International approaches to the regulation of Al

Transcription

International approaches to the
regulation of Al-Manar Television
and terrorism-related content
Research report commissioned by the
Australian Communications and
Media Authority
Prepared by Associate Professor Ben Saul
and Dr Daniel Joyce, the Sydney Centre for
International Law at the Faculty of Law,
The University of Sydney
communicating | facilitating | regulating
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Published by the Australian Communications and Media Authority
Sydney Centre for International Law
Faculty of Law
Final Report for the Australian Communications Media Authority
International Approaches to the Regulation of
Al-Manar Television and Terrorism-related Content
Associate Professor Ben Saul and Dr Daniel Joyce
June 2010
Contents
Executive Summary
1.
2.
3.
4.
5.
i
Structure and Methodology of the Report
General Observations and Themes
Part One – Highlights
Part Two – Highlights
Areas for Further Research
Part One: Survey and Comparative Analysis of International Regulatory Approaches to Al-Manar Television Programming
1
United States ……………………………………………………………..…
2
1.
2.
3.
4.
5.
Immigration Law Restrictions
Terrorist Financing Measures
Criminal Prosecutions
Civil Litigation
Online Availability
Canada ………………………………………………………………………
8
1. Comparable Situations
2. Online Availability
European Union …………………………………………………………….
9
United Kingdom ……………………………………………………………
10
France …………………………………………………………….…………
10
1. Initial Regulatory Responses
2. The French Ban
10
12
The Netherlands ……………………………………………………………
13
Spain ………………………………………………………………………...
13
Germany …...………………………………………………………..............
13
Israel ………………………………………………………………………...
14
Part Two: International and Comparative Regulatory
Approaches to Terrorist-Related Content
International Law Frameworks …………………………………………...
1.
2.
3.
4.
International Law and Media Regulation
International Satellite Regulation
Hate Speech and Vilification
International Anti-Terrorism Law
United States ……………………………………………………………..…
1. Media Regulation
2. Hate Speech and Vilification
3. Anti-Terrorism Law
Canada ………………………………………………………………………
1. Media Regulation
2. Hate Speech and Vilification
3. Anti-Terrorism Law
Europe …………………..………………..…………………………………
1.
2.
3.
4.
A Pluralist Approach to Media Regulation
The EU Audio-Visual Media Services Directive
Anti-Terrorism Law
United Kingdom ……………………………………………………………
1.
2.
3.
4.
The Media Regulatory Framework
Public Service Broadcasting
Anti-Terrorism Law
Conclusion: Related Areas for Further Research
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Executive Summary
1.
Structure and Methodology of the Report
This r eport s urveys and unde rtakes a c omparative a nalysis of i nternational r egulatory
approaches t o A l-Manar T elevision i n t he United States, U nited Kingdom, C anada a nd
Europe. In doi ng s o i t adopts a t wo p art s tructure. In Part One, the r eport s urveys of
international r egulation of A l-Manar i n a num ber of key jurisdictions, n amely: th e U nited
States; C anada, E uropean U nion; U nited K ingdom; F rance; T he N etherlands; S pain;
Germany and Israel. Here the focus is on the ways in which law and policy frameworks have
responded to r egulate A l-Manar i n bot h dom estic a nd r egional c ontexts. T his pr ovides a
useful comparative context for regulation options in Australia.
In Part Two, the fo cus s hifts fro m specific r egulatory responses t o Al M anar to t he
international an d co mparative r egulatory frameworks and opt ions for d ealing with terroristrelated co ntent more g enerally. Here t he em phasis is o n in ternational s tandards relating to
broadcasting (particularly by satellite), hate expression, and incitement to terrorism.
The report examines international and regional law, as well as legal approaches to terroristrelated content i n t he U nited S tates, C anada, E urope a nd t he U nited K ingdom. The report
incorporates a legal and policy perspective, drawing on case law, legislation and treaties, but
mindful that t his i s an em ergent, d ynamic a nd e volving area o f i nternational an d d omestic
regulation. The material in Part Two is detailed and intends to provide a rich international and
comparative perspective to inform domestic policy makers and regulators in Australia.
Methodologically t he approach t aken i s co mparative, analytical an d l egal. A v ariety o f
jurisdictions a re e xamined a nd regulation i s e xplored a t bot h t he t heoretical a nd p ractical
levels. A m edia l aw f ocus i s c ombined w ith a n international l aw l ens w hich br ings hum an
rights and security considerations into view.
2.
General Observations and Themes
A number of j urisdictions have taken action to r egulate A l-Manar t elevision in r esponse t o
offending c ontent. Such action ha s be en bot h d omestic, a nd i n t he c ase of t he E uropean
Union, regional in approach. In the EU a regional regulatory context has seen France’s initial
action i n ba nning A l-Manar f ollowed i n ot her European jurisdictions and ha s pr ovided a
strong ba sis f or r egulation a cross bor ders. The response has be en l argely t o f ocus on A lManar as a s atellite te levision s tation w ith th e d ifficulties th at th is p oses in te rms o f
transnational broadcasting and spill over. However, as discussed below, little has been done
yet t o r egulate A l-Manar as content w hich i s n ow al so av ailable o ver t he i nternet. Further
research is needed in this emergent area.
Several broader regulatory themes emerge. Firstly, in all of the foreign jurisdictions surveyed,
human r ights l aw provides a core m inimum f ramework t hrough w hich t o a nalyse t he
competing i nterests a t s take, w hether be cause hum an r ights pr inciples a re c onstitutionally
entrenched, e mbodied i n s tatutes, or ot herwise s tructure r egulatory approaches and i nform
public policy responses. In particular, the central importance of freedom of expression (which
encompasses media freedoms) and freedom of religious expression are the starting points in
regulatory a pproaches, followed b y a d etailed, s tep-by-step analysis o f th e p ermissible
limitations on such freedoms in a democratic society.
i
The European, British and Canadian human rights case law relating to both hate speech and
incitement to v iolence (including te rrorism) provides a careful, s ensitive and s tructured
framework for b alancing c ompeting in terests. Human r ights la w its elf r ecognises th e
importance of s ecurity i mperatives a nd pr ovides m echanisms fo r p rotecting s uch i nterests,
while at the same time establishing a minimum ‘floor’ of protection for individual rights.
Secondly, there i s a t rend t owards r egional a nd trans-border approaches t o w hat i s a
transnational problem, as illustrated by efforts at converged media regulation in the European
Union. In part, such convergence is a function of the close proximity of European countries,
but also a response to the transnational reach of satellite and internet technologies as well as
closer economic, political and social integration in the European communities.
Thirdly, there is evidence of emerging norms regarding an ‘international media law’, yet this
remains an ar ea o f l argely ‘soft la w’ and di plomacy, with a m ixture of public a nd pr ivate
actors en gaged in finding regulatory s olutions t o t he shared r isks posed b y harmful me dia
content. At times this has seen satellite providers making significant decisions in consultation
with g overnments a nd r egulators, resulting in th e r emoval of A l-Manar f rom s atellite
services, although t his carries r isks o f s elf-censorship i n t hose c ircumstances w here no
structured legal decision-making process (with attendant safeguards) is followed.
Fourthly, outside the broadcast licensing arena, other emerging frameworks for the regulation
of terrorist-related content are of increasing significance, with the US providing a useful case
in poi nt of a t errorism-focused ap proach t o r egulating A l-Manar (including t hrough
immigration c ontrols, pr oscription of or ganisations, a nti-financing measures, c riminal
prosecutions, and civil litigation).
A final cross-cutting theme is that of convergence and co-regulation of media regulation and
whether t his i s t he be st approach t o t ake to t he regulation of a udio-visual and ne w media.
Regulation ha s t ended t o f ollow t echnological de velopments, r esulting i n a n a d ho c
patchwork of s ometimes i ncomplete or i nconsistent r egulation a cross t he m edia s pectrum.
Disparity, r ather t han uni formity, i s a s triking f eature of r egulatory a pproaches be tween
different media (from print to radio, television and internet) as well as between forms of the
same media type (such as between analogue, digital, cable, satellite, or internet television).
3.
Part One – Highlights
• In the United States, Al -Manar h as b een d esignated as a ‘ terrorist o rganization’
because o f its association with Hezbollah. This led immediately to its removal from
Intelsat and to the end of its broadcasts into the American media space. Al-Manar has
also be en b anned und er laws t o pr event t errorist fi nancing. Related m easures i n U S
law have included the imposition of immigration restrictions on those involved with
Al M anar an d two c riminal pr osecutions for Al M anar pe rsonnel f or pr oviding
‘material support’ for Hezbollah. However, Al-Manar remains available online.
• In Canada, the actions taken in the US resulted in Al-Manar ceasing to be broadcast
into Canada via satellite, although again it remains available online. Canada itself has
not, however, taken legal measures against Al-Manar, nor has it needed to given that
there has been no application to broadcast it and there is no spill over from the US.
• In Europe, the p an-European approach h as be en t o s upport t he a ction taken b y
France i n b anning A l-Manar from E utelSat o n the grounds of ha te speech. T he
broader E uropean legal framework ( previously the Television Without Frontiers
ii
Directive, no w t he Audio Visual Media Services Directive) m eant t hat F rance’s
actions a gainst A l-Manar ha d a w ider e ffect a nd r esulted i n a ction b y E uropean
regulators which effectively produced a Europe-wide ban on Al-Manar broadcasts.
• In particular European countries, The N etherlands b anned Al-Manar pursuant t o
the E uropean f ramework, as did Spain. In G ermany t he basis for banning Al-Manar
involved both the European framework and domestic constitutional law. The United
Kingdom has not, however, taken specific action against Al Manar.
• Israel has a dopted the most a ssertive n ational response to A l M anar b y militarily
attacking Al-Manar facilities in the context of an armed conflict in Lebanon in 2006.
4.
Part Two – Highlights
International Regulatory Developments
• An international law of the media is emerging which is largely infrastructure rather
than c ontent focused, b ut a lso touches on hum an r ights c onsiderations i ncluding
notions of pe aceful b roadcasting an d f reedom of ex pression. In a ddition t here h as
been a r evival of efforts to create an information society framework for international
media r egulation, with r enewed a ctivity b y t he International T elecommunications
Union (ITU) and UNE SCO. The ITU i s also i nvolved i n s atellite r egulation t hough
again t he f ocus i s l argely i nfrastructural. Nevertheless, space l aw norms are o f
potential relevance to satellite regulation. International approaches are supplemented
by regional efforts to regulate broadcasting in Europe and amongst Arab states.
• International, regional and national human rights law has been of critical practical
significance i n guiding r egulatory a pproaches a nd out comes, especially regarding
broadcasts i nvolving h ate s peech a nd racial o r r eligious vilification. Free s peech
standards permit necessary limitations on e xpression a nd t he m edia i n a ccordance
with the i nternational hum an r ights treaties and r elevant j urisprudence. These ‘ best
practice’ standards can inform domestic regulatory approaches in Australia, as well as
relevant cl assification f rameworks an d sedition, anti-vilification and an ti-terrorism
offences in Australia.
• An emerging international anti-terrorism law authorises n ational a uthorities to
enact d omestic me asures a gainst te rrorist f inancing ( including th e p roscription o f
terrorist or ganisations), incitement t o t errorism, a nd p ropaganda for war, although
always subject to prevailing human rights standards. The international legal measures
also provide guidance on what can be considered as falling within the legal concept of
‘terrorism’, and what properly lies outside it and should not be restricted by law.
Domestic Regulatory Approaches
• In the United States, the regulation of broadcast content is quite limited, reflecting
the hi gh d egree of pr otection f or f ree s peech unde r t he U S C onstitution. T he
regulator, the Federal Communications Communication, instead has a primary focus
on technical standards in licensing satellites. There is little room in the US tradition
for hate speech laws, though violent hate speech is prohibited in limited ways, and US
anti-terrorism law provides other ways of dealing with related terrorist harms.
• In Canada, satellite te levision is r egulated by t he Canadian R adio-television a nd
Communications C ommission ( CRTC) under r elevant br oadcasting l egislation.
iii
Decisions regarding the licensing of Al-Jazeera are explored in detail to illustrate the
range of c onsiderations a nd r easoning w hich w ould l ikely i nform r egulatory
approaches t o A l M anar ( and l ike s ervices) i n C anada. The d ecisions f ocus
particularly on ba lancing the harms of abusive comment in relation to the benefits of
free expression. The CRTC responded to concerns by issuing a license with specific
conditions regarding the regulation of abusive content.
• Also i n C anada, hate s peech o ffences h ave b een upheld a s lawful r estrictions o n
constitutional protections of f reedom o f e xpression ( in c ontrast to th e U S). T he
approach taken to free speech is closer to that taken in Europe, where limits as regards
hate s peech an d i ncitement ar e p ermissible w here t hey ar e necessary in pur suit of a
legitimate aim a nd th ey a re p roportionate r esponses in a chieving th at a im. Canada
also permits the seizure and forfeiture of hate propaganda and also has a range of new
anti-terrorism laws which might be relevant in responding to entities like Al Manar.
• In Europe, a r egional a pproach t o m edia r egulation e mphasises pl uralism a nd t he
media’s role in democracy. The EU’s Audio Visual Media Services Directive aims to
be flexible and technology-neutral and also to ensure freedom of reception within the
EU, subject to li mits for child pr otection a nd combating incitement. T he E uropean
human r ights j urisprudence r egarding f ree s peech, h ate s peech, vilification and
terrorist in citement is a lso of significance and i s e xplored i n de tail. T he E uropean
cases are p articularly u seful in s etting o ut general p rinciples w hich a re relevant in
assessing r estrictions on f reedom of t he m edia de signed t o c ombat ha te s peech or
terrorism. Relevant European measures to combat terrorism as also considered.
• In the United Kingdom, the media regulatory framework under which the converged
regulator, t he O ffice of Communications (Ofcom), operates and t he w ays i n w hich
violent or of fensive c onduct is r egulated w ithin a tr adition o f public s ervice
broadcasting. U K l aw contains various of fences of r acial or r eligious hatred w hich
potentially apply to broadcasting. The UK also has a r ange of relevant anti-terrorism
laws, t he m ost p ertinent of w hich a re of fences o f ‘ encouragement o f t errorism’ a nd
‘dissemination of terrorist publications’.
5.
Areas for Further Research
As explained at t he e nd of t his r eport, concerns r elating to Al M anar a nd s imilar e ntities
would benefit from further research and analysis on a number of related issues:
• International a nd comparative a pproaches t o the r egulation of
involving offensive, hateful, or terrorist material;
online c ontent
• The i ncreasing c onvergence of di fferent m edia a nd i mplications, a dvantages a nd
disadvantages of greater convergence of regulation regarding offending material;
• The use of classification and censorship regimes for dealing with offending material
and its connection to broadcast licensing and other regulatory frameworks.
iv
Part One
Survey and Comparative Analysis of International
Regulatory Approaches to Al-Manar Television: United
States, United Kingdom, Canada and European Union
Introduction
A s urvey an d comparative an alysis o f co mparable d emocratic j urisdictions r eveals t hat A l
Manar has previously been: (1) directly prohibited from broadcasting in some countries; (2)
indirectly prevented from broadcasting in some countries because of restrictions placed upon
its transmission in other countries; and (3) not regulated at all in yet other countries.
In the United States, Al-Manar has b een d esignated as a ‘terrorist organization’ for inciting
terrorism, which led immediately to its removal from Intelsat and to the end of its broadcasts
into A merican m edia s pace. Al M anar h as al so b een s eparately p rohibited as a t errorist
organisation unde r US a nti-terrorism f inancing la ws, a s a r esult o f its r elationship to
Hezbollah, a nd t wo pe ople ha ve be en c onvicted f or r elated c riminal of fences of pr oviding
‘material support’ via Al Manar to the terrorist organization Hezbollah.
While Canada has not taken legal measures against Al-Manar, it no longer reaches Canada as
a result of the US measures, although it remains available online
In Europe, w hile F rance h ad initially licensed A l M anar on c ondition that i t r efrain f rom
inciting vi olence o r ha tred, A l M anar’s s ubsequent br oadcasting of a nti-Semitic e xpression
resulted in its prohibition from distribution by EutelSat in France.
The broader European framework (then the Television Without Frontiers Directive, now the
Audio Visual Media Services Directive) h as m eant t hat F rance’s act ions ag ainst A l-Manar
have ha d a w ider e ffect a nd ot her E uropean c ountries s uch a s G ermany, S pain a nd t he
Netherlands have since acted to ban the station. The Netherlands has moved to ban the station
pursuant t o t he E uropean f ramework, as ha s S pain. In G ermany t he b asis f or ba nning A lManar i nvolved bot h t he E uropean framework and i ts dom estic c onstitutional l aw. The
United Kingdom has not taken specific action against the station.
1
United States
1.
Immigration Law Restrictions
1.1
Designation of Al-Manar as a ‘terrorist organization’
On 17 D ecember 2004, Al-Manar was p laced on t he ‘ Terrorist E xclusion List’ by t he U S
Secretary of State, 1 acting u nder s 212 o f the Immigration and Nationality Act (US). 2 That
provision pe rmits t he Secretary of S tate t o designate a n or ganization a s a ‘ terrorist
organization’ after a ‘finding’ that the organization engages in terrorist activity.
The statute defines at length what it me ans to ‘engage in terrorist activity’, 3 which refers to
where a person or member of an organization:
• commits or incites to commit a terrorist activity, with an intention to cause death o r
serious bodily injury;
• prepares or plans a terrorist activity;
• gathers information on potential targets for terrorist activity;
• solicits funds for a terrorist activity;
• solicits others to join as a member of a terrorist organization; or
• provides material support to further terrorist activity.
The statute separately defines ‘terrorist activity’ as any activity that is unlawful under US law
or the laws of the place of the conduct and involves: 4
• hijacking or sabotage of an aircraft, vessel, vehicle or other conveyance;
• hostage taking;
• a violent attack on an internationally protected person;
• assassination;
• the us e of a ny bi ological a gent, c hemical a gent, nuc lear w eapon or de vice, or
explosive, f irearm, or o ther w eapon or da ngerous de vice with i ntent t o e ndanger
people or property; or
• a threat, attempt, or conspiracy to do any of the foregoing.
1.2
Designation Procedure
Procedurally the Secretary of State is required either to consult with the Attorney General or
Secretary of Homeland Security, or alternatively to act upon their request. 5 The designation
1
US Federal Register, volume 69, number 242, Friday 17 D ecember 2004, Notices – US Department of State,
Public Notice 4935, ‘Determination Pursuant to Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act, as Amended, Placing Al-Manar on the Terrorist Exclusion List’.
2
Specifically, under s. 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act, as amended (INA), 8 USC
1182(a)(3)(B)(vi)(II). The provision derives from s. 411 of the USA Patriot Act 2001, 115 Stat. 346, Public Law
107–56—26 October 2001.
3
Immigration and Nationality Act, s. 212(a)(3)(B)(iv)(I)-(VI).
4
Immigration and Nationality Act, s. 212(a)(3)(B)(iii).
5
Immigration and Nationality Act (US), s. 212(a)(3)(B)(vi)(II).
2
takes effect upon publ ication in the Federal Register. 6 In practice, relevant agencies (such as
the S tate D epartment, D epartment o f J ustice, an d i ntelligence b odies) p repare an
‘administrative record’, comprising classified and open source information, which is provided
to the Secretary of State for decision whether to designate the organization. 7
Designation is thus an executive process rather than a judicial decision. Designation requires
only t hat t he S ecretary of S tate p ublish i t i n the F ederal R egister. T here ar e o therwise n o
specified requirements of due process, such as advance notice to an affected organization, an
opportunity t o be h eard, di sclosure of adverse evidence, or a s tatement of r easons. The
published designation of Al-Manar as a terrorist organization states simply as follows:
Acting u nder th e a uthority o f s ection 2 12(a)(3)(B)(vi)(II) of th e I mmigration a nd N ationality Act, a s
amended (INA), 8 U.S.C. 1182(a)(3)(B)(vi)(II), and in consultation with the Attorney General and the
Secretary o f Homeland S ecurity, t he S ecretary o f State has co ncluded t hat Al-Manar is a “ terrorist
organization” within the meaning of that section of the INA. 8
A First Amendment (free speech) challenge to the constitutionality of the designation of AlManar was dismissed in February 2009: see Hafed v US State Department, 2009 WL 559691
(D.D.C.), 5 F ebruary 20 09. In t hat c ase, t he pl aintiff, a prisoner i n US c ustody, had s ought
judicial r eview o f th e lis ting o f A l-Manar a s a t errorist or ganization ( under 8 U SC
1189(c)(1)). T he pl aintiff, a s a vi ewer of Al-Manar pr ograms, w as f ound t o l ack l egal
standing t o b ring t he a ction. H e had al so brought i t i n t he w rong c ourt, since th e s tatute
nominated the US Court of Appeals for the District of Columbia as the court of review.
1.3
Reasons for the Designation
While the notice in the Federal Register does not reveal the reasons for t he designation, o n
the day of publication the US Department of State announced that:
The designation is to put Al-Manar Television on the terrorist exclusion list because of its incitement of
terrorist a ctivity. O ur la w s ays th at t he o rganization c an b e p ut o n th e li st if it c ommits or in cites to
commit any terrorist activity, and that is what we've found them. 9
Earlier on 9 December 2004 a US Department of State spokesperson had stated as follows:
we consider [Al-Manar] to be disgusting programming that preaches hatred and violence and ideals, or
– not ideals, ideas that are antithetical to the values which we believe in. 10
The U S de signation w as a lso i nfluenced b y a US be lief t hat Iran w as pa rtly f unding A lManar, and b y t he recent decision of t he French Council of S tate on 13 D ecember 2004 t o
prohibit the broadcasting of Al-Manar under laws against incitement to racial hatred. 11 On the
6
US D
epartment o
fS
tate,
‘Terrorist
Exclusion
List’, 29
D
ecember 2004,
www.state.gov/s/ct/rls/other/des/123086.htm
8
US Federal Register, volume 69, number 242, Friday 17 D ecember 2004, Notices – US Department of State,
Public Notice 4935, ‘Determination Pursuant to Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act, as Amended, Placing Al-Manar on the Terrorist Exclusion List’.
9
US S tate D epartment, Daily P ress B riefing ( Richard B oucher, Spokesman), Washington D C, 1 7 D ecember
2004, http://2001-2009.state.gov/r/pa/prs/dpb/2004/39934.htm.
10
US State Department, Daily Press Briefing (Adam Ereli, Deputy Spokesman), Washington DC, 9 D ecember
11
US Department of State, ‘United States Adds Al-Manar TV Network to Terrorism List: State Department says
programming pr omotes violence, h atred’, 17 D ecember 200 4, www.state.gov/s/ct/rls/other/des/123086.htm
(noting further that State Department department's report, Patterns of Global Terrorism 2003, cites Iran as the
most active state sponsor of international terrorism.)
7
3
day of the designation, a US Department of State spokesperson explained that it was designed
to confront propagandistic ‘incitement to terrorist violence’ on behalf of Hezbollah:
the fact is that Hezbollah is an active terrorist organization. People in the Middle East know as much as
we d o o f t he a ttacks t hey c arry o ut, t he weapons t hey s muggle, t he p eople t hey k ill, t he v iolent
opposition t o t he pe ace pr ocess, t he violent oppos ition to a P alestinian s tate that the P alestinians a re
peacefully trying to create.
Their television arm, as anybody who watches it can tell you, as they have told me, serves to incite that
kind of terrorist violence. And therefore, it's entirely logical that if we view Hezbollah as a terrorist
organization, which it is , th at th eir p ropaganda a ctivities th rough t his te levision s tation s hould b e
barred. It's not a question of freedom of speech. It's a question of incitement to violence, and we don't
see w hy, h ere o r an ywhere e lse, a t errorist o rganization s hould b e al lowed t o s pread i ts h atred an d
incitement through the television airwaves. 12
The background to the decision was a campaign from late 2002 onwards by a conservative US lobby group, the
Coalition against Terrorist Media, to ban Al-Manar on the basis that it promoted terrorism and anti-semitism. 13
1.4
Legal Consequences of Designation
The consequence of designating a terrorist organization under s 212 of the Immigration and
Nationality Act (US) is that an alien who engages in the terrorist activity of that organization
is in admissible to th e US a nd may thus be e ither r efused entry o r d eported. 14 The U S
Department of S tate gave t he f ollowing e xamples of c onduct, w hich a re dr awn from t he
definition of ‘terrorist activity’ in the statute:
What we h ave d one, t herefore, i s t o ex clude al iens who have cer tain – have associations w ith A lManar, based on the designation of the organization under the terrorist exclusion list. For example, an
alien would be found inadmissible, that is ineligible, for visas or subject to deportation if the alien is a
member o f Al-Manar, if a person solicits funds or other things of value for Al-Manar, if he provides
material support to Al-Manar, or solicits any individual for membership in Al-Manar.
So those individuals, individuals who carried out such activities on behalf of Al-Manar, are supporting
Al-Manar, or were part of the organization, will be excludable from the United States and not eligible
for visas because of that. 15
Individual decisions under US immigration law must still be made that an alien is involved
with a de signated t errorist or ganization s uch a s Al-Manar. D esignation operates t o obvi ate
the need for the authorities to prove in each case that Al-Manar is a terrorist organization on
the facts, and i nstead r efocuses t he i nquiry i n i ndividual cases on t he person’s i nvolvement
with the organization. Other provisions of US immigration law still allow aliens to be deemed
inadmissible for involvement in terrorist activity in circumstances where an organization has
not been designated as terrorist. 16
1.5
Cessation of American Broadcasting
On the day of the designation, Intelsat ceased broadcasting Al-Manar in the United States.
12
US State Department, Daily Press Briefing (Richard Boucher, Spokesman), Washington DC, 1 7 December
13
Maura Conway, ‘Terror TV? An Exploration of Hizbollah’s Al-Manar Television’, (2008) Working Paper 10,
Centre for International Studies, Dublin City U niversity, at 14, http://www.dcu.ie/~cis/PDF/publications/200810.pdf
14
15
US State Department, Daily Press Briefing (Richard Boucher, Spokesman), Washington DC, 1 7 December
16
See, for example, 8 USC 1182(a)(3)(B).
4
Subsequently, but f or u nrelated r easons, on 23 J une 2005 the S panish g overnment ceased
broadcasting A l-Manar i nto Latin A merica t hrough its s atellite c ompany, H ispasat. On 29
December 2 005, H ispamar, a Brazilian co mpany as sociated w ith H ispasat, ceas ed
broadcasting Al-Manar into North and South America through its Amazonas satellite.
2.
Terrorist Financing Measures
2.1
Designation of Al-Manar as a ‘Specially Designated Global Terrorist Entity’
On 23 M arch 2006, the US Department of the Treasury designated Al-Manar as a ‘ Specially
Designated Global Terrorist entity’ pursuant to Executive Order 13224. 17 Al-Nour Radio and
the Lebanese M edia Group ( the p arent c ompany o f A l-Manar an d A l-Nour) were al so
designated. (Hezbollah was designated under Executive Order 13224 on 23 September 2001
and had been earlier designated by Executive Order 12947 of 25 January 1995 and by the US
Department o f S tate i n 1997. 18) Executive O rder 13224 w as i ssued on 23 S eptember 2001
pursuant t o a bundl e of authorizing statutes. 19 It was issued i n t he c ontext of a na tional
emergency proclaimed by President Bush after the 11 September 2001 terrorist attacks and to
give effect to United Nations financial sanctions against terrorist entities.
2.2
Designation Procedure
Under section 1 of Executive Order 13224, persons may be designated where: 20
• they are named in the Annex;
• the Secretary of State determines that they have committed or pose a significant risk
of c ommitting a cts o f te rrorism that t hreaten t he s ecurity o f U S nationals or t he
national security, foreign policy, or economy of the United States;
• the Secretary of the Treasury determines that they are owned or controlled by, or act
for or on behalf of other designated persons;
• the S ecretary o f t he T reasury d etermines t hat t hey assist i n, s ponsor, or pr ovide
financial, material, or technological support for, or financial or other services to or in
support of , a cts of t errorism or other d esignated persons, or they a re o therwise
associated with other designated persons.
Al-Manar w as not de signated i n t he Annex t o the or iginal E xecutive O rder of 2001. The
Secretary of the Treasury’s designation of Al-Manar on 23 March 2006 specified that that AlManar was ‘owned or controlled by’ the designed terrorist organization Hezbollah. 21
17
US Department of the Treasury, ‘US Designates al-Manar as a Specially Designated Global Terrorist Entity’,
23 March 2006, www.ustreas.gov/press/releases/js4134.htm.
18
Federal Register, volume 62, number 195, 8 O ctober 1997, pages 52649-52651, Notices: US Department of
State, Public N otice 2 612, ‘ Designation o f F oreign T errorist O rganizations, P ursuant to S ection 2 19 o f t he
Immigration and Nationality Act’.
19
Including the International Emergency Economic Powers Act (50 USC 1701), National Emergencies Act (50
USC 1601), s. 5 o f the United Nations Participation Act of 1945, as amended (22 USC 287c) and 3 U SC 301
(concerning P residential au thority t o d elegate p ower). S ee al so US D epartment o f S tate, ‘ Executive O rder
13224’, www.state.gov/s/ct/rls/other/des/122570.htm.
20
Executive Order 13224 of 23 September 2001, s. 1(a)-(d).
21
US Department of the Treasury, ‘US Designates al-Manar as a Specially Designated Global Terrorist Entity’,
23 M arch 20 06, w ww.ustreas.gov/press/releases/js4134.htm. Under s ection 7 of E xecutive O rder 132 24, t he
Secretary o f the Treasury is further authorized t o take s uch a ctions, including the promulgation of rules a nd
regulations, a nd t o e mploy al l p owers g ranted t o t he P resident b y I EEPA an d U NPA as may b e n ecessary t o
carry out the purposes of the order.
