Racism was a pressing social problem long before the emergence of the digital age. Earlier, the proliferation of hate crimes was tied to geography of the place, but due to the advent of modern technologies, the proliferation of hate crimes and hate belief can be unlimited transfer in the world through the internet. Therefore, the advancement of digital communication technologies has added a new dimension to the racist problem by making the racial hatred materials easily accessible. Through the internet, authors are free to post anything directly into the public domain where there is a potential readership of millions of people. This is totally different from publishing a book or newspaper article, where the author is subject to the discipline and control of an editor. Thus, it is very difficult, if not impossible, to exclude from the internet those who would seek to distribute potentially offensive material via its various facilities. [1] The object of this essay is to discuss the regulation of racial content on the Internet. Firstly, it will explore how the racist content being governed by the United States, Europe country as well as International level and then goes on to examine the problems in regulating racist content on the internet. The final part of the essay will focus on how to solve those problems.

In the late 1990s, every country started to apply their anti-racist legislation to the Internet, based upon the principle that “what is illegal off-line is illegal online.” [2] Nevertheless, legal strategies for combating racial hatred content differ from country to country. [3] 

In the United States, the First Amendment to the United States Constitution prohibits the Congress from making laws which “respecting an establishment of religion”, impeding the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the press. [4] Thus, US law has been criticised for constitutionally protecting racist and xenophobic propaganda since public authorities are forbidden from interfering in the content of such communications. Besides, there is no clear guidance as to what constitutes a hate speech crime in cyberspace from the United States Supreme Court and what is under the protection of freedom of speech. [5] 

On the other hand, Europe countries adopted a different way to solve this problem. According to Article 10 of European Convention on Human Rights, right of free speech is not absolute; it is subject to the consideration of morality, internal security and public safety. No protection is given to speeches that deny or lead to the destruction of human dignity or others’ Convention right by virtue of Article 17. Moreover, the Council of Europe Recommendation on Hate Speech [6] called upon member States “to take appropriate steps to combat hate speech by ensuring that such steps form part of a comprehensive approach to the phenomenon which also targets its social, economic, political, cultural, and other root causes.” [7] As the racist problem is becoming more serious over the internet, the Convention on Cybercrime treaty was drawn up by the Council of Europe which signed by thirty-eight European countries, including United States, Japan, Canada and South Africa. However, the Convention failed to reach a substantial international agreement on racist speech standards. For instance, The U.S. delegation refuses to sign the treaty as such provision is not complying with its constitutional protection of free speech. Thus, the members decided to make these controversial provisions subject to a separate Protocol. [8] The Additional Protocol to the Convention on Cybercrime focus on the criminalization of acts of a racist and xenophobic nature committed through computer systems. The purpose of the Additional Protocol is to harmonize substantive criminal law in the fight against racism and xenophobia on the Internet and to improve international cooperation in this area.

As regards to the international legal regime, there are numerous international instruments which attempt to address the problem of racism. These include the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination (1963) (ICERD), the International Convention on Civil and Political Rights (1966) (ICCPR), the International Convention on Economic, Social and Cultural Rights (1976) (ICESCR), the International Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW), the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) (Apartheid Convention).

With respect to racism and xenophobia, one of the specific challenges arises from national differences in free speech protection. [9] As different jurisdictions internationally may not recognize the actionable form of racial hatred content, it is not easy to criminalize them if they are protected under various national freedom provisions. For instance, marketing Nazi memorabilia is legal under the First Amendment in the United States, whereas it is illegal in Germany. Even Europe citizens are willing to accept that freedom of speech does not immunise statement that intended to incite hatred and discrimination; US citizens strongly support their First Amendment which affords a citizen’s right to freedom of speech a higher status than other rights. [10] The U.S. Supreme Court has declared that the government cannot censor freedom of speech whether it is expression on the Internet or public speech or information on print or broadcast media. All Web sites in the U.S. are viewed within the traditional limits of the Constitution. As illustrated by the case of Yahoo! Inc. v La Ligue Contre Le Racisme et L’Antisemitisme, [11] it is a complex issue when nations with conflicting laws confront each other on the internet.

Due to the lack of the international standard for the term racial discrimination, it is difficult to introduce effective criminal sanctions and enforce them strictly. Racist and xenophobic material was defined by the Additional Protocol as ‘any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites 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’. [12] However, it is hard to draw a line between forms of prejudice such as racism, on the one hand; and emotions such as ‘hate’. Racism is a wrongheaded prejudice that deserves to be contested, whereas hatred is not objectionable in itself. It’s simply an emotion, and it can be an entirely legitimate and appropriate emotion at that. In fact, the discussions about hate speech and hate crimes tend to muddle these two things. The Council of Europe uses the word ‘hatred’, in the context of the Additional Protocol to the Convention On Cybercrime, to mean ‘intense dislike or enmity’. [13] But are right-thinking people not entitled to feel ‘intense dislike or enmity’ towards racists? [14] Furthermore, some criticized that content regulation by the Additional Protocol to the Convention On Cybercrime is frightening in its scope as the Bible or the Qur’an could fall afoul of such all encompassing censorship. [15] 

In addition, the nature of the Internet makes the limitation of national sovereignty exist in reality. As we know each country does have his interest and problem, it is hard to have a consensus on the judicial attitude toward racial hatred content. United States refused to adopt anti-hate speech laws is not because of the notion of American ‘exceptualism’, rather it is mainly because to control hate speech would contravene the First Amendment. [16] But when one states cannot or does not want to control the content of the web sites based on its territory, it will become the ‘safe harbour’ for those wish to carry out particular forms of antisocial behaviour such as the distribution of pornography, the peddling of hate speech, or the sending of unsolicited ‘spam’ message. [17] Consequently, the other states may face difficulty to exercise their control over their web sites. With the United States legally unable to sign the Additional Protocol, it fundamentally undermines the effectiveness of the Protocol. [18] 

In order to tackle racial hatred content on the internet, law enforcement is the basic mechanism that should be employed. First of all, there is a need to have a global definition as to what constitutes ‘hate speech’ or ‘racist’. Besides, the use of an international legal regime to tackle racial discrimination is highly recommended as this approach will give people a chance to have their cases heard in an international arena. This is very important especially when all local means of legal redress have been exhausted. [19] Further, law enforcement agencies dealing with cyber hate must possess necessary knowledge and skill in order to adapt this technical, fast and ever changing environment. Therefore, comprehensive training must be given from time to time.

