sites were completely or partly excluded by the German sections of the search engine
Google. 58 In 2008, about 23 suspects were apprehended by German police in eight
German states, and a further 70 suspects had been identified in the investigation because of their illegal sale of right-wing extremist material over the Internet. 59
Holocaust denial is also legislated at the country level. Fifteen European countries
also have laws against Holocaust denial, 60 and others ban material that promotes racial
hatred. These have been harmonized in a protocol to the Council of Europe’s cybercrime treaty, which requires that ‘‘any written material, any image or any other
representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race,
color, descent or national or ethnic origin, as well as religion if used as pretext for any
of these factors’’ and ‘‘material which denies, minimizes, approves of or justifies crimes
of genocide or crimes against humanity’’ must be made illegal by the signatories. 61 As
with all illegal content, once it is brought to their attention, ISPs must either take
down or block the relevant Web sites (depending on whether they are hosted domestically or abroad).
One issue Europe has yet to resolve with regard to hate speech is whether merely
linking to offending content constitutes a crime. A 2000 case, in which French citizens
were barred from shopping on Web sites selling Nazi memorabilia, 62 would suggest
that Europeans would think it is. Yet, in 2004, the political activist Alvar Freude was
accused of linking to right-wing extremist Web sites and was brought to court. A local
court found this to be a criminal offense. However, the Stuttgart higher regional court
overturned that decision in 2006 and absolved Freude. 63
Defamation
Two forces are intersecting to shape defamation law in Europe. On the one hand, states
are relying on the ‘‘effects test’’ to determine legal jurisdiction; that is, so long as harm
is done within the country’s borders, the injured party can sue within that country.
On the other hand, individual countries are also exercising comparatively harsh antidefamation laws. Together, these forces mean that more people are being sued outside
their home countries, and for more money, than ever before.
Member states of the EU have sought a simplified electronic defamation framework.
The traditional principle in cases of defamation concerning the media—that the law of
the country where the defamed person lives is applicable—creates a strong incentive
for media to gain a potentially impractical degree of knowledge about the privacy and
defamation laws of each European country. In Italy, for example, a man in a crossborder custodial battle claimed that his ex-wife, now a resident of Israel, was responsible for posting statements and images on the Internet that were defamatory of him
and his ability to care for their two daughters. Italy’s highest appellate court, the
286
Europe Overview
Google. 58 In 2008, about 23 suspects were apprehended by German police in eight
German states, and a further 70 suspects had been identified in the investigation because of their illegal sale of right-wing extremist material over the Internet. 59
Holocaust denial is also legislated at the country level. Fifteen European countries
also have laws against Holocaust denial, 60 and others ban material that promotes racial
hatred. These have been harmonized in a protocol to the Council of Europe’s cybercrime treaty, which requires that ‘‘any written material, any image or any other
representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race,
color, descent or national or ethnic origin, as well as religion if used as pretext for any
of these factors’’ and ‘‘material which denies, minimizes, approves of or justifies crimes
of genocide or crimes against humanity’’ must be made illegal by the signatories. 61 As
with all illegal content, once it is brought to their attention, ISPs must either take
down or block the relevant Web sites (depending on whether they are hosted domestically or abroad).
One issue Europe has yet to resolve with regard to hate speech is whether merely
linking to offending content constitutes a crime. A 2000 case, in which French citizens
were barred from shopping on Web sites selling Nazi memorabilia, 62 would suggest
that Europeans would think it is. Yet, in 2004, the political activist Alvar Freude was
accused of linking to right-wing extremist Web sites and was brought to court. A local
court found this to be a criminal offense. However, the Stuttgart higher regional court
overturned that decision in 2006 and absolved Freude. 63
Defamation
Two forces are intersecting to shape defamation law in Europe. On the one hand, states
are relying on the ‘‘effects test’’ to determine legal jurisdiction; that is, so long as harm
is done within the country’s borders, the injured party can sue within that country.
On the other hand, individual countries are also exercising comparatively harsh antidefamation laws. Together, these forces mean that more people are being sued outside
their home countries, and for more money, than ever before.
Member states of the EU have sought a simplified electronic defamation framework.
The traditional principle in cases of defamation concerning the media—that the law of
the country where the defamed person lives is applicable—creates a strong incentive
for media to gain a potentially impractical degree of knowledge about the privacy and
defamation laws of each European country. In Italy, for example, a man in a crossborder custodial battle claimed that his ex-wife, now a resident of Israel, was responsible for posting statements and images on the Internet that were defamatory of him
and his ability to care for their two daughters. Italy’s highest appellate court, the
286
Europe Overview