5
Due to the possibility of instantaneously transferring funds or assets, section 10 of Executive
Order 13224 declares that giving prior notice to affected persons of the proposed measures to
be taken is unnecessary, since it would render such measures ineffective.
2.3
Reasons for the Designation of Al-Manar
In designating Al-Manar, the US Department of Treasury stated that ‘[a]ny entity maintained
by a terrorist group – whether masquerading as a charity, a business, or a media outlet – is as
culpable as the terrorist group itself’. 22 Specifically, the US stated that Al-Manar:
• employed multiple Hezbollah members, including for covert surveillance purposes;
• supported fundraising a nd r ecruitment e fforts b y H ezballah, i ncluding t hrough
broadcasting advertisements and commercials, s oliciting donations over the i nternet,
and publicizing a Hezbollah military recruitment invitation;
• provided support to other designated Palestinian terrorist organizations, including the
Palestinian Islamic Jihad (PIJ) and al Aqsa Martyrs Brigade, particularly by providing
money to charities controlled by PIJ (which is itself designated by the US and EU);
• was financially controlled by the Hezbollah Secretary General and Executive Council;
• was p art o f t he Lebanese M edia Group, m ajor s hareholders of w hich ha ve be en
prominent Hezballah members. 23
2.4
Legal Consequences of Designation
Order 13224 requires t he bl ocking o f a ll pr operty a nd p roprietary i nterests of de signated
persons (including entities) that are within the United States or come within the possession or
control of the US. 24 According to the Department of State:
The O rder provides a means by which t o di srupt t he financial s upport network for t errorists a nd t errorist
organizations b y a uthorizing t he U.S. go vernment to designate and block the assets of foreign individuals
and entities that commit, or pose a significant risk of committing, acts of terrorism. In addition, because of
the pervasiveness and expansiveness of the financial foundations of foreign terrorists, the Order authorizes
the U .S. government to bl ock t he a ssets o f i ndividuals a nd e ntities t hat pr ovide support, s ervices, or
assistance to, or otherwise associate with, terrorists and terrorist organizations designated under the Order,
as well as their subsidiaries, front organizations, agents, and associates. 25
Certain violations of the statutes authorizing Order 13224 constitute criminal offences. Under
section 5(b) of the United Nations Participation Act of 1945, 26 a person may be fined up t o
$10,000 and/or imprisoned for up to ten years, where the person wilfully violates or evades or
attempts t o e vade t he O rder. F urther, unde r t he International E mergency Economic P owers
Act, a pe rson w ho w ilfully vi olates t he O rder m ay b e f ined up t o US$1 m illion a nd/or b e
imprisoned for up to 20 years (see 50 USC 1705).
22
US Department of the Treasury, ‘US Designates al-Manar as a Specially Designated Global Terrorist Entity’, 23 March 2006, www.ustreas.gov/press/releases/js4134.htm.
23
Ibid.
24
Executive Order 13224 of 23 September 2001, s. 1.
25
US Department of State, ‘Executive Order 13224’, www.state.gov/s/ct/rls/other/des/122570.htm.
26
As amended (22 USC 287c).
6
3.
Criminal Prosecutions
There have been two criminal prosecutions in the United States involving Al-Manar. On 23
December 2008, a P akistani c itizen, Javed Iqbal, pl eaded guilty t o know ingly pr oviding
‘material s upport or r esources’ t o a de signated f oreign t errorist or ganization, H ezbollah, i n
violation of 18 USC 2339B. Hezbollah had been designated as a foreign terrorist organization
since 1997 under s 219 of the Immigration and Nationality Act, which provides the basis for
designating an organization in connection with that offence.
The of fence of pr oviding m aterial s upport or r esources t o a t errorist or ganization unde r 18
USC 2339B is defined by reference to the definitions in 18 USC 2339A(b) as follows:
(1) the t erm “material s upport o r r esources” m eans a ny p roperty, t angible o r i ntangible, o r s ervice,
including currency or monetary instruments or financial securities, financial services, lodging, training,
expert ad vice o r as sistance, s afehouses, f alse d ocumentation o r id entification, c ommunications
equipment, f acilities, weapons, le thal substances, e xplosives, p ersonnel ( 1 o r more in dividuals who
may be or include oneself), and transportation, except medicine or religious materials;
(2) the term “training” means instruction or teaching designed to impart a specific skill, as opposed to
general knowledge; and
(3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical
or other specialized knowledge.
Iqbal operated a US company which provided satellite television services to US customers. In
January 2005 he obt ained a l icence to br oadcast from t he U S F ederal C ommunications
Commission. In h is P lea A greement, 27 Iqbal a ccepted t hat b etween September 2005 and
August 2006 he : (1) pr ovided a nd a greed t o p rovide s atellite t ransmission s ervices a nd
equipment to Hezbollah’s television station, Al-Manar; and (2) engaged in and conspired to
engage i n pr ohibited t ransactions a nd de alings with H ezbollah a nd A l-Manar, t hrough t he
provision of satellite transmission services and equipment. Iqbal was sentenced in April 2009
by the US District Court for Southern New York to 69 months in prison.
The legal basis of Iqbal’s conviction was his support for the designated terrorist organization
Hezbollah r ather t han A l-Manar, a lthough on t he f acts Al-Manar w as v iewed as cl osely
connected to Hezbollah. In exchange for his plea, other charges, some relating specifically to
Al-Manar, were withdrawn. In respect of Hezbollah, Iqbal had earlier been charged with: (1)
violating, 28 and conspiracy to violate, 29 the United Nations Participation Act of 1945.
In respect of Al-Manar, Iqbal had been charged with violating, 30 and conspiracy to violate, 31
the UN Participation Act of 1945. An earlier indictment had also alleged that he conspired to
violate International Emergency Economic Powers Act 32 by supporting Al-Manar. Those
charges a ccording c oncerned c riminal vi olations o f t he t errorism f inancing l aws,
discussed earlier, under which Al-Manar had been designated as a terrorist organization
in 2006. Those c harges we re, h owever, wi thdrawn a s a r esult o f t he p lea a greement,
which focused instead on convicting Iqbal for his related association with Hezbollah.
27
Letter from US Department of Justice to Joshua Dratel of 19 D ecember 2008, signed by Javed Iqbal on 23
December 2008, www.investigativeproject.org/documents/case_docs/834.pdf.
28
Contrary to 22 USC 287c, 18 USC 2 a nd Executive Order 13224). See US District Court for Southern New
York, S uperseding I ndictment of J aved I qbal a nd S aleh E lahwal, 20 J
une 2007, www.investigativeproject.org/documents/case_docs/789.pdf
29
Contrary to 22 USC 287c and 18 USC 371.
30
Contrary to 22 USC 287c, 18 USC 2 and Executive Order 13224.
31
Contrary to 22 USC 287c.
32
Contrary to 50 USC 1705(b) and 18 USC 371.
7
Iqbal’s co -defendant, S aleh E lahwal, w ho o perated th e s atellite te levision c ompany with
Iqbal, a lso pl eaded guilty t o t he of fence of pr oviding m aterial s upport or r esources t o
Hezbollah as a designated terrorist organization. On 23 June 2009, Elahwal was sentenced to
17 months in prison and ordered to pay a fine of US$7,500, serve 200 ho urs of community
service, and submit to three years of supervised release. 33
4.
Civil Litigation
Al-Manar w as na med i n uns uccessful c ivil pr oceedings br ought i n t he US a gainst f oreign
banks alleged to have financed terrorism by the Hezbollah. The case of Tamam v Fransabank
Sal, 2010 WL 21088 (SDNY) involved a claim by 57 Israeli citizens who were injured in, or
survived f amily me mbers k illed in , missile a ttacks b y Hezbollah. T he c laim w as br ought
under t he Alien T ort C laims A ct ( ATCA) a gainst f ive f oreign b anks, alleging th at their
provision of f inancial s ervices t o pa rties a ssociated w ith Hezbollah constituted te rrorism
financing as well as conspiracy and aiding and abetting the organization to commit genocide,
crimes against humanity, war crimes, and terrorism.
The c omplaint a lleged that A l-Manar ( and A l-Nour) f urthered t he t errorist m ission of
Hezbollah by broadcasting propaganda, raising money, and recruiting volunteers for it. One
of the banks in question had allegedly maintained an account and provided financial services
to Al-Manar and/or its parent company from 2003 to 2006.
The U S D istrict Court f or t he S outhern D istrict of N ew Y ork h eld t hat t he f ederal di strict
court di d not have j urisdiction over foreign banks under t he r elevant New York ‘long-arm’
statute, nor di d i t ha ve j urisdiction ove r ba nks unde r f ederal r ules o f c ivil pr ocedure
implementing federal long-arm jurisdiction over foreign defendants. 34 On the facts there was
no evidence to establish that any of the relevant monies had actually been transferred through
New York, which would have been necessary in order to establish jurisdiction there.
5.
Online Availability
Al-Manar TV remains available on the internet in the United States via its Lebanese website
address: http://www.almanar.com.lb/.
Canada
Al-Manar ha s not a pplied f or approval t o b roadcast f rom w ithin C anada a nd doe s not
maintain a presence there. In practice, the transmission of Al-Manar into Canada ceased on
17 December 2004 as a result of Intelsat ceasing to broadcast Al-Manar in the United States
on that date. Canada has not taken any legal measures against Al-Manar.
1.
Comparable Situations
The Canadian R adio-television a nd T elecommunications C ommission (CRTC) h as
previously authorised the addition of Al Jazeera to the list of eligible foreign satellite services
33
US Attorney S outhern D istrict of N ew York, ‘New J ersey M an S entenced t o 17 Months i n P rison f or
Providing M
aterial S
upport a
nd R
esources t
oH
ezbollah’, 23 J
une 200
9,
www.investigativeproject.org/documents/case_docs/1016.pdf. 34
Ibid.
8
for di gital di stribution i n C anada. The A rabic l anguage s ervice w as a pproved (subject to
conditions) on 15 July 2004 and the English service on 26 November 2009. 35
In those decisions the CRTC had an opportunity to consider allegations that Al Jazeera was
inciting ha tred, contempt or a buse on t he b asis of religion or e thnic o rigin, contrary t o
Canadian b roadcasting o bjectives an d o ther l egal s tandards. The C RTC pr ovided r easoned
justifications for its decisions and sensitively balanced the competing public interests at stake.
Many of t he i ssues di scussed i n t hose decisions would be potentially relevant t o any fu ture
consideration b y t he C RTC w hether t o a pprove Al-Manar i n C anada. The r egulatory
standards applied in those decisions are discussed in Part Two of this ACMA Project.
2.
Online Availability
Al-Manar TV remains available on the internet in Canada via its Lebanese website address:
http://www.almanar.com.lb/.
European Union
The c ontroversy over r egulating A l-Manar in Europe i nvolved a m ix of pr ivate, publ ic,
regional and international actors. 36 Al-Manar was a Lebanese broadcasting company set up in
1991, with established (though initially not formalised) links with Hezbollah. Its broadcasting
via satellite into France was characterised by critics as terrorism involving hate speech. The
broadcasts w ere considered anti-Semitic, c learly unlawful a nd da ngerous on t hose grounds.
France acted to ban Al-Manar from EutelSat the European Satellite service, and this was also
supported by the European Commission. France’s actions against Al-Manar are discussed in
further detail below.
At the time television broadcasting services in the European Union (‘EU’) were governed by
the rules set out in the ‘Television Without Frontiers Directive’. 37 Article 22a of the Directive
provided that: ‘Member States shall ensure that broadcasts do not contain any incitement to
hatred on grounds of race, sex, religion or nationality’.
In M arch 2005, f ollowing t he eruption of controversy about A l-Manar in F rance, t he
European Commission convened a meeting of the European Audiovisual Regulators (EPRA)
where it w as r eiterated th at article 22a of t he ‘ Television W ithout F rontiers Directive’
explicitly pr ohibited a ny br oadcast t hat i ncites h atred f or r easons of r ace, s ex, r eligion or
nationality and a greed t hat s uch provisions also apply t o t hird-country broadcasters us ing a
frequency, s atellite t ransmission capacity or an u plink t o a satellite belonging to a Member
State. 38 At t his m eeting, r egulators from 25 E U m ember s tates, t he candidate countries and
the countries of the European Economic Area agreed to exchange information to ensure that
35
See C RTC, B roadcasting P ublic N otice C RTC 2 004-51 (www.crtc.gc.ca/eng/archive/2004/pb2004-51.htm) and Broadcasting Regulatory Policy CRTC 2009-725 (www.crtc.gc.ca/eng/archive/2009/2009-725.htm).
36
Another example is the Kurdish PKK television service, ‘Med’ TV which has had various European homes in
its attempt to avoid or circumvent the Turkish government’s ban on its operations within Turkey.
37
‘Television Without Frontiers Directive (89/552/EEC), adopted on 3 O ctober 1989 and amended on 30 J une
1997 by European Parliament and Council directive 97/36/EC.
38
European P
arliament,
Parliamentary
Questions
–
Al-Manar
TV, av
ailable at
:
www.europarl.europa.eu/sides/getDoc.do?type=QT&reference=H-2005-0561&language=EN.
9
EU r ules ar e ap plied ef fectively. 39 This amounted to an effective b an o f the ch annel within
Europe as media regulators would no longer allow European satellites to carry the channel.
Subsequently, EPRA an d t he E U’s D irectorate-General on Information S ociety & M edia
have co -ordinated efforts to b an c ertain s atellite te levision s tations in cluding A l-Manar. 40
David G oldberg not es he re t he i nfluential r ole pl ayed b y t he U S-based l obby group t he
Coalition A gainst T errorist M edia. 41 The d ecision pur suant t o European l aw pr ohibits
‘incitement to hatred in broadcasting’. This encouraged European satellite providers Eutelsat,
Globecast, Hispasat and New Skies Satellite to cease transmission of the station. It also led to
action against Al-Manar in a number of EU member states as discussed below.
The c ase, t hough s uccessfully r esolved b y France a nd i n t he br oader E uropean c ontext,
revealed t he gaps t hat exist w ithin t he E uropean r egulatory f ramework. It i s es pecially
challenging w here th e p ossibility arises o f circumvention o f th e f ramework b y b roadcasts
from a t hird non -EU c ountry and illu strates the ne ed for stronger multilateral a nd
international c oordination. T here ha ve also be en a rguments f or t he c reation of a E uropean
Media Commissioner to remedy the effect of transborder hate speech and other threats to the
wider social and cultural vision of balanced and cohesive pluralism. In the meantime, EPRA
has continued to meet to discuss the issue and has established a restricted internet forum for
European regulators and the Commission to further co-ordinate their activities. 42
Let us now turn to consider the response of France acting within the framework of the earlier
‘Television W ithout F rontiers D irective’, and of t he s ubsequent a ction t aken i n s ome ot her
European member states against Al-Manar.
United Kingdom
We ha ve be en una ble t o f ind e vidence of di rect B ritish r egulation of A l-Manar t elevision
programming. T his in p art r eflects th e f act th at F rance h as ta ken th e r elevant a ction in
banning Al-Manar in a European context and that this action was followed up b y European
Union activity to ensure greater co-ordination of broadcasting authorities within the European
context to ban similarly offensive material. This case is discussed in further detail below. The
range of regulatory tools potentially available to the United Kingdom to respond to Al-Manar
is addressed in the Part Two below.
France
1.
Initial Regulatory Response
Controversy ov er t he br oadcasting of A l-Manar i n E urope cam e t o a h ead i n F rance. The
French a ction a gainst A l-Manar commenced af ter t he s tation b roadcast a S yrian-produced
39
EUROPA, European Broadcasting Regulators coordinate procedures to combat hate broadcasts in Europe,
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/05/325&format=HTML&aged= 0&language=EN&guiLanguage=en.
40
See further, David Goldberg, ‘Symposium: Comparative Law of Hate Speech: Europe Bans Terrorist Media:
What Sort of Antidote to Poisonous Voices?’ (2009) 17 Cardozo Journal of International and Comparative Law
445.
41
Ibid, 456-457.
42
Ibid, 456-460.
10
drama series entitled al-Shattat (‘The Diaspora’) in October 2003. The series was ‘based on
the c ontroversial t ext know n a s t he Protocols of the Elders of Zion, a 19 th-century
publication that depicts a Zionist conspiracy to take over the world’. 43 Maura Conway notes
that, ‘ the t ransmission o f t his s eries cau sed u proar i n F rance, w here i ncitement t o r acial
hatred and anti-Semitism is a criminal offence, and led France’s higher audiovisual authority
to instruct Al-Manar to change the tone of its programming or face a ban’. 44
In late 2003 f urther anti-Semitic programming led to accusations that it h ad violated French
broadcasting s tandards. This in itially c aused d ifficulty for t he r egulator, t he C SA ( Conseil
supérieur de l’audiovisuel) as Al-Manar ‘originated outside France, and outside the EU’. 45 In
December 2003 the regulator wrote of its concerns to Eutelsat. Subsequently the CSA and the
Paris-based E utelsat entered i nto a n a greement c oncerning r egulation of s uch s atellite
broadcasters. Eutelsat has been a French private company since 2 J uly 2001. Until then, the
status of E utelsat w as t hat of a n i ntergovernmental or ganisation, s o i t was not unde r t he
jurisdiction of any particular Member State.
The CSA asserted that because Eutelsat was a French company and uplinked Al-Manar, that
the CSA had competence to regulate the broadcasts under the ‘Television Without Frontiers
Directive’ a nd unde r F rench pr ess a nd i ncitement l aws. Domestic l aws were ch anged an d
these allowed the CSA to take Al-Manar to court. A new law on 9 July 2004 a lso gave the
CSA the power ‘to ban unlicensed TV channels’. 46 However, initially the courts ruled that AlManar could c ontinue b roadcasting ‘ as l ong a s it a dhered t o regulations’. 47 This l ed t o a n
agreement being r eached between the regulator and the broadcaster, giving Al-Manar a o ne
year license. In addition, reform of French freedom of the press laws introduced penalties for
those whose speeches provoke hatred, violence or discrimination in access to employment or
housing a gainst a pe rson or g roup of pe rsons o n g rounds of gender, s exual or ientation or
disability, or for those who insult or slander such persons or groups of persons. 48
Al-Manar entered i nto a one -year l icensing a greement w ith t he r egulator on 19 N ovember
2004. The c hannel w as required ‘not t o i ncite t o a cts or b ehaviour pun ishable b y l aw i n
France, to respect the political, cultural and religious sensitivities of the Europeans…, not to
broadcast pr ogrammes l ikely t o c ause pr oblems with publ ic or der…, t o respect a n hone st
representation of matters of conflict.’ 49
On 30 N ovember 2004 , in r esponse t o f urther o ffensive pr ogramming, the C SA d ecided t o
ban t he c hannel a nd t ook t he m atter t o c ourt. Al-Manar h ad ‘agreed n ot t o i ncite h ate,
violence or di scrimination on t he ba sis of r ace, s ex, r eligion, or n ationality’, but ha d
subsequently broadcast ‘commentary that Israel had spread the AIDS virus and other diseases
throughout t he A rab w orld a nd c alling f or w ar a gainst t he J ews a nd t he de struction o f
43
Centre for International Studies, Dublin City U niversity, at 15, http://www.dcu.ie/~cis/PDF/publications/200810.pdf.
44
Ibid.
45
Monroe Price, ‘Satellite T ransponders a nd F ree E xpression’ ( 2009) 27 Cardozo Arts & Entertainment Law
Journal 1 at 25.
46
Ibid, 25-26.
47
Elaine Sciolino, ‘A New French Headache: When Is Hate on TV Illegal?’, The New York Times, 9 December
2004.
48
Olfa Lamloun, ‘Hezbollah and the “Al-Manar affair”’ in Journalism Testing Legal Boundaries: Media Laws
and the Reporting of Arab News (London, 2 008), p . 6 , a vailable a t: < http://hal.archivesouvertes.fr/docs/00/37/35/60/PDF/Lamloum_Affair_manar.pdf>.
49
Ibid, 5-6.
11
Israel’. 50 This de cision a lso c oincided with pol itical a nd l obby group p ressure, w ith t he
French Prime Minister calling on 2 December for Al-Manar to be taken off the air. 51
2.
The French Ban
On 13 D ecember 2004 F rance’s highest administrative court, the Conseil d'État (Council of
State) decided that the p rograms Al-Manar broadcast ‘were in a militant context, with antisemitic connotations’ and banned t ransmission of t he s tation. 52 The de cision of t he court i s
274757 (available only in French). 53 This was in response to an invitation (pursuant to article
82 of t he LOI no. 2004-669 du 9 j uillet 2004 r elative aux communications électroniques et
aux s ervices de communication audiovisuelle) b y t he C SA t o consider w hether t he channel
should be banned from broadcasting.
The Court held that Al-Manar had violated the country’s laws against incitement to hatred or
violence and ordered the operators of the French satellite, Eutelsat, to cease broadcasting AlManar ove r i ts s atellites w ithin 48 hour s. The C ourt al so as serted t hat t he b roadcasts
constituted e xpressions of ha te s peech. T he C ourt ‘ cited t he L aw on F reedom of
Communication of September 30, 1986, w hich provides that the exercise of the freedom o f
communication to th e p ublic v ia e lectronic me ans ma y b e limite d in o rder to “ safeguard
public order”’. 54
In a subsequent case the Council of State considered that the CSA was right in ordering the
company E utelsat t o ce ase t he b roadcasting i n F rance o f t he Iranian television ch annel
SAHAR 1 because of its anti-Semitic programmes and incitements to racial hatred.
Satellite operators established in France are now obliged to make sure that the contracts they
conclude w ith t elevision s ervices w hich t hey allow t he us e of t heir networks m ake t he
broadcasting of pr ogrammes s ubject t o c ompliance w ith F rench s tandards, i n pa rticular t he
prohibition on the broadcasting of speech inciting to racial hatred.
In J anuary 2009 a s imilar i ssue a rose when Hamas’ A l-Aqsa T V a nnounced plans t o
broadcast i n E urope vi a E utelsat. The C SA ma de r epresentations to E utelsat s tating th at ‘ a
significant p roportion of A l-Aqsa T V’s p rogramming mig ht in fringe A rticle 5 o f th e la w
prohibiting incitement to hatred or violence on t he grounds of race, religion or nationality’. 55
The CSA was able to act by ‘virtue of Article 22 of the Law 2006-64 of January 23, 2006 on
combating t errorism, a mending t he Law of S eptember 30, 1986 on f
reedom of
communication.’ 56 This would enable the CSA to once again approach the Council of State to
interrupt of fending b roadcasts vi a a n e mergency pr ocedure. Before t his became necessary,
50
The Library of Congress, World Law Bulletin, January 2005 [1 WLB 2005], at 14.
‘France P ulls P lug on A rab N etwork’, B BC N ews, 14 D ecember 2004, h ttp://news.bbc.co.uk/go/pr/fr//2/hi/europe/4093579.stm.
52
Centre for International Studies, Dublin City U niversity, at 16, http://www.dcu.ie/~cis/PDF/publications/200810.pdf; I nternational F ederation of J ournalists, ‘ IFJ C ondemns F rench B an on A rab Television C hannel:
‘Censorship Just Adds to Intolerance’”, 15 December 2004, http://www.ifj.org/en/articles/ifj-condemns-frenchban-on-arab-television-channel-censorship-just-adds-to-intolerance-; ‘ France P ulls P lug on A rab N etwork’,
BBC News, 14 December 2004, http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/4093579.stm.
53
See http://www.conseil-etat.fr/cde/node.php?articleid=1096.
54
The Library of Congress, World Law Bulletin, January 2005 [1 W.L.B. 2005], at 13.
55
David Goldberg, ‘Symposium: Comparative Law of Hate Speech: Europe Bans Terrorist Media: What Sort of
Antidote to Poisonous Voices?’ (2009) 17 Cardozo Journal of International and Comparative Law 445, at 451452.
56
Ibid, 452.
51
12
Eutelsat negotiated with its distributing firm Noorsat, based in Bahrain, to remove Al-Aqsa
from Eutelsat, but David Goldberg suggests it may still be received in Europe via the Saudi
Arabian Arabsat and the Egyptian Nilesat. 57 Following the action taken in France a number of
European member states followed suit, in the context of greater European co-ordination.
Netherlands
On 21 M arch 2005 t he Dutch authorities ordered a halt to the transmission of Al-Manar via
the NSS (New S kies S atellites) as it d id not have a D utch l icense. T his d ecision w as t aken
pursuant t o t he ‘ Television W ithout F rontiers D irective’. J an va n C uilenburg, he ad of t he
Dutch M edia Authority ha s e xplained t he de cision a s f ollows: ‘ We s aw t hat a l-Manar w as
being tr ansmitted b y N ew S ky S atellite ( NSS). W e as sessed t hat al -Manar doe s not ha ve a
Dutch license ... and NSS will now take al-Manar from its satellite’ 58 The Netherlands has, in
short, pursued a licensing strategy in relation to prohibiting Al-Manar.
Spain
Similarly in line with the EU ‘Television Without Frontiers Directive’ the Spanish Ministry
of Industry, Tourism, and C ommerce, which ov ersees t he s tate-owned Hispasat, announced
that Al-Manar had been removed from broadcast as of 23 June 2005.
The S panish cas e i s an other E uropean ex ample w here r egulators h ave t aken act ion ag ainst
satellite pr oviders a nd r equired t he r emoval of Al-Manar f rom t heir s ervices. It i s pos sible
that the French initiative to put the issue on t he agenda at the meeting of the Council of the
European Ministers of Culture on M ay 23, 2005 l ed to a greater awareness among European
regulators of t his i ssue a nd t o t he s ubsequent a ction t aken. 59 This illu strates th e b enefits of
regional co -operation w ith r egards t o of fensive s atellite br oadcasts a nd s hows t hat E urope
and its Member States have provided important reference points and normative guidance for
other regulators.
Subsequently, the Spanish government ordered its satellite company, Hispasat, to cancel the
contract it signed with the French satellite company Globsat to broadcast Al-Manar programs
to Latin America. It should be noted that the contract did not include the broadcasting of AlManar in Spain.
Germany
A f inal E uropean ex ample i s G ermany w here G erman co nstitutional l aw and t he E uropean
Directive pr ovided t he f ramework for a d ecision t o ba n A l-Manar. Acting pur suant t o t he
‘Television Without Frontiers Directive’ on 11 November 2008, the German Federal Ministry
57
58
Coalition
Against T errorist M edia, ‘ Netherlands b ans A l-Manar’, J anuary 3 1
2006,
http://www.stopterroristmedia.org/News/DocumentSingle.aspx?DocumentID=13324.
59
‘France C alls f or E U B an o n H ezbollah's a l-Manar T elevision Coalition Against Terrorist Media Praises
Move,
Reiterates
Goal
of
Removing
al-Manar
Worldwide’,
25
May
2005,
www.defenddemocracy.org/index.php?option=com_content&task=view&id=11775419&Itemid=351.
13
of t he Interior ( Interior M inister W olfgang S chäuble) i ssued a G erman-wide ba n o f t he
operations of Al-Manar T V on t he grounds t hat i ts br oadcasts w ere i n vi olation of t he
German Constitution, specifically article 9 ( 2). T his refers to t he s ection of t he constitution
which prohibits any association whose actions threaten ‘international understanding’.
The Ministry stated that the ‘purpose and activity of Al-Manar TV is to support, advocate and
call f or t he u se o f v iolence as a m eans t o ach ieving p olitical and r eligious a ims.’ The b an
order f urther s tates th at, ‘ the a ctivity o f Al-Manar T V i mpairs an d t hreatens t he p eaceful
coexistence b etween G ermans an d f oreigners an d b etween d ifferent f oreign co mmunities in
Germany.’ It was also found that Al-Manar threatens ‘public security and order and further
significant interests of the Federal Republic of Germany’. 60
It is of interest that Germany pursued a constitutional approach to the banning of Al-Manar.
The r elevant pr ovision A rticle 9 concerning f reedom of association in th e G erman
Constitution is as follows:
(1) All Germans shall have the right to form corporations and other associations.
(2) Associations whose aims or activities contravene the criminal laws, or that are directed against the
constitutional order or the concept of international understanding, shall be prohibited.
(3) The right to form associations to safeguard and improve working and economic conditions shall be
guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek
to impair th is r ight s hall b e n ull a nd void; measures d irected to this e nd shall b e u nlawful. M easures
taken pursuant to Article 12a, to paragraphs (2) and (3) of Article 35, to paragraph (4) of Article 87a, or
to A rticle 9 1 may not b e d irected a gainst i ndustrial d isputes e ngaged i n b y a ssociations within t he
meaning o f t he first sentence o f t his p aragraph i n o rder t o safeguard a nd i mprove working a nd
economic conditions.
The use of this provision points the way for other member states to approach the issue of AlManar from a constitutional and human rights perspective. This will be further elaborated in
Part Two. It should be noted that some of those lobbying against the availability of Al-Manar
in Europe claim that the channel is still available in Germany via Arabsat and Nilesat, despite
the German ban prohibiting Al-Manar ‘from doing business in the country’. 61 This practical
issue as well as the issue of internet broadcasting will be dealt with further in Part Two.
Israel
Al-Manar i s not a uthorized t o br oadcast f rom w ithin Israel. T here are extensive pow ers i n
Israeli la w to d eal w ith te rrorist o rganizations. F or e xample, unde r t he Prevention of
Terrorism O rdinance N o. 33 of 5708 -1948 t here ar e p owers t o co nfiscate t he as sets o f
terrorist organizations and heavy criminal penalties for involvement in them, including where
a person delivers terrorist propaganda or praises, sympathises with, or encourages terrorism.
