ARPA: Combatting hate in cyberspace

Danielle Keats Citron Hate Crimes in Cyberspace, Cambridge, Ma, Harvard University Press, 2014 (343 pp). ISBN 978-0-674-36829-3 (hard cover) RRP $61.00.

Abraham H. Foxman & Christopher Wolf Viral Hate: Containing its Spread on the Internet, New York, Palgrave Macmillan, 2013 (242 pp). ISBN 978-0-230-34217-0 (hard cover) RRP $41.00.

It is difficult to specify the appropriate boundaries of freedom of speech in the contemporary era, in which complexities now include the online expressive environment enabled by the Internet. With Web 2.0, platforms and usage have become dynamic, the lines between creator and user have become blurred, and social media facilitates networking and collaboration (Jones 2008). These developments raise questions about whether this relatively new medium actually enhances freedom by facilitating expression, or facilitates harms in new and more damaging ways. Certainly, the Internet has become a medium of choice for the dissemination of hate speech, which is viewed by most countries around the world as sufficiently harmful to warrant regulation. But what of other forms of harmful speech online?

These two books are among an increasing body of work—see, for example, my earlier review of Levmore and Nussbaum’s The Offensive Internet (Gelber 2011)—that recognises how speech on the Internet harms, not just through traditional ‘hate speech’ but in new ways. This work is raising serious questions about the possibilities for regulation of the Internet to minimise such harms, punish those engaging in harmful speech and/or facilitate expression that will counter harms. This question is a pressing policy issue, one of great import to anyone concerned with the core democratic freedom that is freedom of speech.

Diane Citron’s Hate Crimes in Cyberspace is a highly accessible, detailed and compelling argument in favour of addressing the disproportionate impact that particular types of harmful expression online—those that target and name specific individuals for extensive campaigns of abuse and invective—have on women and sexual minorities. Replete with harrowing narratives from real-world targets of cyber harassment, stalking, and revenge pornography, her book tries to capture the different ways the Internet both facilitates online abuse, and ‘exacerbates the injuries suffered’ from these kinds of crimes because the abuse remains easily accessible through search engines for years after a series of events takes place, and the audience is far greater than when people are targeted offline (pp. 4–5). There are other ways that the Internet facilitates these kinds of online attacks. It allows ‘stalking by proxy’, through which strangers are recruited into a campaign against a person they do not know, simply because the Internet makes it so easy for participants to be anonymous and for groups to be mobilised. While this might seem counterintuitive (surely groups on the Internet are not the same as groups offline, where people actually meet one another?), Citron ably argues that the Internet’s features make it a prime recruiting ground for ‘anonymous cyber mobs’, groups who do not have time or physical restraints, and who therefore face far fewer practical barriers to joining together than they would offline (pp. 57ff). She argues that the ease of anonymity on the Internet provides groups with the kind of cloak to hide their identity that the Ku Klux Klan wears (p. 62), and facilitates group polarisation, in which each user is more (and not less) likely to move to extreme speech in order to outdo others (p. 63).

Interestingly, research shows that many perpetrators have no personal knowledge of their target (p. 51), yet they still eagerly engage in vitriolic anonymous abuse of their victims, who have often done nothing to warrant such poor treatment. Targets include law students, feminist bloggers and people simply expressing their opinions. Some mechanisms of abuse are more organised, for example those that make money from sites that host revenge porn, often accessed illegally through a third party who hacks computer accounts, and then charge people to remove the material once it has been uploaded. For these kinds of users, the ‘more embarrassing and destructive the material, the more money’ they can make from their online activities (p. 52). Citron’s book includes discussion of a case that was being heard as she wrote the book, that of revenge porn host Hunter Moore who worked with a hacker who illegally accessed women’s computer networks to steal their personal photographs, and then uploaded them to his web site without their consent. Charlotte Laws, the mother of one of his victims, mounted a campaign against the practice she called ‘cyber rape’. Moore has now been successfully prosecuted for aggravated identity theft and unauthorised computer access (Charles 2015).

Citron advocates taking a civil rights approach to online hate crimes, in which they should be regarded as violations of civil rights that then permit the types of civil action against harmful conduct that are possible within the constraints of the First Amendment in the United States. The activities primarily target, and harm, women, meaning that cyberspace has become the ‘next battleground’ (p. 100) for the civil rights movement because the activities she reports on are highly gendered in their negative effects. She outlines the possibilities for action that already exist under current law in the United States, and makes concrete proposals for new law reform including updating harassment and stalking laws, banning revenge porn, and using civil rights law to penalise those who interfere with others’ rights to pursue work, education and other entitlements on the ground of their race or gender (p. 142ff). She argues that sites that are principally used for cyberstalking, and those that make a profit from uploading harmful material and then charging individuals for its removal, ought to be able to be held legally liable for the harms they incur (pp. 167–168) and she outlines how her proposals are commensurate with First Amendment protections for freedom of speech (Ch 8).

