4 No. 57 JUSTICE uropean law offers increasing protection for Jews and other minorities through judgments by the European Court of Human Rights (ECtHR), and successful case law from European national courts. This improvement in legal protection arises from recent and parallel developments that are not directly related, but are slowly changing perceptions about hate speech, and its links to racist violence, radicalization and extremism, while nevertheless recognizing the importance of free speech. While there is no universally accepted definition of "hate speech," the ECtHR has established certain guidelines making it possible to characterize it in order to exclude it from the protection afforded to freedom of expression. At the political level, the Office for Democratic Institutions and Human Rights (ODIHR) at the Organization for Security and Cooperation in Europe has also published a definition agreed upon by its participating states and their criminal justice agencies, which participating states are urged to use. Accordingly, ODIHR has noted that hate speech, however discriminatory or insulting, would not be a crime without a specific base offense, such as the glorification of Nazi ideology or Holocaust denial, which European Union (EU) member states are required to criminalize.1 The second development is a consequence of continuing discussion between the major social networks, lawyers, a small group of NGOs and government experts. They have been brought together by shared concerns over the malign power of the Internet. This has led recently to the former agreeing to a set of standards to reduce online harmful content. This is fuelled by the realization that social networks have social as well as financial and technological interests, and demands by European states and international agencies for more effective controls against harmful online content. The over-riding consideration by all participants in these discussions is that self-regulation by the internet industry will be more effective than imposed rules and laws. European Agreements Three European agreements directly and indirectly offer protection to Jewish communities. Two of them are directives that have to be transposed by EU member states and are attached to a time-scale governing their incorporation into national legislation. States transposing them are also subject to inspection by the European Commission, with the possibility of a referral to the European Court of Justice if a state either fails to transpose the directive or if it fails to transpose it effectively. Chronologically, the first of the three agreements, the Additional Protocol on the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems to the Council of Europe Convention on Cybercrime (2003) is not enforceable, and only ratifying states are bound by its terms. The Additional Protocol requires signatory states to adopt criminal laws against: making available racist and xenophobic material through a computer system; threatening persons distinguished by race, color, descent, religion or national or ethnic origin through a computer system; publicly insulting persons as defined above through a computer system; denying, grossly minimizing, approving or justifying genocide or crimes against humanity, including the Holocaust.2 All Council of Europe (CoE) member states were expected to ratify the Additional Protocol by January 1, 2014, but the European Commission has since extended the timeframe to allow EU member states to ratify it by the end of 2015.3 Combating Antisemitic Incitement through the European Courts and Online E MichaelWhine 1. Hate Crime Laws - A Practical Guide, OSCE ODIHR (2009), at 25-26, available at www.osce.org/ odihr/36426?download=true (last visited Sept. 9, 2015). 2. Additional Protocol to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through Computer systems, 2003, Council of Europe, available at conventions.coe.int/ Treaty/en/Treaties/Html/189.html, (last visited Sept. 9, 2015). 3. Council conclusions on combating hate crime in the European Union, December 2013, Council of the European Union, available at www.consilium.europa.eu/uedocs/ cms_data/docs/pressdata/en/jha/139949.pdf (last visited Sept. 9, 2015).
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