Internet Race Hate Irene Nemes, Faculty of Law, UNSW

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Internet Race Hate Irene Nemes, Faculty of Law,
UNSW

• Relevant Australian Legislation
• Recent case-law Jones v Töben
• Unresolved Issues

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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.

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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.

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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.

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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.

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Complaints Procedure-Human Rights And Equal
Opportunity Commission Act 1986 S 46P

• (1) A written complaintwith 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 .

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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

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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.

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Other Legislation

• All Aust states and ACT have 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.

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Other Legislation

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

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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

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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

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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 meaningmore probable than not
• Role of Court only to determine if breach of RDA,
  not whether Holocaust occurred

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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 didnt file a defence(s18D). Onus of
  proof on Respondent to prove defence
• Respondent did not act in good faith

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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
  Applicants costs

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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