not they were Americans.
In order to avoid these interferences it is highly important to find a solution on a global level. A first step towards this can be seen in the Convention on Cyber-crime67 that entered into force in 2004 and its Additional Protocol concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems68. It is the first multilateral instrument drafted to address the problems posed by the spread of criminal activity on computer networks. The Convention requires signatory states to provide international cooperation to the "widest extent possible" for investigations and proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence. The Convention consists of forty-eight articles regrouped in four chapters. The first gives general definitions. The second one harmonizes substantive and procedural National Laws related to cyber-crime while the third details the treaty’s new International cooperation system and the fourth chapter addresses Treaty validity, enforcement, signature, ratification and reservation issues. It includes very detailed powers of computer search and seizure and government surveillance of voice, email and data communications.
Again problematically is that the Convention lacks of correspondingly detailed standards to protect privacy and limit government use of such powers. One the most controversial issues in the Convention are the provisions that require Internet Service Providers to retain records regarding the activities of their customers. They pose a significant risk to the privacy and human rights of Internet users and are at odds with well-established principles of data protection such as the Data Protection Directive of the European Union69. The Convention lacks necessary procedural safeguards to protect the rights of individuals and there is no effort to provide for an independent judicial review before a search by the state is undertaken, in order to avoid arbitrary measures.70
Furthermore the Convention does not include a dual criminality provision, which means that where extradition or international cooperation is concerned, countries can be forced to respond to request of others on matters that are not necessarily illegal in the country of origin.71
Generally the Convention remains very broad, using broad terms that open the door for wide misuse. The International Cooperation and Investigative Procedures are too vaguely circumscribed; clear procedures must be agreed on.
It is clearly necessary to defend societies against terrorism but we must also keep in mind that the Internet is in many ways an almost perfect embodiment of the democratic ideals of free speech and open communication. Unfortunately the freedom offered by the Internet is vulnerable to abuse from groups that paradoxically are themselves often hostile to uncensored thought and expression.72 By censoring too much we circumscribe our own freedom to use the Internet and hand the terrorists a victory and deal democracy a blow. The use of advanced techniques to monitor the Internet carries inherent dangers. They also give authoritarian governments “carte blanche” to violate civil liberties domestically and abroad. A global solution needs to be agreed on in this matter. The challenge related to this approach will be the worldwide harmonisation of the legal standards – especially in regard to freedom of speech regulations to avoid banning legitimate reports about the activities of terrorist organisations.
In this context it is also important to agree on common definition of words such as cyber-terrorism, incitement to terrorism, etc. It is clearly difficult to find such definitions as they are always influenced by cultural and political traditions of the country that takes action. The dimension of controlling, supervising and censoring the Internet is bigger than the one that comes into play if newspaper articles are censored. The options one has are further reaching. Countries can shot down entire Internet site, meaning that they prohibit sites launched by their citizens or inhibit Internet users in their country to get access to sites launched in other countries. Thanks to online searches and surveillance methods countries are also getting access to Internet users correspondences all over the world. In this case it becomes dangerous for the users when it comes to possible sanctions and effective measures. Cyber criminals exploit weaknesses in the laws and enforcement practices of States, exposing all others States to dangers that are beyond their capacity unilaterally or bilaterally to respond.73 Cyber-offences should be considered as crimes under national laws but in a second step investigations, prosecutions and judicial proceedings have to be carried out in accordance with the laws of the State Parties.74 Effective measures depend on international legal assistance treaties.
On the other hand instead of censoring and shutting down Internet on the grounds of national security it is fundamental to encourage an open debate on these matters. It is important to inform the public why certain sites are shut down and why email correspondences are supervised. Informing about the risks and explaining the consequences seems to be more effective than implementing action secretly. An open debate would also alarm people and make them more aware of consequences unreasonable statements can have and the reason why surveillance takes place. This might for example be the case for amateur Internet sites that advertise arms or instruction for committing virus-attacks (using ANTHRAX for example), etc. This open debate also includes the implementation of comprehensive legislations. Legislations that are adaptable to the rapidly changing nature of the Internet. A proactive presence on the Internet presence is significant. The British domestic secret service, MI5 for instance provides on its homepage detailed antiterrorism advice to the public. The site provides information about MI5’s methods of gathering intelligence and its oversights mechanisms.75 Democracies and liberal societies rely on open communication and the Internet is a very effective medium to provide the fundamental components of open communication. Terrorism has been in existence over decades, certainly terrorists change and adapt to the new communication devices but it is dangerous to adapt the standards of Human Rights infringements according to the modus operandi of these groups. Is it therefore much better to keep this constant of intangible Human Rights guarantees as a non derogatable standard that has to be fought for?