Citron’s book is an excellent contribution to the genre. It draws heavily on real world examples and the interviews she conducted with targets, and therefore speaks powerfully to the harms faced by people subjected to targeted abuse and invective online in a way that other accounts do not. Citron’s command of the First Amendment context within which she makes her careful, and original, proposals for reform produces a nuanced and judicious argument in favour of some very specific proposals that seem manageable in a US-context. The feminist underpinnings of her argument are also important, in so far as she accounts for how the kinds of abuse she is concerned with are gendered. The disproportionate effects of such abuse on women are routinely under-recognised by those who adopt a free-for-all approach to Internet use.

Foxman and Wolf’s contribution to this genre, Viral Hate: Containing its Spread on the Internet, is very differently pitched. The topic is similar; they argue that bigotry on the Internet—extremist web sites, web sites that appear to be educational but actually cloak ideas of hate, games with bigoted themes, merchandising and hate on social media—can have ‘lethal’ (p. 4) effects. They show examples of people who have engaged in hate online and subsequently been involved in shootings and bombings. Based on such cases, they argue that there is a direct connection between engaging in online hate, and generating the kind of atmosphere within which real-world violence becomes possible. This is made more concerning by the fact that online hate has a wider audience and therefore wider influence than offline propaganda is able to do (pp. 31–33). They consider bigotry directed at blacks, Asians, Latinos, gays, women, Muslims and Jews. Their book is pitched more at those who are new to the free speech arguments that can be applied to online environments, and to the difficulties in legislating against hate speech in the United States, in which laws like those that exist in Australia (such as s18C of the federal Racial Discrimination Act) are not permitted, since they are regarded as impermissible restrictions on the freedom of speech guaranteed by the First Amendment.

In the context of the legal difficulties of regulating hate speech in the United States, this book’s strength, therefore, lies in its emphasis on non-legal approaches to remedying hate speech, including participation by stakeholders such as Internet service providers and search engines in developing and enforcing standards of conduct. These kinds of initiatives pose no First Amendment problems at all, although their effectiveness relies on a sea change in attitudes by service providers. Foxman and Wolf call for all Internet users to understand and appreciate the harms that online hate speech incurs, and to take action against it. They cite approvingly the development of an Anti-Cyberhate Working Group with industry representatives, academics including Danielle Citron, non governmental organisations and others (p. 120).

However, their emphasis on non-legal remedies ties in with a key weakness in the United States-informed hate speech debate. That is the idea that Foxman and Wolf explicitly endorse, that ‘the best antidote to hate speech is counter-speech’ (p. 129). This means that a person or community who is targeted by hate speech should engage in speech that seeks to counter the messages of the hate speakers, rather than to seek to shut down their speech. While the idea of counter-speech may sound sensible and attractive, in practice it is not meaningful unless it recognises how, and how much hate speech can silence and marginalise its targets. Asking the targets of hate speech to engage in counter-speech can be an ineffective remedy in so far as it does not recognise the silencing and marginalising effects of hate speech on them, and because it asks those targets to bear the burden of responding to hate speech as the remedy. This is unique in the civil rights arena, in which it is widely recognised that other forms of discrimination (sexual harassment or denial of services, for example) ought to invoke a societal response that names the conduct as harmful, and also provides mechanisms of support to targets to achieve a remedy.

These are quite different books that each makes a significant contribution to the growing genre of work dealing with the question of hate crimes and hate speech online. Citron’s, in particular, is a superb work that makes an impressive contribution to the evidence-based arguments that ought to inform real-world debates in this area. This is a field that is not going away; indeed as Internet use has become ubiquitous it is increasingly difficult (if not impossible) just to ‘switch off’ or choose not to use the Internet to avoid its pitfalls. This makes an informed debate all the more necessary.

It is interesting to consider the implications of Citron’s argument for the regulatory environment in Australia. On the one hand, abusive speech is more easily regulated here, and the High Court of Australia has brought down judgments upholding the validity of those laws in spite of their impact on freedom of speech (in cases such as Monis v R; Droudis v R (2013) 249 CLR 92; Coleman v Power (2004) 220 CLR 1). On the other hand, the gender implications of these kinds of online abuse remain under-appreciated, and press reports indicate that media trolling and online abuse (for example, ABC News 2014) routinely occur here as well. This book will help to improve understanding and awareness of the social costs of, and difficulty of regulating, those activities.

REFERENCES

Jones, B. 2008, Web 2.0 Heroes: Interviews with 20 Web 2.0 Influencers, Wily, Indianapolis.

Katharine Gelber is a Professor of Politics and Public Policy, and an ARC Future Fellow, at the University of Queensland. She has published widely in free speech and the regulation of hate speech, including Speech Matters: How to Get Free Speech Right (UQ Press, 2011).

View other articles by Katharine Gelber:

The Dark Side of the Internet (Digest, Nov 2011)
Freedom of Speech and a Bill of Rights (Digest, Nov 2009)
Academic Freedom in Australia (Digest, Dec 2008)
Constitutional Reconfiguration (Digest, 31 May 2002)
Free Speech, Hate Speech and a Bill of Rights (Journal, Mar 2002)
Human Rights Treaties in Australia (Digest, 12 Apr 2001)