Al-Manar’s b roadcasts f rom Lebanon c an r each parts o f Israel b ut ar e o utside t he p ractical
reach o f Israeli d omestic la w. In s ome circumstances, Israel h as r esorted to mili tary a ction
against A l-Manar. In t he 2006 a rmed conflict between Israel a nd H ezbollah i n s outhern
60
Foundation f or t he D efence of D emocracies, 24 N ovember 20 08, ‘ European F oundation f or D emocracy
applauds G
ermany’s ba
n of
Al-Manar T
V’,
www.defenddemocracy.org/index.php?option= com_content&task= view&id= 11783816&Itemid= 105. S ee also
61
Mark D ubowitz a nd R oberta B onazzi, ‘ Jihad TV i n E urope’, The Wall Street Journal, 18 F ebruary 2009,
http://online.wsj.com/article/SB123490878778903321.html.
14
Lebanon, Israel r eportedly attacked t he A l-Manar he adquarters i n Beirut a nd t ransmission
towers el sewhere i n Lebanon. 62 Israel a lso ‘ hacked’ i nto A l-Manar’s s atellite b roadcasts t o
transmit anti-Hezbollah messages.
Under in ternational h umanitarian la w, me dia installations a nd e quipment a re o rdinarily
regarded a s c ivilian o bjects p rotected f rom milita ry a ttack. 63 Such obj ects onl y be come
military objectives subject to attack if they are used in direct support of military operations,
such as by transmitting military signals.
The me re tr ansmission o f p ropaganda d oes n ot ma ke a me dia o bject in to a milita ry
objective. 64 A media object may, however, become a lawful military target where it is used to
incite others to commit international crimes (such as war crimes, genocide or crimes against
humanity), 65 where such incitement makes an effective contribution to the hostilities.
62
International Federation of J ournalists, ‘IFJ Accuses Israel Over Pattern of T argeting After Strike on Beirut
Broadcaster’, 1 4 July 2006, w ww.ifj.org/en/articles/ifj-accuses-israel-over-pattern-of-targeting-after-strike-onbeirut-broadcaster; Committee to Protect Journalists, ‘Israeli forces strike Al-Manar TV facilities’, 13 July 2006,
http://cpj.org/2006/07/israeli-forces-strike-almanar-tv-facilities.php.
63
On the status of media personnel and objects under the law of armed conflict, see Ben Saul, ‘The International
Protection o f J ournalists i n Armed C onflict a nd O ther Violent Situations’ ( 2008) 1 4 Australian Journal of
Human Rights 99; A. B alguy-Gallois, “The P rotection o f J ournalists a nd N ews M edia P ersonnel in Armed
Conflict” (2004) 86 International Review of the Red Cross 37; H -P Gasser, “ The P rotection o f J ournalists
Engaged in Dangerous Professional Missions” (1983) No. 232 International Review of the Red Cross 3.
64
Final Report to the ICTY Prosecutor on the NATO Bombing of Kosovo (2000), paras. 47, 55, 74-76; see also
Reporters without B orders, “ Propaganda-Oriented Med ia an d I nternational H umanitarian L aw, Legal
Memorandum, J anuary 2 003; I nternational F ederation o f Avocats s ans F rontières, “A re TV s tations o r an y
media facilities legitimate military targets under International Humanitarian Law?”, Memorandum, Brussels.
65
Final Report to the ICTY Prosecutor 2000, ibid, para. 55. See also Prosecutor v Ruggiu (2000) ICTR-97-32-I;
Prosecutor v Nahimana (2003) IC TR-99-52-T; Julius Streicher case, International Military Tribunal at
Nuremberg (1947) 41 American Journal of International Law 293-32.
15
16
Part Two
International and Comparative Regulatory Approaches
to Terrorist-Related Media Content
Introduction
In b road t erms, a t t he i nternational l evel, t he p arameters of r egulation of A l M anar a nd
comparable entities are defined by an emerging international law of the media, international
human rights law (including restrictions concerning hate speech and incitement to violence),
and an evolving international anti-terrorism law.
The em erging international la w o f th e me dia is la rgely focused on r egulating infrastructure
rather t han c ontent, a lthough i t does t ouch upo n hum an r ights c onsiderations, including
notions of pe aceful br oadcasting a nd f ree s peech. In a ddition t here ha s be en a r evival o f
efforts t o create an i nformation s ociety framework f or i nternational m edia r egulation, with
renewed activity b y the International Telecommunications Union (ITU) and UNESCO. The
ITU i s also i nvolved i n s atellite regulation t hough again t he focus i s l argely i nfrastructural.
Nevertheless there are norms from international space law which are of potential relevance to
the regulation of satellites. International approaches have also been supplemented by regional
efforts to regulate broadcasting in Europe and amongst Arab states.
The international human rights framework has proved resilient and of practical significance
in guiding regulation, especially o f br oadcasts i nvolving ha te s peech a nd v ilification. Here
free speech standards are understood in the context of the necessary limits on free speech as
permitted in t he i nternational hum an r ights treaties and jurisprudence. The international
standards f orm t he ba ckdrop t o A ustralian regulatory ap proaches t o Al M anar an d l ike
entities, w hether th rough me dia r egulation, c lassification r egimes, te rrorism la ws, o r h ate
speech and anti-vilification offences.
Also of not e i s t he emergence o f i nternational anti-terrorism l aw, which authorises national
authorities to enact domestic measures against terrorist financing (including the proscription
of terrorist organisations), incitement to terrorism, and propaganda for war, although always
subject t o pr evailing hu man r ights s tandards. T he i nternational l egal m easures a lso pr ovide
guidance on w hat c an be c onsidered a s f alling w ithin t he l egal c oncept of ‘ terrorism’, a nd
what properly lies outside it and should not be restricted by law.
Next, a domestic focus is adopted by considering in detail the situation in the US and Canada.
Firstly, US m edia r egulation a nd t he r ole of t he F CC i n l icensing i s e xplored, with th e
conclusion that its approach is rather limited due reflecting the high degree of protection of
free speech under the US Constitution. Such a tradition has limited the scope of hate speech
and v ilification la ws as well as w ider regulation of m edia c ontent, unl ess vi olence i s be ing
directly incited. Various US anti-terrorism laws may, however, be relevant to Al Manar.
Satellite te levision r egulation in C anada is c onducted b y a f ederal r egulator under r elevant
broadcasting legislation. Decisions regarding the licensing of Al-Jazeera are explored in some
depth and could be of relevance to Al Manar or similar entities, especially in the balancing
17
exercise u ndertaken b etween t he h arms o f ab usive co mment an d t he b enefits o f f ree
expression. The Canadian regulator responded to concerns by issuing a license with specific
conditions regarding the regulation of abusive content, as a middle ground between banning
Al Jazeera altogether or permitting it without restriction. The Canadian approach is nuanced,
sophisticated, and sensitive to the delicate balance of interests at stake.
In addition, the Canadian approach to hate speech and vilification regulation is considered. In
Canada, hate speech offences have been held to be constitutional limitations on f reedom of
expression – in contrast to the US – and the approach taken to free speech is closer to that in
Europe, where l imits as r egards h ate s peech an d i ncitement ar e co nsidered n ecessary. An
offence regarding the seizure and forfeiture of hate propaganda is also considered. Like other
countries, Canada now also has a range of new anti-terrorism laws which might be applicable
and which are of comparative interest to the Australian context.
Next, t he f ocus t urns t o E urope w here a r egional a pproach t o m edia regulation i s t aken,
which e mphasises pl uralism a nd t he m edia’s r ole i n de mocracy. The relevant f ramework
examined in detail is the EU’s Audio Visual Media Services Directive. This framework aims
to be flexible and technology-neutral and also to ensure freedom of reception within the EU
subject to limits r eflecting concerns w ith c hild protection a nd in citement. The E uropean
human r ights j urisprudence r egarding f ree s peech, ha te s peech and vi lification i s of
significance also and is explored in detail, as are European free speech cases which intersect
with concerns over terrorism. The European approach is perhaps the most well developed of
any j urisdiction, pr oviding de tailed general pr inciples c oncerning t he s cope a nd l imits of
media f reedom (with s pecific r eference t o t he p articular ch aracteristics of a udio-visual
media), f reedom o f e xpression, a nd n ecessary r estrictions on expression. In a ddition,
European measures to combat terrorism are also considered.
The final jurisdiction considered is the United Kingdom. The report begins by examining the
media r egulatory framework unde r w hich t he c onverged r egulator O fcom ope rates a nd t he
ways in which violent or offensive conduct might be regulated. Also at issue is the tradition
of publ ic s ervice br oadcasting. UK l aw allows f or v arious o ffences o f racial hatred w hich
might have potential application to broadcasting along with religious hatred offences. As with
other countries and j urisdictions examined, t he UK has a range o f applicable anti-terrorism
laws, which are examined in some detail.
18
The International Legal Framework
1.
International Law and Media Regulation
The in ternational le gal framework f or th e r egulation o f me dia is p atchy and e mergent. In
large part i t i s based on s oft l aw guidelines and efforts t o ensure di versity and pl uralism i n
terms of access t o m edia, but i t a lso i s l argely focused on t ransmission a nd i nfrastructure
(through t he i nstitutional w ork of t he International T elecommunications U nion) r ather t han
content w hich i s t he f ocus of i nternational hu man r ights l aw ( freedom of e xpression a nd
incitement jurisprudence) and is dealt with elsewhere in this paper.
Nevertheless there have been efforts at the international and transnational level to regulate the
media and these have found their most potent expression in the European media framework
dealt with below. Efforts to regulate the content of media broadcasts at the international level
have b een controversial an d r emain s o, given anxieties r egarding global governance i n
general an d especially concerns o ver h eavy-handed r egulation of media b y the s tate. From
this p erspective e fforts to r egulate b roadcasts in te rms o f th eir c ontent a t th e in ternational
level ar e s een b y s ome as a t hreat t o m edia i ndependence an d cu ltural diversity. Further,
content r egulation i s l argely s een as a matter f or d omestic r egulation. Even t he E uropean
framework de volves c ontent r egulation of of fending br oadcasts t o do mestic r egulators,
though within a broader framework, the idea being to fill any regulatory gaps.
However, the emergence of the internet has seen a return to questions regarding international
media regulation and we m ay yet s ee efforts t o develop an ‘information s ociety’ l eading t o
calls for greater international regulation and coordination of the media.
International o rganizations w ith s ignificance r egarding in ternational me dia la w in clude th e
International T elecommunications U nion ( ITU) and U NESCO. T hey ha ve bot h a t va rious
points a ttempted t o t ake a m ore c entral role i n t he r egulation of m edia. UNESCO’s e fforts
coincided w ith m oves i n t he 1970s t o a rticulate a N ew W orld Information a nd
Communications Order. The ITU has recently taken a more active role in international media
regulation t hrough i ts o wn e fforts i n t he W orld S ummit on a n Information S ociety process
(WSIS). Both pr ocesses r emain c ontested, but bot h ha ve a rguably generated s oft l aw
principles of significance.
In th e mid -1970s U NESCO l aunched a n i nitiative w hich f ocused a ttention on t he
international dimensions of media power (including in its negative forms), as well as on t he
possibilities for international regulation of the media. At this time there was debate over the
need f or a nd pos sible de finition of a ‘ right t o c ommunicate’, a s a hum an r ight. This w as
linked t o e fforts t o d evelop a ‘new w orld c ommunications or der’, a longside t he effort t o
develop the ‘new international economic order’ 66 – projects which saw the United States and
the United Kingdom withdraw from membership of UNESCO.
One outcome o f t hese d ebates w as t he el aboration o f U NESCO’s M ass Media D eclaration,
which drew on e arlier pos t-war d eclarations b y t he U N G eneral A ssembly co ncerning
propaganda a nd i ncitement, i nternational hum an r ights s tandards, and pr ovision w ithin
66
See for example the UN General Assembly’s Charter of Economic Rights and Duties of States, UN General
Assembly Resolution 3281 (XXIX), 12 December 1974. Vaughan Lowe describes this Charter as having “little
effect” and as the “outstanding example” of “grandiose attempts to reform the global economic order”: Vaughan
Lowe, International Law (Oxford University Press, Oxford, 2007) p. 188.
19
Article 1( 2) of t he U NESCO c onstitution ‘ to pr omote t he f ree f low of i deas b y w ord a nd
image’. 67 The D eclaration em phasised t he m ass media’s r ole i n f ostering p eace an d r espect
for hum an r ights, a nd highlighted t he ne ed f or s teps t o ensure greater a vailability and
diversity of information. 68
The principles developed during the more recent WSIS process outline the vision and concept
of an ‘information society’ ‘where everyone can create, access, utilize and share information
and knowledge, enabling individuals, communities and peoples to achieve their full potential
in promoting their sustainable development and improving their quality of life’. 69
The W SIS a nd t he c oncept of a n ‘ information s ociety’ i s di rectly l inked t o t he m edia, a nd
express mention of the media’s role in the gathering and provision of information is made in
the G eneva D eclaration of P rinciples. 70 The D eclaration t hus e mphasises ‘ freedom of t he
press a nd f reedom of i nformation, a s w ell a s t hose of t he i ndependence, pl uralism a nd
diversity o f m edia, which a re e ssential t o t he Information S ociety’. 71 The media i s given a
central role in an ‘information society’, and this is said to come with ethical and professional
responsibilities regarding the treatment of information.
2.
International Satellite Regulation
In recent years s atellite co mmunications h ave c ome t o ch allenge t he p aradigm of n ational
control over (and emerging regional forms of) televisual regulation. The role of international
organizations s uch a s th e ITU in regulating s atellite c ompetition a nd o rbital s lots p rovides
some f ramework f or i nternational regulation w ithin t he c ategory o f ‘ telecommunications’.
Questions r emain a bout w ho ha s l aunch rights w ith r egards t o s atellites, a nd t he r ole of
private co mpanies as r egards t he m anagement o f s atellites. The r egulation of a ccess t o
satellites is complicated, and we can see a m ix of private and public action, and strong-arm
diplomacy, b y which c ertain pow erful s tates h ave t ried t o r egulate w ho c an upl ink a nd
downlink from satellites. Some of this area potentially involves what is termed ‘space’ law,
which is only briefly dealt with. 72
67
UNESCO De claration o n Fundamental P rinciples c oncerning t he C ontribution o f t he M ass M edia to
Strengthening P eace and I nternational Understanding, t o t he P romotion of Human R ights a nd t o C ountering
Racialism, Apartheid a nd I ncitement to W ar, p roclaimed by t he G eneral Conference o f t he United N ations
Educational, S cientific a nd C ultural O rganization a t its t wentieth s ession i n P aris, o n 2 8 N ovember 1 978
(‘UNESCO Mass Media Declaration’).
68
UNESCO Mass Media Declaration, Article 1.
69
First P hase o f t he W SIS ( 10-12 D ecember 2 003, G eneva), Geneva D eclaration o f P rinciples, W SIS03/GENEVA/DOC/0004, principle 1.
70
Geneva Declaration of Principles, principle 55.
71
Geneva Declaration of Principles, principle 55.
72
See f urther: t he U nited N ations O ffice f or O uter S pace Affairs and t heir website
<http://www.unoosa.org/oosa/index.html> along with the overview “United Nations Treaties and Principles on
Outer Space: Text of treaties and principles governing the activities of States in the exploration and use of outer
space, adopted by the U nited Nations General Assembly”, ST/SPACE/11, (United Nations, New York 2002) ,
available at: <http://www.unoosa.org/pdf/publications/STSPACE11E.pdf>; the website of the European Centre
for S
pace L
aw a
nd its
s
ection d
ealing
with t
he in
ternational f
ramework:
<http://www.esa.int/SPECIALS/ECSL/SEM2NM2VQUD_0.html>. There are a number of international treaties,
see es pecially Treaty o n P rinciples G overning t he Activities o f S tates i n t he E xploration a nd U se of O uter
Space, i ncluding t he Moon and Other Celestial Bodies “The Outer Space Treaty (1967)” (General Assembly
resolution 2222 (XXI), a nnex)—adopted on 19 December 1966, entered into f orce on 10 O ctober 1967; a nd
Convention o n R egistration of O bjects L aunched i nto O uter S pace “The R egistration C onvention ( 1976)”
(resolution 3235 (XXIX), annex)—adopted on 12 November 1974, entered into force on 15 September 1976.
20
In t erms of i nstitutional r egulation or ganizations l ike t he pr ivately ow ned Intel-Sat an d t he
ITU are important, as are a range of private, regional and national efforts to put satellites in
space. 73 The role of the ITU as regards satellite broadcast regulation is largely infrastructural.
The ITU i s a U nited N ations a gency w hich c oordinates t he s hared g lobal us e of t he r adio
spectrum, f acilitates in ternational c ooperation in a ssigning s atellite o rbits, a nd s ets g lobal
standards f or communications s ystems. One function of t he ITU i s t o de fine t echnical
standards w hich g overn t he a llocation of r adio f requencies 74, w hich i t acknowledges a re
limited natural resources to which states should have equitable access. 75 It maintains a Table
of Frequency Allocations for this purpose. Another function is to foster the development of
telecommunications and radio in developing countries. 76 Finally, the ITU exhorts its members
to refrain from interfering with the frequencies and spectra of other states. 77
None of t hese functions i nvolve m onitoring or i nterfering with t he content of broadcasts or
awarding broadcasting licences. These decisions are instead left to individual states. Further,
the ITU lacks enforcement capacity. 78 Writing of this issue at an earlier time, Gregory Staple
argued of the ITU’s framework for regulation that ‘the present coordination process depends
on th e g ood w ill o f p articipating a dministrations. Sanctions f or vi olation a re unc ertain a nd
rarely ap plied’. 79 Staple comments f urther o f th e ‘limited’ ‘ police p owers’ o f t he ITU an d
notes that the ‘competence of the International court of Justice to resolve ITU disputes is also
untested’. 80 Nevertheless, at times the ITU has been turned to as an enforcement agency. For
example, t he F rench N ational F requencies Agency (ANF) recently ap pealed t o t he ITU t o
stop Iran f rom bl ocking s atellite s ignals f rom t he B BC W orld S ervice’s P ersian l anguage
broadcasts into Iran. The ITU is yet to deliver a decision.
Despite t he m ixed pi cture of regulation and pr oblems a s r egards e nforcement, e fforts h ave
been made to develop an international satellite broadcasting standards regime, resulting in a
series of U N G eneral A ssembly resolutions i n t he 1970s r egarding out er s pace a nd di rect
broadcast s atellites. 81 Such m oves a re l inked with ef forts t o as sert t he co ncept o f p eaceful
broadcasting as a norm, with voices of violence and instability to be regulated and denied the
ability to b roadcast. UNESCO h as i tself generated a d eclaration r egarding s atellite
broadcasting and the free flow of information. 82 This instrument calls on states to ‘respect the
sovereignty and equality of all states’ in their use of satellite communication. 83 Recognising
that satellite broadcasting ‘provides a new means of disseminating knowledge and promoting
better unde rstanding a mong pe oples’, i t e xhorts states a nd br oadcasters t o t ake a ccount of
‘the n eeds an d r ights of au dience, as w ell a s t he o bjectives o f peace, f riendship a nd
73
See further Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law, Ninth Edition, Volume
I, Peace, Parts 2 to 4 (Longman, Harlow, 1992, originally published 1905) pp. 843-844.
74
ITU Constitution, Article 1(2)(a),(c).
75
ITU Constitution, Articles 1(1)(b), 44(2).
76
ITU Constitution, Article 1(6).
77
ITU Constitution Articles 1(2)(b), 44(1).
78
See here Adrian Copiz, ‘Scarcity in Space: T he International Regulation of Satellites’ (2002) 10 CommLaw Conspectus 207 at 224.
79
Gregory C. Staple, ‘The New World Satellite Order: A Report from Geneva (1986) 80(3) American Journal
of International Law 699 at 708.
80
Gregory C. Staple, ‘The New World Satellite Order: A Report from Geneva (1986) 80(3) American Journal
of International Law 699 at 709.
81
See t he Convention o n R egistration o f O bjects L aunched i nto O uter S pace “The Registration C onvention (1976)” (resolution 3235 (XXIX), annex)—adopted on 12 November 1974, entered into force on 15 September
1976, a
nd f
or a
l
ist of
G
eneral A
ssembly r
esolutions c
oncerning s
pace:
<http://www.unoosa.org/oosa/en/SpaceLaw/gares/index.html>.
82
UNESCO Declaration o f G uiding P rinciples o n th e Use o f S atellite B roadcasting for th e F ree F low o f
Information, the Spread of Education and Greater Cultural Exchange, 15 November 1972.
83
UNESCO Declaration of Guiding Principles on the Use of Satellite Broadcasting, Article II.
21
cooperation between peoples’, including by ensuring the accuracy of information broadcast. 84
It s hould b e not ed, ho wever, t hat a s with ot her s oft l aw i nstruments di scussed t his w as
controversial - Australia and other significant states such as the USA, Canada, Germany and
the United Kingdom voted against the adoption of such a declaration.
The UN General Assembly has passed several resolutions of relevance, such as its ‘Principles
Governing the Use by States of Artificial Earth Satellites for International Direct Television
Broadcasting’. 85 Principle 1 e mphasises t he s overeign r ights of s tates a nd non -intervention.
There i s a lso a n e mphasis on hum an r ights s uch a s f reedom of e xpression, e ducation,
development and r ecreation. Finally, direct satellite television broadcasting is to ‘be carried
out i n a m anner c ompatible w ith t he de velopment of m utual unde rstanding a nd t he
strengthening of f riendly relations a nd c ooperation a mong a ll S tates a nd pe oples i n t he
interest o f ma intaining international p eace an d security.’ 86 The resolution c ontinues i n a
similar ve in a nd e mphasises t he r ole o f t he ITU a nd i nternational l aw r eferring t o t he U N
Charter, t he ITU’s C onvention a nd R egulations and t he Outer S pace T reaty ( 1967). Other
areas co vered i nclude i nternational c ooperation, t he pe aceful s ettlement of di sputes, s tate
responsibility, c onsultation, c opyright i ssues a nd not ification r equirements. However, s uch
resolutions a re, o f c ourse not bi nding, and ha ve ge nerated c riticism a s being i neffective.
Certainly i t s eems t hat the UN has not been able, despite efforts i n t he 1970s and 1980s i n
particular (and d espite t he i nfrastructure an d s pectrum c apacity focused r egulatory regime
under the auspices of the ITU) to establish a converged and centralised multilateral regulator
for satellites with adequate enforcement capacity.
Satellite r egulation i s, a s di scussed t hroughout t his pa per, a lso f ramed i n t erms of na tional
security and the terror threat posed by destabilising broadcasts. The Al-Manar controversy in
Europe i nvolved a m ix of pr ivate, publ ic, r egional a nd i nternational a ctors. 87 A s imilar
regulatory d ilemma, th ough o utside th e E U, o ccurred in th e f orm o f th e S erbian S atellite
Service which aimed to reach a Serbian diaspora at a time when the US and NATO sought to
control S erbian nationalism. In t he K osovo crisis t he S erbian s atellite b roadcaster R PS w as
taken of f t he s atellite s ervice, but t his w as a d ecision of t he boa rd of a E uropean pr ivate
satellite company acting with considerable diplomatic pressure placed upon it, and in a sense
can be seen as a mixed market and diplomatic solution, involving questions of transnational
corporate responsibility.
It i s s ignificant t o not e t he r ole now pl ayed b y regional f rameworks, as i s di scussed i n
relation to Europe and the European Audiovisual Media Services Directive elsewhere in this
paper. Arab s tates h ave al so m oved t o cr eate a r egional f ramework r egarding s atellite
broadcasting, b y a dopting t he Arab League S atellite B roadcasting C harter ( 2008). Of t he
Arab League m embers, only Lebanon and Q atar ha ve not s igned t he C harter. It c ontains
many broad pr inciples, i ncluding t he r ight t o ‘ express opi nions, pr eserve A rab c ulture a nd
promote c ultural di alogue’, a nd t o pr omote t he ‘ religious a nd ethical va lues of Arab
society’. 88 Unlike ot her i nstruments, i t pr escribes ( albeit b road) c ontent r equirements: i t
requires states to air programs which are suitable for children and to implement a thorough
84
UNESCO Declaration of Guiding Principles on the Use of Satellite Broadcasting, Articles IV and V.
Principles G overning th e Use b y S tates o f Artificial E arth S atellites for I nternational D irect T elevision
Broadcasting, adopted on 10 December 1982 (UN General Assembly resolution 37/92).
86
Principles G overning t he U se b y States o f Artificial E arth S atellites for I nternational D irect T elevision
Broadcasting, adopted on 10 December 1982 (UN General Assembly resolution 37/92), Principle 1.
87
Another example is the Kurdish PKK television service, ‘Med’ TV which has had various European homes in
its attempt to avoid or circumvent the Turkish government’s ban on its operations within Turkey.
88
Arab League Satellite Broadcasting Charter (2008), Articles 1 and 6.
85
22
ratings system. 89 Broadcasters must obtain a licence from a proper regulatory authority within
their s tate. 90 States ma y r evoke th e lic ences o f b roadcasters w ho v iolate th eir te rms. 91 Of
potential interest here is whether Lebanon, were it to sign up to the Charter, would then have
responsibilities to regulate Al-Manar as t he ‘state o f o rigin’. In s uch a f uture ci rcumstance,
Article 4 (5) o f t he C harter w hich r equires b roadcasters and s ervice p roviders t o m ake an
assurance ‘ for not j eopardizing s ocial pe ace, national uni ty, publ ic order a nd general
propriety’ w ould be relevant. Other p otentially s ignificant p rovisions include A rticle 5
regarding freedom of expression and Article 6 w hich attempts to regulate content regarding
incitement, di scrimination a nd hum an di gnity. T hese m ight a lso a pply t o E gypt a nd S audi
Arabia as the host countries of Nilesat and Arabsat, both of which carry Al-Manar.
3.
3.1
Permissible Restrictions on Freedom of Expression and the Media
There is ample authority under international law to prohibit media broadcasting which incites
discrimination, hos tility or vi olence for t he pur poses of national, r acial or r eligious h atred.
Ordinarily, international human rights law protects freedom of expression in article 19(2) of
the International Covenant on Civil and Political Rights, 92 which provides that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and i mpart i nformation a nd i deas of a ll kinds, r egardless of f rontiers, e ither or ally, i n w riting or i n
print, in the form of art, or through any other media of his choice.
The freedom to ‘seek, receive and impart information and ideas… regardless of frontiers’ or
the means of communication clearly protects the transmission of ideas by media, including by
satellite broadcasting and where it extends across borders. The UN Human Rights Committee
has h ighlighted t he i mportance o f S tates t aking t he m easures ‘ necessary to pr event s uch
control of the media as would interfere with the right of everyone to freedom of expression’. 93
Upon ratifying the ICCPR, Australia lodged a reservation which interpreted article 19(2) ‘as
being c ompatible w ith t he r egulation of r adio a nd t elevision br oadcasting i n t he publ ic
interest with the object of providing the best possible broadcasting services to the Australian
people’. That reservation was, however, withdrawn in 1984.
Freedom of expression, and the freedom of media communications which it encompasses, is
not absolute. Article 19(3) of the ICCPR allows certain restrictions on expression:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. I t may therefore b e subject to c ertain r estrictions, b ut t hese s hall o nly b e such a s a re
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For t he pr otection of national security or o f p ublic o rder ( ordre pu blic), or of publ ic h ealth or
morals.
Any restrictions on f reedom of expression m ust be ‘ provided b y l aw’, i mposed f or a
legitimate public purpose, and necessary in attaining such purpose. 94 Freedom of expression
89
Arab League Satellite Broadcasting Charter (2008), Article 9.
91
92
International Covenant on Civil and Political Rights, ope ned for s ignature 16 D ecember 1966, 999 U NTS
171, art 19(3) (entered into force 23 March 1976).
93
UN H uman Rights Co mmittee, General Comment No. 10: Freedom of expression (Art. 19), 29 J une 1983,
para. 2.
94
Ibid, para. 4.
90
23
is ‘the primary right’ in a democracy. 95 As such, restrictions should be narrowly interpreted. 96
A restriction must be ‘convincingly established by a compelling countervailing consideration,
and the means employed must be proportionate to the end sought to be achieved’. 97
One restriction on freedom of expression which is ‘fully compatible’ with human rights law
is laws prohibiting hate speech or vilification. 98 Article 20(2) of the ICCPR requires States to
prohibit: ‘Any advocacy of national, racial or r eligious hatred t hat constitutes incitement to
discrimination, hostility or violence’. That provision has been interpreted as requiring States
‘to adopt the necessary legislative measures prohibiting the actions referred to therein’ and to
provide a ppropriate s anctions i n c ase of vi olation. 99 States m ust pr ohibit s uch advocacy
regardless whether its aims ‘are internal or external to the State concerned’, 100 such that hate
speech is unlawful even where directed towards groups or conflicts overseas.
Critics ha ve not ed, how ever, t hat t here i s a w ide s pectrum be tween a dvocacy o f
‘discrimination’, ‘ hostility’ and ‘ violence’ i n t he t erms of a rticle 20( 2), 101 bringing r isks of
abuse b y S tate p arties s eeking t o ex cessively interfere i n f reedom o f ex pression. Some
western liberal democratic States, such as the US, Belgium, Denmark, Finland and Iceland,
have lodged reservations to article 20 i n order to preserve the dom estic l egal protections of
more absolutist or protective approaches to freedom of expression. 102 US constitutional law
on free s peech, of i nstance, provides a hi gher l evel of protection t han t he narrower i mplied
freedom of political communication under Australian constitutional law. 103 Australia lodged
a more limited reservation to article 20, still in force, by which it
interprets the rights provided for by Articles 19, 21 a nd 22 a s consistent with Article 20; accordingly,
the Commonwealth a nd the c onstituent States, having le gislated with r espect to the s ubject matter o f
the Article i n matters o f p ractical co ncern i n t he i nterests of p ublic o rder ( ordre public), t he r ight i s
reserved not to introduce any further legislative provision on these matters.