Speech can incite to a violent action but it can also abate it. Freedom of speech is mandatory for promoting personal autonomy and for ensuring democratic processes. It is equivalent for the publics right to information. A democracy needs vigorous debate on all matters of public interest in order to survive. This discourse could become one of the most effective measures against terrorism. Freedom of expression can and should be restricted if necessary, but the restrictions should be applied within strictly defined parameters. Terrorism and national security should not become the trump card argument, especially when judging politically controversial speech. As Judge Bonnello stated: in order to support a finding of clear and present danger which justifies restricting freedom of expression, it must be shown either that immediate serious violence was expected or was advocated, or that the past conduct of the applicant furnished reason to believe that his advocacy of violence would produce immediate and grievous action.76 If a specific opinion is constantly censored it creates more violence and anger than to fight this opinion with strong counter arguments. The public should be more integrated into the discussion and therefore the role of the media should not be underestimated.
1 Handyside v. United Kingdom, 7 December 1976, No. 5493/72, para.49.
2 Tae-Hoon Park v. Republic of Korea, 20 October 1998, Communication No. 628/1995, para.10.3.
3 Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary, Engel, Kehl, 2005, p. 443.
4 Sunday Times v. United Kingdom, 26 April 1979, No.6538/74, para. 49; Lingens v. Austria, 8 July 1986, No.9815/82, paras. 39-40; Cetin and Others v. Turkey, 13 February 2003, No. 40153/98 and 40160/98.
5 Hashman and Harrup v. United Kingdom, 25 November 1999, No. 25594/94, paras. 29-43.
6 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Doc. A/61/267, para. 7a, concerning the Terrorist Act 2006 adopted by the United Kingdom of Great Britain and Northern Ireland.
7 Council of Europe Convention on the Prevention of Terrorism, Explanatory Report, para. 99-100.
8 UN Human Rights Committee (HRC), Report of the UN Human Rights Committee, 1996. A/50/40, p. 96. J
9 Nowak, CCPR Commentary, p. 477, no.18.
10 McGonagle, Tarlach, International and European legal standards for combating racist expression: selected current conundrums, in Expert seminar: Combating racism while respecting freedom of expression organised by the European Commission against Racism and Intolerance (ECRI) - Proceedings, Strasbourg, ECRI 2007, p.43. see also Ross v. Canada, 18 October 2000, Communication No.736/1997, paras. 11.5-6.
11 McGoldrick, Dominic, The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and Political Rights, 2nd edition, Clarendon Press, Oxford 1994, p.462. For definitions see Recommendation No. R (97) 20 of the Committee of Ministers to Member States on „Hate Speech“, adopted on 30 October 1997.
12 Callamard, Agnes, Freedom of Expression and Advocacy to Hatred that constitutes Incitement to Discrimination, Hostility or Violence, Conference Paper 2, Expert Meeting on the links between Art.19 and 20 of the ICCPR, UN HCHR, Geneva, October 2008.
13 Arslan v. Turkey, 8 July 1999, No. 48063/99, paras. 44-50.
14 Office of the United Nations High Commissioner for Human Rights, Factsheet No 32: Human Rights, Terrorism and Counter-Terrorism, Geneva, December 2007, p.29.
15 Declaration on freedom of expression and information in the media in the context of the fight against terrorism,Adopted by the Committee of Ministers on 2 March 2005; Guidelines on protecting freedom of expression and information in times of crisis, Adopted by the Committee of Ministers on 26 September 2007.
