Bulletin n° 14 - décembre 2015

 


Human Rights and the Fight against terrorist propaganda on Internet in the United Kingdom and France

Guillaume Dally, Loïc RIBET (élèves avocats de l'HEDAC / ISIT)


Introduction

Most European states are nowadays submitted to an on-going threat of becoming a target of jihadist terrorists attacks as demonstrated by the recent killings in Paris of January 7th, 8thand 9th, 2015. These horrible strikes were preceded by other attacks perpetrated in other Western democratic states (as for example: the killings in the Jewish Museum of Brussels and the murder of two soldiers in Canada in October 2014). These attacks are particularly difficult to handle for our modern democratic states that promote the concept of freedom, particularly: the freedom of expression and the right to live his private and family life freely without interference of the public authorities. Indeed, most of those attacks were isolated acts committed by individuals residing in the aimed country for a long time, taking advantage of the freedom provided by those countries. These attacks were unexpected as they were the products of a long process of radicalization prior to the commitment of the attacks. This is what is called “home-grown terrorism”.

One of the most used mediums for terrorist communication and propaganda has been the Internet, as it is a fast, easily accessible and wide-ranging medium of communication. Blogs, social networks, and other website are used by terrorist groups as an important part of their propaganda strategy. For example, Mohammed Merah and Amedy Coulibaly filmed their attack and intended to post them on the Internet. The latter posted a prepared video claiming responsibility for the Charlie Hebdo attacks. This explains why the national authorities have been focusing their counter-terrorism effort on Internet.

As a consequence, preventing the radicalization of individuals and identifying those that already constitute a threat for national security by acting on Internet seems a viable strategy to fight against terrorism. It means that the access to materials promoting or facilitating terrorism should be restricted and those accessing such materials or diffusing it should be under surveillance. However, the enforcement of this strategy implies necessarily that the national authorities will interfere with freedom of expression and the right to privacy. There is a difficult balance between the protection of human rights and the need to protect national security to find. Should the countries that are confronted to terrorist threats stay true to the protection of human rights or should they defend themselves by any means against those that seek to destroy the democratic foundation of our societies?

By taking the example of France and the United Kingdom, we will try to find which approach those two countries took in order to fight terrorist propaganda on Internet and if they leaned more towards the respect of human rights, as guaranteed by the European Convention on Human Rights (ECHR) or more towards the preservation of national security. We will see that France and United Kingdom are opting for quite similar solutions, as both countries are under a rather important risk of terrorist attacks. The essay will be divided into two parts: Fight against terrorist propaganda on Internet and freedom of expression (I) and Fight against terrorist propaganda on Internet and right to respect for private life (II)


I. Fight against terrorist propaganda on Internet and freedom of expression.

A. National laws against incitement and glorification of terrorism

Terrorist groups use Internet as an important tool to recruit new members. France and The United Kingdoms authorities are aware of this growing problem. As the need to fight terrorism became more and more crucial in both countries, they established specific laws in order to counter any kind of propaganda inciting to commit acts of terrorism. Even though both countries already had laws to sanction the incitement to commit unlawful acts in general, it was deemed not enough for the specific domain of counter-terrorism. Those laws were not created specifically for communications on Internet as they apply to any means of communications. However, considering the prevalence of the use of Internet to communicate freely, there is no doubt that this will be the medium that will be the most affected by the new laws.

In France, the law defining where the freedom of expression holds its limits is the Freedom of Press Act ofJuly 29th, 1881 (loi du 29 juillet 1881 sur la liberté de la presse). It is a famous law in French law as it is defining under strict conditions the scope of offences that constitute abuse of the freedom of expression. The most used offences are libel and slander. As prohibiting the incitement or glorification of terrorism is an issue relating to freedom of expression, it would be logical to find those offences integrated in the Freedom of Press Act. Moreover, the first paragraph of the Chapter IV of the law is dedicated to the incitement to commit offences. That is where the prohibition of incitement and glorification of acts of terrorism was initially integrated (former article 24 of the Freedom of Press Act). However the protection against terrorist propaganda provided by the law was deemed insufficient as the Freedom of Press Act establishes strong procedural requirements in order to introduce a lawsuit on its basis that may hinder the prosecution of those offences. One of the most well known requirements is the three-month period after the publication of the said statement given to file a lawsuit on the basis of the Freedom of Press Act.

