Is there any proven link between hate speech on the Internet and committed hate crimes ? This was the difficult question faced by a meeting organised by OSCE (Organisation for Security and Co-operation in Europe) on the relationship between racist, xenophobic and anti-Semitic propaganda on the Internet and hate crimes, which was held in Paris on 16-17 June 2004. The answer to this question is of high political importance since it could impact the U.S. position and legislation, which protects free speech - be it hate speech - under the First amendment.

The OSCE meeting, which was held in preparation of a further OSCE conference on the same issue to be held by the end of this year in Brussels, did not provide a definitive answer to this question. While the French representatives presented the direct relationship between hate speech and hate crime as obvious - without providing any evidence, however -, the U.S. representatives made it clear that only crime, not speech can lead to prosecution under U.S. legislation. Between these two extreme positions, most of the participants to the meeting called for in-depth research on this issue, so that the critical question raised by the OSCE could be discussed on a sound basis.

On 13 June 2004 the French Constitutional Council published a decision on the Digital economy law (Loi pour la confiance dans l'economie numerique or LEN). Among the 3 provisions challenged by the parliamentary opposition, only one has been found unconstitutional and one was slightly modified. None of the 7 further provisions challenged by EDRI-member IRIS and the French Human Rights League (LDH), has even been examined, while some of them are indeed limiting the constitutional freedom of communication, to the benefit of private interests (see EDRI-gram Number 2.11, 2 June 2004).

The provision found unconstitutional, which has thus been suppressed from the text of the law, is the one introducing different time bars for online and off-line content when exercising the right of reply or filing judicial complaints against offences identified in the press law (see EDRI-gram Number 2.9, 5 May 2004). After the Council decision, the time bar is now the same in both cases.

EDRI-member IRIS and the French Human Rights League (LDH) have sent a brief to the French Constitutional council regarding the unconstitutionality of the French transposition of the E-commerce Directive (Loi pour la confiance dans l'economie numerique or LEN). On 18 May 2004 the French socialist MPs submitted the finalised law to the Constitutional Council, following the public advice from the two organisations.

The parliamentary opposition uses three of the four provisions pointed out by IRIS and LDH: status of email (not defined as private correspondence), privatisation of justice (through notice and take down procedure) and the introduction of different periods of limitation for on-line and off-line content. In the proposed law there is no time bar for offences identified in the press law (defamation, racist speech, holocaust denial, etc.) if they result from an on-line publication, while the statute of limitations is three months if previously published in any other medium.

In a study about notice and take down procedures, researchers from the Oxford university centre for socio-legal studies were shocked to find how easily internet providers take down perfectly legal content. As mystery-shoppers they opened up 2 websites in July and November 2003, one in the United States and one in the United Kingdom with a section of John Stuart Mills 'On Liberty', published in 1869 and hence freely useable in the public domain.

Their website opened with the words: "The text is freely available throughout the web." The first sentence from the essay was: "The time, it is to be hoped, is gone by when any defence would be necessary of the "liberty of the press" as one of the securities against corrupt or tyrannical government (…)."

The researchers sent a complaint about copyright infringement to both the ISPs, posing as the John Stuart Mill Heritage Foundation (which does not exist as research on the web suggests). The complaint was sent via a free email service, without providing a detailed address or other proof of identity.

Tomorrow, 6 May 2004, the French national assembly will have the final reading of the controversial digital economy law (Loi sur la confiance dans l'economie numerique, LEN), followed by a final reading in the Senate on 13 May 2004. This will conclude the French transposition process of the E-Commerce Directive (2000/31/EC) and part of the Directive on Privacy and Electronic Communications (2002/58/EC).

After the French Senate completed its second reading of the draft law on 8 April 2004, an inter-parliamentarian commission proposed a new text on 27 April 2004 to approximate the results of both the National Assembly and the Senate. The Senate and the commission have confirmed most of the very controversial provisions contained in the draft law (see EDRI-gram issue 2.1, 15 January 2004), but suppressed the provision obliging hosting providers to monitor the content of their customers, since this measure is explicitly forbidden by the E-Commerce Directive.

On 8 April the French Senate will vote about a controversial new law to translate the E-Commerce Directive (2000/31/EC). The law known as LEN ('Loi sur la confiance dans l'economie numerique'), has been heavily opposed by EDRI-member IRIS, Reporters without Borders, several trade unions, internet user groups and the association of internet providers for undermining the rights of internet users and introducing private justice by internet providers.

On 8 January the National Assembly adopted the draft-law, introducing a notice and take down procedure for internet content and a general obligation on hosting providers to monitor the content of their customers. Such a measure is explicitly forbidden by the E-Commerce Directive. Currently, hosting providers can only be held liable for illegal content they host if they don't comply with a judicial injunction to remove the content.

The IFPI, the international representative of the recording industry, has instigated legal proceedings against the Belgian ISP Telenet for the unauthorised distribution of music via Usenet (newsgroups). Telenet refuses to block the access to certain newsgroups in its newsservice 'Bommanews'. The ISP argues that providing Usenet services is a 'mere conduit' activity, and under the E-Commerce Directive (2002/58/EC) a provider cannot be held liable for just passing bits. The ISP states: "Telenet does not control the content of data that are being transported over the network by its customers. Telenet acknowledges the right to privacy and the freedom of speech of its customers."

It is the first time that the recording industry attacks an internet provider for offering usenet services, testing the strict non-liability

On 8 January 2004 the second reading by the French National Assembly of the draft law on Digital Economy (Loi sur la confiance dans l'economie numerique or LEN) stirred up public controversy. The law aims at transposing the E-Commerce Directive (2000/31/EC) and part of the Directive on Privacy and Electronic Communications (2002/58/EC).

The National Assembly not only confirmed its willingness to allow for private justice in France with the notice and take down procedure, but it also adopted a general obligation on hosting providers to monitor the content of their customers, a measure explicitly forbidden by the E-Commerce Directive. In addition, access and hosting providers would have the obligation to filter some contents upon judicial request, a measure which obviously applies to content hosted on foreign websites. Another amendment from the right-wing UDF party obliges internet providers to warn against possible infringements of copyrights in all their advertisements with the mandatory line: 'piracy harms artistic creation'.