Ms Kathleen McEvoy
Human Rights and Equal Opportunity Commission
Level 8, Piccadilly Tower
133 Castlereagh Street
SYDNEY NSW 2000
10th November 1998

Dear Ms McEvoy,

Electronic Frontiers Australia is a non-profit organisation formed in 1994, devoted to protecting and promoting the civil liberties of users of computer based communication systems. We wish to submit to you some remarks regarding the application of the Racial Discrimination Act to the Internet.

In particular, we wish to address some of the issues raised by the case being brought against The Adelaide Institute by the Executive Council of Australian Jewry. This is important as it would create a precedent for the application of the Racial Discrimination Act to the Net: we are concerned that this might severely curtail the freedom of Australian Internet users to express their beliefs and opinions.

Principles

EFA is a member of the Global Internet Liberty Campaign (GILC), a worldwide alliance of online civil liberties groups, and our position on this issue is that of a GILC resolution on hate speech:
     http://www.gilc.org/speech/un/gilc-hate-speech.html

Article 18 of the Universal Declaration of Human Rights states: and Article 19 states: While there may be a need to balance these with protection of the rights of others, care must be taken that the balance is not tipped too far -- and it is our belief that no such need applies in this case.

Section 18C of the Racial Discrimination Act refers to acts "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people". It is our contention that putting material on a Web site is not likely to offend, insult, humiliate or intimidate anyone unless they desire to be so offended.

While open web sites are certainly not "private", they are public in a similar fashion to pub conversations. That is, they reach a relatively restricted actual audience and they are not intrusive, after the fashion of billboards or television. Web sites do not appear on computer screens unbidden; one must choose to view a web site and take affirmative action to do so.

Nor is the material on The Adelaide Institute's web site likely to have the "effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life" (as defined under s.9(1)). On the Internet it is easy to provide a contrary viewpoint or alternative information -- in this case it would be trivial to create a web site with similar profile to The Adelaide Institute's .

In fact many sites have been established with the purpose of providing alternative viewpoints to the ideas espoused by The Adelaide Institute: among them are the Nizkor Project and the other members of The Holocaust Ring. These sites are frequently referenced in on-line debates and listeners are thereby provided with an extensive range of information from which to make up their own mind about claims.

It is our view that allowing a wide range of viewpoints to be freely expressed is more protective of everyone's rights than closing down sites containing speech which is offensive to even a majority of people. Suppressing speech results in claims that the speaker must have something important to say because somebody doesn't want them to be heard. This type of argument is very persuasive to some people and tends to result in massively increased interest in what would otherwise be marginal ideas. We discuss below the reasons why such attempts are almost invariably unsuccessful on the Internet.

The best analogy for the Web is printed books, not the broadcast media: the Internet can be considered "a constellation of printing presses and bookstores" (_Sex, Laws, and Cyberspace_, Henry Holt 1997). It is our understanding that printed books containing statements such as those which form the basis for the the complaint have been and continue to be widely available. We suggest that there are no grounds for treating the Web any differently.

Pragmatism

The Internet is a global network. Users can access material across national borders without obstacles; indeed it is almost irrelevant in which country a web server is located.

The United States constitution protects almost all forms of speech, including, by well-tested judicial precedent, almost all forms of "hate speech". Excluded is only speech directed to inciting or producing imminent lawless action and which is likely to incite or produce imminent lawless action. Otherwise, even speech that advocates violence is protected. Incitement to imminent lawless action is certainly not found in this case.

Given these two facts, forcing the removal of "hate speech" from an Australian web server can have only one consequence -- the publication of the identical material on United States web servers and probably on other sites around the world. The material would not only continue to be available, but would receive massively increased publicity as a direct result of the attempt to suppress it.

This is not idle speculation. Exactly this scenario has been played out repeatedly -- with political materials (the German government's attempts to suppress the left-wing journal Radikal), with religious materials (the Church of Scientology's attempts to suppress criticism), and with hate speech (Canadian attempts to suppress Holocaust revisionist web sites), among other forms of controversial content.

So whether the matter is approached from a principled or a pragmatic position, it is our contention that applying sanctions to Web sites under the Racial Discrimination Act is extremely hard to justify, and highly likely to be counter-productive.

In conclusion, we share the view of the US Supreme Court, in overturning the US Communications Decency Act in ACLU v. Reno in June 1997:

Yours faithfully,



Electronic Frontiers Australia