See the previous blog posting Update on the European Commission plans for EU wide internet censorship for the list of NGOs to which this Questionnaire has been sent.
Subject: Questionnaire on inciting, aiding or abetting terrorist offences
The attached questionnaire is part of a general public consultation that the European Commission is conducting in relation to the issue of inciting, aiding or abetting terrorist offences.
In theory, that means that individual European Union citizens or groups should also be able to contribute to this "general public consultation", even though they are not on the list of Non Government Organisations.
In accordance with Article 4 of the Framework Decision on combating terrorism1. Member States must take all necessary measures to ensure that incitement, aiding and abetting others to commit terrorist offences is made punishable.
1Council Framework Decision of 13 June 2002 on combating terrorism, (2002/475/JHA). OJ L 164, 22/06/2002
Nevertheless,the increasing dissemination of terrorist propaganda as well as of bomb-making and other terrorist expertise through the media and the internet in particular, in order to very efficiently reach large audiences, has led the European Commission to start reflecting on ways - not necessarily of a legislative nature - to better prevent inciting, aiding or abetting terrorist offences. Answers to the attached questionnaire will there fore give the European Commission the opportunity to hear the views of the media, civil society and other interested parties on this subject prior to formulating any views of its own.
In this context, the Commission would like to underline that all counter-terrorism measures must go alongside guaranteeing full and effective protection of fundamental rights in the European Union. In accordance with the Communication of the Commission of 27 April 20052, in particular to assess its impact on Fundamental Rights.
COM(2005)172 final 27.4.2005. Communication from the Commission on Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigourous monitoring
Can we have some of that in the United Kingdom please ? The Home Office and the rest of the Labour government only seems to pay lip service to these ideals, and usually fights attempts to enforce them through the courts, at public expense.
The European Commission would thus be very grateful if you could take time to fill in the attached questionnaire in order to help it in this phase of reflection. The questionnaire is being sent to national, European and international NGOs dealing with human rights issues, Human Rights bodies, Bar and Lawyers' associations, publishers, broadcasters and journalists' associations,internet service providers, telecommunications companies, manufacturers of explosives and other relevant industry.
1. How would you assess the effectiveness of Article 4 of the Framework Decision on Combating Terrorism, and of its implementation in Member States, against inciting, aiding or abetting a terrorist offence as defined by the Framework Decision itself ?
2. Could you provide any information or examples that in your view demonstrate how Article 4 fails to cover certain terrorist offences or, on the contrary, information or examples demonstrating how this provision applies to cases which should not be considered as a terrorist offence?
3. What are your views with regard to the fact that there is no legal definition of incitement in the Framework Decision?
4. a) What are your views with regard to Article 5 of the recently adopted Council of Europe Convention on the Prevention of Terrorism (2005) in which the public provocation to commit a terrorist offence is defined as "the distribution or otherwise making 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 that one or more such offences may be committed"?
What a flawed definition !
On the one hand it appears to allow a terrorist group sending out a "dog whistle" message aimed at just its small group of potential supporters, to escape any legislation which uses the words "to the public", which must, by definition be a much larger group of people. Therefore, for example, a private, password protected website or discussion forum (i.e. the vast majority of dubious websites) would not be covered in the same way that open access ones would be.
On the other hand, "indirectly causing a danger that something may be committed", is extraordinarily vague and catch all wording, which could easily be used to arbitrarily criminalise anyone who cannot stand up to the authorities.
Will this wording be used to criminalise and prosecute, say an e-commerce online credit card payments system, which may be used to pay for the dubious website hosting or as a method of collecting money to indirectly or directly finance terrorist activities, somewhere in the world?
b) Please, if possible,complement your answer by assessing the impact that the implementation of such a provision might have on you as an industry, association, organization or body concerned, or the impact it might have on civil society in general.
Essentially, implementing this wording would destroy the existing "common carrier" status immunities from prosecution as accessories to criminals, which protect infrastructure providers in the electricity, water, gas, fuel distribution, telecommunication, internet, postal mail and courier, freight or passenger transport and banking, credit card and finance industries etc. All of these industries provide services and goods which fall foul of the vague catch all words "the distribution or otherwise making available"
Given the economic impact that this would have, were these industries forced to leave the European Union, the terrorists would have won by destroying our civil society.
5. a) What are your views with regard to the analysis made in the Explanatory Report to the above mentioned Council of Europe Convention that the above-quoted provision would cover:
- dissemination of messages praising the perpatrator of an attack
- denigration of victims
- calls for funding terrorist organisations
- other similar behaviour
b) Please, if possible, complement your answer by assessing the impact that the implementation of a provision explicitly forbidding the dissemination of one or more of the above mentioned messages might have on you as an industry, association, organization, or body concerned, or the impact that it might have on civil society in general.
6. Are there any other situations that,in your view, could also be covered by a provision of this type addressing indirect incitement to commit terrorist offences ? Are there any situations that, in your view, should not be covered by a provision of this type?
There are no conceivable situations where indirect incitement should be criminalised at all. The European Commission should not only ensure that they do not bring forward any such legislation, they should actively make legal provisions to force Member States to repeal any such legacy legislation which has infected their legal systems over the years.