This is the reason why a new law was introduced in French legislation in 2014 (Loi n° 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme). Concerning incitement and glorification, the content of the offence remains unchanged: direct incitement and glorification of acts of terrorism are still prohibited. The major modification is the fact that the offence does not belong to the Freedom of Press Act anymore and is consequently free of all its procedural restraints. It has been inserted in the French Criminal Code at the article 421-2-5. It has a symbolic value too, as it is not considered in French legislation as a matter relating to freedom of expression anymore but as a common offence[1]. As a consequence, procedures that weren’t allowed under the Freedom of Press Act are now possible like the procedure of immediate summary trials[2]. Procedural safeguards provided by the Freedom of Press Act are not applying, like the requirement to precisely articulate and qualify the offence with reference to the contested statement to engage an action (Art 51 and 53 of the Freedom of Press Act). It is also interesting to note that the new law establishes the use of Internet to commit those offences as an aggravating circumstance that will increase penalties.

To enforce this law on Internet, the government introduced a new procedure at article 6-1 of the loi n° 2004-575 du 21 juin 2004 pour la confiance dans l'économie numérique (law for the confidence in the digital economy) of access blocking to website fulfilling the conditions of article 421-2-5 Criminal Code. The authorities will notice the host that the content of the website he or she took charge violates the article and that it must be withdraw it as quick possible. If it is not done within twenty-four hours, the authorities will directly order the Internet service provider to block the URL of the website. The procedure is meant to block websites even if they are hosted outside French jurisdiction.

UK Law prohibits in quite a similar way the incitement and glorification of terrorists acts. Before the year 2006, such acts were prosecuted under the traditional offence of incitement under common law[3]. It requires that the inciter reaches out and seeks to influence the mind of another person in order to commit a crime. He must intend this person to commit the crime and must know or believe that the person will act with the relevant mens rea. Similarly to France, this was not deemed sufficient to prohibit glorification or incitement as the former offence of incitement required a degree of explicitness that could not apprehend the encouragement to engage in terrorist activities generally. That is why the Terrorism Act 2006 was adopted by the Parliament.

The Act prohibits encouragement of terrorism (Section 1) which is defined as the offence of publishing or causing to be published a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement to the commission, preparation or instigation of acts of terrorism or Convention offences. Moreover, it prohibits the dissemination of terrorist publications (Section 2) including those likely to be understood as direct and indirect encouragement to engage in acts of terrorism and those likely to be understood to be useful in the commission or preparation of an act of terrorism. By examining the content of the law, it is to be noticed that the offences does not require the same level of specificity as by former incitement law. Common law incitement was concerned with encouragement of specific behaviour which if committed will constitute a criminal offence comprised of an actus reus and mens rea while the new notion of encouragement is concerned with forms of behaviour generally described that may or may not amount to a criminal offence[4]. In doing so, the new law encompasses encouragement to engage in terrorism in a general way without being tied to the commission of a particular act. Another novelty is the concept of indirect encouragement by way of glorification or by any other means. It seems here that the British offence is broader than the French one that only includes direct encouragement and glorification. As a counterpart, the Terrorism Act 2006 does restrain the wide scope of indirect encouragement: it specifies that the members of the public concerned by the contested statement could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances.

Similarly to France, the United Kingdom has developed a similar procedure of web access blocking of websites hosted outside British jurisdiction. A list of websites promoting terrorism is maintained by the Counter Terrorism Internet Referral Unit (CTIRU) and then transmitted to Internet Host Provider in order to block their access in the UK.

B. Confrontation with the European Convention on Human Rights

Now we will try to see if those laws are compatible with article 10 of the European Convention on Human Rights (ECHR) concerning freedom of expression. It is to note that the prohibition of incitement and glorification of terrorism does not represent in itself a violation of the Convention. In fact, this is an obligation imposed by the Council of Europe Convention on the Prevention of Terrorism (CECPT). The parties to this Convention, to which the United Kingdom and France belongs to, must criminalize public provocation to commit terrorist offences whether or not directly advocating terrorist offences as long as it creates a danger that one or more such offences may be committed and the maker of the statement intends to incite the commission of the offence (Art 5 CECPT). The CECPT targets any incitement to terrorism whether direct or indirect but always specify that it should lead to a risk of a terrorist act being committed. This last requirement is absent from French law.

