Including offenses based on harmful speech in the treaty, rather than focusing on core cybercrimes, will likely result in overbroad, easily abused laws that will sweep up lawful speech and pose an enormous menace to the free expression rights of people around the world. The UN committee should not make that mistake.The UN Ad Hoc Committee met in Vienna earlier this month for a second round of talks on drafting the new treaty. Some Member States put forward, during and ahead of the session, vague proposals aimed at online hate speech, including Egypt, Jordan, Russia, Belarus, Burundi, China, Nicaragua, Tajikistan, Kuwait, Pakistan, Algeria, and Sudan. Others made proposals aimed at racist and xenophobic materials, including Algeria, Pakistan, Sudan, Burkina Faso, Burundi, India, Egypt, Tanzania, Jordan, Russia, Belarus, Burundi, China, Nicaragua, and Tajikistan.
For example, Jordan proposes using the treaty to criminalize “hate speech or actions related to the insulting of religions or States using information networks or websites,” while Egypt calls for prohibiting the “spreading of strife, sedition, hatred or racism.” Russia, jointly with Belarus, Burundi, China, Nicaragua, and Tajikistan, also proposed to outlaw a wide range of vaguely defined speech intending to criminalize protected speech: “the distribution of materials that call for illegal acts motivated by political, ideological, social, racial, ethnic, or religious hatred or enmity, advocacy and justification of such actions, or to provide access to such materials, by means of ICT (information and communications technology),” as well as “humiliation by means of ICT (information and communications technology) of a person or group of people on account of their race, ethnicity, language, origin or religious affiliation.”
As we have previously said, only crimes that target ICTs should be included in the proposed treaty, such as those offenses in which ICTs are the direct objects and instruments of the crimes and could not exist without the ICT systems. These include illegal access to computing systems, illegal interception of communications, data theft, and misuse of devices. So crimes where ICTs are simply a tool that is sometimes used to commit an offense, like the proposals before the UN Ad Hoc Committee, should be excluded from the proposed treaty. These crimes are merely incidentally involving or benefiting from ICT systems without targeting or harming ICTs. The Office of the United Nations High Commissioner for Human Rights (OHCHR) highlighted in January that any future cybercrime treaty should not include offenses based on the content of online expression: