26 July 2002
Online Hate Speech and Section 18C of the Australian Racial Discrimination Act 1975
This is a submission to HREOC's Background Paper for the Cyber-Racism Symposium 2002.
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:
(1) GILC members deplore racist and hateful speech; but when encountering racist or hateful speech, the best remedy to be applied is generally more speech, not enforced silence.
(2) Liberty's fundamental principle is that governments should be prohibited from prohibiting the expression of an idea simply because society finds the idea itself offensive or disagreeable.
(3) While the application of existing law to the Internet is still in its infancy, the well-established free speech principles should apply with even greater force to networked speech. The Internet gives it users easy access to public discourse. It affords human rights activists and other opponents of racism with an inexpensive and effective method for responding to racist speech.
Article 18 of the Universal Declaration of Human Rights states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.and Article 19 states:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
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 rather different fashion to radio or television broadcasts, since the web is a "pull" medium rather than a "push" one. In particular, they are not intrusive: web sites do not appear on computer screens unbidden; one must choose to view a web site, taking affirmative action to do so. (The delivery of offensive material in unsolicited email - as "spam" - would be a different matter.) Most individual web sites also reach a relatively restricted audience. The best analogy for the web is therefore 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).
The Internet also allows for the easy expression of a great diversity of viewpoints, including corrections to misleading or inaccurate information.
There has been one ruling by HREOC applying section 18C of the Racial Discrimination Act 1975 (RDA) to online hate speech, in the case Jeremy Jones versus Frederick Toben. The problems with this ruling illustrate general problems with the application of "hate speech" laws to the Internet.
Many of the problems with racial vilification legislation extend from traditional media to the Internet. But the Internet also poses new problems.
Can one sentence on a web site make the entire site "hate speech"?
The manifest problems inherent on treating a whole site as a single document are apparent if we consider Jones v Toben. The plaintiff in that case argued that "the Adelaide Institute website should be considered as a single document" and HREOC accepted that in its ruling, which ordered that the entire Adelaide Institute website be "removed from the world wide web" and made no attempt to distinguish its parts.
The problem with this is that only a fraction of the content on the Adelaide Institute web site could conceivably be considered in breach of the RDA. Among other material, the site includes (or at some point included - see below) copies of articles from leading Australian and international newspapers, press releases and other statements from a range of organisations (including both EFA and HREOC), and statements by opponents. Perhaps more to the point, the site is used by Toben to voice his opinions on matters of all kinds: to take just one example, he has reprinted on it another person's criticisms of the Jubilee 2000 campaign (for debt relief for poor countries).
This is of particular concern because Toben was required by the ruling to promise not to publish "any such material" in the future and to remove from publication "all such material", without elaborating in any way on "such". As a result the HREOC ruling effectively orders Toben to remain silent completely - taking the example above again, it prima facie enjoins him not to express anywhere in public, ever again, opposition to debt relief for poor countries.
The decision to treat the web site as a single document also runs in the face of precedents set with other legislation. The Australian Broadcasting Authority, in its management of the Broadcasting Services Act (Online Services Amendment), treats individual web pages as separate documents. Take-down notices, which serve a similar purpose to the HREOC ruling in ordering the removal of online content, are specific to particular web pages, rather than covering entire sites.
The HREOC ruling in Jones v Toben came in October 2000 - two years after the hearing in November 1998 and more than four years after the original complaint in May 1996. It is not inconceivable that none of the content on the Adelaide Institute site in 1996 was still there in 2000. Even cursory monitoring makes it clear that key aspects of the site, such as the home page, have changed radically over time.
The attempt to enforce the ruling in the Federal Court is still in process (as of June 2002). A process that takes six years to resolve complaints about online content is useless in an environment where content can come and go in hours. The Australian Broadcasting Authority manages a complaints system for online content with a turnaround time of days or weeks, but even there many of the resulting "takedown" notices, especially those targeted at newsgroup postings, end up proscribing documents that no longer exist.
This interacts with content granularity - the combination of temporal and structural complexity means that only broad, sweeping injunctions (by HREOC or a court) could hope to have any effect. But the broader injunctions are, the more intrusive into freedom of speech they become, and the harder to enforce.
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. It is also trivial for users in one country to publish content on servers in another.
The United States constitution protects almost all forms of speech, including, by well-tested judicial precedent, most forms of speech that would be illegal under section 18C of the RDA. 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.
Given this, forcing the removal of "hate speech" from an Australian web site has only one plausible consequence - the publication of the identical material on web servers in the United States and in other less restrictive jurisdictions, if necessary anonymously. Moreover 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), to list just a few forms of controversial content.
Material published online in Australia, whether on web servers within the country or within the .au domain associated with Australia, is not necessarily addressed to an Australian audience, and will often have a motivation totally unrelated to any individuals or groups within Australia.
In order for an act to be illegal under 18C, it must be "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" (that the act is likely "to offend, insult, humiliate or intimidate"). A publication that is not directed at a particular group, and which would have an audience and a raison d'etre even if that group did not exist, should not be considered "done because of" that group. (HREOC has no brief to act on behalf of global groups, and it is hard enough to work out what is "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people" in an Australian context.)
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:
"...in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
Online, Section 18C of the RDA can certainly be used to harass individuals, perhaps to force them to speak anonymously, and it may enable the extraction of petty personal revenges. There is no way, however, it can achieve any public interest goals: it is highly unlikely to be able to stop any specific content being available, it certainly can not remove whole categories of content from the Internet, and it can not conceivably prevent people who go looking for offensive and upsetting content from finding it.
It may be argued that HREOC's primary goals in overseeing the Racial Discrimination Act are to express a moral position and to influence social attitudes. But moral and educational goals are better achieved without recourse to the blunt instrument of legal sanctions: persecution of individuals by the state is likely to spread positive views of the resulting victims by creating and publicising martyrs - or, where sanctions are unenforceable, successfully defiant heroes. Unenforceable rulings also risk bringing anti-discrimination law generally into disrepute and undermining its application in other areas.
If HREOC nevertheless feels obliged to order the removal of content from the Internet, it should do so with great care. Injunctions should be clearly targeted against specific material, in a way that minimises the damage to freedom of speech.
Global Internet Liberty Campaign (GILC) resolution on hate speech:
Jeremy Jones versus Frederick Toben
ACLU v. Reno, 1997