In doing so, Australia indicated its view that ordinary criminal law and o ther existing legal
protections al ready s afeguarded t he i nterests r eflected i n ar ticle 2 0, s uch t hat i t w as n ot
considered necessary to introduce any further special provisions.
In addition to the ICCPR, article 4 of the International Convention on the Elimination of all
Forms of Racial Discrimination 1969 (‘CERD’) p rovides fu rther a uthority for S tates t o
prohibit racial hatred, violence, incitement and propaganda, as follows:
States P arties co ndemn al l p ropaganda an d al l o rganizations which ar e b ased o n ideas or t heories o f
superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or
promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive
measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with
95
R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, HL, at 125G (Lord Steyn).
Sunday Times v United Kingdom (1979) 2 ENRR 25 at para. 65.
97
Reynolds v Times Newspapers [2001] 2 AC 127, HL at 200F-G (Lord Nicholls).
98
UN H uman Rights C ommittee, General Comment No. 11: Prohibition of propaganda for war and inciting
national, racial or religious hatrred (Art. 20), 29 July 1983, para. 2.
99
Ibid, paras. 1-2.
100
Ibid, para. 2.
101
See, eg, Manfred Nowak, UN Covenant on Civil and Political Rights: Commentary (Strasbourg, 1993), 472;
Nazila Ghanea, ‘Articles 19 and 20 of the CCPR’, Expert Paper for the UN High C ommissioner for Human Rights S eminar: Freedom o f E xpression a nd Advocacy of R eligious H atred t hat Constitutes I ncitement to Discrimination, Hostility or Violence’, Geneva, 2-3 October 2008, 4.
102
Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary (Oxford University Press, Oxford, 2004), 544.
103
See Ben Saul, ‘Speaking of Terror: Criminalizing Incitement to Violence’ (2005) 28 UNSW Law Journal
868.
96
24
due regard to the principles embodied i n the Universal Declaration of H uman Rights and t he r ights
expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or
hatred, incitement to r acial d iscrimination, a s well as all acts o f violence o r incitement to such a cts
against any race or group of persons of another colour or ethnic origin, and also the provision of any
assistance to racist activities, including the financing thereof;
(b) Shall d eclare ille gal a nd p rohibit o rganizations, a nd a lso o rganized an d al l o ther p ropaganda
activities, which p romote a nd in cite r acial d iscrimination, a nd shall r ecognize p articipation i n such
organizations or activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial
discrimination.
The U N C ERD C ommittee h as in terpreted a rticle 4 (a) as r equiring S tates to p enalize f our
categories of misconduct: (i) dissemination of ideas based upon racial superiority or hatred;
(ii) incitement to racial hatred; (iii) acts of violence against any race or group of persons of
another c olour or e thnic origin; a nd ( iv) in citement to s uch a cts. 104 The f inancing o f racist
activities must also be prohibited. States are further required to prohibit racist organizations
and m embership of t hem. T he U N C ERD C ommittee ha s i ndicated t hat vi gilant, e arly a nd
‘immediate’ i ntervention i n r acist or ganizations i s w arranted, even be fore i ndividual
members have promoted or incited racial discrimination. 105
The purpose of article 4 i s to prevent the revival of authoritarian ideologies based on r acial
superiority and the political exploitation of racial difference. 106 Further, ‘[b]ecause threats and
acts of racial violence easily lead to other such acts and generate an atmosphere of hostility,
only immediate intervention can meet the obligations of effective response’. 107
Relevantly, in the practice of the UN human rights bodies, the practical scope of protection of
article 20 ha s been further elaborated. When threats of racial violence are made, particularly
in publ ic a nd b y a group, t he S tate ha s a dut y to i nvestigate w ith d ue di ligence a nd
expedition.108 Thus Norway should have duly responded to even absurd or illogical remarks
by a n eo-Nazi leader who, in addressing a march, accused immigrants of raping and killings
Norwegians and J ews of pl undering a nd de stroying N orway a nd i mposing i mmorality and
‘un-Norwegian’ t houghts upon i t.109Violence a gainst b lacks an d Jews es calated t hereafter.
The C ERD C ommittee h as a lso c riticised h ateful m essages b y p oliticians i n D enmark
directed a gainst f oreigners a nd m inority r eligions, 110 which in cluded c alling M uslims a nd
blacks ‘rats’, and foreigners ‘terrorists’, murderers and rapists.
The U N H uman R ights C ommittee uphe ld a C anadian l aw which pr ohibited t he us e o f
telecommunications t o e xpose a pe rson t o ha tred or c ontempt on t he ba sis of a pr ohibited
ground of discrimination (including race, national or ethnic origin, colour, religion, age, sex,
marital s tatus o r d isability). 111 That cas e involved the di ssemination of a pol itical pa rty’s
messages b y t elephone warning ‘ of t he da ngers of i nternational f inance a nd i nternational
104
UN CE RD Committee, General Recommendation No. 15: Organized violence based on ethnic origin (Art.
4), 23 March 1993, para. 3.
105
Ibid, para. 6.
106
Ibid, para. 1.
107
Ibid, para. 2.
108
L.K. v The Netherlands, UN CERD Committee Communication 4/1991, para. 6.6.
109
Jewish Community of Oslo et al v Norway, CERD Communication 30/2003, paras. 10-12.
110
Quereshi v Denmark, CERD Communication 33/2003, para. 8.
111
J.R.T. and the W.G. Party v Canada, UNHRC Communication 104/1981, para. 8(b), involving the Canadian
Human Rights Act 1978 (Canada), s. 13(1).
25
Jewry leading the world into wars, unemployment, inflation and the collapse of world values
and principles’. 112
In another case, the UN Human Rights Committee found that is was lawful for a Canadian
school t o di scipline a t eacher for e xpressing a nti-Semitic opi nions ou tside t he c lassroom,
because it was necessary to protect the rights or reputations of Jewish people, including the
right o f J ewish c hildren t o ha ve a n e ducation i n s chool free f rom b ias, pr ejudice a nd
intolerance. 113
The UN Human Rights Committee has also regarded as lawful a French ‘Holocaust denial’
law w hich m ade i t an offence t o co ntest t he existence o f a c rime a gainst h umanity a s
established in the Nuremberg Trials of German war leaders after the Second World War.114
Statements doubting the existence of gas chambers for exterminating Jews were regarded as
of a nature as to raise or strengthen anti-Semitic feelings, and their restriction was necessary
to uphold the right of the Jewish community to live free from fear of an atmosphere of antiSemitism; Holocaust denial was regarded as a principle vehicle of anti-Semitism.115
The pr ohibition on ha te s peech a nd vi lification unde r hum an r ights law i s c apable of
supporting a r ange of d omestic l aws which are targeted a t s uch s peech, i ncluding c riminal
offences, disciplinary measures, broadcasting standards, and classification / censorship laws.
It is not the character of the law so much as its purpose that is relevant to the human rights
law an alysis: an y measure m ust b e n ecessary t o p revent r acial o r r eligious h atred o r
incitement, and proportionate (that is, not excessive) in achieving that legitimate aim.
3.2
Australia’s Implementation of the ICCPR and CERD
Upon r atifying C ERD o n 30 S eptember 1975, A ustralia l odged a de claration i n r espect of
article 4(a) which declared that
Australia is not a t p resent i n a p osition s pecifically to tr eat a s o ffences a ll the matters co vered b y
Article 4 (a) o f t he C onvention. Acts o f t he kind t here mentioned a re p unishable o nly t o t he e xtent
provided b y t he e xisting la w d ealing with such matters a s t he maintenance o f p ublic order, p ublic
mischief, a ssault, r iot, c riminal lib el, c onspiracy a nd a ttempts. I t is t he in tention o f t he Australian
Government, a t t he first s uitable moment, to seek from P arliament le gislation s pecifically
implementing the terms of Article 4(a).
Despite t he i ntention i n 1975 t o i ntroduce l egislation t o i mplement a rticle 4 (a) ‘ at th e first
suitable moment’, successive Australian governments did not promptly do so. At the federal
level, inciting racial hatred was made unlawful in 1995, 116 but it w as not criminalised as an
offence as required by CERD. 117 Further, religious vilification was neither made unlawful nor
112
Ibid, para. 2.1.
Ross v Canada, UNHRC Communication 736/97, paras. 11.5-11.6.
114
Faurisson v France, UNHRC Communication 550/1993.
115
Ibid, paras. 9.6-9.7.
116
It is u nlawful to p ublicly d o a n a ct which ‘is r easonably likely, in a ll th e c ircumstances, to o ffend, in sult,
humiliate o r intimidate a nother person or a group of people’ for reasons of ‘race, colour or national or ethnic
origin’: s. 18C(1), Racial Discrimination Act 1975 (Cth), as amended by the Racial Hatred Act 1995 (Cth). It is
also u nlawful to in cite r acial discrimination under t he Act: s . 1 7(a). S ee S ally R eid an d R ussell S mith,
Regulating Racial Hatred, No 79: Trends and Issues in Crime and Criminal Justice, Australian I nstitute o f
Criminology (1998).
117
In c ontrast, N SW made serious r acial vilification a n o ffence in 1989: ‘A person s hall not, b y a public act , incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of
the race of the person or members of the group’ by means such as threatening physical harm towards the person,
113
26
criminal under federal law in the context of human rights legislation, despite findings by the
Australian Human Rights Commission that, for example, religious prejudice against Muslim
Australians i ncreased s ignificantly a fter 11 S eptember 2001 . 118 Some S tates, s uch as
Queensland, V ictoria a nd T asmania, h ave p rohibited r eligious v ilification, 119 and r acial
vilification is also criminal in some States, but there is no national uniformity.
Federal sedition offences have long criminalised some limited forms of conduct constituting
or equivalent t o racial or religious vi lification. Until 2005, unde r t he sections 24B-D of t he
Crimes Act 1914 (Cth), it was an offence to engage in a seditious enterprise (ss 24B–24C) or
to w rite, pr int, ut ter or publish a ny s editious w ords ( s 24D ), w ith t he i ntention of c ausing
violence or c reating a public di sorder or di sturbance. Both of fences r equired a s editious
intention, which was defined in section 24A of the Crimes Act as an intention to, inter alia,
‘promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects
so as to endanger the peace, order or good government of the Commonwealth’.
The language of that offence was modernised by the Anti-Terrorism Act (No. 2) 2005 (Cth),
which revised the sedition offences and incorporated them into the present section 80.2 of the
Criminal Code Act 1995 (Cth). The new offence of ‘urging violence within the community’
in s ection 80.2( 5) i s c ommitted w here a p erson ( a) urges a group o r gr oups ( whether
distinguished b y race, r eligion, na tionality or p olitical opi nion) t o us e force or vi olence
against a nother gr oup or ot her g roups ( as s o di stinguished); a nd (b) the u se o f t he f orce o r
violence w ould t hreaten t he pe ace, or der and good government of t he C ommonwealth.
Recklessness i s t he a pplicable m ental e lement ( s. 80.2( 6)) a nd t he pe nalty i s i mprisonment
for s even years. T he a mendment w as j ustified i n pa rt b y t he G overnment 120 as an
implementation of t he G ibbs R eview of c riminal l aw i n 1991, w hich not ed t hat A ustralia’s
human rights treaty obligations required it to criminalise incitement to violence on national,
racial or religious grounds. 121
Further amendments t o t he s edition of fences w ere pr oposed b y t he G overnment i n M ay
2010, 122 following ongoing criticism of the offences. In particular, the ‘urging violence in the
community’ of fence w as l imited t o vi olence di rected against groups ( and not i ndividual
members thereof). S uch elements s ubstantially l imited t he s cope of t he o ffence and di d not
protect against lo wer-level hate s peech di rected a t i ndividuals. T he pr oposed a mendments
would enable the prosecution of incitements directed against individuals in certain situations.
group o r t heir p roperty, o r b y i nciting o thers t o t hreaten such harm: s. 2 0D, Anti-Discrimination Act 1977
(NSW). There have been no prosecutions to date, despite referrals.
118
Human Rights and Equal Opportunity Commission (‘HREOC’), Isma‫ ﻉ‬- Listen: National Consultations on
Prejudice against Arab and Muslim Australians, 2004; Scott Poynting and Greg Noble, Living with Racism: The
Experience and Reporting by Arab and Muslim Australians of Discrimination, Abuse and Violence since 11
September 2001 (2004); Tanja Dreher, ‘“Targeted”: Experiences of Racism in NSW after September 11, 2001’,
(2005) UTS: Shopfront Monograph Series No 2, < http://www.shopfront.uts.edu.au/news/targeted.pdf> a t 1 1
November 2005. H REOC has a lso r ecommended th at r eligious v ilification b e made u nlawful in Australia: HREOC, Article 18: Freedom of Religion and Belief (1998) 137, 139; see generally Mark Walters, ‘Hate crimes
in Australia: Introducing punishment enhancers’ (2005) 29 Criminal Law Journal 201.
119
Race Discrimination U nit, H REOC, Racial Vilification Law in Australia (October 200 2)
<http://www.hreoc.gov.au/racial_discrimination/cyberracism/vilification.html> at 4 November 2005.
120
John H oward, ‘ Counter-Terrorism Laws S trengthened’ (Press R elease, 8 S eptember 200 5) [8]
<http://www.pm.gov.au/news/media_releases/media_Release1551.html> at 4 November 2005.
121
Harry G ibbs, R ay W atson a nd Andrew M enzies, Review of Commonwealth Criminal Law: Fifth Interim
Report, Commonwealth Attorney-General’s Department (1991), 306–307. See generally Louis Henkin, ‘Group
Defamation an d I nternational L aw’, in M onroe F reedman an d E ric Freedman ( eds), Group Defamation and
Freedom of Speech (1995) 123.
122
See National Security Legislation Amendment Bill 2010 (Cth).
27
In one respect the offences now go beyond Australia’s international obligations by protecting
against incitement to violence on t he basis of ‘political opinion’, which is not mentioned in
the ICCPR or CERD, nor is it part of Australian anti-vilification laws at the state, territory or
federal levels. 123 Rather, ‘political opinion’ is more familiar as a ground of distinction upon
which anti-discrimination laws at the state, territory and federal levels operate. 124
The i nclusion of t his a dditional g round be gs t he que stion w hy other grounds upon w hich
discrimination l aw r outinely op erates, s uch a s c olour, g ender, s exual or ientation, di sability
and illness, are not included within the ambit of this provision. There is no persuasive reason
for s ingling out pol itical opi nion, w hen, f or i nstance, h ate crimes or c rimes of i ncitement
have often been directed against persons with disabilities or homosexuals. There may well be
public pol icy reasons f or e xtending t he r ange of pr otected groups be yond t he m inimum
requirements of the ICCPR and CERD, to better protect all potentially vulnerable groups.
It should be noted, however, that the Australian ‘urging’ offences are limited to criminalising
incitement to violence only, w hereas t he ICCPR a nd C ERD a dditionally require t he
criminalization of e xpressions of r acial ha tred, superiority, di scrimination a nd hos tility, a s
well a s in citement th ereof. The pr oposed B ill w ould a lso m ake i t c learer t hat t he pe rson
urging another actually intends violence to occur as a result of his or her urging.
There i s, how ever, no f urther r equirement t hat t he ur ging be actually likely or probable to
occur, s uch t hat e xpressions w hich ha ve onl y a r emote or s peculative chance of c ausing
violence a re also cr iminalised. T his s trict ap proach contrasts w ith t he h igher l evel o f
protection acco rded t o f ree speech i n t he U nited S tates j urisprudence. In Brandenburg v
Ohio, 395 US 444 (1969), the US Supreme Court found that the First Amendment to the US
Constitution did not ‘permit a State to forbid or proscribe advocacy of the use of force or of
law vi olation e xcept w here s uch advocacy i s di rected t o i nciting o r pr oducing i mminent
lawless act ion and is likely to incite or produce such action’ [ emphasis a dded]. T he t win
requirements of t he i mminence a nd l ikelihood (or pr obability) of c rime a im t o e nsure t hat
speech i s not p rematurely r estricted; t here m ust be a s ufficiently p roximate c onnection or
causal link between the advocacy and the eventuality of crime.
3.3
Freedom of Religion
Article 18(1) of the ICCPR protects the ‘freedom, either individually or in community with
others a nd i n publ ic or private, t o m anifest hi s religion or be lief i n w orship, obs ervance,
practice an d t eaching’. As t he U N H uman R ights C ommittee ha s no ted, s uch freedom
123
Racial Discrimination Act 1975 (Cth) Part IIA (racial hatred); Anti-Discrimination Act 1977 (NSW) Part 2
Division 3 A ( racial v ilification), Part 3 A Division 5 ( transgender v ilification), Part 4 C Division 4
(homosexuality vilification), Part 4 F ( HIV/AIDS vilification); Racial and Religious Tolerance Act 2001 (Vic)
(racial and religious vilification); Anti-Discrimination Act 1991 (Qld) s124A (racial and religious vilification);
Anti-Discrimination Act 1998 (Tas), s. 19 (inciting hatred on the grounds of race, disability, sexual orientation,
lawful sexual a ctivity, r eligious b elief o r a ctivity); Discrimination Act 1991 (ACT) Part 6 (racial vilification);
Racial Vilification Act 1996 (SA), s. 4 (racial vilification).
124
Ibid. Note that the ACT anti-discrimination statute cited immediately above extends to ‘political conviction’,
the Qld anti-discrimination statute extends to ‘political belief or activity’ and the Tasmanian anti-discrimination
statute e xtends to ‘ political a ctivity’. V ictoria’s Equal Opportunity Act 1995 (Vic) lik ewise p rohibits
discrimination on the basis of ‘political belief or activity’ (s. 6(g)); Western Australia’s Equal Opportunity Act
1984 (WA) p rohibits d iscrimination o n t he b asis o f ‘political c onviction’ ( s. 5 3) a nd t he N orthern T erritory’s
Anti-Discrimination Act (NT) prohibits discrimination on the basis of ‘political opinion, affiliation or activity’
(s.19(n)).
28
encompasses a broad range of acts, including worship, observance, practice and teaching, as
follows:
The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well
as various practices integral to such acts, including the building of places of worship, the use of ritual
formulae and obj ects, t he di splay of symbols, and the observance of holidays a nd da ys of rest. The
observance an d p ractice o f r eligion o r b elief may i nclude n ot o nly cer emonial act s but al so s uch
customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings,
participation i n r ituals a ssociated with cer tain s tages o f l ife, an d t he u se o f a p articular l anguage
customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts
integral t o t he c onduct b y r eligious groups o f t heir b asic a ffairs, s uch a s the freedom to c hoose t heir
religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the
freedom to prepare and distribute religious texts or publications. 125
The f reedom t o m anifest r eligious b eliefs encompasses t he religious e xpression t hrough
media broadcasting. Article 18(3) permits only such ‘limitations as are prescribed by law and
are necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms o f o thers’. T he U N H uman R ights C ommittee a ccepts th at s uch limita tions ma y
include pr ohibitions on r eligious expression w hich a mounts t o pr opaganda f or w ar or
advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence (contrary to article 20 of the ICCPR).126
Freedom of r eligion i s t hus not t reated a s s uperior t o t he pr ohibition o n ha te s peech a nd
vilification under the ICCPR. Any restrictions must, however, pay due regard to other ICCPR
rights, including the right to equality and non-discrimination on all grounds under articles 2, 3
and 26 of t he ICCPR. 127 Further, a rticle 18( 3) i s t o be ‘ strictly i nterpreted’ a nd doe s not
authorise other restrictions not contemplated by the language of article 18(3) itself, ‘even if
they w ould be allowed as r estrictions t o ot her r ights pr otected i n t he C ovenant, s uch a s
national security’. 128 The UN Human Rights Committee has stated further that:
Limitations may be a pplied only f or t hose pu rposes f or which t hey w ere pr escribed a nd must be
directly related and proportionate to the specific need on which they are predicated. Restrictions may
not be i mposed f or di scriminatory pu rposes or a pplied i n a di scriminatory manner. T he C ommittee
observes th at t he c oncept o f morals d erives from many social, p hilosophical a nd r eligious tr aditions;
consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting
morals must be based on principles not deriving exclusively from a single tradition. 129
4.
International Anti-Terrorism Law
4.1
The Emerging Field of International Anti-Terrorism Law
A num ber of r ecent de velopments i n i nternational a nti-terrorism la w ma y a ffect th e
regulation of satellite broadcasting involving terrorist content. In general, the development of
international anti-terrorism law is a relatively recent phenomenon. Since the 1960s, a number
of t ransnational cr iminal co operation t reaties were ad opted t o t arget s pecific p hysical
manifestations of t errorism, s uch a s hi jacking, hostage t aking, us e o f e xplosives, t errorist
bombings, t errorist f inancing a nd s o on, t ypically r equiring S tates t o c riminalize c onduct,
assert extraterritorial jurisdiction over it, and cooperate with other States in repressing it. At
125
UN Human Rights Committee, General Comment No. 22: The right to freedom of thought, conscience and
religion ( Art. 18), 30 July 1993, para. 4.
126
Ibid, para. 7.
127
Ibid, para. 8.
128
Ibid, para. 8.
129
Ibid, para. 8.
29
the s ame time , ma ny c ountries c ontinued to d eal w ith te rrorist a cts a s o rdinary o r c ommon
crimes under domestic law, supplemented by these ‘sectoral’ treaty offences. There remains
no general international law crime of terrorism, as such. 130
In s pecific cases regarded as t hreats t o i nternational p eace an d s ecurity, t he U N S ecurity
Council a dopted s anctions against c ertain S tates an d n on-State a ctors ( as i n t he Lockberie
dispute involving Libya in the 1990s). 131 Most far reaching were requirements imposed on all
States under Resolution 1267 (1999) to freeze the funds and assets of Osama Bin Laden and
associated individuals and entities, including Al-Qaeda, as ‘listed’ by the 1267 Committee, 132
following terrorist bombings against attributed to Al-Qaeda.
Resolution 1390 e xtended s anctions be yond A fghan t erritory a fter t he f all of t he T aliban,
focusing on t he global activities o f B in Laden, A l-Qaeda an d ‘ associates’. 133 Hundreds of
individuals and entities were consequently listed, including in areas of separatist or religious
conflict s uch a s Bosnia, K osovo, C hechnya, P alestine, N orth Africa, S udan, K urdistan a nd
South E ast A sia. D espite i ts s weeping r each, the s anctions r egime i s not ba sed on a
generalized p roscription of ‘terrorists’, but on a c onnection t o s pecific groups s uch as t he
Taliban o r Al Q aeda. Other r esolutions i mposed military, d iplomatic, a ircraft and t ravel
sanctions on the Taliban. 134
Following t he t errorist a ttacks of 11 S eptember 2001, b y R esolution 1373 ( 2001) t he U N
Security C ouncil, a cting unde r C hapter VII o f t he UN Charter 1945, required a ll S tates to
adopt certain mandatory measures against terrorism. States are required to prevent, suppress,
freeze and cr iminalize t errorist f inancing. 135 States mu st a lso: ( a) r efrain f rom s upporting
terrorists; (b) prevent terrorist acts; (c) deny safe haven to those who finance, plan, support,
or c ommit terrorist acts, or ha rbour t hem; a nd ( d) p revent t he us e of t heir t erritory f or
international terrorism. 136
States are further required to (e) bring to justice those who finance, plan, prepare, perpetrate
or s upport t errorist a cts, and establish such terrorist acts as serious criminal offences in
domestic laws with proportionate penalties; (f) assist other States in criminal investigations
or pr oceedings; a nd ( g) pr event t he m ovement of t errorists b y controls on bor ders,
documentation and counterfeiting. 137
Other provisions are framed as requests rather than obligations. 138 The Council declared that
committing, f inancing, planning a nd i nciting t errorism a re c ontrary t o UN pur poses a nd
130
See Ben Saul, Defining Terrorism in International Law (Oxford, 2006).
See g enerally B en S aul, ‘ Definition o f “ Terrorism” i n the U N S ecurity Council: 1985 –2004’ ( 2005) 4 Chinese Journal of International Law 141.
132
UNSC resolution 1333 (2000), para. 8(c), 16(b).
133
UNSC resolutions 1390 (2002), para. 1 and 1617 (2005).
134
UNSC resolution 1333 ( 2000), paras. 5-6 ( military), 7 -8(a) (diplomatic), 8(b), 11-12 (aircraft), 1 4 (travel),
subject to h umanitarian e xceptions: p aras. 1 1-12; 1452 ( 2002), pa ra. 1 -4. D etailed pr ovisions govern implementation and supervision: UNSC resols 1333 (2000), paras. 15-26; 1363 (2001), paras. 1-8; 1388 (2002); 1390 (2002); 1452 (2002); 1455 (2003), paras. 1-15; 1526 (2004).
135
UNSC r esolution 1 373 ( 2001), p ara. 1 ; s ee g enerally I lias B antekas, ‘ The I nternational L aw o f T errorist Financing’ (2003) 97 American Journal of International Law 315.
136
UNSC resolution 1373 (2001), para. 2.
137
Ibid.
138
UNSC r esolution 1373 ( 2001), pa ras. 3 -4: S tates ar e called upon to e xchange information e xchange,
cooperate, ad opt an d i mplement t reaties an d r esolutions, and d eny r efugee s tatus an d t he p olitical o ffence exception to te rrorists. T he Council was al so co ncerned ab out l inks b etween t errorism a nd t ransnational
organized crime, drugs and arms trafficking, money-laundering, and illegal movements of WMDs.
131
30
principles, 139 potentially l eading t o e xclusion f rom r efugee s tatus unde r t he 1951 R efugee
Convention. 140 The C ouncil w as d etermined ‘ to t ake al l n ecessary s teps’ t o i mplement t he
resolution. 141 A Counter-Terrorism Committee monitored implementation, including through
mandatory State reporting. 142
While States were required to criminalise terrorism, the Security Council did not provide an
operative definition of terrorism in Resolution 1373. Many States consequently enacted new
terrorism of fences und er t he authority of t he resolution but di d s o b y unilaterally and
subjectively defining t errorism a t t he na tional l evel. By R esolution 15 66 ( 2004), t he U N
Security C ouncil l ater s et out a g uideline de finition of terrorism f or t he pur poses of
international action, but di d not require S tates to conform to it. That definition is relatively
narrow and requires a link to an existing sectoral anti-terrorism treaty offence.
4.2
Incitement to Terrorism
While academic and public policy commentary has long focused on the relationship between
the m ass m edia a nd t errorism, no s pecific m easures w ere a dopted on t he i nternational or
regional pl ane unt il very recently. In S eptember 2005, t he United Nations S ecurity C ouncil
adopted non -binding R esolution 1 624 c alling o n S tates to : ‘ Prohibit b y law in citement to
commit a te rrorist a ct or a cts’, to prevent i ncitement, a nd de ny s afe ha ven or entry t o
inciters. 143 The p reamble al so r epudiates ‘attempts a t th e ju stification or glorification
(apologie) of terrorist acts that ma y incite further terrorist acts’, i n ci rcumstances w here n o
direct or proximate incitement to crime would exist.
The resolution was sponsored by the United Kingdom during the aftermath of the July 2005
terrorist bom bings i n London. While th e r esolution is n ot b inding o n S tates, its
recommendation t o S tates t o pr ohibit i ncitement i s de signed t o encourage S tates t o e nact
domestic la w me asures in r esponse. It is n oteworthy in th is c ontext th at if te rrorism is a
criminal offence under domestic law, quite apart from Resolution 1624, many domestic legal
systems already recognise incitement to (any) crime as an ancillary, inchoate, or preparatory
offence establishing an extended mode of criminal participation. Under international criminal
law, ‘direct and public’ incitement to genocide has been an offence since 1948. 144
The r esolution doe s not de fine i ncitement, so i t is u nclear w hether th is te rm e xtends to
indirect in citement, p rivate in citement, o r even vague apologie for t errorism. O ver-broad
definitions of incitement m ay en courage S tates t o ex cessively restrict f ree ex pression. The
resolution also does not define terrorism, such that excessively broad national definitions of
terrorism might be linked to the prohibition on i ncitement, risking the further curtailment of
legitimate expression protected by international human rights law.
139
Convention relating to the Status of Refugees 1951, art 1F(c).
141
142
Ibid, para. 6 (‘CTC’), confirmed and structured in UNSC Pres Stat (15 Apr 2002), S/PRST/2002/10; (8 Oct 2002), S/PRST/2002/26; (17 D ec 2002) , S/PRST/2002/38; (4 A pr 2003 ), S/PRST/2003/3; ( 30 M ar 2 004),
S/PRST/2004/8; 2004/26 (19 Jul 2004); 2004/37 (19 Oct 2004); 2005/3 (18 Jan 2005); UNSC resolution 1535 (2004).
143
Threats to International Peace and Security (Security Council Summit 2005), U NSC r esolution 1624, U N
SCOR, 5261st mtg, UN Doc S/Res1624 (2005) 3.
144
The Convention on the Prevention and Punishment of the Crime of Genocide, ope ned f or s ignature 9 December 1948, 78 U NTS 277, a rt 3( c) ( entered i nto f orce 12 J anuary 1951) prohibits di rect a nd pu blic
incitement to genocide against racial, national, religious or ethnic groups.