16 Sener v. Turkey, 18 July 2000, No. 26680/95.
17 Explanatory Report on The European Convention on the Prevention of Terrorism, 14 May 2005.
18 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin: Australia: Study on Human Rights Compliance While Countering Terrorism, A/HRC/4/26/Add.3, 14 December 2006.
19 Banisar, David, Speaking of Terrorism, Council of Europe Media and Information Society Division, November 2008, p.21; Haraszti, Miklos, Review of the Draft Turkish Penal Code: Freedom of Media Concerns, Organization for Security and Co-operation in Europe, Vienna, May 2005.
20 United Kingdom Terrorist Act 2000, para.19, 39b.
21 Krieger, Heike, Limitations on Privacy, Freedom of Press, Opinion and Assembly as a Means of Fighting Terrorism, in: Walter, C., Vöneky, S., e.a.: Terrorism as a Challenge for National and International Law: Security versus Liberty?, Berlin/Heidelberg 2004, p. 68.
22 Banisar, David, Speaking of Terror, p.26.
23 BVerfG, 1BvR 538/06, 27.02.2007, no.41.
24 Garrett, Neil, The Cost of Telling the Truth, The Guardian, 15 May 2006.
25 Federal Law No.153-FZ of July 2006.
26 Mendel, Toby, Consequences for Freedom of Expression of the Terrorist Attacks of 11 September, (Paper) UNESCO Conference on Terrorism and Media, Manila, Philippines, May1st 2002.
27 Background Paper on Human Rights Considerations in Combating Incitement to Terrorism and Related Offences, OSCE/COE Expert Workshop: Preventing Terrorism: Fighting Incitement and Related Terrorism Activities, Vienna, 19-20 October 2006, p.16.
28 Hogefeld v. Germany, 20 January 2000, No. 35402/97, para.5-8; Bamber v. United Kingdom, 11 September 1997, No. 33742/96; Purcell and others v. Ireland, 16 April 1991, No. 15404/89.
29 Basque terror group Eta blamed for bomb at Bilbao TV station, The Times Online, December 31 2008.
30 Callamard, Agnes, Striking the Right Balance, in: Words & Deeds: Incitement, hate speech & the right to free expression, in: Index on Censorship for the EU, December 2005.
31 See Art. 4 (a) for a catalogue of punishable offence under the ICERD.
32 Brandenburg v. Ohio, 395 U.S. 444 (1969).
33 See § 130 of the German Criminal Code.
34 Council of Europe Committee of Ministers, Recommendation No. R (97) 20, adopted on October 30th 1997 at the 607th meeting of Minister Deputies.
35 Background Paper on Human Rights Considerations in Combating Incitement to Terrorism and Related Offences, OSCE/COE Expert Workshop: Preventing Terrorism: Fighting Incitement and Related Terrorism Activities, Vienna, 19-20 October 2006, p.12.
36 Scheinin, Martin, A/HRC/4/26, 29th January 2007; A/Res/288, 20 September 2006.
37 Jyllands-Posten, 30. September 2005, „ Muhammeds ansigt“.
38 For a reproduction of the caricatures see: http://www.prophetcartoons.com.
39 Ekstra Bladet, Danske soldater er Talebans topmål, published October 20th 2008.
40 Council of Europe, The European Convention on Human Rights and national case-law, supplement to Human rights information bulletin, No.71, August 2007, p. 40. See in addition for a summary of the debate.
41 Ibid. p.41
42 BVerfGE 82, 272–285; BVerfGE NJW 1991, 95–97.
43 Vereinigung Bildender Künstler v. Austria, 25. January 2007, No. 68354/01, para. 32.
44 The Party is considered illegal under Turkish law and alleged to be a terrorist organisation.
45 Walker, Christian, Blackstone’s Guide to Anti-Terrorism Legislation, Blackstone, London, 2002, p. 116.
46 Erol Önderoglu, Interview with the PKK militants costs fifty four thousand euros, published on bianet.org on September 26th 2008.
47 Davis, Howard, Lessons from Turkey: Anti-Terrorism Legislation and the Protection of Free Speech, Bournemouth University Research Online, December 11th 2007, p.4.
