Regulating Online Hate Speech: A Comparative Study of the United States of America, European Union and India's Approaches

I. Introduction

The exponential growth of the internet has brought the world closer. It is a core pillar of modern society that provides people with an opportunity to share information, ideas, and opinions on a wide variety of topics with a large number of audiences across the globe. However, along with the tremendous opportunity, comes the threat of abuse. The internet is a forum for extremists who spread hate speech. Many incidents of hate crimes have been triggered by hate speech content on social media platforms. Such hate crimes disturb the peace in society.

Unlike other terms, there is no statutory definition of hate speech in the three jurisdictions which have been analysed in this paper. Moreover, hate speech is not defined in international law as well, leaving the legislature with the difficult task of defining hate speech. The definitions that do exist are vague and the primary reason for this is a lack of consensus around the definition of hate, as the degree of hate is different in every jurisdiction. As statute law is inherently static, legal interpretation by courts of law is necessary to induce a certain degree of elasticity. However, legally defining an emotion such as hate may be a tedious and likely futile exercise.

Some countries have defined the term hate speech in the legislations enacted to resolve the issue. The European Council’s Framework Decision on combating certain forms and expression of racism and xenophobia by means of criminal law defines hate speech as “the public incitement to violence or hatred directed to groups or individuals on the basis of certain characteristics, including race, colour, religion, descent and national or ethnic origin”.³

The global presence of the internet makes it difficult to resolve the issue of online hate speech effectively. However, countries across the globe have adopted different approaches to tackle the problem. This paper aims to compare the regulatory approaches adopted by the U.S., Europe, and India. It explains how the 1^st Amendment of the U.S. Constitution is a safe harbour to the extremists who spread hate speech anonymously on social media platforms and how it infringes the right to equality and non-discrimination provided under 14^th Amendment of the U.S. Constitution. It also discusses the self-regulation policies adopted by social media companies to restrict users from posting hate speech content on their platforms. The paper further examines the effectiveness of legislation enacted in Europe to combat online hate speech and by comparing the two approaches, the paper proposes that the U.S. government should provide a clarification regarding what speech is not protected under the 1^st Amendment and also enact a legislation and also adopt strategies similar to those implemented in Europe to penalise theonline hate speech offenders.

Finally, we consider India, where we find a web of existing laws that indirectly govern online hate speech. Due to various indirect laws addressing online hate speech in India it leads to the possibility of excessive regulation⁴, which has led to censorship by abrogating the right to free speech and expression.

II. Online hate speech regulation in the United States of America:

The legislation on hate speech in the U.S. is built around the cyber-libertarian approach. The ideology behind this approach is that people in cyberspace regulate themselves and the government has no control over the cyberspace.⁵ There is absolute non-interference by the government in the expression of thoughts amongst the people⁶and free speech and expression are deemed to be of paramount importance and is, therefore, an unfettered right vested in the people.

The U.S. has enshrined the right to free speech and expression within the contours of the 1^st Amendment. It is the most cherished constitutional right and one of the foremost cultural symbols of the U.S. The Supreme Court, while making a decision on hate speech cases brought before it, has carved very narrow exceptions to the right to freedom of speech and expression.⁷

In the landmark judgment passed by the U.S. Supreme Court in Brandenburg’s case⁸ where the prominent leader of the Ohio Ku Klux Klan Chapter spoke about taking revenge on the African Americans and Jews. The speech violated the Ohio criminal law that restricts public speech that supports illegal activities. The court introduced a two-part test also known as Brandenburg’s test to determine when the government can restrict the individual’s right to free speech. According to the two-part test, the government has the right to prohibit the speech which advocates the use of force or crime if the speech satisfies the following elements:

i. The speech is “directed to inciting or producing imminent lawless action” and

ii. The speech is “likely to incite or produce such action”.⁹

In this case, the court held that although it was prima facie a violent speech, it did not provoke imminent lawless action and the Ohio law violated Brandenburg’s right to free speech. The two-part test determined whether the speech would provoke imminent lawless action.¹⁰

Currently, in order to decide what speech is protected under the 1^st Amendment of the U.S Constitution, Supreme Court applies Brandenburg’s test across all the speech platforms though the mode of delivery of the online speech is different from the symbolic or spoken speech. However, the test has to be updated to effectively address the unprotected speech on social media which fosters the spread of violence.

