Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems

Citation

Council of Europe, Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (ETS 189) (Jan. 28, 2003) (effective March 1, 2006) (full-text).

Overview

This Protocol addressing materials and "acts of racist or xenophobic nature committed through computer networks," was proposed by some member States. This additional protocol was the subject of negotiations in late 2001 and early 2002. Final text of this protocol was adopted by the Council of Europe Committee of Ministers on November 7, 2002.

The Protocol requires participating States to criminalize the dissemination of racist and xenophobic material through computer systems, as well as of racist and xenophobic-motivated threats and insults. Article 6, Section 1 of the Protocol specifically covers the denial of the Holocaust and other genocides recognized as such by other international courts set up since 1945 by relevant international legal instruments. Section 2 of Article 6 allows a Party to the Protocol at their discretion only to prosecute if the offense is committed with the intent to incite hatred, discrimination or violence; or to make use of a reservation, by allowing a Party not to apply — in whole or in part — Article 6.

The Council of Europe Explanatory Report of the Protocol states the "European Court of Human Rights has made it clear that the denial or revision of 'clearly established historical facts — such as the Holocaust — [...] would be removed from the protection of Article 10 by Article 17 of the ECHR. . . ."