140
31
In this context, the UN Special Rapporteur on terrorism and human rights, Professor Martin
Scheinin, has stated that the prohibition on incitement to terrorism in Resolution 1624 (2005)
should be interpreted by reference to the restrictive definition of terrorism in Resolution 1566
(2004). 145 That d efinition of te rrorism in volves th ree c umulative e lements w hich mu st b e
satisfied: ( 1) a s ectoral t reaty o ffence m ust h ave b een co mmitted; ( 2) t he act m ust b e
committed with t he i ntention of c ausing d eath or s erious bodi ly i njury, or t he t aking of
hostages; and (3) the act must be committed for the purpose o f provoking a s tate of t error,
intimidating a population, or compelling a Government or international organization to do or
abstain f rom doi ng a ny act. 146 Such a de finition e nsures t hat t errorism l aws a re c onfined t o
dealing w ith c onduct w hich ‘ is of a g enuinely t errorist n ature’. 147 Incitement to r acial o r
religious hatred will not necessarily constitute ‘incitement to terrorism’. 148
Prohibiting incitement to crime may constitute a permissible restriction on free expression on
public order grounds (the prevention of crime), 149 under the right circumstances. Suppressing
speech w hich p roximately encourages v iolence is a j ustifiable r estriction i n a d emocratic
society, since the protection of life is a higher normative and social value which momentarily
trumps free expression – but only to the extent strictly necessary to prevent the greater harm.
4.3
Propaganda for War
To th e e xtent th at terrorism s ometimes c onstitutes a c ontemporary f orm o f w ar ( where, f or
instance, armed conflict exists involving terrorist groups), also relevant may be article 20(1)
of t he ICCPR, w hich r equires S tates t o pr ohibit b y l aw ‘[a]ny pr opaganda f or w ar’. The
prohibition extends to all forms of propaganda threatening or resulting in an act of aggression
or br each of t he pe ace c ontrary t o t he C harter of t he U nited N ations, 150 whether s uch
propaganda has aims which are internal or external to the State concerned. 151
Article 20(1) does not, however, prohibit advocacy of the sovereign right of self-defence or
the r ight of pe oples t o s elf-determination a nd i ndependence i n a ccordance w ith t he UN
Charter. 152 Thus e xpression w hich e ncourages l awful r esistance t o c olonial or f oreign
occupation, in conformity with international humanitarian law and international human rights
law, is not prohibited by article 20(1).
Such limita tion ma y b e of b roader r elevance to more r ecent p rohibitions o n in citement to
terrorism. Some national law definitions of terrorism criminalize conduct which is lawful (or
not unl awful) und er i nternational hum anitarian l aw i n s ituations of armed conflict, s uch as
attacks on military personnel and military objectives in certain circumstances. Such conduct
may in clude conduct c ommitted in p ursuit o f n ational lib eration o r s elf-determination a nd
avoid unl awful attacks o n civilians. In s uch circumstances, en couragement o r i ncitement t o
such l awful acts w ould not be r egarded as c riminal unde r i nternational l aw. A s t he U N
Special R apporteur not ed e arlier, i nternational l aw onl y authorises t he pr ohibition of
incitement to terrorism as defined narrowly by Security Council Resolution 1566 (2004).
145
Report of the Special Rapporteur (Martin Scheinin) on the pr omotion and protection of human rights and
fundamental freedoms while countering terrorism, E/CN.4/2006/98, 28 December 2005, para. 43.
146
Ibid, para. 42.
147
Ibid.
148
Ibid, para. 43.
149
Andrew Ashworth, Principles of Criminal Law (1999) 481.
150
UN Human R ights Committee, General Comment No. 11: Prohibition of propaganda for war and inciting
national, racial or religious hatrred (Art. 20) : . 29/07/1983, para. 2.
151
Ibid.
152
Ibid.
32
Australia’s d efinition o f te rrorism u nder th e C riminal C ode ( Cth) d oes not e xempt a cts o f
lawful h ostility in a rmed c onflict u nder in ternational h umanitarian la w. To th at e xtent, th e
criminalization o f in citement to te rrorism u nder A ustralian la w ma y go f urther th an is
authorised under international law, at least in the extraterritorial application of such offences.
United States
1.
Media Regulation
The F ederal C ommunications C ommission ( ‘FCC’) i s an i ndependent U nited S tates
government a gency established b y t he Communications Act of 1934 (US). T he FCC i s
empowered to regulate interstate and international communications by radio, television, wire,
satellite a nd c able t hroughout t he U nited S tates. 153 The F CC ma y lic ense communications
carriers, i ncluding on c onditions and for certain periods, ‘if publ ic convenience, i nterest, or
necessity w ill b e s erved t hereby’ and t he ap plicant co mplies w ith al l relevant le gal a nd
technical s tandards. 154 It is s pecifically empowered to r egulate c ommunications s atellites. 155
The FCC itself issues further rules and regulations in relation to licensing. 156
In general, t he FCC has l ittle power t o regulate t he content of broadcasts t hrough l icensing
and much of the FCC’s role instead concerns the administration of technical standards. The
FCC’s governing statute expressly provides that the FCC has no ‘ power of censorship’ over
communications transmissions, nor is it permitted to impose regulations or conditions which
‘interfere with the right of free speech’. 157 Historically, however, putative concerns about the
scarcity o f an alogue (radio a nd t elevision) broadcast s pectrum m ay ha ve produced m ore
active interference in content by regulators, 158 although scarcity arguments did not affect free
expression in relation to cable or satellite television in the same way. 159
As s et out further be low, t he FCC w ill e nforce l imited s tatutory pr ohibitions on obs cene,
indecent or profane material, and certain incitements to violence (following the finding of a
court). Under US law, for instance, it is an offence to broadcast obscene, indecent or profane
language, including by cable or satellite television. 160
153
Title 47 US Code.
47 USC 301, 303, 307, 309.
155
47 USC 701-769 and Communications Satellite Act of 1962 (US), section 201. A communications satellite is
defined t o mean ‘an earth satellite which is i ntentionally used to r elay te lecommunication in formation’, while
the te rm ‘telecommunication’ means ‘any tr ansmission, emission o r r eception o f s igns, s ignals, writings,
images, and sounds or intelligence of any nature by wire, radio, optical, or other electromagnetic systems’: 47
USC 702.
156
Title 4 7 o f th e C ode o f F ederal R egulations ( CFR), p articularly P art 2 5 d ealing with s atellite
communications.
157
47 USC 326.
158
See, eg, Red Lion Broadcasting Co v FCC, 395 US 367 (1969).
159
Remarks by Michael K. Powell, FCC Commissioner, to the Media Institute, Washington DC, 20 October
1999.
160
18 USC 1464 pr ohibits broadcasting obscene language: ‘Whoever utters any obscene, indecent, or profane
language b y m eans o f r adio communication s hall be f ined u nder t his t itle or i mprisoned n ot m ore t han t wo
years, or bot h.’ 18 U SC 1468 prohibits d istributing o bscene material b y c able o r subscription te levision: ‘(a)
Whoever knowingly utters any obscene language or distributes any obscene matter by means of cable television
or subscription services on television, shall be punished by imprisonment for not more than 2 years or by a fine
in accordance with this title, or both. (b) As used in this section, the term “distribute” means to send, transmit,
retransmit, telecast, broadcast, or cablecast, including by wire, microwave, or satellite, or to produce or provide
material for s uch d istribution.’ See a lso 47 U SC 559 pr ohibiting obs cene pr ogramming: ‘Whoever tr ansmits
154
33
Given th e o therwise limite d p ower o f th e FCC t o r egulate c ontent, o bjections t o t he relicensing of applicants who broadcast racist, anti-Semitic or homophobic sentiments have not
been successful. 161 The FCC set out its narrow approach to the regulation of content in a radio
broadcasting decision of 2007: 162
The role o f th e Commission in o verseeing program content i s limited. The First Amendment t o the
United S tates C onstitution a nd S ection 3 26 o f t he Act prohibit th e Commission from c ensoring
program material o r i nterfering with b roadcasters’ free speech r ights. The C ommission d oes regulate
broadcast content where federal statutes direct it to do so. For example, the Commission enforces the
statutory prohibition on the broadcast of obscene, indecent and profane material contained in 18 U.S.C.
§ 1464. However, the Commission will not take adverse action on a license renewal application based
upon the subjective determination of a listener or group of listeners as to what constitutes appropriate
programming. 163 Licensees have broad discretion – based on their right to free speech – to choose, in
good faith, t he p rogramming that t hey b elieve s erves t he n eeds a nd i nterests o f t heir c ommunities. 164
This holds true even if the material broadcast is insulting to a particular minority or ethnic group in the
station’s community. 165 Indeed, as we have held in ear lier d ecisions, “if t here is to b e free speech, it
must b e f ree for s peech t hat we ab hor a nd h ate as well as f or s peech t hat we find tolerable an d
congenial.” 166 We will i ntervene in p rogramming matters o nly i f a l icensee ab uses t hat d iscretion. 167
Objectors have not demonstrated that the Station has done so here.
On the facts of that case, it had been alleged that the radio station had used the term ‘Nazis’
to de scribe e nvironmentalists, a dvocated t he s ale of w hite s heets dur ing a M artin Luther
King, Jr. celebration, and referred to a gay woman as a ‘stupid gumba’. 168
In t he s ame d ecision, 169 the F CC a lso out lined i ts a pproach t o br oadcasts w hich i ncite
violence, in the absence of any direct statutory prohibition on such expression:
Commission act ion i n r esponse t o a n al legation t hat a broadcast s hould b e c haracterized as a n
'incitement' t o violence o r i llegal act ion meeting t he " clear an d p resent d anger" t est i s limited t o
situations where a lo cal c ourt o f c ompetent j urisdiction h as made s uch a d etermination. See Cattle
Country Broadcasting, 58 R.R.2d 1109, 1113 (1985); see also Brandenburg v. Ohio, ("Brandenburg"),
395 U .S. 444, 447 (1969) ( speech be comes i llegal a dvocacy when " directed t o i nciting or producing
imminent lawless action and is likely to incite or produce such action."). This aspect of the test requires
a court to "make its own inquiry into the imminence and magnitude of the danger said to flow from the
particular utterance and then to balance the character of the evil, as well as its likelihood, against the
over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined under title 18 or imprisoned not more than 2 years, or both.’ See generally Title 18 USC
chapter 71 on obscenity.
161
See, eg, FCC Decision DA 07-1949, 1800B3-KD, 30 April 2007, In re: KGEZ(AM), Kalispell, MT, Facility
ID No. 60575, Skyline Broadcasters, Inc., File No. BR-20041130AMS.
162
Ibid.
163
Citing WGBH Educational Foundation, Memorandum Opinion and Order, 69 FCC 2d 1250, 1251 (1978).
164
Citing, e g, License Renewal Applications of Certain Commercial Radio Stations Serving Philadelphia,
Pennsylvania, Memorandum Opinion a nd O rder, 8 F CC Rcd 6400, 6401 ( 1993); Time-Life Broadcast, Inc.,
Memorandum Opinion and Order, 33 FCC 2d 1081, 1082 (1972); Office of Communications of United Church
of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983).
165
Citing Zapis Communications Corp., Memorandum Opinion and Order, 7 FCC Rcd 3888 (MB 1992).
166
Citing i bid ( see al so Anti-Defamation League of B’nai B’rith, M emorandum O pinion, 4 F CC 2d 190, 192 (1966), aff’d, Memorandum Opinion and Order, 6 FCC 2d 385 ( 1967), aff’d sub nom. Anti-Defamation League
of B’nai B’rith v. FCC, 403 F. 2d 169 (1968), cert. denied, 394 U.S. 930 (1969)).
167
Citing Philadelphia Station License Renewals, 8 FCC Rcd at 6401 (finding that abuse of discretion occurs if
a licensee is unreasonable or discriminatory in its selection of issues that it believes are of concern to the local
community or if it o ffers such nominal levels of issue-responsive programming as to have effectively defaulted
on its obligation).
168
FCC Decision DA 07-1949, 1800B3-KD, 30 April 2007, In re: KGEZ(AM), Kalispell, MT, Facility ID No.
60575, Skyline Broadcasters, Inc., File No. BR-20041130AMS.
169
Ibid.
34
need for free a nd u nfettered expression." Landmark Communications, Inc. v. Virginia, 435 U .S. 829,
843 (1975).
... Under Brandenburg, any d etermination that particular speech poses a " clear and present danger of
serious substantive evil" presupposes a familiarity with the circumstances, issues, and concerns of the
community where such speech was heard, a familiarity which the Commission, in most cases, does not
have and cannot practically o btain. Local authorities responsible for keeping the peace and enforcing
the l aw ar e b etter p ositioned t o k now an d as sess t he s pecific an d u nique ci rcumstances in t he . ..
community and, thus, to determine whether the Brandenburg test has been met." 170
On the facts of the case, it was alleged that the broadcaster had encouraged listeners to run
bicyclists off the road or to tear down entrance gates at state parks. Yet, the FCC found that
no local court had found that any broadcasts had met the ‘clear and present danger’ test, nor
had any criminal or civil proceedings been brought against the broadcaster.
The FCC further found insufficient evidence to substantiate claims that indecent sexual jokes
had been broadcast. 171 The FCC set out the test for indecency as follows: 172
The Commission defines indecent speech as language or material that, in context, depicts or describes,
in t erms p atently o ffensive as measure b y co ntemporary c ommunity standards f or the br oadcast
medium, sexual or excretory activities or organs. In determining whether the complained-of material is
patently o ffensive, three factors ar e p articularly r elevant: ( 1) the explicitness o r graphic nature o f t he
description or images; (2) whether the material dwells on or repeats at length descriptions or sexual or
excretory organs or activities; and (3) whether the material appears to pander or is used to titillate or
shock. The Commission ap plies t hese t hree factors a s p art of a b alancing i nterest to d etermine i f t he
material is indecent. 173
In s um, t he FCC ha s l imited pow ers t o r efuse or r evoke s atellite b roadcast l icenses on t he
grounds of hate speech or vilification. There may be some circumstances in which incitement
to terrorist violence will enable the FCC to act, but then only following the prior decision of a
court. T he F CC’s pow er t o r egulate t he c ontent of br oadcasts i s a t i ts w idest i n r elation t o
indecent ex pressions, r eflecting w ider s tatutory b ases to i nterfere i n f reedom o f ex pression
(and correlative public policy choices by Congress) which do not similarly exist in relation to
hate speech or incitement to violence.
2.
US f ederal s tatutory l aw cr eates a n umber o f l imited h ate c rime o ffences w here a p erson
wilfully causes or attempts to cause ‘bodily injury’ to any person ‘because of’ the actual or
perceived race, color, religion, national origin, gender, sexual orientation, gender identity or
170
Citing Capstar TX Limited Partnership, Memorandum Opinion and Order, 19 FCC Rcd 11303, paras. 9, 10
(EB 2004) (quoting Spanish Radio Network, Memorandum Opinion and Order, 10 FCC Rcd 9954, 9959, paras.
21-22 (1995)).
171
Including by reversing the first letters of petitioner Kate Hunt’s first and last names (producing ‘Hate Cunt’).
172
FCC Decision DA 07-1949, 1800B3-KD, 30 April 2007, In re: KGEZ(AM), Kalispell, MT, Facility ID No.
60575, Skyline Broadcasters, Inc., File No. BR-20041130AMS.
173
Also c iting In The Matter Of Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, Notices of Apparent Liability and Memorandum Opinion and Order, 21 FCC Rcd
2664 , 2713 (2006), vacated in part, 21 FCC Rcd 13299 (2006) (holding that a sexual double entrendre made
through an animated lion character's statement, “Big Daddy's ready for lovin' ... it may be nine o'clock in New
York, but right here it's mountin' time,” was not indecent); Complaints by Parents Television Council Against
Various Broadcast Licensees, Memorandum Opinion and Order, 20 FCC Rcd 1931 (2005), and Memorandum
Opinion and Order, 20 F CC Rcd 1920 ( 2005) (references or innuendo alluding to sexual organs or activities
held not to be patently offensive where they were not sufficiently graphic or explicit and were not repeated or
dwelled upon).
35
disability o f t he pe rson. 174 Injury i s e xpressly defined t o e xclude ‘ solely e motional or
psychological h arm’ to t he v ictim, 175 such t hat t he offences r eally j ust r ecognise a pe rson’s
status as an aggravating factor in ordinary crimes of violence to the person. The offences do
not t herefore a mount t o w ider c rimes of ha te s peech or vi lification a s s uch. T here a re a lso
‘hate c rime’ o ffences in volving w ilfully in juring, in timidating o r in terfering with a nother
person i n r elation t o c ertain f ederally p rotected a ctivities 176 because o f t he p erson’s r ace,
colour, religion or national origin. 177
The First Amendment to the US Constitution has been interpreted so as to limit the ability to
enact w ider h ate s peech o r v ilification m easures i n U S f ederal law. I n ge neral, e xpression
may not be subject to prior restraint or subsequent punishment unless it creates a ‘clear and
present da nger’ of br inging a bout s ubstantial e vil w hich publ ic a uthorities ha ve pow er
prevent. 178 Advocacy of the use of force or violation of the law cannot be prohibited ‘except
where s uch a dvocacy i s di rected t o i nciting o r producing i mminent l awless a ction a nd i s
likely t o i ncite or pr oduce s uch a ction’. 179 Further, ‘ viewpoint’ di scrimination i s or dinarily
unlawful, 180 as is censorship or classification requiring official approval of ideas. 181
In r elation t o hate l aws s pecifically, t he US S upreme C ourt has s truck down l aws t argeting
hateful e xpression. In R.A.V. v St Paul, a city i n M innesota ha d pr ohibited t he pl acing on
public or pr ivate property of a ny s ymbol, obj ect, a ppellation, characterisation or graffiti
which a p erson kno ws or ha s reasonably grounds t o know w ould arouse a nger, a larm, or
resentment in others on the basis of race, colour, creed, religion or gender. 182 A teenager was
charged for burning a cross inside the yard of a black family.
A majority of the Supreme Court accepted that the law applied only to ‘fighting words’ that
insult or provoke violence on the basis of the enumerated prohibited grounds. 183 However, the
law imp ermissibly i mposed ‘ viewpoint di scrimination’ be cause i t onl y prohibited f ighting
words invoking the prohibited grounds, while equally vicious or severe expressions unrelated
to t hose g rounds w ere not pr ohibited b y t he l aw. S uch c ontent di scrimination w as no t
considered reasonably necessary in promoting the compelling public interest in protecting the
human r ights o f me mbers o f groups th at were h istorically s ubject to d iscrimination. S ome
judges observed, however, that the law did not only target ‘fighting words’ but was overbroad
in also encompassing conduct that (merely) hurt feelings or caused offense or resentment. 184
There was considerable division among the judges on various aspects of the reasoning.
174
18 USC 249(a)(1) and (2).
18 USC 249(c).
176
Such a s p ublic s chooling, p ublic e mployment, in terstate tr avel, o r e njoying c ertain p ublic o r c ommercial
services.
177
18 USC 245(b)(2).
178
Schenk v United States (1919) 24 9 U S 47; Bridges v California (1941) 3 14 U S 25 2; Associated Press v
United States (1945) 326 US 1.
179
Brandenburg v Ohio 395 U S 4 44 ( 1969) a t 6 . S ee ge nerally S teven Heyman ( ed), Hate Speech and the
Constitution, Volume 2 (1996); K ent G reenawalt, Fighting Words: Individuals, Communities, and Liberties of
Speech (1995); R Dworkin, ‘The Coming Battles of Free Speech’, New York Review of Books, 11 J une 1992,
190
180
United States Servicemen’s Fund v Shands (1971, C A4) 400 F 2d 44; s ee a lso Rosenberger v Rector &
Visitors of the University of Va. (1995) 515 US 819.
181
Largent v Texas (1943) 318 US 418; see also Kingsley Books, Inc v Brown (1957) 354 US 436; Herbert v Lando (1977, CA2 NY) 568 F2d 974.
182
RAV v St Paul, 505 US 337.
183
Scalia J and Rehnquist CJ, Kennedy, Souter and Thomas JJ.
184
See White, Blackmun, O’Connor and Stevens JJ.
175
36
3.
Anti-Terrorism Law
For t he c onstitutional r easons set out above, US l aw doe s not p rohibit m ere t he m ere
advocacy, e ncouragement, pr omotion or glorification of t errorism. U S l aw doe s, how ever,
contain num erous ot her terrorism of fences. 185 Terrorism is defined as activities that involve
violent or criminal acts which are intended to (i) intimidate or coerce a civilian population;
(ii) influence t he pol icy of a government b y i ntimidation or c oercion; or (iii) affect t he
conduct of a government by mass destruction, assassination, or kidnapping. 186 Terrorism may,
however, be pr osecuted as t he or dinary of fence of hom icide 187 or as t errorism p er s e. T he
terrorism specific offences include:
• Transnational t errorism w hich ki lls, k idnaps, m aims or a ssaults w ith a da ngerous
weapon any person, or creates a substantial risk of serious bodily injury by destroying
property within the US (18 USC 2332B);
• Engaging i n f inancial t ransactions w ith t he government of a c ountries de signated a s
supporting international terrorism under section 6(j) of the Export Administration Act
of 1979 (50 App. U.S.C. 2405) (18 USC 2332d);
• Bombing of a public place, government or infrastructure facility, or public transport,
with t he i ntent t o c ause de ath or s eriously bodily i njury or t o c ause e xtensive
destruction of such targets (18 USC 2332f);
• Dealings with anti-aircraft missile systems (18 USC 2332g) or radiological dispersion
devices (18 USC 2332h);
• Harbouring or concealing a terrorist (18 USC 2339); 188
• Providing m aterial s upport or r esources t o t errorists ( 18 U SC 2339 A) 189 or t o
designated foreign terrorist organisations (18 USC 2339B); 190
• Financing te rrorism, b y directly o r in directly, un lawfully and w ilfully pr oviding or
collecting funds with the intention that such funds be used, or with the knowledge that
such f unds a re t o be us ed, t o c ommit: ( i) of fences unde r i nternational a nti-terrorism
treaties, o r ( ii) a ny other a ct in tended t o c ause death or s erious bodi ly injury t o a
civilian, or to any other person not taking an active part in the hostilities in a situation
of a rmed conflict; w hen t he pur pose o f s uch act, b y i ts n ature or c ontext, i s t o
intimidate a population, or to compel a government or an international organization to
do or to abstain from doing any act (18 USC 2339C);
• Receiving milita ry-type training f rom a de signated t errorist or ganisation ( 18 U SC
2339D). 191
185
See, eg, Title 18 USC, Part 1, chapter 113B.
18 USC 2331 (defining international and domestic terrorism separately). For investigative purposes only, the
‘federal cr ime o f t errorism’ i s s eparately d efined i n 1 8 U SC 2 332B(g)(5) as an o ffence t hat i s cal culated to
influence o r a ffect t he co nduct o f government b y i ntimidation o r co ercion, o r t o r etaliate ag ainst g overnment
conduct, and is a violation of any one of a large number of US offences enumerated there.
187
18 USC 2332.
188
Where the person knows or has reasonable grounds to believe that the person has committed or is about to
commit any of a number of offences enumerated in the section.
189
Where t he pe rson knows or i ntends t hat s uch s upport or resources a re t o be used i n pr eparation for, or i n
carrying out, a violation of enumerated sections.
190
As designated under section 212(a)(3)(B) of the Immigration and Nationality Act or section 140(d)(2) of the
Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
191
As de signated un der section 219( a)(1) of t he Immigration and Nationality Act. The te rm “ military-type
training” includes training in means or methods that can cause death or serious bodily injury, destroy or damage
186
37
Relevantly, t he of fences of pr oviding m aterial s upport or r esources t o t errorists (1 8 U SC
2339A and B) are defined to widely to mean:
any property, tangible or intangible, or service, including currency or monetary instruments or financial
securities, f inancial services, lo dging, tr aining, e xpert a dvice o r a ssistance, sa fehouses, f alse
documentation o r i dentification, co mmunications eq uipment, f acilities, weapons, l ethal s ubstances,
explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except
medicine or religious materials; 192
The t erms ‘ service’, ‘ communications e quipment’, a nd ‘ facilities’ c ould a ll c onceivably
encompass the provision of satellite television broadcasting in support of terrorism. Further,
the p hrase ‘ expert ad vice o r as sistance’ m eans advice o r as sistance derived f rom s cientific,
technical o r o ther s pecialized k nowledge, 193 which c ould pot entially i nclude s pecialised
telecommunications or satellite technology.
Canada
1.
Media Regulation
The r egulation of s atellite t elevision i n Canada i s unde rtaken b y t he C anadian R adiotelevision and Telecommunications Commission (‘CRTC’) under the Broadcasting Act 1991
(Can). S ection 5 (1) of t he A ct p rovides t hat t he C RTC ‘ shall r egulate a nd s upervise a ll
aspects of the Canadian broadcasting system’ with a view to implementing the broadcasting
policy in section 3(1) and having regard to the regulatory policy in section 5(2). The CRTC is
empowered t o i ssue br oadcasting l icenses, i ncluding on c onditions i mposed b y t he C RTC,
under article 9 of the Act.
Relevantly, under section 8 (1)(b) of the Broadcasting Distribution Regulations, SOR/97-555,
no licensee shall distribute a programming service (that the licensee originates) that contains:
any abusive comment or abusive pictorial representation that, when taken in context, tends or is likely
to expose an individual or class of individuals to hatred or contempt on the basis of race, national or
ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability; ….
In 2004, t he CRTC decided to approve the addition of the Arabic-language news and public
affairs service, Al Jazeera, to its lists of eligible satellite services for digital distribution.194 In
2009 t he C RTC s imilarly approved t he A l Jazeera’s E nglish l anguage satellite s ervice. 195
Canadian s atellite t elevision c ompanies, know n as ‘ broadcasting di stribution unde rtakings’
(‘BDUs’), ha d a pplied to d istribute A l Jazeera i n C anada. T he r egulatory i ssues r aised i n
those de cisions a re di rectly relevant t o a ny future r egulatory consideration i n C anada o f
whether to approve Al Manar by satellite.
property, or disrupt services to critical infrastructure, or training on the use, storage, production, or assembly of
any explosive, firearm or other weapon, including any weapon of mass destruction: 18 USC 2339D(c)(1)
192
18 USC 2339A(b)(1).
193
18 USC 2339A(b)(3).
194
Broadcasting Public Notice CRTC 2004-51, Ottawa, 15 July 2004, available at
www.crtc.gc.ca/end/archive/2004/pb2004-51.htm.
195
Broadcasting R egulatory P olice C RTC 2009 -725, O ttawa, 26 N ovember 2009, a vailable a t
www.crtc.gc.ca/eng/archive/2009/2009-725.htm.
38
In i ts 2004 de cision, t he C RTC r eceived 500 c omments i n oppos ition t o a pproving A l
Jazeera, primarily on t he grounds that: (a) it had a pattern of broadcasting hate propaganda,
particularly against J ewish pe ople, a nd ( b) t here w ere no r egulatory m echanisms a vailable
under C anadian l aw t o de al w ith s uch c oncerns i n non -Canadian s ervices l ocated o utside
Canada’s jurisdiction. 196 The CRTC decision gives examples of some abusive comments. 197
Central to th e C RTC’s d ecision-making w ere s ection 8( 1)(b) o f the Broadcasting
Distribution Regulations; freedom of expression (including of the media) under article 2(b) of
the Canadian Charter of Fundamental Rights and Freedoms; and aspects of the broadcasting
policy in section 3(1)(d) of the Broadcasting Act 1991 (Can), particularly that:
(d) the Canadian broadcasting system should
(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,
…
(iii) through its programming and the employment opportunities arising out of its operations, serve the
needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children,
including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society
and the special place of aboriginal peoples within that society, and
(h) all persons who are licensed to carry on broadcasting undertakings have a responsibility for the programs
they broadcast;
(i) the programming provided by the Canadian broadcasting system should
(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for
men, women and children of all ages, interests and tastes,
(ii) be drawn from local, regional, national and international sources, …
(iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on
matters of public concern, and
In i ts a nalysis, t he C RTC f irstly found t hat Al J azeera c ould contribute to t he di versity of
Canadian broadcasting, as follows:
the addition of Al Jazeera to the digital lists could provide more variety in the programming provided
by t he Canadian b roadcasting s ystem, specifically b y o ffering t he d iffering p erspective o f an Arabiclanguage i nternational news programming s ervice. I t could a lso contribute t o s erving t he ne eds a nd
interests, an d r eflecting t he ci rcumstances a nd as pirations, o f Arab-Canadian m en, w omen and
children. I t c ould a lso c ontribute to s erving t he needs a nd in terests o f o ne o f th e multicultural a nd
multiracial s ectors o f C anadian s ociety b y i ncreasing t he amount o f p rogramming av ailable to A rabCanadians i n t heir l anguage o f c omfort. I n t hese r espects, t he C ommission f inds t hat a uthorizing t he
distribution o f Al J azeera co uld co ntribute t owards t he a chievement o f some o f t he objectives o f
sections 3(1)(d)(iii) and 3(1)(i)(i) and (ii) of the Act. In addition, the Commission finds that distribution
of Al Jazeera could provide an opportunity for the public to be exposed to the expression of differing
views on matters of public concern and, accordingly, adding it to the digital lists could contribute to the
achievement of the objective of section 3(1)(i)(iv) of the Act. 198
196
Broadcasting Public Notice CRTC 2004-51, Ottawa, 15 July 2004, available at
www.crtc.gc.ca/end/archive/2004/pb2004-51.htm, paras. 26-28.
197
See, eg, ibid, para. 65: ‘There is no doubt that a statement that Jews are "sons of apes and pigs" and "the most
despicable people . worms . a ll evil," and that the U.S. should " get rid" of the Jews, would, in the absence of
extenuating context, frustrate the achievement of the broadcasting policy objectives set out in the Act. The same
can be said of a statement that "God . will not be deterred unless there is a true holocaust that will exterminate
all of [the Jews] at once ..".’
198
Ibid, para. 54.
39
The CRTC secondly observed that the broadcast of abusive and hateful comment is contrary
to Canadian broadcasting standards and values. 199 It’s restriction is necessary to prevent the
‘very real harms’ that such comments cause:
The f irst harm … i s the e motional d amage c aused b y t he c omments, which may b e o f gr ave
psychological and social consequence to members of the target group. The derision, hostility and abuse
encouraged b y s uch c omments ha ve a s everely ne gative i mpact o n t he t argeted gr oup o r i ndividual's
sense of self-worth, human dignity and acceptance within society. In extreme cases, when the comment
is so hateful that it could incite violence, it could also threaten the physical security of those targeted.