Online hate speech has long term ramifications on society. There are numerous groups on social media platforms who post hate speech against race, religion, LGBT groups, etc. Additionally, people who use social network websites such as Facebook, Twitter and YouTube are especially vulnerable to negative effects, with these platforms becoming recruiting tools for the terrorist organisation.¹¹ The extremists have also been using social media platforms to attract a large number of like-minded people from all over the world and are anonymously spreading hate speech and hate propaganda¹² with just one click of a button. According to the Southern, Poverty Law Centre reports there are currently 917 hate groups in the U.S.¹³

The hate groups play a major role in spreading vitriol on the internet. However, the hate groups such as Ku Klux Klan’s (KKK) that post hate speech, not inciting violence, are given protection under the 1^st Amendment offline.¹⁴

Many times people post hate speech or threats on social media platforms with their identity. One such incident occurred in December 2018 wherein Anthony Elonis was arrested and charged with five counts violating 18 U.S.C. § 875(c) of the Federal Anti-Threat Statue. He was accused of addressing several threatening posts towards his ex-wife, the local police, a kindergarten class, and even an FBI agent on his Facebook page. At the trial, Elonis argued that he was an aspiring rap artist and the statements he made on Facebook were merely a form of artistic expression and were not intended to threaten anyone. Thus, he contended that the charges should be dismissed. His motion to dismiss the case was denied by the trial court resulting in a conviction and he was sentenced to a term of 44 months of imprisonment. He challenged the decision passed by the trial court at the U.S Court of Appeal for the Third Circuit which affirmed the decision of the trial court. Subsequently, he filed an appeal at the Supreme Court. The Supreme Court reversed his conviction thereby acquitting Mr. Elonis, stating that the prosecutors could not discharge the burden of proof to establish his intention behind posting the threats on social media.¹⁵ Further, the Supreme Court held that his speech is protected under the 1^st Amendment because the speech did not intend to threaten or deliberately harm. The court maintained that online hate speech is protected by the 1^st Amendment, even though there is ambiguity on what exactly constitutes a true threat.¹⁶ From the aforementioned case law, it is apparent that the U.S. Courts are yet to differentiate between protected and unprotected speech.

Instead of defining what constitutes “true threat” the Supreme Court stated that the accused will assume criminal liability if a “reasonable person” is capable of understanding the words in question to be a threat. However, according to the Harvard Law Review¹⁷; “the Supreme Court reversed Elions’s conviction based on narrow statutory grounds rooted in principles of mens rea (guilty mind) and did not refer to the true threats doctrine.¹⁸ The majority, however, were not able to decide on the minimum mental state required for criminal liability.”¹⁹ As a result, the courts are yet to answer the questions that were originally presented in the Elonis case.

While deciding over the cases regarding the hate speech the court has indicated that “true threats” which are spoken or posted online are not protected under the 1^st Amendment. The elements required to define “true threat” have been highlighted in various precedents. However, the criteria differ from case to case. As there is no clear definition the courts are left to determine the legality of a threat. This case is the classic example of the high threshold that is to be satisfied by online speech to be declared as hate speech in the U.S.²⁰

Another case dealt by U.S. Supreme Court, United States vs. Machado²¹ represented a step in the correct direction. In the facts of this case, a student sent comminatory emails to students of the Asian community. He was held to be guilty as his actions deliberately discriminated against students who attended the University. However, the ground of conviction was not hate speech but that of racial discrimination and harassment as mentioned in the 14^th Amendment of the U.S. Constitution.²²

Furthermore, owing to the constitutional protection granted under the 1^st Amendment, the legislature in the U.S. does not impose any obligation on social media platforms to remove online hate speech contents. The aforementioned statement is further enshrined in Section 230 of the Communications Decency Act 1996. By virtue of this Act social media platforms are shielded from criminal and civil liability for the content available on the platform since intermediaries are not considered as publishers of the content posted by the users.²³ Therefore these websites are exempted from the purview of liability. A provision such as section 230 makes the U.S. a safe harbour for social media websites and enables them to escape liability.

