Internet Race Hate Irene Nemes, Faculty of Law, UNSW

Internet Race HateIrene Nemes, Faculty of Law, UNSW • Relevant Australian Legislation • Recent case-law: Jones v Töben • Unresolved Issues

Racial Discrimination Act 1975 (Cth)-(Amendments made by Racial Hatred Act 1995 (Cth)). 18C Offensive behaviour because of race, colour or national or ethnic origin • (1) It is unlawful for a person to do an act, otherwise than in private, if: • (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and • (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

18C Offensive behaviour because of race, colour or national or ethnic origin • (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place.

18C Offensive behaviour because of race, colour or national or ethnic origin (3) In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

18D Exemptions Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Complaints Procedure-Human Rights And Equal Opportunity Commission Act 1986S 46P (1) A written complaint…with the Commission, …. (2) The complaint may be lodged: (a) by a person aggrieved by the alleged unlawful discrimination: ….. Or(b) by 2 or more persons aggrieved …..: (i) on their own behalf; or (ii) on behalf of themselves and one or more other persons …... or (c) by a person or trade union on behalf of ….

S 46PO Application to court if complaint is terminated • If the court ..is satisfied that there has been unlawful discrimination … court may make such orders …as it thinks fit, including … • (a) …. directing the respondent not to repeat or continue such unlawful discrimination; • (b) …requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; • … (d) …requiring a respondent to pay …damages……;

CRIMES ACT 1914 (CTH) S 85ZE • 85ZE Improper use of carriage services(1) A person must not intentionally use a carriage service supplied by a carrier: (a) with the result that another person is menaced or harassed; or (b) in such a way as would be regarded by reasonable persons as being, …offensivePenalty: Imprisonment for 1 year • (2) Paragraph (1)(b)does not apply to the use of a carriage service to carry Internet content.

Other Legislation • All Aust states and ACThave racial discrimination legislation. • Anti-Discrimination Act 1977 (NSW) s20C(1); S20D • S20C- unlawful …,by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, … on the ground of race…. • S20D- criminal offence of serious racial vilification, for inciting hatred …by threatening physical harm…, or inciting others to threaten such physical harm.

Other Legislation • S 562AB Crimes Act 1900 (NSW) • Stalking or Intimidation with intent to cause fear of physical or mental harm

Broadcasting Services Act 1992 (Cth) • Broadcasting Services Amendment (Online Services) Act 1999 (Cth) • came into force 1 Jan 2000,- introduced a new schedule into Broadcasting Services Act 1992. • Co-regulatory approach(industry +govt.) • Complaints based system • Applies to ICHs, ISPs • Act does not target racist content

Jones v Töben [2002] FCA 1150 • First Aust case on Internet hate speech • Seeking order to enforce HREOC determination (5/10/02) that breach of S18C occurred • Held: respondent unwilling to co-operate in completing within acceptable time • Stay on basis of inability to obtain legal representation denied • Court can grant summary judgment

Per Branson J • Jones was a person aggrieved • Jews in Aust are of “ethnic origin” (s18C) • Placing material on website which is not password protected in act not done in private (s18C(2)) • “reasonably likely” in s18C(1)(a)- objective test • “likely”-strongest meaning=more probable than not • Role of Court only to determine if breach of RDA, not whether Holocaust occurred

Per Branson J (contd) • Satisfied that imputations would offend • Satisfied that act done “because of …ethnic origin” (s18C(1)(b) • If multiple reasons, enough if at least one reason is race, colour etc • Respondent didn’t file a defence(s18D). Onus of proof on Respondent to prove defence • Respondent did not act in good faith

Per Branson J (contd) • The document “About the Adelaide Institute” was unlawful under s18C • Not appropriate to order apology • Question of futility not relevant to whether breach has occurred • ORDERS: remove offensive material within 7 days; not to republish offensive conduct; pay the Applicant’s costs

Unresolved Issues • No Aust legislation specific to online hate speech. • Aust Anti vilification legislation a blunt instrument • Limited scope of legislation • Limited effectiveness of Federal Court decision • Issues of Jurisdiction • Law vs Technology approach

Internet Race Hate Irene Nemes, Faculty of Law, UNSW