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Racial Vilification On The Internet

In October last year, the Federal Court ruled in Silberberg v The Builder’s Collective of Australia Inc [2007] FCA 1512 (“Silberberg”) that the host of an unmonitored internet discussion forum containing racially vilifying comments posted by one of its users was not liable under The Racial Discrimination Act 1975 (Cth) (“RDA”).

The facts of the case involve the Managing Director of the Housing Industry Association (HIA), Dr. Silberberg, suing the Builders’ Collective of Australia, an organization of small independent builders over comments posted by a third party posted on the Builders’ Collective website that suggested that Silberberg’s Jewish ethnicity was responsible for a perceived greedy and unhealthy monetary focus of the HIA. One of the posts stated:

“You will note...in red above B.Ec, means Bachelor of Economics…translated, he primarily interested in making lots of money and he has the background prior to education to unequivocally qualify by way of genes…”

Dr. Silberberg initially filed a complaint with the Human Rights Equal Opportunity Commission (“HREOC”), alleging that the Builders’ Collective and the author had unlawfully discriminated against him because of his race. However, HREOC terminated the complaint, which led to Dr. Silberberg appealing to the Federal Court under the RDA.

Section 18 of the RDA makes it unlawful for a person to act in a way that offends or insults a group of people because of their race, colour, national or ethnic origin. Even if there were several motivations behind a particular act, if one of them was linked to race then that (in)action is unlawful.

This is not the first case involving racial vilification and the Internet. In Jones v Toben [2002] FCA 1150, the Federal Court found that a website that denied the Holocaust and vilified Jewish people was unlawful under the RDA. However, Silberberg was the first case to focus exclusively on the role of the content host as publishers of offensive material under the RDA.

The Court stated that the operators of the internet forum (Builders’ Collective) were publishers in the eyes of the law, following the line of cases like Godfrey v Demon Internet Ltd [2001] QB 201, which held that ISP that held a defamatory article on their news server were liable as publishers of that material. The Court held that:

“The (Builders’) Collective chose to conduct an open anonymous forum available to the world without any system for scrutinizing what was posted. The party controlling a website of such a nature is in no different position to publishers of other media.”

The Builders’ Collective argued that the site’s terms and conditions prohibited the posting of such material by its users and it had no knowledge of the offensive messages until they were contacted by Silberberg’s solicitors. However, the Court found that the site’s administrator failed to remove the material within a reasonable time of the offensive material being posted, representing an ‘act’ caught by the RDA.

While the court found that the messages on the website were reasonably likely to offend and insult Dr. Silberberg and other Jewish persons in contravention of section 18C of the RDA, Dr. Silberberg’s decision to sue the content host under racial vilification laws was ultimately unsuccessful.

The RDA requires the comments not only to be racial offensive, but also racially motivated. While this would possibly allow Silberberg to successfully sue the third party author, the requirement establishes a higher threshold than defamation law, by creating a causal connection between the offensive comments and the intention to publish. ISP and content host liability in this respect would be difficult to prove regarding comments posted online, since ISPs and content hosts often have no direct awareness of the bulk of material stored on their servers or submitted through forums.

Cases before HREOC have shown how difficult the RDA is to utilise when offensive material has been published. For instance, in the Hanson case (unreported, HREOC, Commissioner Nader, 2 March 2000, 23), a book describing the views of Pauline Hanson included a number of assertions that Aboriginals were unfairly favoured by governments and courts, that Aboriginal people had behaved badly in the past and that the ‘alleged genocide of Aboriginal people’ was a myth. The Commissioner held that the statements were not made because of race, colour, national or ethnic origin, but because of the respondent’s opinion that the Aboriginal community on the whole were unfairly favoured by governments and courts.

Similarly, the Builders’ Collective escaped liability because Dr. Silberberg could not satisfy the causal connection required under the RDA. However, an alternate remedy could have been successful if he had commenced proceedings under the Defamation Act 2005, where all that needs to be shown is that material identifying the plaintiff was published and that the material conveyed a defamatory meaning.

Consequently, those who feel they have been racially maligned by user generated content on a website or internet forum may want to consider whether it would be more appropriate seeking an action under defamation.

Berrigan Doube Lawyers have a vast amount of experience in the realm of internet law. Should you have any questions about this article or the liability of web administrators generally, please feel free to contact us.