Be that as it may, there is an immense need for strengthening regulation to combat online hate speech in the U.S. One of the reasons to regulate hate speech also finds a place within the 14^th Amendment which prohibits discrimination and establishes the principle of equality.²⁴ So in order to protect the individual’s right to equality and non-discrimination the government needs to draw a line between lawful and unlawful speech also enact the laws which prohibit the online hate speech and strictly punish the offenders.

III. Online hate speech regulation in Europe

Freedom of speech and expression is considered to be a human right by several European states.²⁵ Thus most jurisprudence is derived on the fundamentals of human rights laws.²⁶ There are several strategies adopted in Europe to combat online hate speech. A few examples of such strategies are convention-based approach, enacting code of conduct, policy-making and close monitoring.²⁷ The influence of the fundamentals of human rights is apparent as the European Court of Human Rights has carefully drawn a line between hate speech and an individual's right to free speech and expression. According to the recommendation of European Council’s, Committee of Ministers, hate speech covers all forms of expressions that spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance.²⁸ We shall now consider each of the aforementioned measures adopted in Europe to combat online hate speech in detail. Further, the paper also considers Germany’s approach towards combating online hate speech and analyses its effectiveness by enacting specific legislation known as Network Enforcement Act (hereinafter referred to as “NETzDG”).

IV. E-commerce directive 2000

The E-Commerce directive enacted by the European Union states that the internet intermediaries are not liable for the content posted by the users if they fulfill the following two conditions:

i. If the intermediary hosting illegal content disables access to it as soon as they are aware of its illegal nature.

ii. If the service provider has played a natural, merely technical and passive role in relation to the online content, i.e. they should have not generated or endorsed it.²⁹

The Directive also states that the Member States cannot impose obligations upon the intermediaries to monitor the content managed by them.³⁰

V. Convention on Cybercrime

In 2001, the Council of Europe enacted the first multilateral Convention on Cybercrime (Budapest Convention) with an objective to tackle the crimes on the internet. The Convention increased cooperation among the nations, harmonised national laws and regulated investigation techniques to help combat the online hate speech.³¹ Later in 2003, the Council of Europe launched an Additional Protocol on Convention on Cybercrime³² to address the online expressions on racism and xenophobia. The non-European nations can become a Member State to this Convention by signing and ratifying it which helps to broaden the scope and tackle online hate speech effectively. The U.S has signed and ratified the Convention on Cybercrime.³³ However, the U.S. has not signed and ratified the Additional Protocol on Convention on Cybercrime. The protocol on the Convention on Cybercrime imposes an obligation on the Member States to criminalise the racist and xenophobic speech online.³⁴

VI. Code of conduct on illegal hate speech online.

In the past few years, there is an exponential increase in online hate speech. The most commonly reported grounds of hate speech is Xenophobia (including anti-migrant hatred) (17.0 %) followed by sexual orientation (15.6 %) and anti-Muslim hatred (13.0 %).³⁵

In May 2016, the European Commission launched the Code of Conduct on Illegal Hate Speech Online with two main objectives:

i. To prevent and counter the spread of illegal hate speech online

ii. To address the online hate speech notifications within 24 hours from the time of the report.³⁶

The Code of Conduct is non-binding and the social media companies can become a part of it by signing it. Currently, nine Information Technology companies have signed the Code of Conduct. The Code of Conduct imposes certain obligations on the companies which include;

i. Introduce rules and community standards imposing restrictions on users who post hate speech content.

ii. Establish teams to review the user reported hate speech content online.

iii. Review the majority of notified hate speech content within 24 hours and disable access to it, if necessary.

iv. Establish a national contact point which facilitates the communication between the company and the relevant competent authorities to take necessary action against the hate speech offenders.

v. Promote transparency. ³⁷

A regular monitoring exercise is set up to evaluate the implementation of the Code of Conduct. The exercise is conducted in collaboration with the network organizations based in Europe using a common methodology.³⁸ These organizations asses the Information Technology companies' reaction to the notification of illegal hate speech. There were four monitoring exercises held since the launch of the Code of Conduct. According to the 4^th evaluation report which was published in February 2019, 88.9% of the hate speech notifications are reviewed by the social media platforms within twenty-four hours and 71.7% of it has been removed from the social media platforms.³⁹ 503 cases were submitted to the criminal justice authorities.⁴⁰ Facebook has reviewed 92.6% of the hate speech notifications within twenty-four hours.⁴¹ The report proves that the Code of Code has a significant impact on the regulation of online hate speech.

