Additional Protocol to the Convention on Cybercrime

Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems is an additional protocol to the Council of Europe Budapest Convention on Cybercrime. This additional protocol was the subject of negotiations in late 2001 and early 2002. Final text of this protocol was adopted by the Council of Europe Committee of Ministers on 7 November 2002{{Cite web |url=http://www.usdoj.gov/criminal/cybercrime/COEFAQs.htm#topicE |title=Frequently asked questions and answers Council of Europe Convention on cybercrime |date=25 April 2004 |website=United States Department of Justice |url-status=dead |archive-url=https://web.archive.org/web/20060209153034/http://www.usdoj.gov/criminal/cybercrime/COEFAQs.htm |archive-date=9 February 2006 |access-date=15 January 2025}} under the title "Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (ETS No. 189), ("Protocol").[https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=189 Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems] on the Council of Europe web site The Protocol opened on 28 January 2003 and entry into force is 1 March 2006. As of January 2025, 37 States have ratified the Protocol and a further 10 have signed the Protocol but have not yet followed with ratification.[https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=189 Chart of signatures and ratifications of Treaty 189] on the Council of Europe web site

The Protocol requires participating States to criminalize the dissemination of racist and xenophobic material through computer systems, as well as of racist and xenophobic-motivated threats and insults.[http://www.usdoj.gov/criminal/cybercrime/COEFAQs.htm#topicE Council of Europe Convention on Cybercrime: Frequently Asked Questions and Answers] {{webarchive|url=https://web.archive.org/web/20060209153034/http://www.usdoj.gov/criminal/cybercrime/COEFAQs.htm |date=9 February 2006 }} by the United States Department of Justice. Last update 10 November 2003 Article 6, Section 1 of the Protocol specifically covers the denial of the Holocaust and other genocides recognized as such by other international courts set up since 1945 by relevant international legal instruments. Section 2 of Article 6 allows a Party to the Protocol at their discretion only to prosecute if the offense is committed with the intent to incite hatred, discrimination or violence; or to make use of a reservation, by allowing a Party not to apply – in whole or in part – Article 6.[http://conventions.coe.int/Treaty/en/Reports/Html/189.htm Explanatory Report on the additional protocol to the convention on cybercrime]

The Council of Europe Explanatory Report of the Protocol states the "European Court of Human Rights has made it clear that the denial or revision of 'clearly established historical facts – such as the Holocaust – ... would be removed from the protection of Article 10 by Article 17' of the ECHR (see in this context the Lehideux and Isorni judgment of 23 September 1998)".

Two of the English speaking states in Europe, Ireland and the United Kingdom, have not signed the additional protocol, (the third, Malta, signed on 28 January 2003, but has not yet ratified it).{{cite web|url=http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=189&CM=8&DF=28/08/2011&CL=ENG |title=Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (Chart of signatures and ratifications) Status as of: 28/8/2011|publisher=Council of Europe website|access-date=28 August 2011}} On 8 July 2005 Canada became the first non-European state to sign the convention. The United States government does not believe that the final version of the Protocol is consistent with the United States' constitutional guarantees and has informed the Council of Europe that the United States will not become a Party to the protocol.