Monday, February 20, 2006

Holocaust Denial and the Additional Protocol to the Convention on Cybercrime (Updated)

To follow up on Peggy's post about David Irving, it's worth noting that Article 6 of the Additional Protocol to the Convention on Cybercrime contains the following controversial provision:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right:

distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.

Article 6 does, however, allow a Party to either

a. require that the denial or the gross minimisation referred to in paragraph 1 of this article is committed with the intent to incite hatred, discrimination or violence against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors, or otherwise

b. reserve the right not to apply, in whole or in part, paragraph 1 of this article.
28 Member States of the Council of Europe (and Canada, a non-Member) have signed the Additional Protocol. Notable exceptions include the UK, Italy, Spain, and Russia. Four Members -- Albania, Cyprus, Denmark, and Slovenia -- have ratified the Additional Protocol, one short of the number needed for it to enter into force.

The US is a signatory to the Convention on Cybercrime itself, but has refused to sign the Additional Protocol on First Amendment grounds.

Although I am Jewish and lost family in the Holocaust, I'm with the U.S. on this one. In my view, laws criminalizing speech invariably do more harm than good, because they turn minor figures into martyrs and disseminate their repulsive beliefs far more widely than would be the case otherwise. Irving is a case in point; according to the AP,
Irving's lawyer, Elmar Kresbach, said last month the controversial Third Reich historian was getting up to 300 pieces of fan mail a week from supporters around the world and was writing his memoirs in detention under the working title "Irving's War."
UPDATE: Irving has been sentenced to three years in prison. Although the sentence could certainly have been more severe, it's still disappointing that the court felt it was necessary to incarcerate him. I don't know what other options were available under German law -- readers? -- but it seems to me that some combination of fines, public statements, and community service would have been more appropriate punishment.

LATER UPDATE: Irving has announced his intention to appeal the sentence, saying he is "shocked" by its severity.


Blogger Bjoern Elberling said...

Well, I am not an expert on (ahem) Austrian criminal law, but as it seems that their system is similar to the German one, I'll take a shot.

According to the "Law on the Prohibition of the NSDAP" of 1947, which is technically part of the Austrian Constitution, the standard punishment for "Wiederbetätigung" is between 1 and 10 years imprisonment (Sect. 3 lit. g and h).
According to general Austrian criminal law, a sentence of imprisonment can be "conditionally mitigated" (roughly the equivalent to probation, and allowing for "instructions" such as Community service) only if the sentence is for 2 years or less.

Accordingly, if the Court found Irving's criminal acts to have been of a "weight" corresponding to a punishment of 3 years, it technically had no choice but to sentence him to incarceration.

On the more general "marketplace of ideas"-side of the debate, I am of the opinion that "fascism is not an opinion, but a crime", and accordingly I have no big problem with restrictions of free speech in this regard - at least with regard to Austria where, as I wrote above, this restriction is part of the Constitution.

But this is probably part of a larger debate on the merits of the whole "marketplace of ideas" thing, which cannot be sensibly discussed in a blog comment.

In conclusion, let me say that I find your posts, Prof. Heller, a great addition to an already very interesting blog.

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