VII. Regulation of hate speech in germany

In October 2017, the German government enacted the Network Enforcement Act (NETzDG) to regulate the social media platforms. Under this Law, social media platforms are under the obligation to establish an effective and transparent procedure to handle the complaints regarding illegal content online. The law requires social media platforms to exercise a local takedown of “obviously illegal” content (e.g.: hate speech videos or comments) within twenty-four hours of notification.⁴² In case of less obvious illegal content the social media companies have up to seven days to make a decision on the case and in exceptional cases, it can take longer. The company must immediately inform the complainants and content generators about the decision and provide a reason for the decision. NETzDG also permits the social media companies to refer the complaints to a recognised self-regulation institution as long as the company agrees to accept the decision made by that institution.⁴³ The content which falls under one of the 21 criminal statues in the German Criminal Code can be removed under NETzDG.⁴⁴ NETzDG also imposes an obligation on the social media companies to publish a biannual report which contains the details which include the number of complaints lodged, the procedure followed to handle the complaints and the number of posts removed from the platform. If the social media platforms do not comply with the obligations under NETzDG the German administrative authorities can levy a fine up to 50 million Euros.⁴⁵ The administrative authority has to take an order from a competent court which assesses if the content is illegal before levying a fine. Recently, Facebook was fined 2 million Euros for violating the reporting obligations under NETzDG.⁴⁶

Although NETzDG has been tackling online hate speech issues, it has some loopholes. There is a high risk of social media platforms deleting the content which is lawful because they use algorithms to disable the content. These algorithms take the words into consideration and not the context of the post. Recently, Judische Allgemeine, a newspaper in Germany tweeted the interview of Israeli Ambassador to Germany wherein he was commenting on the AfD Political Party. The Tweet was taken down by the twitter algorithm introduced to comply with the obligation under NETzDG. Twitter also blocked Judische Allgemeine’s account. Twitter’s algorithm was misled as the activists of the AfD party had mass reported the Judische’s tweet.⁴⁷ Twitter lifted the suspension on Judische’s as the content was not illegal. Such incidents lead to the abrogation of the right to legitimate speech and expression.

The strategies adopted in Europe to resolve the online hate speech issue are novel and interesting. They impose obligations on the social media platforms to establish a mechanism to timely review the unlawful content on the platforms, as well as the contents which breach their own community standards. However, there needs to be an improvement in the method of implementation of these strategies so that it does not curtail the right to legitimate speech and expression.

VIII. Online hate speech regulation in India:

Online hate speech is new in India and there has been limited litigation in this area. Most of the Indian litigation regarding hate speech addresses hate or offensive speech in movies and books.⁴⁸Two major causes of hate speech in India today are the caste system and the religious divide between Hindus and Muslims that widened following the 1947 partition.⁴⁹

Unlike in Europe, there is no prevailing online hate speech regulation in India. The regulation of online hate speech in India is to be ascertained through other ancillary legislation such as the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) & the Information Technology Act, 2000 (ITA).⁵⁰ Although Article 19 of the Constitution of India (COI) guarantees freedom of speech and expression, this is subject to certain limitations. For example, certain sections of the IPC criminalise expression (written or oral) that intends to provoke violence (section 153B), promoting enmity between religious groups (section 295A and 153C), etc.⁵¹ Under the section 69A of the ITA, the government can restrict speech that disturbs public peace and speech that may affect national security.