This might be problem because the European Court of Human Rights (ECtHR) refers in a same way to the risk of violent acts being committed in order to prohibit a statement in its case law. Indeed, the article 10 §2 ECHR states that restrictions to the freedom of expression may only be valid if the law prescribes them, if such restrictions pursue a legitimate aim and are necessary in a democratic society. The two first conditions are not really problematic as in both countries, the offences are contained in laws voted by the parliament and are pursuing the legitimate aim to preserve national security and to prevent disorder and crime. However, it will be more difficult to define if the laws are necessary in a democratic society, meaning if the laws are proportionate to the legitimate aim pursued by the government.

In its case law on such matters, the ECtHR reviews cases as a whole by examining the content of the impugned statement and the context in which it was published. The ECtHR regards freedom of expression as one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. As a consequence, statements cannot be prohibited due to the sole fact that they may be considered shocking, disturbing or offending by the State or any sector of the population. In particular, the ECtHR claims that political speech is privileged and there is little scope for restrictions on political debate or on debate on matters of public interest. However, any interference by the State would be justified if the statement incite to violence, so that it had a harmful effect on the preservation of national security or the prevention of disorder and crime as showed in the 1999 decision Özturk v Turkey of the ECHR (N° 22479/93)[5]. This decision was about the banning and seizures of a book by a communist author that glorified the life of the former leader of an extreme left wing movement that had committed terrorist acts by denouncing the condition of his detention and his death in prison. The ECtHR recognized a violation of article 10 ECHR.

The difficulty resides in the fact that a decision by the ECtHR is really dependent on the circumstances of the cases, so it is impossible to reveal a uniform rule relating to the validity of interference by the State to the article 10 ECHR. A good example of that is the 2008 decision Leroy v. France of the ECtHR (N° 36109/03). In this case, a magazine in the Basque country had published a cartoon depicting collapsing skyscrapers with the caption: “We all dreamt of it ... Hamas did it”. The Court held that the fine against the author of the cartoon and the magazine did not represent a violation of article 10 ECHR and was proportionate. The Court justified its position by mentioning the timing of the publication: not long after the attacks in New York in a politically sensitive region[6]. The cartoon was consequently representing an incitement to violence due to these circumstances. The ECtHR refers to the potential for violence caused by the statement considering the context of its publication. There are a lot of other cases relating to incitement or glorification of terrorism that the ECtHR had to review with each time different solution according to the circumstances. Most of them were related to conflicts in Eastern Turkey involving the PKK or other separatists groups. In the decision Zana v Turkey (n° 18954/91, 1997), the Court held that the sanctions against an individual claiming in a newspaper being in favour of massacres while regretting the killings of children and women was justified. On the contrary, sanctions following slogans with a violent connotation said during a demonstration of the armed and communist organization TKP/ML were deemed unjustified considering the peaceful and legal nature of the demonstration itself (Gül and others v Turkey N° 4870/02, ECtHR 2010)[7].

However, The Court is particularly vigilant towards hate speech promoting violence against ethnic group. Most of such cases like vehement anti-Semitism or Holocaust revisionism are declared manifestly ill founded by the article 17 ECHR that prohibits the abuse of the rights guaranteed in the Convention. The use of article 17 has become more rare though, because it prevents the Court from reviewing the case[8]. Still in these cases of hate speech towards ethnic groups, the Court remains particularly harsh even when it uses article 10 ECHR. In the decision Féret v Belgium (N° 15615/07, ECtHR 2009), the Court held that sanctions against a member of the Front National claiming that immigrants are “brown pestilence” and called a refugee centre “poison for the neighbourhood” were justified even if they did not call for violence in itself because they promoted discrimination and hatred[9]. The fact that the statement happened during a political debate did not change the situation.

