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Policy Options and Regulatory Mechanisms for Managing Radicalization on the Internet

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Policy options and regulatory mechanisms for managing radicalization on the Internet Paris, 30 September 2016 “[…] I firmly believe that in a free democratic society, freedom of speech and expression is one of the most prized freedoms which must be defended and upheld at any cost and this should be particularly so in the land of Voltaire. It is indeed unfortunate that in the world of today, when science and technology have advanced the frontiers of knowledge and mankind is beginning to realize that human happiness can be realized only through inter-dependence and cooperation, the threshold of tolerance should be going down. It is high time man should realize his spiritual dimension and replace bitterness and hatred by love and compassion, tolerance and forgiveness.” Justice Prafullachandra Bhagwati Dan Shefet (Individual Specialist) ACKNOWLEDGEMENTS The author wishes to thank the following for their support, valuable advice and input throughout the drafting of the Report: Dr. Indrajit Banerjee and his team in UNESCO’s Knowledge Societies Division The UNESCO Delegates and Ministries of Justice/Interior of countries that have participated in the Country Survey. Alexander Linden, Honorary advisor to the French Supreme Court Janice Duffy, Researcher, Australia Pavan Duggal, Supreme Court Lawyer, India Tom Høyem, Former Minister in Denmark under Poul Schlüter Francesca Musiani, Researcher at the CNRS Institute for Communication Sciences and Member of the French National Assembly’s Commission on the Law and Rights in the Digital Era Sami Mahbouli, Lawyer at The Tunisian Supreme Court and Columnist Sabine Leutheusser-Schnarrenberger, Former Minister of Justice under Angela Merkel Marc Randazza, First Amendment Attorney, United States Viswa Sadasivan, CEO of Strategic Moves (Consultancy agency in Singapore) and former member of the Singaporean Parliament Mr K. Shanmugam, Minister for Home Affairs and Minister for Law, Singapore Veronika Wand-Danielsson, Ambassador of Sweden to France Fareed Yasseen, Ambassador of Iraq to France David Wright, Director of UK Safer Internet Centre “Since wars begin in the minds of men, it is in the minds of men that the defense of peace must be constructed” (UNESCO Constitution, 16 November 1945). Page 2 out of 140 TABLE OF CONTENTS Introduction……………………………………………………………………………….……………4 Methodology The Internet and Radicalization - Brief History of Online Activism - The Internet’s Contribution to the Radicalization Process Section 1: The International Community’s Policy on Internet Radicalization……………….......12 Section 2: Definition of Radicalizing Content……………………………………………………….14 2.a. Definition as a Legal Requirement 2.b. Examples of Definitions Section 3: Freedom of speech: The challenge……………………………………………………….37 3.a. General Principles of Freedom of Speech 3.b. Internet and Freedom of Speech 3.c. Specific Restrictions of Freedom of Speech Section 4: Online Law Enforcement and Liability…………………………………………….……53 4.a. Can/should the Internet be regulated? 4.b. Jurisdiction and Extraterritoriality 4.c. Internet specific law/Media Law 4.d. Private Sector Enforcement and Liability 4.e. State Responsibility for Private Actors Section 5: Filtering, Blocking, Encryption and Counter-Narrative ………………...................….97 Section 6: Policy Recommendations …………………………………………………………….….104 Bibliography Annex 1: Country Questionnaire/Survey Annex 2: Statistics Page 3 out of 140 INTRODUCTION If we look back over the past 9 months preceding the date of this report (30 September 2016) there have been some 1320 terrorist attacks causing 11202 fatalities around the world.1 Awareness of the role of the Internet as a facilitator or catalyst of radicalization has grown over the years (as it will be seen from Section 1 on The International Community’s Policy on Internet Radicalization). Recently both the FBI and President Obama publicly expressed the view that the perpetrator of the attack on a club in Orlando on 16 June 2016 had been radicalized by the Internet2. Numerous initiatives have been taken to identify the roots and causes of radicalization and the elaboration of efficient legal as well as sociological, psychological, political and educational responses. The atrocious acts committed by different terrorist groups have led several countries to take drastic legal measures aimed at protecting the right to life as enshrined in the International Convention on Civil and Political Rights, Art. 6.1 and other values supported by the international community. These measures may in some cases encroach upon correlative human rights and in particular freedom of speech, the right to information and the free practice of religion. The State of Emergency Decree in