The judgment passed by the Supreme Court of India in Shreya Singal case⁵² struck down section 66A of the ITA.⁵³ Section 66A provided that any person who “sends” grossly offensive information that has a menacing character or is knowingly false, with the intention to cause annoyance or insult shall be punished. This section was struck down by the Supreme Court as ultra vires to the COI. The Supreme Court held that this provision gives the government excessive power to curtail freedom of speech and expression enshrined under Article 19 of the COI.⁵⁴ The court also accepted the arguments contending that the section is vaguely worded and vulnerable to misinterpretation by state officials.⁵⁵

While the above case law can be said to be a victory for free speech & expression advocates, it is only a small step towards proper legislation governing hate speech on the internet. There is a complete absence of case law jurisprudence on this aspect and this is particularly troublesome as without case law there is no recognition by the courts of law towards the issues associated with online hate speech. Another issue is with regard to the investigation of such offences. Offences of online hate speech are not laid down in a specific statute, and the investigation of such offences is carried out by police. Often the police do not possess the resources or training in this regard.⁵⁶ This affects the quality of investigation and the possibility of a case finally reaching a court of law.

Another step in the direction of addressing the issue concerning online hate speech and freedom of speech and expression on the internet is the recent judgment passed by the Hon'ble Supreme Court of India in the case of Anuradha Bhasin vs. Union of India [Writ Petition (Civil) No. 1031 of 2019]⁵⁷. While the crux of the aforementioned judgment was indefinite internet shutdown within the territory of Kashmir, the court took the opportunity to comment upon the issue of free speech and expression on the internet. The court considered the empirical evolution of free speech and expression on various mediums such as print, television, and radio.⁵⁸ The court found that time to time, free speech and expression on the various modes of communication has been declared as a fundamental right enshrined within the COI. Thus considering that the internet is deeply intertwined with human life in the contemporary world the court deemed it fit to declare free speech and expression on the internet as a fundamental right guaranteed by part III of the COI. Further, the court also took note of the fact that the internet is being used by extremists and terrorist organizations to spread hateful propaganda. This is one of the landmark decisions of the Supreme Court of India in this regard. It has attracted criticism⁵⁹ by several sources, however, it cannot be denied that it is a step in the correct direction and is a major precedent for future jurisprudence concerning online hate speech to evolve.

IX. What can the U.S and India adopt from Europe?

A bare perusal of the above paragraphs will connote that Europe has one of the most stable systems in place to combat online hate speech. This part of the paper will ascertain the elements that the other two countries can borrow and inculcate within their legal systems. The U.S. has become a safe haven for intermediaries owing to the 1^st Amendment and Section 230 of the Communications Decency Act, 1996. India owing to its Section 79 of the ITA imposes no liability to intermediaries. However, it is time for both India and the U.S. to distinguish between lawful and unlawful speech. The legislatures of both countries must make a list of speeches that are considered unlawful and enact a specific statute to penalize hate speech offenders. They must also consider introducing strategies that are similar to the Code of Conduct on Illegal Hate Speech Online and other regulations adopted by the European nations to impose an obligation on the social media platforms to review the hate speech content online and disable it at the earliest.

X. Attempts to tackle online hate speech:

Fears of sanctions being imposed by law, websites such as Facebook⁶⁰, Google & Twitter have introduced community standards. These are the principles or accepted behaviour on their platforms. The content posted by the people on the website should be acceptable as per the standards set. In the event where the online content fails to qualify the community standards set by the platform, the same is taken down. In Germany, the internet service providers have to conduct an online filter to comply with domestic law.⁶¹ Further in other European countries Facebook, Twitter, and Google have signed the Code of Conduct⁶², to prevent the rise in the dissemination of racist and xenophobic speech on the internet.

In the U.S., certain oversight mechanisms analyze the content and then allow the same to be posted. This adds an extra layer of filtering, however, such a mechanism will only be appropriate if it is liberal in its approach towards content. Another means of regulating online hate speech would be by giving ratings to the various social media platforms based on the content they host. However, the same will require a great change in the cyber community.

