Presentation notes from Eirik Trønnes Hansen, senior adviser, NCIS Norway,

for webinar, Council of Europe, Octopus Project: on the occasion of the 20^th Anniversary of the First Additional Protocol to the Convention on Cybercrime

Strengthening the capacities of criminal justice authorities in addressing xenophobic and racist acts committed through computer systems:

2^nd webinar on Good Practices and Challenges, 28 February 2023

Session „Navigating the challenges of domestic law and reservations in addressing online xenophobia and racism “.

The purpose of this presentation is to describe the background for the Norwegian reservations against parts of the First Additional Protocol to the Budapest Convention, and also describe possible consequences of these reservations.

One point: even if certain statements and activities may not be directly covered by Norwegian criminal provisions, there may be a need to review the facts of the case and consider if other legal provision may apply.

All translations of Norwegian court decisions and Norwegian law in this presentation, are unofficial and presented for information purposes.

Norway signed the First Additional Protocol to the Budapest Convention April 29, 2008, and ratified the Protocol the same day. Entry into force for Norway was August 1, 2008. Norway decided to use the possibility for a reservation on some specific parts of the Protocol. The text from the council of Europe Treaty Office, is this:

·         Article 3 – Dissemination of racist and xenophobic material through computer systems:

"In accordance with Article 3, paragraph 3 of the Protocol, Norway reserves the right not to apply paragraph 1 to those cases of discrimination for which, due to established principles in its national legal system concerning freedom of expression, it cannot provide for effective remedies as referred to in the said paragraph 2."

·         Article 5 – Racist and xenophobic motivated insult

"In accordance with Article 5, paragraph 2 b of the Protocol, Norway reserves the right not to apply paragraph 1 of this Article, except for hatred offences."

·         Article 6 – Denial, gross minimisation, approval or justification of genocide or crimes against humanity

·
"In accordance with Article 6, paragraph 2 b of the Protocol, Norway reserves the right not to apply paragraph 1 of this Article, except for hatred offences."

A Norwegian expert committee, the Cyber Crime Committee, had reviewed the provisions in the First Additional Protocol and considered if the Norwegian legislation at the time would be following the provisions in the First Additional Protocol. The committee also advised if laws should be amended or if Norway rather should use the right to reservations. The conclusions were presented in a report (NOU 2007:2, the Second Report from the Cyber Crime Committee), The Ministry of Justice held a public hearing, proposed amendments of some legal provisions to the Parliament.

It may be worth noting that the some of the legal provisions in Norwegian legislation at the time, have been amended since then. For example, The Penal Code (2005) Article 185, Hate speech, was amended in 2020, to include gender identity and gender expressions as one of the protected classes.

Criminal cases regarding the current Article 185, and the previous Article 135 a in the former Penal Code (1902, with subsequent amendments) have been considered by Norwegian Courts in several cases. In NOU 2007:2, the committee quoted a Supreme Court case from 2002, where the relation to the Constitutional right to freedom of speech was an issue:

"Section 135a [...] must be applied without further limitations that follow from Article 100 of the Constitution.  [...] Section 135a [...] covers speech of a qualified offensive character. Statements that encourage or endorses violations of integrity may be of such a nature.

Another element will be whether the statements imply a gross devaluation of the human dignity of a group. Negative statements and expressions of opinion of the type "Norway for Norwegians" will, on the other hand, be protected by freedom of expression. There is no requirement that the statements must have caused harm to anyone."


Regarding Article 6:

"The Penal Code does not explicitly provide for on denial, material minimization, acceptance or defence of genocide or crimes against humanity, but the Committee assumes that such statements may be covered by section 135a of the Penal Code if the speaker in this context intentionally or grossly negligently publicly makes a discriminatory or hateful statement.

The Committee is thus of the opinion that statements that deny, substantially minimises,
accepts or defends genocide or crimes against humanity after a specific assessment, may well be covered by the description of the offence in Section 135a, provided that they are qualified offensive.

However, the Committee has concluded that Section 135a does not meet the obligations in Article 6 (1) of the Additional Protocol covers speech that threatens, insults, promotes hatred, persecution or contempt towards anyone, and Article 6(1) does not impose similar conditions. Section 135 a following the amendment that entered into force on 1 January 2006, admittedly provides better protection against gross racial and other offensive expressions, but it will still need to be interpreted restrictively in the light of freedom of expression, depending on the circumstances. It is also clear that previous case law relating to Section 135a will continue to be relevant, and the threshold for intervention is high according to this practice.

It appears, for example, that only utterances with strong characterisations of a serious nature are affected, cf. [Supreme Court Case] Rt. 1997, page 1821, and weight must be given to whether one is in an area where the consideration of freedom of expression has less weight than normal, cf. [Supreme Court Case] Rt. 1994, page 768.