France is an example of such legislation which took effect on midnight 13 November 2015 immediately after the Bataclan Tragedy. The Decree ultimately led to a call for Constitutional change and the State of Emergency was extended till January 2017 after yet another terrorist attack in Nice on 14 July 2016.3 Almost all countries around the world have taken steps to fight radicalization In this Report we shall analyze the legal measures taken specifically against online radicalization adopted by 32 countries representing the six geographical regions of UNESCO. We shall also analyze international treaties, European directives and resolutions at a regional and international level in an attempt to identify grounds of a common understanding and a consensual approach to measures against online radicalization by the international community. At the international and regional level, the United Nations, the Council of Europe, the East African Community, the Organization of American States, the Association of South East Asian Nations, the African Union and the League of Arab States have passed resolutions and adopted treaties providing for harmonization of laws, the creation of new criminal offences and the establishment of rules governing jurisdiction and cooperation by way of information sharing and coordination of resources (Section 1). The Report seeks to address the following legal questions and challenges in particular: 1 According to Storymaps (2016). Available at: http://storymaps.esri.com/stories/2016/terrorist-attacks/ [Accessed 30 September 2016]. 2 Pilkington, E.; Roberts, D. (2016): “FBI and Obama confirm Omar Mateen was radicalized on the internet”, The Guardian. Available online at: https://www.theguardian.com/us-news/2016/jun/13/pulse-nightclub-attack-shooter-radicalized- internet-orlando [Accessed 30 September 2016]. 3 On 16 November 2015 president Francois Hollande initiated the first of 4 extensions of the State of Emergency. A bill to change the constitution for “The protection of the nation” was passed on 23 March 2016, but constitutional change has not yet been enacted. Source : http://www.liberation.fr/france/2015/11/16/francois-hollande-annonce-une-revision-de-la- constitution_1413859). Page 4 out of 140 The conditions under which legal regulation of content may be implemented while meeting international human rights standards and in particular those protecting freedom of speech, non-discrimination and the free practice of religion. We shall seek to define the perimeter within which it may be recognized under international law that “radicalizing content” is excluded from freedom of speech protection (Section 3). Section 3 is broken down into a subsection on “General Principles of Freedom of Speech” including the caveat covering abuse (Section 3.a), “Internet and Freedom of Speech” (Section 3.b) and “Specific Restrictions of Freedom of Speech” (Section 3.c). Any attempt to regulate content on the Internet or any other medium will face the challenge of the protection accorded to freedom of speech and freedom of information (the latter being a collective freedom rather than an individual freedom). It is critical to analyze to what extent restrictions of freedom of speech with regard to radicalizing content may be consistent with existing and broadly recognized limitations based on the general abuse caveat or specific content restriction mandates. A number of international instruments (on a regional and international level) as well as international case law and national legislation/case law based on Media Law, Advertising Law (tobacco, medicine etc.) Crime Prevention Law (child pornography, money laundering, gambling, terrorism), Intellectual Property and Defamation Law (non-exhaustive examples) all ultimately lead to restrictions of freedom of speech. These existing specific (and broadly accepted) limits to free speech will be analyzed in Section 3.c. In Section 2 we shall attempt to arrive at a viable, comprehensive and predictable definition of “Radicalizing Content”. The attempts to identify/formulate an efficient and appropriate definition will not be confined to the analysis of legal instruments and jurisprudence, but will also take into account academic definitions applied in sociological and psychological studies as well as the definitions proposed by specialized agencies and Non-Governmental Organizations (preceding the analysis, comparison and identification of the key features of the phenomenon of radicalization leading to a legal definition of “radicalizing content”, we shall however turn to the “International Community’s Policy on Online Radicalization” (Section 1)). Hereafter the Report will focus on the more practical aspects of monitoring and enforcement in Section 4: “Online Law Enforcement and Liability” which is divided into Section 4.a on the “Regulability
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