The most effective way to curtail online hate speech is to inculcate cyber oriented curriculum in school education. This ensures that the students from a very young age are educated with regards to acceptable content and behaviour on the internet. This is a slow and long term solution to control the multi-headed hydra i.e. dissemination of hate speech online. However, this may prove to be the most effective of all the methods as the students shall be educated about the consequences of online hate speech and expression of free speech thereby keeping it open and acceptable to diverse views. Further, countries such as the U.S. and India must take into account the developments and legislations enacted in Europe and formulate a framework. The European framework is most suitable to tackle online hate speech as it is based on a human rights centric approach that strikes a balance between regulation of hate speech and freedom of speech online.

XI. Conclusion:

The internet serves as a breeding ground for extremists hate groups and terrorist organisations. They have been using it for expanding their membership and solidifying their forces to spread hate speech and violence across the globe. Hate speech often leads to hate crimes that disturb the peace in society. This comparative research establishes that the U.S, Europe and India’s approach to regulating online hate speech differs greatly. While Europe has sufficient laws and established strategies to regulate online hate speech which has proved to be efficient, the U.S. and India do not. The regulation of online hate speech is necessary because it has a negative impact on the real world. Therefore, the U.S. and Indian governments should establish a strong regulatory legal framework to curtail the spread of online hate speech and maintain public order.

Further, there is no static formula to tackle the issue of online hate speech. However, there being an absence of consensus on the definition of online hate speech the same adds fuel to the fire. The authors believe that all the stakeholders i.e. intermediaries, people, & the government should work together and form an effective policy based on elastic principles rather than static laws. We propose that there must be strict adherence to the network-based theory propounded by Murray.⁶³ Adhering to this theory, we shall proceed to formulate an interdependent solution. Thus, all the actors i.e. law, market, architecture & norms shall work together to regulate the network of users. This can be achieved by, firstly, the law is elastic and a balance needs to be achieved between excessive regulation & extreme absence of liability. Secondly, the norms need to strengthened and deeply engraved within society through the education system. Thirdly, by introducing market policies which ensure liberal and authentic regulation on of content being posted on online. Lastly, through architecture, websites such as Google can make it more difficult for people to search for offensive content. This will restrict the access that people have to offensive and hateful content. Thus, it is clear that a fragmented approach towards regulation of online hate speech will only lead to excessive legislation or failure to regulate. The United Nations office of the High Commissioner for Human Rights recommends that, it is only through cooperation between various stakeholders and states around the world that an effective framework to regulate online hate speech can be put in place in the future.⁶⁴

Footnotes

1. Author has pursued L.L.M. in Intellectual Property and Information Technology Law at Trinity College Dublin, University of Dublin.

2. Author has pursued L.L.M. in Intellectual Property and Information Technology Law at Trinity College Dublin, University of Dublin.

3. Council of Europe, The Committee of Ministers to Member States on Hate Speech: Recommendation No. R(97)20 (1997), https://rm.coe.int/1680505d5b (last visited Oct 3, 2019). ↩

4. Anandita Yadav, Countering Hate Speech in India: Looking for Answers beyond the Law, II Indian Law Institute (ILI) Law Review (2018), http://ili.ac.in/pdf/csi.pdf (last visited Oct 15, 2019). ↩

5. Irene Nemes, Regulating Hate Speech in Cyberspace: Issues of Desirability and Efficacy, 11 Information & Communications Technology Law 193–220 (2002). ↩

6. Andrew Murray, Information Technology Law (4th ed. 2019). ↩

7. Nancy E Dorothy, Dorothy G Singer & Robin Fretwell Wilson, Handbook of Children, Culture, and Violence (2006). ↩

8. United States Supreme Court, Brandenburg v. Ohio, 365 U.S. 444 (1969). ↩

9. Caitlin Elizabeth Ring, Hate Speech in Social Media: an Exploration of the Problem and Its Proposed Solutions, 2013, https://scholar.colorado.edu/concern/graduate_thesis_or_dissertations/12579s395 (last visited Nov 17, 2019) ↩

10. Grace Udoh-Oshin, Hate Speech on the Internet: Crime or Free Speech?, 2017, https://digitalcommons.liu.edu/cgi/viewcontent.cgi?article=1009&context=post_honors_theses (last visited Oct 16, 2019) ↩