The Committee is of the opinion that statements about historical events do not normally fall into a category where freedom of expression carries less weight than normal. Furthermore, according to the Committee's investigations, there are no examples from the Supreme Court's practice that statements of the kind regulated by Article 6 (1) of the Additional Protocol have been affected by Section 135a of the Penal Code. 1977 page 114, the conviction of a high school teacher under section 135a was upheld by the Supreme Court. In a newspaper interview, the convicted person had, inter alia referred to a French historian who in his work had cast doubt on the use of gas chambers during World War II, and stated that the historian's investigations appeared to be "very credible". However, the prosecution had not argued before the Court of Appeal that the defendant should be convicted for having believed that German Nazis did not use gas chambers in the mass murder of Jews. The Court of Appeal did not find the defendant guilty of this charge either.

The conviction was linked to other statements in the newspaper interview, including that Jews in Norway should emigrate or be isolated in their own Jewish communities. According to the court's assessment, these statements fell within the description of the offence in section 135a.

The Committee has concluded that Section 135a of the Penal Code does not cover the minimum obligations laid down in Article 6(1) of the Additional Protocol, although the provision can probably be applied in some cases.

The question is therefore whether the Penal Code should be clarified so that expressly cover denial, substantial minimisation, acceptance or defence of genocide

or crimes against humanity.

Freedom of expression is in the Norwegian legal tradition strongly protected by section 100 of the Norwegian Constitution, and restrictions on this freedom must, according to the second paragraph must be based on "particularly weighty considerations". Section 135a of the Penal Code and sections 246 et seq. represent such restrictions in Norwegian law and may, after a specific assessment, may speak for a restriction of freedom of expression.

However, it appears to the Committee view as doubtful whether a ban on statements about historical events can be defended under Article 100, second paragraph, of the Constitution. In the Committee's view, a prohibition would view, a prohibition would lead to a statutory establishment of a particular truth and effectively prevent critical statements from being made against this truth. Expressions that are positively incorrect and that society rejects are also protected under Section 100 of the Constitution.

The Committee is of the general opinion that which currently falls outside the scope of criminal law, for consideration of the fundamental principle of freedom of expression, should also not be subject to criminal liability. In this context, the Committee agrees with the statements from the Freedom of Expression Commission in NOU 1999: 27, chapter 6.3.3.3.4, which is reproduced in chapter 7.2 here.

The strong anchoring of freedom of expression and openness in the Norwegian legal tradition differs, in the Committee's view, differs from similar regulation in several other countries. The fact that some countries restrict freedom of expression when the statements are related to the events of World War II. World War II must also be seen against the background of these countries' participation in the war. The Committee is also of the opinion that a prohibition against expressing opinions about historical events may actually increase the harmful effect of the expression by moving the debate from the public sphere to "hidden circles". Such suppression of the public debate could obviously lead to that counter-arguments may not come to the fore to the same extent. It is furthermore considered likely that criminal prosecution of persons who have made the statements in question could lead to these persons becoming "martyrs" in certain circles.

The Committee has therefore concluded that Norway should make use of the reservation option in Article 6(2)(b) of the Additional Protocol. In the Committee's opinion, the consideration of Nordic legal unity supports this solution. The Swedish Law Committee

which considered the need for amendments to Swedish law, has, as mentioned, advocated the use of the right of reservation under Article 6(2)(b) of the Additional

Protocol, and Denmark has in fact the same right of reservation when ratifying the of the Protocol.

This solution is also supported by the preamble to the Additional Protocol, which clearly states that the Protocol is not intended to affect established principles of freedom of expression in national law. As previously pointed out, Norway has strong traditions of freedom of expression and probably protects speech of the nature regulated in Article 6 of the Additional Protocol. In principle this also applies to positively erroneous and offensive statements about the historical events in question."

After this report was presented, the Ministry of Justice held a public hearing, and presented a bill to the Parliament, Ot.prp. nr. 22, 2008-2009. From this proposal, Chapter 2.22 and 2.23:

"Four of the respondents [in the public hearing] commented on the issue of signature and ratification of the Additional Protocol. Telenor [a Norwegian telecom service] appeared to support the use of the reservations in Article 6 of the Additional Protocol. The same applied to the Data Protection Authority. The Advocate General also supported the use of the opt-out on this point. Furthermore, this consultative body had a number of comments on the Committee's draft for a penal provision against denial, material minimisation, acceptance or defence of genocide or crimes against humanity. The Norwegian Centre for Human Rights also supported the proposed reservation against Article 6 of the Additional Protocol, highlighting that a ban would break with Norwegian legal tradition and the

the idea of Nordic legal unity."

"In a Royal Decree of 12 February 2008, put forward by the Ministry of Foreign Affairs, the Ministry of Justice that the Additional Protocol be acceded to by Norway with certain reservations. The Ministry of Justice's proposal for reservations and assessment are set out in paragraphs 3 and 4 of the Royal Resolution:

3. Proposed reservations

Article 3(1) requires States to criminalise intentional unlawful public distribution in a computer system of racist and xenophobic material. Racist and xenophobic material is defined in Article 2. This obligation is largely fulfilled by the Criminal Code Section 135a on hate crime, yet the obligation to criminalise advocating or promoting discrimination does not appear to be promoting discrimination does not appear to be covered under current law. Case law shows that statements that are derogatory and discriminatory are not necessarily punishable. On the other hand, expressions that incite discrimination are criminal offences.