This ha rm undermines t he e quality r ights o f t hose t argeted; r ights which t he p rogramming o f t he
Canadian broadcasting system should reflect, according to Canadian broadcasting policy. 200
Furthermore, such comments can inflame group tensions and hostilities in society:
The distribution of comment provoking hatred or contempt can cause further harm beyond the harm to
targeted p ersons b y at tracting i ndividuals t o i ts cau se an d i n t he p rocess cr eating s erious d iscord
between various cultural groups in Canadian society to the detriment of all of Canadian society. T his
further h arm undermines t he cu ltural, p olitical an d s ocial f abric o f C anada, which t he C anadian
broadcasting system should safeguard, enrich and strengthen. It also undermines the multicultural and
multiracial nature o f Canadian society, which the p rogramming o f t he Canadian b roadcasting system
should reflect. Accordingly, protection from the harms of abusive comment is not only for the benefit
of Jewish-Canadians, but for all Canadians, including Arab-Canadians. 201
The CRTC regarded restriction of abusive comment as a justifiable limitation on freedom of
expression, ne cessary t o pr otect t he r ights of ot hers, a s e ndorsed b y t he Canadian S upreme
Court in upholding hate propaganda l aws. 202 The CRTC acknowledged that the reporting of
anti-Semitic s tatements mig ht n ot e xpose Jews to h atred o r c ontempt ‘ if pr esented i n t he
context of a f orum c hallenging a nti-Semitism’. 203 It f urther n oted th at ‘ that th ere is a lin e
between reporting on hate as news in newscasts or news coverage, as opposed to facilitating
its expression or directly expressing, condoning or adopting it’. 204 The CRTC further found
that a licensee ‘chooses its guests and the viewers or listeners calling in that it puts on the air’
and is therefore responsible for the statements made by them. 205
The CRTC concluded that at least some of the statements broadcast on Al Jazeera were not in
the co ntext o f n ews co verage b ut f acilitated h ateful ex pression. T he CRTC n onetheless
decided t hat p reventing A l J azeera f rom b eing b roadcast al together ‘ would not s trike the
correct ba lance be tween pr otecting a gainst t he ha rms of a busive c omment a nd s ustaining
freedom of expression’. 206 Some of the Al Jazeera broadcasts complained of ‘were presented
devoid of context, and some of their meaning may have been lost or distorted in translation
from Arabic’. 207 Others were old broadcasts and Al Jazeera had since sincerely attempted to
curb a busive c omments. 208 Preventing a ny b roadcasting of A l Jazeera w ould de ny vi ewers
diverse exposure because of a relatively small number of inappropriate statements, which did
not provide a sufficient evidentiary basis on which to prohibit its transmission. 209
199
Ibid, paras. 57.
Ibid, para. 59.
201
Ibid, paras. 59-60.
202
Ibid, para. 62, citing R. v. Keegstra, [1990] 3 S.C.R. 697 and (Canada Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.
203
Ibid, para. 66.
204
Ibid, para. 67.
205
Ibid.
206
Ibid, para. 68.
207
Ibid, para. 69.
208
Ibid, para. 71.
209
Ibid, para. 70.
200
40
Instead, the CRTC decided to balance the competing interests b y licensing the broadcast of
Al Jazeera but imposing two license conditions upon the BDUs which sought to broadcast it.
Because the CRTC found ‘credible evidence’ that some Al Jazeera programming may include
abusive comments, i t was necessary t o i mpose m easures t o pr event t he di stribution of s uch
comment. 210 The conditions upon the BDUs were as follows: 211
(1) They m ust r etain a n a udio-visual r ecording of all pr ogramming ( for f our t o e ight
weeks) af ter its di stribution, s o t hat t he C RTC c an i nvestigate a ny future c oncerns
about abusive programming;
(2) They must not di stribute a busive comment a s part of p rogramming, i ncluding b y
altering or deleting the programming service in the course of its distribution solely for
the purpose of complying with this condition.
The CRTC regarded the second condition as necessary because the CRTC does not license Al
Jazeera a nd doe s not ha ve di rect j urisdiction ov er i t. T he C RTC not ed t hat t he B DUs m ay
fulfil th ese r equirements i n va rious w ays, a nd obs erved t hat BDUs have a contractual
relationship with Al Jazeera which the CRTC does not have. Such restriction of content were
regarded as a ‘demonstrably justifiable’ and ‘minimally impairing’ curtailment of freedom of
expression, w hich w as ‘ necessary … t o e nsure t hat A l J azeera pr ogramming di stributed i n
Canada r eflects t he c ircumstances a nd aspirations of C anadians, i ncluding e qual r ights a nd
the multicultural and multiracial nature of Canadian society’. 212
The conditions were also considered necessary because other measures in Canadian law were
not a vailable or w ould not be e ffective. 213 First, t he pr ohibition on a busive c omment i n
section 8 (1)(b) of t he Broadcasting Distribution Regulations only applies t o pr ogramming
that a B DU originates and thus would not apply to Al Jazeera. Secondly, other mechanisms
to a ddress ha te s peech in t he m edia, t hrough t he C anadian Broadcast Standards C ouncil
(CSBC) code of practice for broadcasters, would not apply because membership of the CSBC
is not open to non-Canadian broadcasters. The CRTC also implied that criminal hate speech
laws and defamation laws would not be available or effective, but did not give reasons. 214
Following the approval of Al Jazeera Arabic in 2004, t he CRTC subsequently approved the
addition of the Al Jazeera English service in 2009. 215 The CRTC had received a small number
of complaints about the possible broadcast of abusive comments, as well as suggestions that
Al Jazeera English would not meet journalistic standards or that its reporting was unbalanced.
In i ts de cision, t he C RTC not ed t hat w hereas c onditions w ere i mposed upon t he A rabic
service i n 2004 b ecause of s ubstantiated evidence of abusive comment, b y contrast
complaints a bout t he E nglish s ervice ha d not be en s ubstantiated b y tr anscripts o r ta pes. 216
Further, the CRTC found that the question whether reporting was balanced had to be assessed
over a reasonable period of time, rather than requiring diversity of all points of view within
210
Ibid, para. 73.
Ibid, paras. 76-81.
212
Ibid, para. 81.
213
Ibid, paras. 74-75.
214
Ibid.
215
Broadcasting Regulatory Policy CRTC 2009-725, Ottawa, 26 November 2009.
216
Ibid, paras. 22-23.
211
41
one r eport or one pr ogram. 217 It w as al so r elevant t hat A l Jazeera E nglish h ad o ffered t o
consult with Canadian Jewish organisations about balance and diversity of view points. 218
Finally, it is n otable th at s ection 9 (1)(c) o f th e Radiocommunication Act 1985 (Canada)
prohibits a ny pe rson f rom de coding a n e ncrypted s ubscription pr ogramming s ignal or
encrypted network feed otherwise than under and in accordance with an authorisation fromm
the lawful distributor of the signal or feed. According to the Supreme Court of Canada, the
effect of t his pr ovision is t hat i t i s unl awful for a p erson i n C anada t o ‘pirate’ A merican
satellite television channels which spill over into Canada, in circumstances where no l icense
exists in Canada for their lawful distribution.219 Section 18(1) of that Act then allows licensed
broadcast undertakings in Canada (under the Broadcasting Act 1991 (Canada)) to sue anyone
in b reach o f a rticle 9 (1)(c). Although t he r ationale i s t o p reserve C anadian b usiness an d
culture, in circumstances where no Canadian licensees exist to transmit such services, critics
have not ed t hat m inority groups i n C anada may be d enied t he f reedom t o receive
programming in their own languages and addressing their own cultural interests, 220 because of
the relatively small size of the Canadian satellite television markets.
2.
2.1
Criminal Offences
Three C anadian criminal o ffences a re relevant to ad dressing h ate s peech. F irst, i t i s an
offence in Canada to advocate or promote genocide (section 318). Secondly, it is an offence
to publicly incite hatred against any identifiable group, by communicating statements in any
public p lace, w here s uch i ncitement i s l ikely t o l ead t o a b reak o f t he p eace ( Canadian
Criminal Code, section 319(1)). A ‘public place’ is defined as any place to which the public
have access as of right or by invitation, express or implied. An ‘identifiable group’ is defined
by r eference t o s ection 318 a s ‘ any s ection of t he publ ic di stinguished b y colour, r ace,
religion, ethnic origin or sexual orientation’. The term ‘communicating’ is defined to include
communicating by telephone, broadcasting or other audible or visible means (section 319).
Thus an offence could be committed by a person making statements inciting group hatred on
television, w here s uch s tatements ar e b roadcast i n p ublic p laces. S ince cr iminal l iability
exists i n C anada f or a iding or a betting a crime (Canadian C riminal C ode, s ection 21) , t he
personnel of a s atellite t elevision pr ovider c ould pot entially be l iable f or a iding or abetting
public incitement to group hatred where the person intends to further that crime.
Thirdly, i t i s an o ffence to wilfully promote group hatred against any i dentifiable group b y
communicating s tatements o ther th an in p rivate conversation ( Canadian C riminal C ode,
section 319(2)). The offence does not require ‘public’ incitement and thus potentially extends
to the making of statements on television in the home. Again, liability for satellite television
providers may exist where there is an intention to aid or abet the primary offence.
Defences of truth, good faith expression of a religious belief, public interest, and combating
hate s peech are available f or bot h o ffences und er s ection 319 ( Canadian C riminal C ode,
section 319(3)).
217
Ibid, para. 24.
Ibid, para. 25.
219
Bell ExpressVu Limited Partnership v Rex [2002] SCR 42.
220
Alex Colangelo, ‘Culture vs Expression’ (2003) 5 Vanderbilt Journal of Entertainment Law & Practice 105.
218
42
Following t he a doption of t he Anti-Terrorism Act 2001 (Canada), t he Canadian C riminal
Code also contains an offence of mischief in relation to religious property that is motivated
by bias, prejudice or hate based on religion, race, colour or national or ethnic origin. 221
Finally, und er s ection 1 3(1) of t he Canadian Human Rights Act 1977 (Canada) ( which
prohibits discrimination in areas of federal regulation), it is a prohibited to communicate (by
telephone or ot her t elecommunications) any m atter th at is likely t o e xpose a pe rson or
persons to hatred or contempt by reason of the person’s race, national or ethnic origin, colour,
religion, age, sex, marital status, family status, or disability. 222 While the provision applies to
computer and i nternet c ommunications, i t ‘ does n ot a pply in r espect o f a ma tter th at is
communicated i n w hole or i n pa rt b y m eans of t he f acilities o f a b roadcasting
undertaking’. 223
The provision has been used in relation to the dissemination of anti-Semitic messages as well
as m essages directed against i mmigrants a nd homosexuals. I t ha s a lso be en f ound t o
constitute a justifiable limitation on freedom of expression as necessary to prevent incitement
or advocacy to destroy the rights and freedoms of others. 224
2.2
Compatibility of hate speech offences with human rights law
The C anadian S upreme C ourt ha s pr eviously f ound t hat t he s ection 3 19(2) ha te s peech
offence do es not i nfringe t he constitutional pr otection of freedom of e xpression unde r t he
Canadian Charter of Fundamental Rights and Freedoms. Section 2(b) of the Canadian Charter
protects ‘freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication’. Article 1 of the Charter subjects Charter rights ‘only to
such r easonable limits p rescribed b y l aw as can b e d emonstrably j ustified i n a f ree an d
democratic society’.
According to the Canadian jurisprudence, a limitation is reasonable and demonstrably justified
in a f ree an d d emocratic s ociety w here ( 1) t he objective t o b e s erved b y the limita tion i s
sufficiently important (in the sense of pressing and substantial) to warrant overriding the right or
freedom, and (2) the means used must be proportional in the sense that (a) they are fair and not
arbitrary, car efully d esigned t o ach ieve t he objective a nd r ationally c onnected t o i t, ( b) t he
means imp air th e r ight a s min imally as p ossible, a nd ( c) th ere is p roportionality b etween th e
effects of the limitation and the objective; the more severe the deleterious effects of a measure,
the more important the objective must be. 225
221
Section 430(4.1) of the Canadian Criminal Code provides that: ‘Every one who commits mischief in relation
to property that is a building, structure or part thereof that is primarily used for religious worship, including a
church, mosque, synagogue or t emple, or a n obj ect a ssociated with r eligious worship l ocated i n or o n t he
grounds of such a b uilding or structure, or a ce metery, if the commission of the mischief is motivated by bias,
prejudice or hate based on religion, race, colour or national or ethnic origin.’
222
Canadian Human Rights Act, section 13(1): ‘It is a discriminatory practice for a person or a group of persons
acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in
part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament,
any m atter t hat is l ikely t o e xpose a person or pe rsons t o hatred or co ntempt b y reason of the fact that that
person or those persons are identifiable on the basis of a prohibited ground of discrimination.’
223
Canadian Human Rights Act, section 13(2).
224
See, eg , Smith and Lodge v. Western Guard Party (Taylor J.R.), Canadian H uman R ights T ribunal,
TD1/1979; Nealy et al., Goldberg v. Johnston, Long, Church of Jesus Christ Christian-Aryan Nations, Canadian Human Rights Tribunal, TD 10/1989.
225
R v Oakes [1986] 1 SCR 103.
43
In the seminal case of R v Keegstra [1990] 3 SCR 697, the accused was a high school teacher
charged with wilfully promoting hatred against an identifiable group by communicating antiSemitic s tatements to h is students. A majority of t he C ourt ( Dickson C J a nd W ilson,
L'Heureux-Dubé a nd G onthier JJ) f ound t hat ha te s peech i s s till ‘ expression’ unde r s ection
2(b) of t he C harter, w hich pr otects all non -violent e xpression r egardless of c ontent. H ate
speech offences are thus prima facie infringements on section 2(b).
The C ourt t hen f ound t hat s ection 319( 2) c onstituted a r easonable l imit upon f reedom of
expression under section 1 of the Charter, because its important objective was to prevent the
harm c aused by ha te pr opaganda ( including r educe r acial, e thnic a nd r eligious t ension a nd
violence in Canada), while it also helped to fufil Canada’s international obligations and support
Canada’s commitment to the values of equality and multiculturalism.
The of fence w as f ound to be a pr oportional r esponse a nd r ationally c onnected t o the va lid
objective of pr eventing ha rm a nd of f ostering h armonious social r elations i n a c ommunity
dedicated t o e quality a nd mu lticulturalism. The offence i llustrates t o t he p ublic the s evere
reprobation of society t owards h ate speech, making s uch e xpression l ess at tractive an d
decreasing acceptance of its content, and publicises values (such as equality and human dignity)
which are beneficial to a free and democratic society.
The Supreme Court further found that the offence did not unduly impair free expression, since it
was not ove r-broad or v ague. Instead, i t i mposes a s tringent mens rea requirement ( ‘wilful’
promotion of group hatred, that is, intent to do so or substantial certainty of consequence). The
offence is also limited to ‘hatred’, which encompasses only the most severe and deeply felt form
of oppr obrium. P rivate communications are al so excluded an d various d efences ar e av ailable.
The C ourt r egarded cr iminal law m easures as necessary t o s end o ut a s trong m essage o f
condemnation, no twithstanding t he a vailability of non-criminal legal r esponses. ( It is n otable,
however, that the Canadian offence does not require proof that harm actually eventuates in the
receiver, nor that it is reasonably likely to occur (as in the US jurisprudence).
Hate p ropaganda w as f urther r egarded as a s pecial cat egory o f ex pression w hich is only
tenuously connected with the values underlying the guarantee of freedom of expression, since it
contributes l ittle t o t he a spirations of Canadians i n t he que st f or t ruth, t he pr omotion o f
individual self-development or the protection and fostering of a vibrant democracy in which the
participation of all individuals is accepted and encouraged.
For s imilar r easons, t he Canadian S upreme C ourt ha s uphe ld ot her ki nds of r estrictions on
freedom o f e xpression which a im t o pr event t he ha rm caused b y r acist c omments. F or
example, in Ross v New Brunswick School District No. 15 [1996] 1 SCR 825, the Supreme
Court uphe ld r estrictions on t he e mployment of a s chool t eacher w ho h ad m ade not orious
anti-Semitic comments while off-duty. The restrictions imposed on the teacher (leave without
pay f ollowed b y a ppointment t o a non -teaching pos ition, a mong ot hers) interfered w ith hi s
freedom of expression and religion under the Canadian Charter.
The Court accepted that such comments undermined the teacher’s ability to fulfil his teaching
position a nd poi soned t he e ducational environment w ith a lack of equality and tolerance,
particularly i n ci rcumstances w here t eachers as sume a p osition o f i nfluence a nd t rust ove r
students and must be seen to free from bias, prejudice and intolerance. The employment context
was also relevant in that public authorities have a duty to maintain public trust and confidence
by e nsuring t hat e ducation i s d iscrimination-free. A nti-Semitic e xpression w as viewed as
tenuously connected to the core values of freedom of expression, while the teacher’s religious
44
expressions de nigrated a nd de famed t he r eligious be liefs of ot hers, de nying J ewish pe ople
respect for dignity and equality.
Preventing s uch h arm j ustified i nterfering i n t he t eacher’s ex pression an d t he m easures t aken
were rationally connected to that aim, including by preventing such harm from manifesting. The
restrictions w ere car efully tailored t o ach ieving t he o bjective a nd min imally imp aired h is
freedoms (since he could exercise them by leaving his teaching position or by taking up a nonteaching p osition w ith th e s chool if it became a vailable). T he o bjectives of p reventing a nd
remedying the discrimination in the provision of educational services to the public outweighed
any n egative ef fects o n the t eacher. The C ourt did, however, find excessive a further measure
providing for the termination of his employment if he expressed anti-Semitic views while on his
leave o f absence o r i n a n on-teaching pos ition, s ince i t a mounted t o pe rmanent ba n i n
circumstances where there was no indefinite residual poisoning of the school environment.
2.3
Seizure and forfeiture of hate propaganda
Canadian law also authorises a judge to issue a warrant to seize ‘hate propaganda’ if there are
reasonable grounds f or believing t hat any publ ication, c opies of w hich are k ept f or s ale or
distribution in premises within jurisdiction of the court, is hate propaganda (section 320), or
where such propaganda is stored electronically (section 320.1, a dded b y the Anti-Terrorism
Act 2001 (Canada)). Following a summons proceeding requiring the affected person to ‘show
cause’ as t o w hy t he s eized m aterial s hould not be f orfeited, t he c ourt m ay t hen or der the
forfeiture of s uch m aterial. T hese pow ers c ould potentially a pply t o r ecordings o r da ta f or
transmission by satellite television services which contain hate messages.
3.
Anti-Terrorism Law
3.1
Criminal Offences
After 11 S eptember 20 01, C anada adopted a substantial num ber of ne w a nti-terrorism
provisions. Section 83.01 of the Canadian Criminal Code criminalises terrorism and defines
‘terrorist activity’ as conduct prohibited under anti-terrorism treaties 226 or any other act:
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and
(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with
regard t o i ts s ecurity, i ncluding i ts eco nomic s ecurity, or c ompelling a pe rson, a g overnment or a
domestic or an international organization to do or to refrain from doing any act, whether the public or
the person, government or organization is inside or outside Canada, and
(ii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a person’s life,
226
Convention for the Suppression of Unlawful Seizure of Aircraft 1970; Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation 1971; Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic Agents 1973; International Convention
against the Taking of Hostages 1979; Convention on the Physical Protection of Nuclear Material 1980;
Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation,
supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1988;
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988; Protocol for
the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988;
International Convention for the Suppression of Terrorist Bombings 1997; International Convention for the
Suppression of the Financing of Terrorism 1999.
45
(C) causes a serious risk to the health or safety of the public or any segment of the public,
(D) causes substantial property damage, whether to public or private property, if causing such damage
is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
(E) causes s erious interference with or s erious d isruption of an es sential s ervice, facility o r s ystem,
whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is
not intended to result in the conduct or harm referred to in any of clauses (A) to (C)....
While the Canadian definition is similar in various respects to the Australian legal definition
of te rrorism, it a lso d iffers in imp ortant r espects. W hereas th e A ustralian la w c overs
situations of armed conflict, by contrast Canadian law excludes
an act or omission that is committed during an armed conflict and that, at the time and
in the place of its commission, is in accordance with customary international law or
conventional international law applicable to the conflict, or the activities undertaken
by military forces of a state in the exercise of their official duties, to the extent that
those activities are governed by other rules of international law.
Furthermore, while th e specific in tent ( or ‘ motive’) element in th e C anadian d efinition is
similar to th at in A ustralian la w – the r equirement of a ‘ political, r eligious or i deological
purpose, obj ective or cause’ – that el ement h as b een r egarded as u nconstitutionally
discriminatory by a lower court in Canada, 227 on the basis that it targets certain groups.
Various of fences a re connected t o t he pr imary definition of t errorism u nder Canadian l aw,
including offences of:
• Financing t errorism ( sections 83.02 –04), including b y i nviting a pe rson t o pr ovide
property o r f inancial resources f or t errorism, or i ntentionally m aking p roperty,
financial or related services available to be used in facilitating or carrying out terrorist
activity or to benefit persons involved in terrorism;
• Knowingly participating in or contributing to the activity of a terrorist group, directly
or i ndirectly, for t he p urpose of e nhancing t he a bility of a ny t errorist g roup t o
facilitate o r c arry o ut a te rrorist a ctivity ( section 8 3.18). 228 Participating ma y
include: 229
(a) providing, receiving or recruiting a person to receive training;
(b) providing or offering to provide a skill or an expertise for the benefit of, at the
direction of or in association with a terrorist group;
(c) recruiting a person in order to facilitate or commit terrorism;
(d) entering or remaining in any country for the benefit of, at the direction of or in
association with a terrorist group; and
(e) making one self, i n response t o i nstructions f rom any of t he pe rsons w ho
constitute a terrorist group, available to facilitate or commit terrorism.
227
R v Khawaja, Case No 04-G30282, Ontario Superior Court of Justice, 24 October 2006, paras 45-80; but see
Ben Saul, ‘The Curious Element of Motive in Definitions of Terrorism: Essential Ingredient – Or Criminalizing
Thought?’ i n A. Lynch, E . MacDonald an d G . Williams ( eds), Law and Liberty in the War on Terror
(Federation Press, Sydney, 2007), pp. 28-39.
228
Such participation is an offence regardless whether or not a terrorist group actually facilitates or carries out a
terrorist activity; the participation or contribution of the accused actually enhances the ability of a terrorist group
to facilitate or carry out a terrorist activity; or the accused knows the specific nature of any terrorist activity that
may be facilitated or carried out by a terrorist group.
229
Canadian Criminal Code, section 83.18(3).
46
Relevant f actors i nclude w hether t he pe rson i dentifies w ith t he t errorist g roup,
frequently as sociates w ith i ts m embers, r eceives an y b enefit f rom i t, o r r epeatedly
engages in activities at the instruction of members of the group. 230
• Knowingly facilitating a terrorist activity (section 83.19); 231
• Committing a n o ffence at th e d irection o f o r in a ssociation w ith a te rrorist g roup
(section 83.2);
• Knowingly i nstructing a person t o c arry out an activity for a t errorist group, for t he
purpose of e nhancing t he a bility of any t errorist gr oup t o f acilitate or c arry out a
terrorist activity (section 83.21); 232
• Knowingly instructing, directly or i ndirectly, a ny pe rson t o c arry out a t errorist
activity (section 83.22); 233
• Knowingly harbouring or concealing a person who has carried out or is likely to carry
out a terrorist activity, for the purpose of enabling the person to facilitate or carry out
any terrorist activity (section 83.23);
• Inducing or a ttempting t o i nduce, b y t hreat, accusation, m enace o r v iolence, an y
person t o do anything or t o c ause a nything t o b e done , for t he benefit o f a t errorist
group, for the purpose of increasing its capacity to harm Canadian interests or where
it is reasonably likely to harm Canadian interests (Official Secrets Act, section 20(1)).
The most pertinent offences in relation to media or satellite broadcasting include knowingly
participating in or contributing to the activity of a terrorist group (such as by recruiting others
for terrorism, receiving a benefit from a terrorist organisation, acting upon the instructions of
a t errorist or ganisation, or pr oviding a s kill or expertise f or a t errorist group); a s w ell as
financing te rrorism (such a s b y i nviting a pe rson t o pr ovide pr operty o r f inancial r esources
for terrorism).
In addition, the offences of instructing others to carry out an activity for a terrorist group to
enhance t he cap acity o f the g roup ( including i nstructions t o c arry out a ctivities t hat a re
themselves legal); and instructing others to carry out terrorist activity may be relevant where
people utilize satellite television to broadcast their instructions.
In addition to the specific terrorism offences, Canadian criminal law also provides for various
extended mode of criminal participation common in national legal systems. Most relevant is
the offence of counselling another person to be a party to an offence where the other person is
230
Canadian Criminal Code, section 83.18(4).
Regardless whether or not the facilitator knows that a particular terrorist activity is facilitated; any particular
terrorist act ivity was f oreseen o r p lanned at t he time i t was f acilitated; o r an y t errorist act ivity was a ctually
carried out.
232
An offence may be committed whether or not: (a) the activity that the accused instructs to be carried out is
actually car ried o ut; ( b) t he accused i nstructs a p articular p erson; ( c) t he a ccused knows t he identity o f the
person whom t he accused i nstructs; (d) the person whom the accused instructs to carry out the activity knows
that it is to be carried o ut for the benefit of, at the direction of or in a ssociation with a terrorist group; (e) a
terrorist group actually facilitates or carries out a terrorist activity; (f) the activity actually enhances the ability of
a terrorist group to facilitate or carry out a terrorist activity; or (g) the accused knows the specific nature of any
terrorist activity that may be facilitated or carried out by a terrorist group: Criminal Code, section 83.21(2).
233
An offence may be committed whether or not: (a) the terrorist activity is actually carried out; (b) the accused
instructs a particular person to carry out the terrorist activity; (c) the accused knows the identity of the person
whom the accused instructs to carry out the terrorist activity; or (d) the person whom the accused instructs to
carry out the terrorist activity knows that it is a terrorist activity: Criminal Code, section 83.22(2).
231
47
afterwards a pa rty t o t hat of fence ( Canadian C riminal C ode, s ection 22 (1)). 234 Counsel i s
defined t o i nclude pr ocuring, s oliciting, or i nciting ( section 22( 3)). Thus a pe rson i s
criminally liable in Canada for inciting others to commit terrorist offences, including where
the person incites others by means of broadcasting.
Ordinarily, how ever, the i ncitement o ffence r equires a p erson t o i ncite s pecific crimes b y
others a nd do es not c over m ore general a dvocacy. Further, a s atellite t elevision s ervice
provider would themselves only bear criminal liability if they intentionally aided or abetted
the incitement, or shared the criminal purpose of the inciter, but would not be strictly liable
for all transmissions in circumstances where they did not share the inciter’s criminal purpose.
So too with the offence of instructing others to commit terrorist activities, which would not
engage the strict liability of the satellite television service provider.
The C anadian S upreme Court i ndicated i n Suresh v Canada (Minister of Citizenship and
Immigration [2002] 1 S CR 3 t hat ‘ expression t aking t he form of vi olence o r t error, o r
directed t owards vi olence o r t error, i s unl ikely t o f ind s helter i n t he guarantees of t he
Charter’. 235 While t he s cope of f reedom of e xpression i s w ide, i t f urther doe s not pr otect
expressive or associational activities that constitute violence. 236 In Suresh, the Court rejected
an ar gument t hat a m inisterial cer tificate w hich d eclared a d eportee a d anger t o n ational
security vi olated C harter r ights t o f reedom of e xpression a nd a ssociation, i n c ircumstances
where t he p erson h as b een engaged i n violence o r a ctivities d irected to wards v iolence o r
terror (such as deliberate association with or membership of, and fundraising and support for,
violence by the Tamil Tigers in a civil war in Sri Lanka). 237
3.2
Proscribing Terrorist Organisations
The Canadian Criminal Code establishes a procedure for the executive listing of an entity that
the Canadian Government has reasonable grounds to believe (a) has knowingly carried out,
attempted to c arry o ut, p articipated in o r f acilitated a te rrorist a ctivity; o r ( b) i s know ingly
acting on behalf of, at the direction of or in association with an entity referred to in paragraph
(a) (section 83.05). Certain procedural rights of notification and judicial review are available
to an affected entity. Entities are listed for a period of two years, subject to renewal. Fortytwo entities are currently listed. 238 Canadian law then provides for the freezing of the property
of t errorist groups (sections 83.08 t o 83.12) , 239 the s eizure an d r estraint o f as sets ( section
83.13), and the forfeiture of property (sections 83.14 to 83.17).
234
Section 22(1) of the Criminal Code provides that: ‘Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that
offence, notwithstanding t hat the o ffence was co mmitted in a way d ifferent from t hat which was co unselled.’
Note also t he effect of section 23.1: ‘For greater cer tainty, s ections 2 1 to 23 apply i n respect of a n accused
notwithstanding t he f act t hat t he p erson whom the a ccused a ids o r a bets, co unsels o r p rocures o r receives,
comforts or assists cannot be convicted of the offence.’
235
Suresh v Canada (Minister of Citizenship and Immigration [2002] 1 SCR 3, para. 107.
236
Ibid, also citing Keegstra, op cit.
237
Suresh, op cit, paras. 100-110.
238
See www.publicsafety.gc.ca/prg/ns/le/cle-eng.aspx.
239
Section 83.08 of the Criminal Code provides that: ‘(1) No person in Canada and no Canadian outside Canada
shall knowingly (a) deal directly or indirectly in any property that is owned or controlled by or on behalf of a
terrorist group; (b) enter into or facilitate, directly or indirectly, any transaction in respect of property referred to
in p aragraph ( a); o r ( c) p rovide an y financial or o ther r elated s ervices i n r espect o f p roperty r eferred t o i n
paragraph (a) to, for the benefit of or at the direction of a terrorist group.’ It is a criminal offence to contravene
that section: s. 83.12.