11. Rakesh Chandra, Cyber Terrorism/ Hate Speech on Social Media: a Review of Indian Legal Framework, IV Commonwealth Law Review Journal (CLRJ) (2018), https://www.academia.edu/37793880/CYBER_TERRORISM_HATE_SPEECH_ON_SOCIAL_MEDIA_A_REVIEW_OF_INDIAN_LEGAL_FRAMEWORK (last visited Nov 2, 2019) ↩

12. Imran Awan, Cyber Extremism: ISIS and the Power of Social Media, 54 Social Science and Public Policy (2017), https://link.springer.com/article/10.1007/s12115-017-0114-0 (last visited Oct 25, 2019).Also See: Anat Ben-David &Ariadna Matamoros Fernandez, Hate Speech and Covert Discrimination on Social Media: Monitoring the Facebook Pages of Extreme Right Political Parties in Spain, X International Journal of Communication (2016), https://ijoc.org/index.php/ijoc/article/view/3697/1585 (last visited Oct 5, 2019) ↩

13. Supra Note 8 ↩

14. Ibid ↩

15. uscourts.gov, Facts and Case Summary - Elonis v. U.S. United States Courts (2010), https://www.uscourts.gov /educational-resources/educational-activities/facts-and-case-summary-elonis-v-us (last visited Nov 6, 2019) ↩

16. Ibid ↩

17. Harvard Law Review, Elonis v. United States Harvardlawreview.org (2017), https://harvardlawreview.org/201 5/11/elonis-v-united-states/ (last visited Dec 1, 2019) ↩

18. Supra Note 13 ↩

19. Ibid ↩

20. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ↩

21. United States v. Machado 195 F.3d 454 (9thCir.1999) ↩

22. U S v.Machado Case Summary' (Cs.stanford.edu, 2019) ↩

23. Zachary Laub, Hate Speech on Social Media: Global Comparisons Council on Foreign Relations (2019), https://www.cfr.org/backgrounder/hate-speech-social-media-global-comparisons (last visited Nov 4, 2019) ↩

24. Edgar Burch, Censoring Hate Speech in Cyberspace: a New Debate in New America, 3 North Carolina Journal of Law & Technology (2001), https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1019&context=ncjolt (last visited Oct 12, 2019). ↩

25. Eduardo Ustaran, European Data Protection : Law and Practice (2018) ↩

26. Ibid ↩

27. T. McGonagle, The Council of Europe against online hate speech: Conundrums and challenges (2013), https://rm.coe.int/16800c170f (last visited Oct 25, 2019) ↩

28. Supra Note 1 ↩

29. Commission Directive 2000/31/EC, of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'), 2000O.J. (L 178) ↩

30. Ibid ↩

31. James Banks, Regulating Hate Speech Online, 24 International Review of Law, Computers & Technology (2010), https://www.tandfonline.com/doi/abs/10.1080/13600869.2010.522323 (last visited Oct 11, 2019) ↩

32. Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems: European Treaty Series - No. 189 2003 ↩

33. Ibid ↩

34. IginioGagliardone et al., Countering online hate speech (2015) ↩

35. Vera Jourova, Code of Conduct on countering illegal hate speech online ec.europa.eu (2019), https://ec.europa.eu/info/sites/info/files/code_of_conduct_factsheet_7_web.pdf (last visited Dec 3, 2019) ↩

36. European Commission, Press corner European Commission - European Commission (2020), https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1135. ↩

37. VěraJourová, How the Code of Conduct helped countering illegal hate speech online ec.europa.eu (2019), https://ec.europa.eu/info/sites/info/files/hatespeech_infographic3_web.pdf ↩

38. European Commission, Countering illegal hate speech online – EU Code of Conduct ensures swift response European Commission (2019), https://ec.europa.eu/ireland/news/countering-illegal-hate-speech-online-eu-code-of-conduct-ensures-swift-response_en (last visited Oct 24, 2019) ↩

39. Supra Note 35 ↩

40. Ibid ↩

41. Ibid ↩

42. Amélie Heldt, Reading between the lines and the numbers: an analysis of the first NetzDG reports, 8 Internet Policy Review (2019). ↩