The whole concept of "indirect guilt", or "guilt by racial or religious stereotype", or "guilt by indirect association", or "being your brother's keeper", or "betraying members of your own family to the authorities on suspicion not evidence" etc. etc. should be viewed as an anathema to the principles in the Charter of Fundamental Rights.
There are plenty of existing laws which cover criminal conspiracies, and if there is insufficient hard evidence to convict people of under these laws, especially for accusations of involvement in preparation for terrorist attacks which have not actually been perpetrated, then so be it - keep them under surveillance and catch them the next time around.
The dangers to the rest of society of implementing such vague yet powerful laws are immense, and wholly disproportionate to the threat.
7. Could you provide any information/analysis/assessment on the compatibility between freedom of expression and the notion of incitement, whether direct or indirect, to commit terrorist offences? Would you have any information/analysis on concrete cases examined by the competent authorities or Courts?
Remind us what the (non-existent) legal definition of incitement in
this context is ? - see Question 3
Until there is such a proposed definition, then this Question 7 is meaningless and unanswerable.
8. a) Could you provide any information/analysis/assessment on how Member States' legal systems deal with the question of the glorification and/or the apology of terrorism or terrorist offences?
b) If, for instance, a specific incrimination exists, how is such behaviour defined and how id the compatibility with freedom of expression guaranteed?
In the United Kingdom, the controversial Terrorism Act 2006 section 1 subsection 3 definition of "glorification" is not properly or precisely defined, and there is no guaranteed compatibility with freedom of expression. Stupidly, it also attempts to cover events in the past, the present and the future.
The Opposition objections during the Parliamentary debates on the legislation were steamrollered by the Government, despite powerful points being made about the "glorification" of terrorist acts in the past or in history, e.g. the glorification of Nelson Mandela or the Easter Uprising in Dublin in 1916
9. a) Could you provide any information / analysis / assessment on how Member States' legal systems deal with the question of transmission of bomb-making or other terrorist expertise, as well as any exceptions in pre-defined legitimate circumstances?
b) If, for instance, a specific incrimination exists, how is such behaviour defined and how is the compatibility with freedom of expression guaranteed? Kindly provide concrete examples if possible.
10. Which one of the acts in the list below would you qualify as "other terrorist expertise"? Should you think that certain acts should be added or removed from the list, kindly specify them and motivate your answer.
- in general, terrorist manuals or handbooks
- instructions on how to conduct hostage-taking
- recipes for making poisons
- instructions on how to make or utilise terrorist weapons (eg CBRN weapons) or a weapon of mass destruction
Remove all of these categories !
There is so much disinformation and so many faulty and downright dangerous versions of things like "The Anarchists Cookbook" floating about the internet, that to specifically pick on the more dangerous items, would instantly provide some sort of Government seal of approval as to their usefulness to terrorists and others, without doing anything at all to restrict the sources of such data, mostly in the USA, where such bomb-making information is protected by the First and Second Amendments to their Constitution.
Unless the European Commission is planning to somehow cut off the EU from the internet in the USA, and to ban whole swathes of our popular culture involving books, magazines, films and TV shows which depict military and police techniques, which are of direct use to terrorists, this is all irrelevant.
11. Please, if possible, assess the impact that the implementation of a provision explicitly forbidding the transmission of bomb-making expertise or one or more of the above mentioned categories of "terrorism expertise" has or might have on you, as an industry, organization or body concerned, or the impact that it might have on civil society in general.
The EU Commission seems to be steering the "forbidden knowledge" of "bomb-making expertise" down the same stupid and counter-productive route that the outright banning of "making, copying or transmitting" indecent or especially "child porn" images has produced, whereby even the Police and civilian professionals who investigate such crimes in the UK, are forbidden to store or copy such evidence on their systems for research or investigation purposes, thereby hampering their efforts to rescue children who are being actively abused.
The European Commission do not appear to be planning any exemptions for military personnel or civilian contractors engaged in training people in conflict zones to clear improvised explosive devices i..e. terrorist bombs and booby traps, landmines or unexploded military ordnance, which requires the use of controlled explosions. This requiring skills and knowledge indistinguishable from that of terrorist bomb makers, and in some cases, far exceeding the terrorists knowledge.
12. Could you provide any information / analysis / assessment on whether Member States' legal systems differentiate between various types of media in relation to inciting to commit, aiding or abetting terrorist offences and restricting the transmission of bomb-making or other terrorist expertise?
13. Keeping in mind the generic nature of Framework Decisions of the EU, how would you view the possibility of amending article4of the EU Framework Decision on Combating Terrorism in order to achieve the following:
strengthen the prevention of incitement, aiding and abetting commit terrorist attacks, particularly via the internet
avoid unjustified or abusive incrimination of acts or behaviour which should not be considered as terrorist offences
14. How would you address the particular difficulty of implementing Article 4 of the Framework Decision with respect to internet content?
15. Please feel free to provide any further comments you might have on the subject.
END OF QUESTIONNAIRE