48
Europe
Of significance within European media law are efforts to foster media pluralism 240 alongside
the more formal framework of the EU’s Audio Visual Media Services Directive.
1.
A Pluralist Approach to Media Regulation
Within E urope not ions of br oadcasting pl uralism a re de veloping a long w ith a f irmer
transnational r egulatory framework f or a udio-visual m edia. C ompetition a nd hum an r ights
values are of particular significance in regulation as it pertains to incitement. In the regional
European context, there is emerging a vision of pluralism at the heart of broader conceptions
of European citizenship and the media is said to have a facilitative role in relation to this. The
European Charter of Fundamental Rights 2000 included i n i ts pr ovisions f or f reedom of
expression the injunction that ‘freedom and pluralism of the media shall be respected’. 241 The
Council of E urope of fers a nother l ayer of media r egulation w ith the Convention on
Transfrontier Television 1989. T he C onvention r equires t hat a ‘majority pr oportion of …
transmission time’ be for ‘European works’, while also (and not in all circumstances perhaps
consistently) calling for the protection of ‘media pluralism’. 242 Pluralism is also encouraged
via the mechanism of ‘freedom of reception and retransmission’ within the Convention. 243
2.
The EU Audio Visual Media Services Directive
In t he E uropean U nion t hese c oncerns ha ve r esulted i n t he e stablishment of a r egulatory
framework fo r audio-visual m edia, t he Audio Visual Media Services Directive. 244 The
Directive (formerly the ‘Television Without Frontiers Directive’ at the time of the Al-Manar
controversy i n F rance) a ims t o pr ovide a f lexible a nd ‘ technology-neutral’ a pproach t o t he
regulation of r egional t elevision broadcasting, i ncluding new forms of t ransmission s uch as
on-demand a udiovisual m edia. It i s c oncerned t o pr otect c ultural di versity, c hildren a nd
consumers, to ensure media pluralism and to prevent or at least regulate incitement.
In ge neral, th e f ramework d elegates r esponsibility to M ember S tates f or th e d omestic
regulation of service providers transmitting a media service to other jurisdictions (the country
of origin principle), but also ensures ‘freedom of reception’ within the EU. Irini Katsiri has
written of this as the ‘transmission state principle’ which has the following effect:
Member s tates ar e o bliged t o en sure the u nhindered r eception o f b roadcasts l awfully t ransmitted in
their state of origin. They only have a limited possibility to derogate provisionally from the
transmission state p rinciple, when f oreign te levision b roadcasts manifestly, seriously and g ravely
breach provisions concerning the protection of minors or public order. 245
240
See further on media and broadcasting pluralism, Lesley Hitchens, Broadcasting Pluralism and Diversity: A
Comparative Study of Policy and Regulation (Hart Publishing, Oxford, 2006).
241
Charter of Fundamental Rights of The European Union (2000/C 364/01), article 11 (2).
242
Council of Europe, European Convention on Transfrontier Television, ETS No. 132, Strasbourg, 1989, Text
amended according to the provisions of the Protocol (ETS No. 171) which entered into force, on 1 March 2002,
article 10 and 10 bis.
243
Council of Europe, European Convention on Transfrontier Television, article 4.
244
Directive 89/ 552/EEC of 3 October 1989, a mended by D irective 97/ 36/EC of 30 June 1997 a nd D irective
2007/65/EC of 11 D ecember 2007. See further Mark Wheeler, ‘ Supranational R egulation Television and t he
European U nion’ (2004) 19(3) European Journal of Communication 349; Tony P rosser, ‘Regulating t he New
Media Landscape: A Directive for Audiovisual Media Services Without Frontiers’ (2006) 2 ERA Forum 273.
245
Irini Katsirea, ‘The Transmission State Principle: The End of the Broadcasting Sovereignty of the Member
States?’ (2003-2004) 6 Cambridge YB Eur Legal Stud 105 at 105-106.
49
Indeed t his freedom ma y be limite d w here child pr otection a nd i ncitement c oncerns a re
involved, and consequently a Member State may be allowed to intervene. Further derogation
is p ermitted in r elation t o o n-demand s ervices i f a M ember S tate ar gues t hat m easures ar e
proportionate and necessary for the protection of public policy concerns, public health, public
security and c onsumers. Other pr ovisions a re di rected at t ransparency, access, c hild
protection, non -discrimination, e nvironmental he alth a nd s afety, publ ic he alth a nd t he
regulation of manipulative advertising practices such as product placement.
The updated Audio Visual Media Services Directive retains provisions protecting ‘European
works’ a nd e stablishing quot as f or E uropean c ontent. Ultimately it a ims to e nhance
transnational b roadcasting, and t o p rovide a ha rmonised r egional publ ic pol icy framework
within which to manage and co-ordinate regulation in targeted areas such as child protection
and incitement, and to effect limited social and cultural policy objectives.
Its pr ovisions r egarding i ncitement h ave p articular r elevance. W hile d irected p rimarily at
European content, Article 2(4) of the codified Directive states that:
Media s ervice p roviders… shall b e d eemed t o b e under t he j urisdiction o f a Member S tate in t he
following cases:
(a)
they use a satellite up-link situated in that Member State;
(b)
although t hey d o n ot use a satellite up-link situated i n t hat M ember State, t hey use satellite
capacity appertaining to that Member State.
This pr ovision c ould a ssist i n r egulating a non -European b roadcaster s uch as A l-Manar.
However, A rticle 2( 6) o f t he codified Directive states t hat t he ‘Directive doe s not apply to
audiovisual media services intended exclusively for reception in third countries and which are
not received with standard consumer equipment directly or indirectly by the public in one or
more M ember S tates.’ Here t hough i n t he a rea o f t hird party broadcasts i t appears t hat t his
would allow member states to directly regulate. As Irini Katsirea notes:
It go es without saying t hat broadcasts or iginating f rom t hird c ountries do n ot… receive t he s ame
treatment. Member states are at liberty to take whatever measures they deem appropriate against such
broadcasts as l ong as t hey r espect C ommunity l aw a nd t he i nternational o bligations o f the
Community. 246
Article 6 of the codified Directive is of special significance: ‘Member States shall ensure by
appropriate means that audiovisual media services provided by media service providers under
their j urisdiction do not c ontain a ny i ncitement t o ha tred ba sed on r ace, s ex, r eligion or
nationality.’
3.
Article 10 of t he E uropean C onvention on H uman R ights pr otects f reedom of e xpression
(including by broadcast media) in terms similar to the ICCPR:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or
cinema enterprises.
246
Ibid, 120.
50
Unlike the ICCPR and CERD, the European Convention on Human Rights does not expressly
prohibit hate speech and vilification. Rather, article 10(2) contains a general clause specifying
the permissible limitations on freedom of expression under article 10(1), as follows:
The ex ercise o f t hese freedoms, since i t car ries with it d uties a nd r esponsibilities, may b e s ubject t o
such formalities, c onditions, r estrictions o r p enalties a s ar e p rescribed b y l aw a nd ar e necessary in a
democratic s ociety, i n th e i nterests o f n ational security, te rritorial in tegrity o r p ublic s afety, for th e
prevention of di sorder or c rime, for t he pr otection o f health or morals, for t he pr otection o f t he
reputation or the rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
Any limitation on f reedom of expression must, therefore, be ‘prescribed by law’, ‘necessary
in a d emocratic s ociety’, a nd p ursue a le gitimate a im. T he te rm ‘ necessary’ imp lies a
‘pressing s ocial n eed’ 247. A s r egards r egulation o f br oadcasting s pecifically, t he E uropean
Court of Human Rights has interpreted the various aspects of article 10 as follows:
the object and purpose of the third sentence of Article 10§1 is to make it clear that States are permitted
to r egulate b y m eans o f a l icensing s ystem t he way i n which b roadcasting i s o rganised i n t heir
territories, p articularly in i ts technical aspects. T he latter ar e u ndeniably i mportant, b ut t he g rant o r
refusal of a licence may also be made conditional on other considerations, including such matters as the
nature and objectives of a proposed station, its potential audience at national, regional or local level, the
rights an d needs o f a specific au dience an d t he o bligations d eriving from i nternational legal
instruments. This may lead to interferences whose aims will be legitimate under the third sentence of
paragraph 1 , e ven t hough t hey may not correspond t o a ny of t he a ims set ou t i n pa ragraph 2. The
compatibility o f such interferences with the Convention must nevertheless b e assessed in the light o f
the other requirements of paragraph 2. 248
The allowance for national licensing of broadcasting in article 10(1) is ordinarily subject to
the test for permissible limitations under article 10(2). 249 Thus a Swiss prohibition on t he retransmission by Swiss companies of a radio signal originating in Italy but intended for Swiss
people was found to be necessary under article 10(2) to prevent disorder (given the risks of
unregulated use of broadcasting spectrum) and to protect others (by fairly allocating limited
frequencies at the national and international levels). 250
In another c ase, a S wiss pr ohibition on a c ompany receiving s atellite pr ograms f rom t he
Soviet Union was found to infringe the right to receive information under article 10, 251 as it
was not r equired b y i nternational a greements nor w ere t here any pr ivacy c oncerns. T ender
processes which i nterfere w ith t he r ight of un successful br oadcast c ompanies t o i mpart
information must be ‘prescribed by law’, in that any discretionary licensing powers must not
be exercised arbitrarily and reasons must be given. 252
In general, although there is no r ight of a person or company to broadcast on t elevision, any
restrictions ( whether b y licensing or ot herwise) c annot be arbitrary, capricious or
247
Demuth v Switzerland [2002] ECHR 704, para. 40.
Ibid, para. 33; see also Tele 1 Privatfernsehgesellschaft mbH v Austria, App. No. 32240/96, 21 September
2000, para. 25; Radio ABC v Austria, Judgment of 20 October 1997, Reports of Judgments and Decisions 1997VI, pp. 2197-98, pa ra. 28; Informationsverein Lentia and Others, op c it, p. 14, pa ra. 3 2; Groppera Radio AG
and Others v Switzerland, Judgment of 28 March 1990 (No. 173), 12 EHHR 321, para. 61.
249
Groppera Radio AG and Others v Switzerland, Judgment of 28 March 1990 (No. 173), 12 EHHR 321.
250
Ibid.
251
Autronic AG v Switzerland, Judgment of 22 May 1990 (No. 178), 12 EHRR 485.
252
Meltex Ltd v Mesrop Movsesyan v Armenia [2008] ECHR 531, para. 81.
248
51
discriminatory. 253 Further, as the UK House of Lords has stated, particular care must be taken
as regards restrictions on content:
conditions which co ncern t he co ntents o f t he p rogrammes which will b e accep ted f or b roadcasting
must be carefully examined to make sure that they are truly neutral between different points of view, or
that any lack of neutrality can be objectively justified. 254
The E uropean C ourt of H uman R ights ha s a lso pe rmitted ot her r estrictions not e xpressly
contemplated b y a rticle 10( 2). F or i nstance, t he f reedom t o i mpart i nformation a nd i deas
regardless o f f rontiers h as b een h eld t o p revent the S tate m aintaining a publ ic broadcasting
monopoly ( by refusing ot her br oadcast l icenses), s ince i t w as not n ecessary t o guarantee
impartiality, b alance and d iversity in b roadcasting and it w ould imp ermissibly imp air th e
pluralism which the State is supposed to guarantee. 255 Likewise a l icensing system designed
to contribute to the quality and diversity of programmes may reflect a legitimate aim, albeit
not specifically mentioned by article 10(2). 256
As regards hate speech, the European Court of Human Rights has been ‘conscious of the vital
importance o f c ombating racial d iscrimination’ a nd, in in terpreting article 1 0(2) o f th e
European C onvention c ompatibly w ith t he U N C onvention on t he E limination of R acial
Discrimination, 257 has accepted that restrictions on hate speech might pursue legitimate aims
(such as the prevention of disorder or crime or the protection of national security). 258
For ex ample, the C ourt f ound no vi olation of article 10 w here a p erson w as he ld civilly
responsible f or gr oup de famation a nd c riminally convicted of i ncitement t o ha tred f or
displaying p amphlets w hich d enied th e Holocaust in G ermany a nd c laimed th at it w as a
‘zionist swindle o r lie ’. 259 The C ourt accep ted t hat t he p amphlets w ere ‘ defamatory o f al l
Jews persecuted or ki lled during t he Third R eich and t heir s urviving relatives’, and di d not
find it d iscriminatory th at g roup d efamation w as limi ted to c ertain g roups ( the J ews) f or
historical reasons 260 (in contrast to the prohibition on ‘viewpoint discrimination’ in US law).
The C ourt h as uphe ld Turkey’s p rosecution o f a ne wspaper publ isher for pr inting K urdish
letters w hich c onstituted ‘ an a ppeal t o bl oody r evenge b y s tirring up ba se e motions a nd
hardening al ready em bedded p rejudices w hich h ave m anifested t hemselves i n d eadly
violence’. 261 In t hat case, however, s ix j udges di ssented on t he ba sis t hat, i n t heir pr oper
context, the letters did not present a real risk of inciting hatred or violence, but were rather
strongly worded protests against Turkish military suppression of Kurdish aspirations.
253
See, eg , Regina v British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents)
[2003] UKHL 23, paras. 58-64 (Lord Hoffmann); Benjamin v Minister of Information and Broadcasting [2001]
1 WLR 1040 at 1052 (Lord Slynn); Haider v Austria (1995) 83 DR 66 at 74; Huggett v United Kingdom (1995)
82A DR 98; VgT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 159 at 177.
254
Regina v British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents) [2003]
UKHL 23, para. 63.
255
Informationsverein Lentia v Austria, Judgment, 24 November 1993, Series A, No 276, (1994) 17 EHHR 321.
256
257
Jersild v Denmark [1994] ECHR 33, para. 30.
258
Erdogdu and Ince v Turkey [1999] ECHR 45, para. 43.
259
X v Federal Republic of Germany, App. No. 9235/81, (1982) 29 EHHR 194.
260
Ibid.
261
Surek v Turkey (No. 1), App. 26682/95 and Surek v Turkey (No. 3), App. 24735/94, Judgments of 8 July
1999.
52
In m any c ases, t he C ourt ha s f ound t he p articular r estrictions i mposed t o be e xcessive or
otherwise unl awful. 262 Thus t he pr osecution of journalists r esponsible for a t elevision
broadcast ( in a s erious D anish t elevision ne ws pr ogram) of r acist r emarks b y young
interviewees was not i ntended t o pr omote r acial ha tred but t o i nform t he a udience on a
legitimate matter of public interest. 263
The Court also held unlawful a French conviction for denial of war crimes or collaboration of
the a uthors of a publ ication w hich ju stified th e w ar-time de cisions of pr o-Nazi l eader
Philippe P etain o r o mitted r elevant h istorical facts. 264 In t he c ircumstances, t he c onviction
was di sproportionate a nd not hing i n t he publ ication a mounted t o j ustification of pr o-Nazi
policy (which would not be protected by article 10). 265
In another case, Turkey’s anti-terrorism law convictions of a newspaper editor and journalist
for publ ishing i nterviews ( of a r esearcher a nd s ociologist) t hat w ere c ritical of g overnment
policies towards the Kurds was found to be disproportionate and unnecessary in a democratic
society. 266 The C ourt f ound t hat t he c ontent of t he i nterviews w as a nalytical a nd not hing
amounted t o a n i ncitement t o vi olence or c ould be c onstrued a s s uch, a nd t he publ ic ha d a
right to be informed of non-government perspectives on the conflict with the Kurds. 267
The decisions of t he European C ourt of Human Rights have s et out principles which guide
consideration of the lawfulness of restrictions on the media transmission of hate speech. First,
freedom of expression is ‘one of the essential foundations of a democratic society and one of
the ba sic c onditions f or i ts pr ogress a nd f or e ach i ndividual’s s elf-fulfilment’. 268 It i ncludes
the right to impart not only ideas ‘that are favourably received or regarded as inoffensive or
as a matter of indifference, but also... those that offend, shock or disturb’. 269
Secondly, political speech is given the utmost importance 270 (whereas the standard of scrutiny
may be less severe in relation to commercial speech). 271 There is little scope for the restriction
of political speech on m atters of public interest under article 10 a nd any restriction must be
‘convincingly established’ 272 Further, the limits of permissible criticism are wider as regards
politicians compared with private individuals. 273
Thirdly, the Court has emphasised the importance of media freedoms:
freedom of expression constitutes one of the essential foundations of a d emocratic society and that the
safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep
the b ounds set, i nter alia, i n t he i nterest o f " the p rotection of t he r eputation o r r ights o f others", it is
262
See, eg, Jersild v Denmark [1994] ECHR 33; Erdogdu and Ince v Turkey [1999] ECHR 45; Lehideux and Isorni v France [1998] ECHR 90. In another case, Unabhangige Initiative Informationsvielfalt v Austria [2002]
ECHR 163, t he court found unlawful an Austrian court injunction preventing the circulation of leaflet which
criticised an extreme right wing Austrian politician, Jorg Haider, for ‘racist agitation’; there was no justification
for the State to prevent accusations of racial hatred against others as part of political discussion.
263
Jersild v Denmark [1994] ECHR 33.
264
Lehideux and Isorni v France [1998] ECHR 90.
265
Ibid, para. 53.
266
Erdogdu and Ince v Turkey [1999] ECHR 45.
267
Ibid, para. 52.
268
Ibid, para. 47.
269
Ibid, para. 47.
270
Lindon, Otchakovsky-Laurens and July v France [2007] ECHR 836, para. 46.
271
272
Ibid, para. 40.
273
Lindon, Otchakovsky-Laurens and July v France [2007] ECHR 836, para. 46; Erdogdu and Ince v Turkey
[1999] ECHR 45, para. 50.
53
nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press
have the task of imparting such information and ideas: the public also has a right to receive them. Were
it otherwise, the press would be unable to play its vital role of "public watchdog". Although formulated
primarily with r egard to th e p rint media, th ese p rinciples d oubtless a pply a lso to th e a udiovisual
media. 274
Fourthly, t he C ourt w ill not intrude upon t he f reedom of t he m edia t o determine f orm or
technique of r eporting, w hich l ies w ithin t he pr ofessional e xpertise of t he m edia, a nd t he
methods of obj ective a nd ba lanced reporting w ill va ry. 275 In t his r egard, a de gree o f
exaggeration or pr ovocation m ay be w ithin t he s cope of j ournalistic f reedom. 276 The C ourt
has al so d istinguished b etween s tatement o f f act an d v alue j udgments, t he l atter b eing an
element of freedom of opinion and not being susceptible to proof (although there must be a
sufficient factual basis to support it). 277
Fifthly, the ‘much more immediate and powerful effect’ of audiovisual media compared with
print m ust be taken i nto a ccount in considering t he media’s ‘duties a nd r esponsibilities’. 278
The Court has referred to the responsibility of the media not to disseminate hate speech:
The Court stresses that the “duties and responsibilities” which accompany the exercise of the right to
freedom of expression by media professionals assume special significance in situations of conflict and
tension. P articular c aution i s called f or when c onsideration i s b eing given t o t he p ublication o f t he
views o f r epresentatives o f o rganisations which r esort to v iolence a gainst t he S tate le st th e media
become a vehicle for the dissemination of hate speech and the promotion of violence. At the same time,
where s uch v iews ca nnot b e cat egorised as such, Contracting S tates ca nnot with r eference t o t he
protection of territorial integrity or national security or the prevention of crime or disorder restrict the
right of t he public to be informed of t hem b y bringing t he weight of the criminal law to bear on the
media. 279
Sixthly, in assessing a particular media story, the Court will have regard to the manner of its
preparation, its c ontents, t he c ontext in w hich it w as br oadcast, a nd t he pur pose of t he
program (such as whether it was a serious news report). 280 A central question will be whether,
from a n obj ective poi nt of vi ew, t he pur pose of the pr ogram w as t o pr opagate r acist vi ews
and ideas, 281 including, for instance, whether the journalists disassociated themselves from the
racist comments of others that they report on. 282 As the Court has stated, however:
The punishment of a journalist for assisting in the dissemination of statements made by another person
in an interview would seriously hamper the contribution of the press to discussion of matters of public
interest and should not be envisaged unless there are particularly strong reasons for doing so. 283
As noted above, the context in which comments are broadcast may include, for instance, the
sensitivity of t he s ecurity situation (such as t he existence of conflict or ethnic, s eparatist or
terrorist vi olence), and for t he n eed of t he a uthorities t o c ombat a cts capable of fuelling
further violence. 284
274
Jersild v Denmark [1994] ECHR 33, para. 31, also citing Observer and Guardian v The United Kingdom,
Judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59.
275
276
Unabhangige Initiative Informationsvielfalt v Austria [2002] ECHR 163, para. 38.
277
Lindon, Otchakovsky-Laurens and July v France [2007] ECHR 836, para. 55.
278
Jersild v Denmark [1994] E CHR 33, pa ra. 31, c iting a lso Purcell and Others v Ireland, Co mmission’s
Admissibility Decision of 16 April 1991, App. No. 15404/89, Decisions and Reports (DR) 70, p. 262.
279
280
281
Ibid.
282
Ibid, para. 33.
283
Ibid, para. 35.
284
54
4.
Anti-Terrorism Law
4.1
Council of Europe Measures
The Council of Europe’s Convention on the Suppression of Terrorism 1977 aims to facilitate
the e xtradition of pe rsons s uspected of specified offences, 285 by requiring S tates to exclude
listed offences from the political offence exception to extradition. The offences include those
in t hree an ti-terrorism tr eaties; 286 and a n ‘ offence i nvolving t he us e of a bom b, g renade,
rocket, a utomatic firearm o r le tter o r p arcel b omb if th is u se e ndangers pe rsons’. 287 States
may also not regard as a political offence ‘a serious offence involving an act of violence…
against the life, physical integrity or liberty of a person’, or ‘a s erious offence involving an
act against property… if the act created a collective danger for persons’. 288
The C onvention doe s n ot, how ever, use o r d efine t he t erm t errorism as s uch, nor doe s it
require States to domestically criminalise the enumerated offences. It simply establishes a list
of prohibited acts, often committed by terrorists (but not exclusively), to facilitate extradition,
but subject to reservations and a non-discrimination clause. Prosecution i s conditioned on a
refusal t o ex tradite. The C onvention w as revised by a 2003 a mending P rotocol, w hich
updated the list of sectoral treaty offences and strengthened implementation measures. 289 The
limited purpose of the Convention renders it of little relevance to satellite broadcasting.
4.2
Public provocation to commit terrorism
In M ay 2005, t he C ouncil of E urope a dopted a n ew Convention on the Prevention of
Terrorism which r equires S tate p arties to c riminalise ‘ public p rovocation to c ommit a
terrorist o ffence’. 290 ‘Public pr ovocation’ m eans ‘the di stribution, or ot herwise m aking
available, of a message to the public, with the intent to incite the commission of a terrorist
offence, where such conduct, whether or not directly advocating terrorist offences, causes a
danger t hat one or m ore s uch offences m ay b e c ommitted’. 291 There i s no legal reason w hy
distribution would not encompass satellite television broadcasting.
The pr ovision on ‘public pr ovocation’ s temmed f rom a w orking g roup a nd e xpert r eport
which c onsidered bot h ‘ apologie du terrorisme’ a nd ‘ incitement to te rrorism’. 292 Apologie
was understood as the public expression of praise, support, or justification of terrorism. 293 It is
thus b roader th an o rdinary in citement to c ommit a c rime ( including te rrorism), w hich i s
already an o ffence i n many E uropean ( and common l aw) co untries. T he d rafters w ere
conscious that criminalising incitement or apologie might interfere in freedom of expression,
but argued that it could still constitute a legitimate restriction under human rights law. 294 The
285
Council of Europe Convention on the Suppression of Terrorism 1977 and Explanatory Memorandum.
Hague Convention 1970, Montreal Convention1971, and Protected Persons Convention 1973.
287
Council of Europe Convention 1977, article 1(d).
288
Article 2.
289
Protocol amending the European Convention on the Suppression of Terrorism 2003 (ETS N o 1 90,
Strasbourg, 15 May 2003).
290
Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, ETS No 196, art 5(2).
291
Ibid.
292
Committee o f E xperts o n T errorism, ‘Apologie du terrorisme’ and ‘incitement to terrorism’: Analytical
Report (3rd meeting, Strasbourg, 6–8 July 2004), CODEXTER (2004).
293
Ibid 5.
294
Ibid 31.
286
55
rationale for criminalisation is that such statements create ‘an environment and psychological
climate conducive to criminal activity’, 295 though not inciting any specific offence.
Examples of indirect incitement or apologie intended to be captured as ‘public provocation’
include ‘presenting a terrorist offence as necessary and justified’, 296 and ‘the dissemination of
messages praising the perpetrator of an attack, the denigration of victims, calls for funding of
terrorist organisations or other similar behaviour’. 297 Such conduct must be accompanied b y
the s pecific i ntent t o i ncite a t errorist o ffence. It m ust al so cau se a credible d anger t hat an
offence m ight be committed, w hich m ay d epend on ‘ the na ture of t he a uthor a nd of t he
addressee of the message, as well as the context’. 298
These t wo qua lifications s ubstantially na rrow t he s cope of t he of fence, s uch t hat m erely
justifying or praising terrorism, without more, is not criminalised. The drafters insisted that
the crime must be viewed in light of the quality of European judicial systems, the availability
of effective remedies, and the guarantee of a fair trial, 299 although no ‘good faith’ defence was
expressly created. M ost importantly, t he dr afters a greed t o c riminalise p rovocation onl y on
the basis that European human rights remedies were available to protect free expression from
undue interference. 300
4.3
Terrorism offences in European Union law
The European Union’s Framework Decision on C ombating Terrorism 2002 301 defines ‘terrorist
offences’ t o e nable a c ommon E uropean a rrest warrant a nd t he m utual recognition of l egal
decisions a nd ve rdicts a mong E U S tates. 302 It r equired t he a pproximation of ( hitherto
disparate 303) domestic terrorism offences of EU States by the end of 2002. 304 The definition of
terrorism in the Framework Decision also identifies individuals and entities subject to asset
freezing u nder E U le gislation imp lementing S ecurity C ouncil me asures. 305 The F ramework
Decision is n ot limited t o in ternational te rrorism, e xtending t o dom estic and E U t errorism,
and imposes wide extraterritorial jurisdiction on EU States.
The F ramework Decision distinguishes t errorism f rom or dinary c rime by f ocusing on t he
aims or motives of offenders. Article 1(1) defines ‘terrorist offences’ as certain violent acts 306
295
Mordechai K remnitzer a nd Khalid G hanayim, ‘Incitement, N ot Sedition’, in D avid K retzmer a nd Francine
Hazan (eds), Freedom of Speech and Incitement against Democracy (2000) 147, 197.
296
Explanatory Report on Council of Europe Convention on the Prevention of Terrorism (adopted by the
Committee of Ministers, 925th Meeting, Council of Europe) CM (2005) 34, para. 98.
297
Ibid, para. 95.
298
Ibid, paras. 99–100.
299
Committee of Experts on Terrorism, op cit, 31.
300
Explanatory R eport to th e Council of Europe Convention on the Prevention of Terrorism, paras 27, 30, available at http://conventions.coe.int/Treaty/EN/Reports/Html/196.htm.
301
EU Framework Decision on Combating Terrorism 2002; see also EU Commission, Proposal for a Council
Framework Decision on Combating Terrorism, Brussels, 19 September 2001, COM(2001) 521 Final, 2001/0217
(CNS); s ee al so B en S aul, ‘ International T errorism a s a E uropean Crime: T he Policy Rationale for
Criminalization’ (2003) 11 European Journal of Crime, Criminal Law and Criminal Justice 323.
302
EU Framework Decision on the European Arrest Warrant and the Surrender Procedures 2002.
303
A. Vercher, Terrorism in Europe (Clarendon, Oxford, 1992), 297-303.
304
EU Framework Decision 2002, article 11(1). Framework Decisions adopted under the EU ‘third pillar’ are
not directly applicable and, like EC directives, require national implementation.
305
EU C ouncil, Common Position on the Application of Specific Measures to Combat Terrorism
(2001/931/CFSP), 27 Dec 2001, OJ L344/93 (28 Dec 2001), article 1(3), implementing UNSC resolution 1373
(2001). The definition in t he F ramework D ecision is modelled o n a n id entical d efinition in the EU C ouncil
Common Position.
306
The p rohibited act s f all i nto f ive b asic groups: o ffences ag ainst t he p erson; o ffences a gainst p roperty;
weapons offences; offences by other prohibited means; and threats to commit such offences.
56
which ar e ‘offences under national law, which, given their nature or context, may s eriously
damage a country or an international organization where committed with the aim of:
— seriously intimidating a population, or
— unduly compelling a Government or international organization to perform or abstain from
performing any act, or
— seriously d estabilising o r d estroying the fundamental p olitical, c onstitutional, e conomic o r s ocial
structures of a country or an international organization…
The F ramework D ecision i s ba sed i n pa rt upon t he de finition i n t he Terrorist F inancing
Convention 1999. I t a lso c reates ‘offences lin ked to te rrorist a ctivities’ ( aggravated th eft,
extortion or drawing up false documents with a view to committing a terrorist offence), 307 as
well as offences of ‘inciting or aiding or abetting’ or ‘attempting’ to commit an offence. 308 The
incitement offence would require urging others to commit particular terrorist offences.
