How to respond to hate speech online?
Without doubt, the legal regulation of hate speech originated with crimes committed during World War II, particularly the crime of the Holocaust. The human rights protection systems set up after the war – the universal system (the United Nations) and the European system (the Council of Europe) – therefore passed regulations prohibiting hate speech proclamations, although the term “hate speech” was not used. Certain treaties also comply with “the prohibition of abuse of rights”. This means that even though a given treaty (convention) may include the right to freedom of expression or association, anyone propagating racist slogans or attempting to establish a neo-Nazi party cannot invoke the rights granted by such a document, since their actions or statements contradict the very ideas upon which the concept of protecting human rights is based. The following conventions and treaties are currently the most important:
- The International Covenant on Civil and Political Rights (Art. 20).
- The Convention on the Elimination of All Forms of Racial Discrimination (Art. 4).
- The Convention on the Prevention and Punishment of the Crime of Genocide (Art. 3).
- The European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 17 – abuse of rights).
- The Charter of Fundamental Rights of the European Union (Art. 54 – abuse of rights).
- An additional protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed via computer systems.
- Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.
How to respond to hate speech online?
Hate speech on the web is an extremely complex phenomenon. There is no clear answer as to how one can safeguard against it. Undoubtedly, the most important way to fight hateful content is to actively influence other Internet users to remove it.
The following four tools can help us:
- Report button
- Notice and takedown
- Criminal procedures
- Civil procedures
1. Report button
Most websites do not pre-moderate their content. This means that users’ posts are published automatically unless they contain predetermined, usually vulgar words. Internet forum sites have therefore introduced the so-called report button. It is usually symbolised by a rubbish bin or a red cross placed right next to a hateful post. By clicking the report button, you can notify the administration of any posts which violate the terms and conditions of a given website (most terms and conditions include regulations governing hate speech). As a rule, an individual may only report the same post once. After receiving the notification, the portal’s administrators can then decide whether to remove the hateful content. The exact effect of a report button depends on each forum’s individual terms and conditions.
2. Notice and takedown
The Act on Providing Services by Electronic Means, Art. 14:
1. Responsibility for the stored data shall not be borne by a person, who, making the resources of a teleinformation system available for the purpose of data storage by a service recipient, is not aware of the unlawful nature of the data or activity related to them, and in case of having been officially notified or having received a credible report on the unlawful nature of the data or activity related to them, immediately prevents access to the data.
2. A service provider who has received a formal notice regarding the unlawful nature of the stored data provided by a service recipient, and has prevented access to them, shall bear no responsibility to that service recipient for any damage resulting from the data being inaccessible.
3. A service provider who has received a credible report regarding the unlawful nature of the stored data provided by a service recipient, and has prevented access to them, shall bear no responsibility to that service recipient for any damage resulting from the data being inaccessible, if it has immediately notified the service recipient of its intention to make the data inaccessible.
4. The provisions of paragraphs 1–3 do not apply if the service provider has taken control over the service recipient, as stipulated by the provisions governing Competition and Consumer Protection.
Website administrators have no obligation to actively monitor user-generated content, and are not required to respond to potential violations themselves. According to Art. 14 of the Act on Providing Services by Electronic Means (Dz. U. of 2002, No. 144, item 1204), website administrators are obliged to remove content only in response to a credible report indicating specific content that violates the law. Fulfilment of this obligation exempts them from liability for the violation (the person who created the content is still liable, but not the administrator). Should the service provider fail to comply with this obligation, it becomes legally liable for content uploaded by third parties. The direct violator, i.e. the person who actually submitted the content, is equally liable.
In order to remove content, a user reporting to the administrator must prove that it is unlawful (e.g. in violation of the criminal code, or contains false or misleading information). The administrator may refuse to remove content if:
- a comment is not of an unlawful nature (i.e. does not violate the provisions of the criminal code, and contains veritable information).
- the user’s report fails to meet the criteria for credible reports.
If a user is convinced that content is of an unlawful nature, civil proceedings may be initiated against the website administrator, even if they have refused to remove content (under the provisions protecting personal rights, Art. 23–24 of the Civil Code).
If you notice a comment or image that constitutes hate speech (as defined by criminal and civil law) on an Internet forum, you can report it to the administrator, requesting that the post be removed.
CREDIBLE REPORT TEMPLATE
3. Criminal liability
Internet users who come across hate speech may report an offence. According to Art. 304 of the Criminal Code, any citizen who is aware that an offence has been committed has a civic duty to inform the public prosecutor’s office or police. A user who decides to file a report should describe the post containing the hateful content and attach a screenshot of the post. The notification should be submitted to the nearest public prosecutor’s office or police station.
A written notification must meet the requirements stated in Art. 119 of the Criminal Code, i.e. it should include:
- details of the body to which it is addressed (police station or public prosecutor’s office, with its address),
- details and address of notifier,
- a description of the case in question (with justification, if required),
- the date and notifier’s signature.
Make sure you receive confirmation of sending your notification (e.g. by post with acknowledgment of receipt), or a receipt if submitted personally (the official who receives the notification should sign and stamp it with the date it was received).
The law-enforcement bodies (police, public prosecutor’s office) may refuse to initiate an investigation. Nevertheless, they are obliged to accept any notifications, which means that, without exception, the matter must be examined to ascertain whether a crime has been committed. The public prosecutors should promptly (within a maximum of 30 days) issue or approve a decision to initiate or refuse to initiate an investigation into the case.
After submitting a written notification, the user may be called to give evidence as a witness. If the notification is incomplete, the user may be requested to submit additional information.
If the public prosecutor’s office or police inform the user who submitted the notification that an investigation has been initiated, it means that the notification was submitted correctly. The public prosecutors or police may refuse to launch an investigation. A user who has only submitted a report is not entitled to appeal against such a decision. The right to appeal is granted only to specific persons and institutions: the victim, and the person or state, social or local government institution that submitted the report.
4. Civil liability
Anyone who feels offended by a post on an Internet forum may bring an action against the portal (if the content has not been removed as per Art. 14 of the Act on Providing Services by Electronic Means) or the person who wrote the post, in order to protect their personal rights according to the Civil Code (Art. 23–24). They are also entitled to demand an apology, damages (if they have suffered serious injury) or compensation.
The elements to be included in an action to protect personal rights are listed under Art. 126, par. 1 of the Code of Criminal Procedure:
1) details of the court to which it is addressed, plus the full name or title of the party and their legal representatives or attorneys,
2) details of the type of action being brought,
3) motivation for the action or statement, plus evidence proving the circumstances,
4) a correctly worded claim plus, for cases regarding property rights, details of the value of the subject under dispute, unless the subject is a specified sum of money,
5) a description of the circumstances to substantiate the claim and, if necessary, to justify the type of court addressed (hence, explaining the legal basis is not required),
6) the signature of the party or their legal representative or attorney (in which case, power of attorney must also be attached),
7) a list of attached documents.
According to Art. 187, par. 1, any action must satisfy the conditions for procedural documents, and thus include:
1) a correctly worded claim plus, for cases regarding property rights, details of the value of the subject under dispute, unless the subject is a specified sum of money,
2) a description of the circumstances to substantiate the claim and, if necessary, to justify the type of court addressed.
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