Considering the position of the ECHR, it appears that British law is more adequate as it requires the prosecution to show that the impugned statement glorifies the contested conduct as something that should be emulated. This is a condition that the ECtHR controls by reviewing article 10 ECHR as seen above: potential of violence, harmful effect long-term. A sanction of France seems though doubtful because the ECtHR reviews case by case according to the specific circumstances. In countries submitted to such a high terrorist risk with people departing to Syria or Irak to make jihad, the ECtHR will surely accepts sanctions for glorifying terrorist acts.


II. Fight against terrorist propaganda on Internet and right to respect for private life.

Since 2001, the fear of terrorism seems to be used as a political instrument in order to reduce some human rights. This is particularly the case for the right to respect for private life, which has been recognised by the European Convention on human rights for more than 60 years. It is even paradoxical to the extent that terrorist assaults aim to dismantle the structure of our societies including our fundamental values of human rights. The recent events in France, in Denmark, in Tunisia, in Yemen and in Nigeria amplify that phenomenon. A new equilibrium seems to be drafted especially in France, which have arisen some doubts. The right to privacy is especially threated because the best options to monitor alleged terrorists are to know what they are doing in their private life, on the Internet particularly. It is even truer while our lives without Internet would be impossible. Moreover democratic states are facing new forms of terrorisms (A) and their recent responses (B) seem to be dangerous to our vision of right to private life as deemed by the European Court of human rights (C).

A. New forms of terrorism: the self and lonely terrorist

Internet is definitely the new battleground for terrorism because it offers interesting advantages: its use is easy and has a wider reach than classical communication means. Propaganda on social networks is, as we have seen in the first part, an important concern because it allows small groups, albeit simple individuals, to reach thousands of people with a naïve mouse. This new form of propaganda allows some group to reach fragile persons who are more likely to be affected and seduced by these kinds of speeches. That would not have been possible without Internet. As a result, a new category of terrorists seems to exist: homegrown terrorists. These are people, who can be extremely well integrated in their country, but who, for some reasons, become lone terrorists by self-radicalization. Their transformation often happens by viewing videos or reading articles created by bigger terrorists groups on the Internet. Everyone can access this kind of resources; it is not necessary to be a hacker. Then, some of the new terrorists, including minors, join the “real” terrorist groups in another country. To fight against that kind of radicalization, the first option tries to diminish the source of the radicalization directly, that is the information available on the Internet, by cutting off access to certain websites, or deleting videos. The other option focuses on the persons themselves like we will see after.

Another form of terrorism has also emerged but it seems to be much more difficult to monitor. Indeed, classic form of terrorism is organised with a centralized organisation based abroad, which decides and makes everything: choice of targets, training of future terrorists. These structures are relatively easy to follow because every decision comes from the top of the organisation. One only has to monitor some individuals to know what the organisation as a whole is intended to provoke. Nowadays, Internet has created decentralized organisations. Such groups can be composed with only a few individuals everywhere in the world, even in small villages in the countryside. They can form alliances then and grow up very fast. That has been the case for ISIS, which is now present in Europe (by way of internet or individuals) and in Africa (Boko haram). Of course, this theory doesn’t apply to reality because it is a mixture of both. Indeed, even though you are planning to provoke a bombing, you will need material such as the bomb itself, or accomplices. The classic terrorist groups will of course provide this assistance. Internet is therefore used to make an initial contact, which will assess the individual and his potential as terrorist. During that time, a trust relation is developing and may take time. However, it costs nothing for the terrorist organisation and there is a little risk to be discovered. The counter-Terrorism implementation task force – which aim it to coordinate the activities of the United Nations system and tries to countering the use of the Internet for terrorist purpose, has recognized such a strategy. That is why all the recent terrorists’ attacks always had a link with a terrorist group.

But the decentralized theory explains why every people is suspect, every people could become a terrorist on Internet. It explains why governments are planning to emphasize their surveillance on their own citizens explaining that there are potential terrorists everywhere around us. As a result, new legislations have been passed or will be in the following months, which put pressure on human rights. Governments argue that these modifications of legislation are necessary especially to fight against these new forms of terrorism. Their aim is to give security agencies the capability to monitor and counter home grown terrorists.

B. Governments’ reaction: new legislations

To correctly understand the situation and the current changes, it is useful to know the present legislation. A correct analysis will show that these laws are currently detrimental to the right to private life, which is not per se a wrong decision. The best option is to find equilibrium between different interests – right to private life and interest of the society.