The Framework D ecision al so es tablishes t errorist group o ffences, based on a rticle 5 of t he
UN Convention against Transnational Organized Crime 2000. A ‘terrorist group’ is defined
in a rticle 2( 1) t o m ean ‘a s tructured group of more t han t wo pe rsons, e stablished o ver a
period of time and acting in concert to commit terrorist offences’; a ‘structured group’ is also
defined. 309 Article 2(2) requires States to punish intentionally (a) ‘directing a terrorist group’
and ( b) ‘ participating in th e a ctivities o f a terrorist g roup’. 310 Participation is d efined to
include the supply of information or material resources, or by funding the group’s activities
in any way, ‘with knowledge of the fact that such participation will contribute to the criminal
activities of the terrorist group’.
A preambular recital to the Framework Decision excludes the actions of armed forces during
armed conflict from being regarded as terrorist offences, since such actions are governed by
international humanitarian law. 311 The recital also excludes actions by State armed forces ‘in
the ex ercise o f t heir o fficial d uties’ and ‘ inasmuch as t hey a re governed b y other rules o f
international law’. This provision reflects the 1999 Terrorist Bombings Convention. 312
United Kingdom
1.
The Media Regulatory Framework
If a s ituation a rose c oncerning A l-Manar in Britain th e r elevant r egulatory authority is th e
Office of C ommunications ( ‘Ofcom’). O fcom i s a n i ndependent r egulatory a uthority w ith
responsibility f or t he U nited K ingdom’s br oadcasting, t elecommunications an d w ireless
communications sectors. It also regulates competition within these industries. It operates in
accordance w ith t he Communications Act 2003 (UK) a nd unde r s ection 3( 2)(e) o f t his
legislation has a duty to protect audiences from ‘harmful or offensive material’. 313
307
EU Framework Decision 2002, article 3(a)-(c) respectively.
Ibid, article 4(1) and 4(2) respectively.
309
A ‘structured group’ is then defined as ‘a group that is not randomly formed for the immediate commission
of a n o ffence a nd t hat doe s n ot n eed t o h ave formally de fined r oles for i ts members, c ontinuity of its
membership or a developed structure’; see similarly UN Convention against Transnational Organized Crime
2000, article 2(c).
310
See similarly EU Common Position 2001/931/CFSP, article 1(3)(j)-(k).
311
Ibid, recital 11.
312
Terrorist Bombings Convention 1997, article 19(1); Peers, n76, 234.
313
Communications Act 2003 (UK), s. 3(2)(e). For an ov erview of their duties and functions see ‘Ofcom: A
Short Guide to What We Do’, www.ofcom.org.uk/consumeradvice/guide.
308
57
In accordance with its mandate Ofcom also undertakes the licensing of non-domestic satellite
services unde r t he Broadcasting Act 1990 (UK). 314 With c hanges i n t he E uropean U nion’s
media di rective, O fcom now ha s r esponsibility t o l icense a nd r egulate non -domestic
broadcasters whose broadcasts are uplinked from the UK into other European member states.
It has therefore strengthened its licensing arrangements for such non-European content. 315
In doing so Ofcom establishes a Broadcasting Code 2009 which sets out rules that television
and r adio br oadcasters must f ollow. T his c ode a ims t o e nsure a pl urality of content w hilst
maintaining the tradition of British public service broadcasting. Ofcom’s Broadcasting Code
2009 took effect on 16 D ecember 2009 a nd covers all programmes broadcast on or after 16
December 2009. 316 The Code is drafted taking into account the European audio-visual media
services directive, 317 the European Convention on Human Rights and the Human Rights Act
1998 (UK).
Section 2 of the Broadcasting Code 2009 aims to ‘ensure that generally accepted standards
are applied to the content of television and radio services so as to provide adequate protection
for m embers of t he publ ic f rom t he i nclusion i n such s ervices of harmful a nd/or of fensive
material’. Such material ‘may include, but is not limited to, offensive language, violence, sex,
sexual violence, humiliation, distress, violation of human dignity, discriminatory treatment or
language (for e xample o n t he grounds of a ge, di sability, gender, race, religion, be liefs a nd
sexual orientation)’. 318
Violent content is regulated, for example, Rule 3.4 states that: ‘Programmes must not include
material (whether in individual programmes or in programmes taken together) which, taking
into a ccount t he c ontext, c ondones or glamorises vi olent, da ngerous or s eriously a ntisocial
behaviour and is likely t o encourage others to copy such behaviour.’ Section 3 of the Code
aims t o r egulate a nd p rohibit br oadcast of ‘ material l ikely t o e ncourage or i ncite t he
commission of crime or to lead to disorder’. Of particular relevance are Rule 3.1 which states
that ‘ Material lik ely to e ncourage o r in cite th e c ommission o f c rime o r t o le ad to d isorder
must not be i ncluded i n t elevision or radio s ervices’, a nd R ule 3.2 w hich s tates t hat
‘Descriptions or demonstrations of criminal techniques which contain essential details which
could enable the commission of crime must not be broadcast unless editorially justified.’
Whilst these r ules mig ht n ot b e s pecifically d irected to wards te rrorist o r in citement-driven
broadcasting t hey c ould a rguably assist t he r egulator i n de aling w ith A l-Manar o r s imilar
broadcasters. The requirement unde r t he C ode for i mpartiality, a ccuracy and b alance m ight
also pose problems to a broadcaster like Al-Manar. 319 Another hurdle could the requirement
of ‘fairness’ as set out in Section 7 of the Code.
314
Broadcasting Act 1990 (UK), s. 45.
See further, ‘Notice of Proposed Changes to Satellite Services licences resulting from the AVMS Directive’,
www.ofcom.org.uk/consult/condocs/satellite_services/Satellite_Services/.
316
Programmes broadcast prior to 16 December 2009 are covered by the 2005 Code which came into effect on 25 July 2005 (with the exception of Rule 10.17 which came into effect on 1 July 2005).
317
The Audiovisual Media Services Directive (Directive 89/552/EEC, as amended by Directive 97/36/EC and by
Directive 2007/65/EC).
318
Broadcasting Code 2009 (UK), Rule 2.3.
319
Broadcasting Code 2009 (UK), s. 5.
315
58
2.
Public Service Broadcasting
A f urther e lement w ithin th e B ritish r egulatory context a re p ublic s ervice b roadcasting
standards which are applied to mainstream domestic terrestrial broadcasters. Whilst formally
such standards are not applied to satellite broadcasters, in an age of convergence of the means
of br oadcasting, one m ight e xpect s uch s tandards t o ha ve s ome i nformal w eight i n t he
broader r egulatory ‘culture’. T he concept of public s ervice br oadcasting w as in itially
developed in the national context, with the BBC model in the United Kingdom an influential
model, and is now being applied as an international standard to a variety of contexts where
media r eform i s t aking p lace. 320 This is s omewhat a kin to a c oncessionary t heory of
responsibility, as applied to public and private corporations.
Of central importance is the idea that a public service broadcaster must encompass a plurality
of views, be accountable to the public, and provide a wide range of information and content
otherwise unavailable in a commercial context. For its part, the broadcaster must be protected
from pol itical i nterference, w hether i n t he f orm of pol itical pr essure, t he t hreat of funding
cuts, or the withdrawal of state advertising revenue. Born and Prosser, in considering the case
study of the BBC, have emphasised three key goals and guiding principles for public service
broadcasting: citizenship, universality and quality. 321 It might be argued that future Al-Manar
broadcasting in the UK would infringe these core values.
In short Ofcom has considerable powers available to it to regulate Al-Manar broadcasts if it is
able t o l ocate t heir upl inking f rom a U K b ased s ervice or t heir t ransmission on a U K
broadcaster. As ever, the issue of broadcasting into the UK from a third party state remains a
difficult issue for Ofcom and for regulation in Great Britain. The internet and possibilities for
direct broadcasting of Al-Manar’s content via the web pose significant difficulties for British
and indeed all national regulators. In the meantime, regulators have a mix of options available
to t hem i ncluding di rect a nd i ndirect m ethods of r egulation, di plomatic a nd commercial
pressure and European co-ordination of regulation and satellite broadcasting governance.
3.
3.1
Racial Hatred Offences
UK law contains various offences of racial hatred, some of which have application to satellite
television broadcasting. Under section 18 of the Public Order Act 1986 (UK), it is an offence
to use threatening, abusive or insulting words or behaviour, or to display any written material
of that nature, where a person intends to stir up racial hatred or where racial hatred is likely to
be s tirred up i n t he c ircumstances. R acial ha tred i s de fined a s ha tred a gainst a group of
persons defined b y r eference t o colour, r ace, n ationality (including citizenship) or ethnic or
national origins. 322 The offence applies to both public and private places, although no offence
is committed where the expression is by a person inside a dwelling and is not heard or seen
except by others within that dwelling. 323
320
See f or ex ample Mar k T hompson a nd D an De Luce, ‘Escalating t o S uccess? T he Med ia I ntervention i n
Bosnia and Herzegovina’ in Monroe E. Price and Mark Thompson (eds), Forging Peace: Intervention, Human
Rights and the Management of Media Space (Indiana University P ress, B loomington, 2 002) pp. 201-235. See
further, M onroe E . Price a nd Mar c R aboy, Public Service Broadcasting in Transition (Kluwer L aw
International, New York, 2003).
321
G. Born and J. A.W. Prosser, ‘Culture and Consumerism: Citizenship, Public Service Broadcasting and the
BBC's Fair Trading Obligations’ (2001) 64 (5) Modern Law Review 657 at 671-681.
322
Public Order Act 1986 (UK), cl. 64, s. 17.
323
Public Order Act 1986 (UK), cl. 64, s. 18(2).
59
There are further racial ha tred of fences i n r elation t o t hreatening, a busive of i nsulting
expressions for: publishing or distributing written material (section 19); publicly performing
a play (section 20); distributing, showing or playing a recording of visual images or sounds
(section 21) ; a nd br oadcasting pr ogrammes ( section 22) . T he pos session of r acially
inflammatory written or recorded material which is threatening, abusive or insulting is also an
offence w here i t i s he ld f or t he pur pose of be ing di stributed ( section 23) . P olice pow ers of
entry, search and seizure exist in relation to such material (sections 24-25).
The o ffence r elating t o br oadcasting i n s ection 22 a pplies t o pe rsons pr oviding t he
programme s ervice, a ny pe rson b y w hom t he pr ogramme i s pr oduced or di rected, a nd a ny
person by whom offending words or behaviour are used (section 22(2)(a)-(c)). The offence is
committed where a programme i nvolving t hreatening, abusive or i nsulting vi sual i mages or
sounds i s i ncluded i n a programme s ervice a nd t he r elevant pe rsons i ntend t o s tir up r acial
hatred or having regard to all the circumstances racial hatred is likely to be stirred up (section
22(1)). A ‘programme service’ is given the meaning in the Broadcasting Act 1990 (UK).
There i s a d efence av ailable f or a s ervice p rovider o r p rogramme p roducer o r d irector w ho
did not intend to stir up racial hatred and did not know and had no reason to suspect that the
programme would involve the offending material, having regard to the circumstances, it was
not r easonably p racticable f or s uch pe rson t o s ecure t he r emoval o f t he m aterial f rom t he
programme s ervice ( section 22( 3)). There i s a f urther d efence available t o t he p roducer o r
director who did not intend to stir up racial hatred where such person did not know and had
no reason to suspect that the programme would be included in a programme service or that
the circumstances of its inclusion would likely stir up racial hatred (section 22(4)).
Finally, t here i s a de fence w here t he pe rson di d not i ntend t o s tir up r acial ha tred and t he
person did not know and had no reason to suspect that a programme involving the use of the
offending m aterial w ould b e in a p rogramme s ervice, o r th at th e c ircumstances o f its
inclusion would likely stir up racial hatred (section 22(5)). There is also no offence where the
person did not know, or had no reason to suspect, that the offending material was threatening,
abusive or insulting (section 22(6)).
The racial hatred offences have been utilized in a number of cases, including those involving:
the distribution of racially inflammatory material on the internet; 324 demonstrations involving
inflammatory placards and flag burning, in opposition to the republication of Danish cartoons
depicting M ohammed; 325 public s peeches ( and s ound r ecordings t hereof) a t a m osque a nd
other p laces b y a co ntroversial i mam; 326 inflammatory audio t apes ur ging M uslims t o f ight
and kill non-believers; 327 possession by a lodger of violent, racist articles for distribution; 328
and c onspiracy t o i ncite r acial ha tred b y n ewspaper publ ications. 329 Aliens h ave al so b een
refused entry to the UK on public order grounds due to a risk of inciting racial hatred. 330 We
have n ot l ocated an y c ases d ealing s pecifically with s atellite b roadcasting o f r acial h atred,
although the general principles limitations on freedom of expression would similarly apply.
324
R v Sheppard (Simon Guy) [2010] EWCA Crim 65.
R v Rahman (Mizanur) [2008] EWCA Crim 2290; R v Saleem (Abdul) [2007] EWCA Crim 2692.
326
R v Abu Hamza [2006] EWCA Crim 2918.
327
R v El-Faisal (Abdullah Ibrahim) [2004] EWCA Crim 456.
328
R v Gray (Robin Peter) [1999] 1 Cr. App. R. (S.) 50.
329
R v Morse (John) (1986) 8 Cr. App. R. (S.) 369.
330
See, eg, R (on the Application of Farrakhan) v Secretary of State for the Home Department [2002] QB 1391.
325
60
3.2
Religious Hatred Offences
The Racial and Religious Hatred Act 2006 (UK) am ends t he Public Order Act 1986 (UK)
and essentially replicates the racial hatred offences in relation to religious hatred, defined as
‘hatred against a group of persons defined by reference to religious belief or lack of religious
belief’ (new section 29A of the Public Order Act 1986 (UK) and offences in sections 29B-G).
In r elation t o br oadcasting, i t i s t herefore a n of fence f or a pe rson t o pr ovide a pr ogramme
service, pr oduce or di rect a p rogram, o r us e of fending w ords or b ehaviour i n a p rogram,
where a person intends to stir up religious hatred through a programme involving threatening
visual images or sounds (section 29F).
Given t he c hequered hi story of bl asphemy pr osecutions, f reedom of e xpression i s g iven
special protection in relation to legitimate criticism of religions, as provided by section 29J:
Nothing i n t his P art s hall be r ead or g iven e ffect i n a way which pr ohibits or r estricts di scussion,
criticism o r e xpressions o f a ntipathy, d islike, r idicule, i nsult o r a buse o f p articular r eligions o r t he
beliefs or practices of their adherents, o r of any other belief system or t he beliefs or p ractices of its
adherents, o r p roselytising o r u rging ad herents o f a d ifferent r eligion o r b elief s ystem t o ceas e
practising their religion or belief system.
The Criminal Justice and Immigration Act 2008 (UK) further added hatred on the grounds of
sexual orientation t o t he hatred of fences under t he P ublic Order Act 198 6 (UK), as well as
including a freedom of expression safeguard in section 29JA: ‘the discussion or criticism of
sexual conduct or practices or the urging of persons to refrain from or modify such conduct or
practices shall not be taken of itself to be threatening or intended to stir up hatred’.
4.
Anti-Terrorism Law
There are a r ange of anti-terrorism laws and powers in the United Kingdom, including under
the Terrorism Act 2000 (UK), Anti-Terrorism, Crime and Security Act 2001 (UK), a nd
Prevention of Terrorism Act 2005 (UK). Terrorism is defined by section 1 of the Terrorism
Act 2000 (UK) to mean certain acts or threats of serious violence to the person or property, or
danger t o l ife o r p ublic health o r s afety, o r s erious i nterference w ith an el ectronic s ystem,
which is designed to influence the government or to intimidate the public or a section of it,
and is made for the purpose of advancing a political, religious or ideological cause. Some of
the offences which hinge on the definition of terrorism may apply to satellite broadcasting.
4.1
Terrorist Offences
There a re num erous t errorism of fences unde r di fferent U K s tatutes. U nder Part V I o f t he
Terrorism Act 2000 (UK), it is an offence to:
• Provide or receive instruction in weapons training, or to invite others (specifically or
in g eneral) t o r eceive s uch i nstruction or t raining ( section 54) . T here i s a de fence
available where instruction or training was wholly for a purpose other than assisting,
preparing for or participating in terrorism;
• Direct, at any level, the activities of a terrorist organisation (section 56);
• Possess an article connected with the commission, preparation or instigation of an act
of terrorism (section 57);
• Collect, m ake a record of, or pos sess information of a ki nd l ikely t o b e us eful t o a
person committing or preparing an act of terrorism (section 58);
61
• Incite another p erson to c ommit a n act o f te rrorism w holly or p artly outside th e
United Kingdom (sections 59-61);
• Commit c ertain te rrorist b ombing of fences ( concerning e xplosives or bi ological or
chemical weapons) outside the UK (section 62).
• Commit terrorist financing (section 63).
Under the Terrorism Act 2006 (UK), it is an offence to:
• Encourage terrorism (section 1);
• Disseminate terrorist publications (section 2);
• Engage in conduct in preparation for committing or assisting in terrorist acts (specific
or in general) (section 5);
• Provide o r r eceive in struction o r tr aining in te rrorist f or c ommitting o r a ssisting in
terrorism (section 6);
• Attend any place where instruction or training for terrorism is provided for purposes
connected with the commission or preparation of acts of terrorism (section 8);
• Make, possess, misuse, or make threats concerning radioactive devices and materials
(sections 9-11).
4.2
Encouragement of terrorism
Most pe rtinent t o satellite broadcasting are t he o ffences o f en couraging t errorism a nd
disseminating terrorist publications. The offence of ‘encouragement of t errorism’ applies t o
‘a s tatement th at is likely to b e understood b y s ome or a ll of t he members of t he publ ic t o
whom it is published as a direct or indirect encouragement or other inducement to them to the
commission, p reparation o r in stigation o f a cts of te rrorism’ (Terrorism Act 2006 (UK),
section 1(1)).
The o ffence i s co mmitted w here a p erson p ublishes s uch a s tatement o r causes an other t o
publish i t, w here t he p erson ( i) i ntends m embers of t he publ ic t o b e di rectly or i ndirectly
encouraged or ot herwise i nduced b y t he s tatement t o c ommit, pr epare o r i nstigate a cts o f
terrorism, or (ii) is reckless as to that result (section 1(2)). The offence then indicates (section
1(3)) s tatements that a re l ikely to be un derstood b y m embers o f t he p ublic a s i ndirectly
encouraging terrorism, including ‘every’ statement which:
(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts
or offences; and
(b) is a s tatement from which those members of the public could reasonably be expected to infer that
what is b eing g lorified is b eing glorified a s c onduct t hat s hould b e e mulated b y th em in e xisting
circumstances.
Both t he contents of t he s tatement as a w hole a nd t he c ircumstances and m anner of i ts
publication a re r elevant t o how it is l ikely t o be unde rstood a nd w hat t he publ ic c ould
reasonably be expected to infer from it (section 1(4)). It is irrelevant whether any person is in
fact encouraged or induced by the statement to commit terrorism (section 1(5)(b)). Defences
are, h owever, available where t he p erson s hows t hat t he s tatement neither ex pressed h is
views nor had his endorsement, or where it is clear, in all the circumstances of the statement’s
publication, that it did not express his views or have his endorsement (section 1(6)).
62
4.3
Disseminating terrorist publications
Also r elevant t o br oadcasting i s t he of fence of disseminating t errorist publ ications unde r
section 2 of the Terrorism Act 2006 (UK). The offence applies to ‘publications’, defined to
include ‘an article or record of any description’ that contains any matter to be read, listened
to, or l ooked a t o r w atched ( section 2( 13)). S uch publ ications c ould, t herefore, e ncompass
material broadcast by satellite. The offence is committed where a person (section 2(2)):
(a) distributes or circulates a terrorist publication;
(b) gives, sells or lends such a publication;
(c) offers such a publication for sale or loan;
(d) provides a service to others that enables them to obtain, read, listen to or look at such a publication,
or to acquire it by means of a gift, sale or loan;
(e) transmits the contents of such a publication electronically; or
(f) has such a publication in his possession with a view to its becoming the subject of conduct falling
within any of paragraphs (a) to (e).
Broadcasting terrorist publications may be covered by a number of those bases. The person
disseminating publications in any such manner must intend his or her conduct to directly or
indirectly encourage or induce the commission, preparation or instigation of acts of terrorism,
or t o a ssist i n t heir c ommission or pr eparation; or t he p erson i s reckless a s t o t hat r esult
(section 2(1)). It is irrelevant whether any person is so encouraged (section 2(8)).
A publication is considered terrorist where it is likely to be understood, by some or all of the
receivers, as a direct or i ndirect e ncouragement or i nducement to te rrorism, o r o therwise
useful f or t errorism ( section 2( 3)). A publ ication i s l ikely t o be s o u nderstood w here i t
glorifies the c ommission or pr eparation of t errorism (whether i n t he pa st, i n t he f uture or
generally), or where glorification and emulation can be reasonably inferred (section 2(4)).
Both the contents of the publication as a whole and the circumstances in which disseminating
conduct oc curs a re relevant t o w hether a publ ication i s t errorist a t t he t ime of t he c onduct
(section 2( 5)). D efences a re available where t he pe rson s hows t hat t he publication neither
expressed his views nor had his endorsement (section 2(9)).
4.4
Proscribing Terrorist Organisations and Related Offences
Under P art II o f t he Terrorism Act 2000 (UK), the S ecretary of S tate is em powered t o
proscribe terrorist organisations where he or she believes that the organisation is concerned in
terrorism because it c ommits o r p articipates in a cts o f t errorism, p repares for te rrorism,
promotes or encourages terrorism, or is otherwise concerned in terrorism (section 3).
As a r esult o f t he Terrorism Act 2006 (UK), p romoting or encouraging t errorism i s now
defined unde r s ection 3( 5A) of t he Terrorism Act 2000 (UK) t o i nclude t he ‘ unlawful
glorification of the commission or preparation (whether in the past, in the future or generally)
of a cts o f t errorism’ o r o ther a ctivities w hich associate a n o rganisation w ith s tatements
(including words, sounds or images) containing any such glorification.
Glorification is then de fined a s unl awful ( by s ection 3( 5B)) ‘if t here a re persons w ho m ay
become aware of it who could reasonably be expected to infer that what is being glorified, is
being glorified as ( a) conduct t hat s hould be e mulated i n e xisting c ircumstances, or (b)
conduct t hat i s i llustrative of a t ype of conduct t hat s hould be s o e mulated’. G lorification
includes ‘any form of praise or celebration’ (section 3(5C)).
63
The background to the amendments is as follows. In August 2005 the UK Prime Minister had
proposed a ne w ‘ offence of c ondoning or glorifying t errorism’ w hether i n t he U K or
abroad, 331 in pa rt to i mplement t he C ouncil of E urope C onvention described a bove.
Previously, UK law onl y prohibited incitement to terrorism within the UK or abroad, 332 but
not the broader offence of condoning or glorifying terrorism.
Following significant criticism, including by the independent expert appointed to review the
proposals, 333 the pr oposal was replaced i n t he final bill with a n arrower o ffence o f
‘encouragement o f t errorism’. 334 The i dea of g lorification w as, how ever, i mported i nto t he
proscription context, as well as in new policy guidelines governing security deportations. 335
Once an organisation is proscribed, various criminal offences exist in relation to it, including:
• Belonging or professing to belong to it (section 11), unless the organisation was not
proscribed when the person joined and has not taken part in any of its activities since;
• Providing a support for it, by: inviting support (other than only money or property) for
it (section 12(1)); knowingly arranging, managing or assisting a meeting to support it
(or to further its a ctivities or to be addressed b y a member o f it) (s ection 12(2)); or
addressing a meeting with the purpose of encouraging support for it (section 12(3));
• Wearing, in a public place, an item of clothing (or wearing or displaying an article) in
such a way as t o arouse reasonable s uspicion t hat he i s a m ember or s upporter of i t
(section 13);
• Financing terrorism (including terrorist organisations), including by: inviting another
to provide money or property for the purposes of terrorism (section 15(1)), receiving
money or other property for terrorism (section 15(2)), or providing money or property
for terrorism (section 15(3)); using money or property for terrorism (section 16(1)), or
possessing m oney or pr operty intending i t t o b e us ed for t errorism (s ection 1 6(2));
entering into funding arrangements for terrorism (section 17); and money laundering
(section 18) . T here a re a lso va rious pow ers a uthorising t he s eizure and f orfeiture of
terrorist cash (section 24-31).
It is possible, t herefore, s atellite b roadcasting w hich ‘ glorifies’ te rrorism a s d efined above
could pr ovide a ba sis f or t he pr oscription of t he or ganisation w hich or iginates or t ransmits
such m aterial. U pon p roscription, i ndividual pe rsons m ay then b e criminally l iable f or t he
various acts of support falling within the criminal offences above.
331
Tony Blair, ‘Statement o n Anti-Terror M easures’, ( UK P rime M inister’s S tatement, 5 A ugust 2 005) [17]
<http://www.statewatch.org/news/2005/aug/02pm-terror-statement.htm> at 4 November 2005.
332
Terrorism Act 2000 (UK) c . 11, s s. 59 –61. S ee C live W alker, Blackstone’s Guide to the Anti-Terrorism
Legislation (2002), 175–177.
333
Lord C arlile o f B erriew QC, R eport b y t he I ndependent R eviewer o n P roposals b y H er M ajesty’s
Government for Changes to the Laws against Terrorism, October 2005.
334
Terrorism Bill (UK House of Commons, 12 Oct 2005), cl. 1.
335
UK Home Secretary, ‘Tackling Terrorism – Behaviours Unacceptable in the UK’, (Press Release 124/2005,
24 A
ugust 2005
)
<http://www.ind.homeoffice.gov.uk/ind/en/home/news/press_releases/tackling_terrorism.html> a t p ara. 4 November 2005. Soon a fter t he bo mbings, t he U K a nnounced n ew pol icy g uidelines governing de portation,
which l isted ‘ unacceptable b ehaviours’ b y n on-UK c itizens i n B ritain o r a broad, which i nvolved e xpressing
views which: ( 1) f oment, j ustify o r g lorify te rrorist v iolence in f urtherance o f p articular b eliefs; ( 2) s eek to provoke others to terrorist acts; (3) foment other serious criminal activity or seek to provoke others to serious
criminal acts; or (4) foster hatred which might lead to inter-community violence in the UK: para. 4. After hasty
consultations, the Home Secretary deleted as a g round ‘the expression of views that the Government considers
to be extreme and that conflict with the UK’s culture of tolerance’: para. 11.
64
Conclusion
This report considering existing regulatory approaches to Al Manar (in Part One) as well as
the range of regulatory tools available under international law and in comparative democratic
legal s ystems t o r espond t o e ntities w hich e ngage c oncerns about ha te s peech and t errorist
incitement (in Part Two). The findings are outlined in brief in the Executive Summary.
This research was not requested, and has not attempted, to make policy recommendations as
such f or t he A ustralian c ontext. A t r elevant poi nts, i t ha s, how ever, i ndicated legal
approaches in other jurisdictions (particularly in Europe, Britain and Canada) which may be
of a ssistance i n t hinking a bout r egulation i n A ustralia, p articularly b y providing structured,
detailed and context-sensitive ways to balance free expression with security concerns.
In the course of this research, a number of other issues arose which were outside the scope of
the project but which raise important related issues for future research into regulation. Further
study on these issues may also be of benefit to Australian policy makers and regulators:
1.
Regulation of Online Content: This report has considered the recent history of efforts
to regulate Al-Manar in a number of comparative jurisdictions. In the m ain such regulation
has f ocused on Al- Manar a s a s atellite te levision s tation. However, Al -Manar i s also
available online. Further research in this area of internet regulation would be of assistance to
the future regulation of Al-Manar and more broadly, entities which disseminate hate speech
or te rrorist in citements. Specific q uestions of i nterest might include how to de fine
jurisdictional issues online (as well as locating the place of the wrong) and also how to apply
human rights and security concepts and frameworks in an online, transnational context. There
are al so ‘soft la w’ concepts concerning a n i nformation s ociety which c ould be of f urther
relevance, along with the need for analysis of technical standards and the practical capacity of
jurisdictions to filter and block offensive material online.
2.
Media Convergence and Convergence of Regulation: Convergence of media has led
to questions regarding efforts towards converged regulation. The potential for – and limits of
– converged r egulatory approaches is lik ely to b e o f in creasing relevance i n t he f uture an d
could be further explored. There may be good reasons for different standards to be applied by
different regulators in different sectors; but sometimes there are also less satisfying reasons,
such as h istorical acci dent, t echnical l imits, t urf w ars, an d t he ab sence o f a s ystematic,
‘whole-of-media’ approach to regulatory reform.
3.
Classification and Censorship Regimes: Another area for future research could be a
comparative an alysis o f domestic classification and cen sorship regimes and t heir r elevance
for the regulation of terrorist-related content. Both areas are of significance for the regulation
of Al-Manar and comparable entities and could form the basis for future studies, particularly
in co nnection t o i ssues o f co nvergence. D ifferent co untries t ake d ifferent ap proaches t o
classification an d cen sorship a s be tween di fferent f orms of e xpression, whether t elevision,
film, i nternet, pr int m edia or vi deo/DVD, a nd i nconsistency of t reatment be tween f orms
potentially allows loopholes to be exploited.
Sydney, 2 June 2010
65
Canberra
Purple Building
Benjamin Offices
Chan Street
Belconnen ACT
Melbourne
Level 44 Melbourne Central Tower
360 Elizabeth Street
Melbourne VIC
Sydney
Level 15 Tower 1 Darling Park
201 Sussex Street
Sydney NSW
PO Box 78
Belconnen ACT 2616
PO Box 13112 Law Courts
Melbourne VIC 8010
PO Box Q500
Queen Victoria Building Sydney NSW 1230
T +61 3 9963 6800 F +61 3 9963 6899
TTY 03 9963 6948
T +61 2 9334 7700
1800 226 667
F +61 2 9334 7799
T +61 2 6219 5555
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www.acma.gov.au
acma research

International approaches to the regulation of Al

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