It is therefore proposed that Norway, by virtue of Article 3(3), reserves the right to apply Article 3(1) in cases of discrimination where Norway, because of the principles of freedom of expression laid down in the national legal system, is not entitled to apply the sanctions referred to in paragraph 2.

Article 5(1) obliges States to criminalise publicly expressed racist insults. It is unclear whether the obligation to criminalise also covers statements which under Norwegian law

would not be considered to be qualified insulting and therefore not covered by section 135a of the Penal Code on hate crime. It is therefore proposed that Norway pursuant to Article 5(2)(b), make a reservation against the application of Article 5(1), with the following exceptions with regard to acts covered by criminal provisions on hate crime.

Article 6 (1) obliges States to criminalise the distribution in a computer system of material that denies, trivialises, condones or justifies genocide or crimes against humanity. These are expressions which will in essence be protected by freedom of expression under

Norwegian law. It is therefore proposed that Norway, pursuant to Article 6(2)(b), makes a reservation to apply Article 6(1), with the exception of as regards acts covered by criminal provisions on hate crime."

The proposal from the Ministry of Justice, was approved by the Norwegian Parliament.

The reservations are still in place. What are the consequences of these reservations in individual criminal cases?

For international requests for mutual legal assistance, as well as other types of assistance, dual criminality is often a requirement. The difference between Articles 3 and 5, where there is a Norwegian reservation, and the current legal provisions in Norway, may not be very large.

Regarding Article 6 and denial of genocide and crimes against humanity, the comments from the Expert Committee and the Ministry of Justice, points of the dillemma, and the arguments for a reservation, that could be condensed:

-          Some possibly racist/xenophobic statements etc will still be there, but more hidden from public view and counter-arguments

-          A risk of making some people "martyrs" for their views, and possibly give them and their statements increased attention.

-          The relevant Norwegian laws were and are comparable with laws in the other Nordic countries. Countries with different historical experiences, might have a different "balancing test".

  

The Supreme Court case from 1977 (Rt. 1977/114) mentioned by the Computer Crime Committee, led to a conviction for various statements that were considered to be in violation of Article 135 a. It may be worth noting that the start of this case was statements to newspapers. These statements could be considered as denial of Holocaust. However, the conviction was for other related statements to the newspapers, regarding Jewish people in Norway.

This points to the need to analyse the specific facts of each case. While some facts like Holocaust denial may be in focus in jurisdictions with legal provisions against such statements, other related statements could be of interest for jurisdictions like Norway, with different laws in place.

The person convicted in the 1977 case, received a suspended sentence of 120 days imprisonment. The case received significant public interest at the time, in part due to the defendant's work as a teacher at a local high school. Several parties complained about his statements and activities at school, to colleagues and to students, including students in his class. After the trial for the criminal case, the high school teacher lost his job, tried to sue the employer, but lost. The dismissal of his position was based partially on the statements to newspapers, but also on his statements as a teacher, at school, to students.

From an article by Ståle Eskeland, then associate professor at the University of Oslo, 1982 (published in Tidsskrift for rettsvitenskap 1982 s 853-902):

"One example is the [1977] case just mentioned. The dismissal of [the teacher in question] was not only based on his unsuitability as a teacher, but also on the fact that he had publicly expressed extreme views. Among other things, in interviews with [newspapers] Verdens Gang and Dagbladet, he had expressed the view that in a given future situation it might be right to exterminate the Jews, and had advocated that Norwegian Jews should be isolated in a separate Jewish community. The Court considered these statements to be improper in relation to the provision in Section 24 of the then Gymnasium Act, which provided grounds for dismissal of teaching staff who "show improper conduct."   


Concluding remarks:

Racism and xenophobia can be addressed in several ways:

-          Public debate

-          The Private sector

o   Terms and conditions for online platforms

o   Complains to The Norwegian Press Complaints Commisions, and similar institutions

-          Other public institutions, including LDO, Norwegian The Equality and Anti-Discrimination Ombud? https://ldo.no/en/ldo-english-page/
(The main scope for LDO: possible discrimination regarding employment, education, access to goods and services etc. The LDO mandate may also extend to inter alia cases regarding racist motivated crime.

-          Criminal investigations and prosecutions?

In Norway, there as been criminal cases regarding racism since 1977. The total number of cases is low compared to the number of possibly racist and xenophobic statements in society. Still, the specific court cases and the conclusions from the Courts, as well as amendments to legal provisions such as the current Penal Code Article 185 (Hate speech), means that work in Norway against racist and xenophobic statements, including online statements, is continuing.

Oslo, Feb. 28, 2023


Eirik Trønnes Hansen
Senior adviser

The National Criminal Investigation Service,
Prosecution and legal affairs department