48 see as well: Baskaya and Okçuoglu vs. Turkey, 8 July 1999, No. 23536/94 and 24408/94
49 Baskaya and Okçuoglu vs. Turkey, 8 July 1999, No. 23536/94 and 24408/94, para. 59.
50 Ibid. para. 65. Similarly see: Özgür Gündem vs. Turkey, 8 July 1999, No. 24246/94 and Sener v. Turkey, 18 July 2000, No. 26680/95.
51 Ceylan vs. Turkey, 8 July 1999, No. 23556/94, para.2, Committee of Experts on Terrorism, CODEXTER (2004) 19, Collection of relevant case-law of the European Court of Human Rights related to „Apologie du terrorisme“ and Incitement to terrorism, Strasbourg, 6-8 July 2004, p.3.
52 Sunday Times v. the United Kingdom, 26 April 1979, No. 6538/74, para. 50.
53 Zana vs. Turkey, 25November 1997, No. 18954/91.
54 Ibid. para. 60; see also Sürek vs. Turkey, 8 July 1999, No.26682/95.
55 Leroy vs. France, 2 October 2008, No. 36109/03.
56 Ibid. para. 38.
57 Voorhoof, Dirk, European Court of Human Rights: where is `the chilling effect’, Media and Information Society Publication, Council of Europe, p. 1.
58 Leroy vs. France, 2 October 2008, No. 36109/03, para. 43.
59 Gercke, Marco, Cyberterrorism, How Terrorists Use the Internet, in: Pieth, Mark, Thelesklaf, Daniel, Ivory, Radh, Countering Terrorist Financing, Peter Lang Publishing, Bern, 2009, p. 130.
60 Thomas, Timothy, Al Qaeda and the Internet: The Danger of “Cyberplanning“, in: Parameters, Spring 2003, p.112; Gercke, Marco, Cyber-attacks against transportation infrastructure, in: Tahmisoglu, M. and Özen, Ç., Transportation Security Against Terrorism, IOS Press, 2009.
61 Weimann, Gabriel, The Theatre of Terror: The Challenges for Democracy, in: Cohen/Almagor, Raphael, Basic Issues in Israeli Democracy, Tel Aviv 1999.
62 See the Provisions on the Administration of Internet News Information Services (Provisions on News Information Services), issued jointly by the State Council Information Office (SCIO) and the Ministry of Information Industry in September 2005; Steiner, Henry, Alston, Philip, International Human Rights in Context, Oxford University Press, Oxford 2007, p.1392.
63 Coriou, Loïck, The Internet on Probation, Report released by Reporters without borders, http://www.rsf.org/IMG/pdf/doc-1259.pdf, p. 2, last call: 6.07.2009.
64 Watney, Murdoch, Regulation of State Surveillance of the Internet, in: Paulus, Sachar, Securing Electronic Business Processes, Vieweg, Wiesbaden, 2006, p.415.
65 Weimann, Gabriel, Terror on the Internet, United States Institute of Peace Press, Washington DC, 2006, p. 185.
66 Fourth Amendment of the US Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
67 CETS No.185
68 CETS No. 189, the Additional Protocol entered into force on the March, 1st 2006.
69 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
70 Taylor, Greg, The Council of Europe Cybercrime Convention, A Civil Liberties Perspective, available under: www.efa.org.au/Publish/coe_paper.html, last call July 6th 2009.
72 Weimann Gabriel, Modern Terrorists and The Internet, in: Glaab, Sonja, Medien und Terrorismus, Berlin 2007, p. 58.
73 Sofaer, Abraham, Goodman, Seymour E., e.a., A proposal for an International Convention on Cyber Crime and Terrorism, published by The Center for International Security and Cooperation, Stanford University, November 2001, p. ii.
74 Drozdova, Civil Liberties and Security in Cyberspace, published by The Center for International Security and Cooperation, Stanford University, August 2000, p. 16.
75 See www.mi5.gov.uk.
76 Concurring Opinion of Judge Bonello, Sürek and Özdemir vs. Turkey, 8 July 1999, No. 24122/94.