To fight against terrorism, the French government has put in place different methods among which judicial and administrative telephone tapping. These two processes are of course detrimental for the right to private life but the current bill that intend to change the legislation seems to be more detrimental. The process of administrative telephone tapping allows the French prime minister to authorise a telephone tapping without any judicial control. It is only possible in determined cases such as for: - national security; - the prevention of terrorism etc. These broad expressions have no precise definition, which is necessarily a risk of arbitrariness in the enforcement of the law. For security reason, a commission has been created, whose role is to control whether legal conditions have been respected. However, this seems not to be enough to be efficient and human rights friendly[10].

As a consequence of the development of the Internet, French government recently use the fear of the new form of terrorism, in particular the fact that everyone is a potential terrorist to propose a bill. This bill whose aim is to modernize French intelligence services is composed of controversial provisions. Thanks to this bill, intelligence services would be able to put in microphones, GPS marker in apartments or cars, to telephone tapping without asking a judicial power. They would also be capable of using IMSI-catcher – a device, which records all data from mobile phones around it. The most controversial provision is the installation of “black boxes” which would analyse the entire data at the source of every Internet service provider. As a result, everything would be analysed without a judge’s authorisation – on which website is visited, how long, how often, with whom someone is speaking to, etc. The justification of such a provision is precisely the fact that everyone could be a terrorist, which is entirely false. It arise concern especially compared to human rights.

The British government has passed several acts over the last few years, such as the Terrorism Act 2000 and the Terrorism prevention and investigations measures Act 2011, and more recently the counter terrorism and security Act 2015 (the latter received royal assent on February 12th, 2015). These legislations tend to protect people from terrorism. It is now compulsory for ISP to record all data for more than one year and to record the link between an IP address and an individual for the same duration.

Without entering into details, we can see that such laws have in common recoil of human rights in particular the right to private life. Indeed, while it would be, in principle, possible to do everything someone want in one’s private life – as soon it is not prohibited, the Internet will be no longer a place of liberty or a place where our private life, our private data is properly protected.

One would know if such vision of the equilibrium between the individual’s interests and society’s interests is not jeopardizing our human rights, especially those recognised by the European Convention of human rights.

C. The protection provided by the ECHR

According to article 8 of the ECHR: “Everyone has the right to respect for his private and family life, his home and his correspondence”. As a result, “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety [...], or for the protection of the rights and freedoms of others”. It is therefore necessary to oppose the legislations we have just analysed and the guarantees of the ECHR. Indeed, the last legislations seem to organize a mass monitoring. The main question is to know whether such legislation is in contradiction with article 8. In principle, it is not. Legislators have to apply a principle of proportionality – is it necessary in a democratic society or not – which is the principle concern. As such, we think it depends of which provisions we are talking about. Every modification of legislation that changes or has an impact on human rights should be carefully contemplated. Consequently, do new forms of terrorism imply unavoidably a mass monitoring? We don’t think so. Nothing could explain such interference in private life of individuals. We must be careful.



1 - GODEBERGE C., DAOUD E. De la nouvelle définition de la provocation aux actes de terrorisme et apologie de ces actes. AJ Pénal, 2014, n°12, p 563.  [retour]

2 - Ibid.  [retour]

3 - HUNT A. Criminal prohibitions on direct and indirect encouragement of terrorism. Criminal Law Review, 2007.  [retour]

4 - Ibid.  [retour]

5 - SEGUR P. Le terrorisme et les libertés sur l’Internet. Actualité Juridique du Droit Administratif, 2015, p. 160.  [retour]

6 - BUYSE A., Dangerous expressions : the ECHR, violence and free speech. International & Comparative Law Quarterly 2014, V. Dangerous Speech under article 10 ECHR.  [retour]

7 - BUYSE A. op. cit. IV. Dangerous Speech under article 10 ECHR.  [retour]

8 - BUYSE A. op. cit. III. The outer limit : Article 17 ECHR.  [retour]

9 - BUYSE A., op. cit. IV. Dangerous Speech under article 10 ECHR.  [retour]

10 - For information, there are six thousand requests each year.  [retour]

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