In addition, we should have a regulation like the European Directive on E-commerce, which limits the liability of ISPs for the content they host or to which they give access. This Directive is totally different from the United States law which grant complete immunity to ISPs. [20] Once obtaining actual knowledge that it is hosting illegal content, the provider need to remove the illegal content as soon as possible otherwise the hosting provider could be held liable. [21] This provision is very efficient for tackling illegal content since ISPs are eager to ensure the benefit of immunity. This is also true as most of the U.S. ISPs do have assets in Europe. [22] Furthermore, American ISPs that act in such a manner will be protected by the “Good Samaritan” provision under the Communication Decency Act which protects ISPs that voluntarily take action to restrict access to or availability of material that they consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. [23] The combination of the European Directive and the Good Samaritan provision make it possible for Europe to reach American Internet companies with business interests in Europe, despite the First Amendment shield. [24] Such a tool has already been used by Germany against eBay pertaining to the sale of Nazi songs, books and clothing. [25] After being notified, eBay disabled the access to the controversial items immediately without any delay. [26] 

Cyber hate is a global phenomenon and cannot be settled via a local strategy. Thus, it requires an international approach to establish legal norms that respect national conventions but ensure cooperation between agencies and governments. [27] There should be better international co-operation and co-ordination by those NGOs and other private organizations monitoring the use of the Internet for hateful and terroristic purposes as suggested by Brian Marcus. [28] The International Network Against Cyber Hate, through partnership with the Anti-Defamation League is a good example as to how international co-operation between non-governmental groups in the United States and the rest of the world can work together to combat on common issues that raised by the internet. [29] 

Besides, internet providers and hosts should incorporate code of conduct in their “Terms of Service” and “Acceptable Use Policies” that includes agreed-upon definitions and/or broad rules on what types of materials they will not host and what types of materials are illegal, this is crucial by making codes of conduct enforceable and moving towards internationally consistent minimum rules. [30] There are a lot of US-based companies have such exemplary models that could be followed to encourage this industry-based self-regulation. [31] In addition, any such efforts must be truly voluntary because any sort of government involvement in any self-regulation effort will not be able to avoid raising questions about possible coercion no matter how benign such involvement might seem. [32] 

Since the task of assessing the legality or illegality of specific data is difficult for Internet providers, there is a need to have a hotline such as UK Internet Watch Foundation (IWF) by enabling the public to response to racial hatred content on the Internet that they find of substantial concern. [33] These “hotlines” can help in ensuring effective and appropriate action be taken if the reported content is potentially illegal. In fact, so long as an ISP acted to take down on notice it could satisfactorily claim immunity as a host from liability. [34] Thus, the availability of hotline has to be widely publicized on the Internet as well as in traditional mass media. In addition, International cooperation between hotline is required to have effective action across boundaries in cases where the reported content is not hosted in that particular country. This also helps to overcome problems in the complex diplomatic procedures required for cross-border cooperation of law enforcement authorities. [35] 

While ISPs and other organizations that host Web sites can restrict hate speech by taking down illegal content, racial content can also be restricted on the other end, by using a “filter” or other software that denies the Web user the ability to access sites containing those contents. [36] One technology that can be used to screen out unacceptable content is the Platform for Internet Content Selection (PICS) which proposed by the World Wide Web Consortium. [37] PICS can rate the content of Web sites based on a number of factors, such as violence or language. A Web site can voluntarily rate itself using the PICS criteria. Besides, the product called SurfWatch can be used to filters out hate speech and the filtering software product called Bess can blocks online content that advocates “discrimination against others based on race, religion, gender, nationality or sexual orientation.” [38] Thus, web users have the right to choose not to look at racist or hate content, even Bigots have the right to post them.

No self-regulatory mechanism can work independently without an education and awareness campaign. The Internet industry should work together with government agencies to provide general awareness of self-regulatory systems such as filtering systems and hotlines. Such a campaign should be directed at children and parents as well as a general campaign involving society at large. School play an essential part in helping children to acquire and develop the knowledge and skills to understand the benefits and problematic Internet content. Therefore, the information shared between monitoring groups should be made widely available, and posted on the Internet so it can be shared freely to help parents and educators recognize hate sites on the Internet. [39] 

As suggested by Durban Declaration, the Internet itself can be an effective tool in the fight against racism. Therefore, the Internet industry should work in conjunction with government agencies as well as private bodies to create awareness and promoting attitude change about discrimination.

In conclusion, the regulation of racial content on the internet is in its infancy. It is a global phenomenon which cannot be tackled alone by a single country. In fact, given the global and borderless architecture of the Internet, no single approach can provide a solution to tackle racial hatred content on the internet. It must bear in mind that racism was there since time immemorial, it does not exist because of internet, thus education is a crucial tool in combating racism, racial discrimination and xenophobia. Therefore, I would share the view of Dr Karen Mock and Lisa Armony that the fight against racism and hatred on the Internet will be won through increased efforts to incorporate Holocaust education, multiculturalism, anti-racist, and human rights education in the schools. [40]