43. Supra Note 8 ↩

44. Google, Google Transparency Report Google.com (2019), https://transparencyreport.google.com/netzdg/goo gleplus?hl=en (last visited Dec 5, 2019) ↩

45. Natasha Lomas, Germany tightens online hate speech rules to make platforms send reports straight to the feds TechCrunch (2020), https://techcrunch.com/2020/06/19/germany-tightens-online-hate-speech-rules-to-make-platforms-send-reports-straight-to-the-feds/ (last visited Sep 13, 2020). ↩

46. Janosch Delcker, Germany fines Facebook €2M for violating hate speech law POLITICO (2019), https://www.politico.eu/article/germany-fines-facebook-e2-million-for-violating-hate-speech-law/. ↩

47. Frankfurter Allgemeine Zeitung GmbH, Regelverstoß auf Twitter?: Account der „Jüdischen Allgemeinen“ vorübergehend gesperrt FAZ.NET (2019), https://www.faz.net/aktuell/politik/inland/twitter-sperrt-account-der-juedischen-allgemeinen-voruebergehend-16185147.html (last visitedDec -7, 2019) ↩

48. Samarth Mishra & Aditya Kumar Shukla, Balancing Freedom of Expression and Hate Speech: Cases of India, 9 Pramana Research Journal (2019), https://www.researchgate.net/publication/334720790_Balancing_Freedom_ of_Expression_and_Hate_Speech_Case_of_India (last visited Nov 12, 2019) ↩

49. Ibid ↩

50. Suvidutt M.S. & Aditya Tomer, Cyberhate in India- Regulation & Intermediary Liability, 4 International Journal of Law & Legal Jurisprudence Studies (2017), http://ijlljs.in/wp-content/uploads/2017/08/Cyberhate _in_India_-_Regulation_and_Intermediary_Liability.pdf (last visited Nov 10, 2019) ↩

51. Ibid ↩

52. Shreya Singalv.Union of India AIR2015SC1523 ↩

53. Supra Note 48 ↩

54. Ibid ↩

55. Ibid ↩

56. Supra Note10 ↩

57. “In The Supreme Court of India Civil Original Jurisdiction” (2020) <https://main.sci.gov.in/supremecourt/ 2019/28817/28817_2019_2_1501_19350_Judgment_10-Jan-2020.pdf> accessed 30 January 2020 ↩

58. Indian Express v. Union of India 1985 (1) SCC 641, Secretary, Ministry of Information & Broadcasting, Government of India 1995 (2) SCC 616 and Odyssey Communications Pvt. Ltd. v. LokvidayanSanghatana 1988 (3) SCC 410 ↩

59. Firstpost, SC on Kashmir internet shutdown: Prohibitory orders under Section 144 can’t be imposed to suppress legitimate expression of opinion Firstpost (2020), https://www.firstpost.com/india/govt-told-to-restore-essential-internet-services-in-kashmir-within-seven-days-by-supreme-court-7888101.html (last visited Jan 16, 2020) ↩

60. Facebook, Controversial, Harmful and Hateful Speech on Facebook | Facebook Facebook.com (2013), https://www.facebook.com/notes/facebook-safety/controversial-harmful-and-hateful-speech-on-facebook/574430655911054/ (last visited Oct 12, 2019) ↩

61. William Echikson& Olivia Knodt, Germany’s NetzDG: A key test for combatting online hate (2018), https://www.ceps.eu/system/files/RR%20No2018-09_Germany%27s%20NetzDG.pdf (last visited Nov 1, 2019) ↩

62. European Commission, Countering illegal hate speech online – EU Code of Conduct ensures swift response European Commission (2019), https://ec.europa.eu/ireland/news/countering-illegal-hate-speech-online-eu-code-of-conduct-ensures-swift-response_en (last visited Oct 24, 2019) ↩

63. Supra Note 5 ↩

64. IJRC, UN Launches the Rabat Plan of Action | International Justice Resource Centre Ijrcenter.org (2013), https://ijrcenter.org/2013/02/25/un-launches-the-rabat-plan-of-action/ (last visited Nov 2, 2019) ↩