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Heated debate on free speechAre laws restricting racist rhetoric on the internet protecting minorities or curbing free speech?
Caitlin Fitzsimmons report
IT Today, The Australian, 26 November 2002
Racists have always existed but their opponents fear the internet has fostered an explosion in their numbers and power.
The internet allows people to communicate freely to a world-wide audience — enhancing democracy but also providing an ideal medium for racist organisations to disseminate their views and recruit new members.
A United Nations report estimates there could soon be 2000 racist websites promoting everything from Holocaust denial to hatred of Palestinians and other Arabs.
Many of these websites have special pages directed at children to take their message to a new generation.
The problem includes not just websites with racist propaganda and imagery, but chat rooms and discussion groups that reinforce racist ideology and foster a sense of belonging for new recruits.
The Human Rights and Equal Opportunity Commission (HREOC) says the internet is also a distribution ground for racist computer games, including one where the player dresses either in Ku Klux Klan robes or skinhead attire and blasts away at "sub-humans" — Negros and Latinos — and their Jewish "masters".
Cyber-racism is a global problem and in the United States much of the offending material is protected by the First Amendment, which guarantees freedom of speech.
Many argue it is futile for Australia or any other country to pass laws against race hate on the internet, since it takes less than 24 hours to set up a mirror site in the US or a less restrictive country. It is problematic but not impossible to prosecute someone for material published in another jurisdiction.
In December 2000, the highest German court on civil affairs allowed the prosecution of Adelaide man Dr Fredrick Töben for publishing Holocaust denials on his website in Australia.
The court decided it had jurisdiction because the material could be downloaded by German citizens and Töben, who went to Germany and allegedly drew attention to his website, spent several months in a German prison for the crime.
The stoush between Yahoo! and the French courts over whether the US-based internet company had the right to sell Nazi memorabilia to French citizens involved a similar principle.
There us no question of jail terms for race hate offenders in Australia. Law enforcement here has mainly been local.
Australians have an implied right to free speech in the Constitution but this is tempered by competing rights and laws such as defamation.
The Keating government passed the Racial Hatred Act in 1995, which amended the Racial Discrimination Act to make it illegal to "offend, insult, humiliate or intimidate" a person or a group of people on the basis of race.
The law does not apply to acts done in private, including private emails or some websites with password protection, but it defines most of the internet as a public space.
The law allows people to express extreme views as long as they act reasonably and are expressing a genuinely held belief.
In the first case successfully applying Australia's racial vilification laws to the internet, a September decision by the Federal Court upheld a complaint by Jeremy Jones, president of the Executive Council of Australian Jewry.
Jones sued Töben, the same man who found himself on the wrong side of the law in Germany, for racial vilification.
The offending material, published on the Adelaide Institute website, claimed the Auschwitz concentration camp had no gas chambers and stated that the number of Jews killed during World War II was exaggerated.
In 1996, Jones complained to HREOC. Four years later he obtained a ruling that the material was in breach of racial vilification laws.
Jones took the case to the Federal Court, as Töben had not removed the material by 2001.
Töben, who represented himself, did not offer a valid legal defence and the Federal Court granted summary judgment in favour of Jones.
Töben has now filed an appeal that challenges the Federal Court decision on every ground possible.
The case will return to court next year.
The Töben versus Jones case demonstrates that laws restricting race hate can be applied to the internet, but human rights groups say the process is too slow and cumbersome. "We were dealing with material published by an Australian, hosted by an Australian service provider and the people complaining about the material live in Australia, yet I had to put time and effort into it and a solicitor and barrister had to be involved," Jones says.
"An ordinary member of the public would not be able to find people to commit themselves and take it the we were able to take it," he says. Jones says he supports HREOC or an equivalent body being able to make a ruling and enforce its decision.
Yet free speech advocates such as Electronic Frontiers Australia, a group committed to civil liberties on the internet, argue the existing laws are counterproductive and the changes suggested by Jones would further chill freedom of speech.
EFA board member Danny Yee says the existing ABA system is a "disaster" and there is little accountability to the public.
The internet should not be regulated as if it were a traditional media outlet such as television or radio because websites were not pushed on people like pamphlets in letterboxes but relied on people seeking them out.
"On the internet anyone can publish something and it's no different to them mouthing off in the local pub," Yee says. "It should be left in obscurity."
Yee says HREOC's preliminary ruling in the Töben case is "terrible".
Töben used the Adelaide Institute website for discussing a wide range of issues, he says, yet HREOC demanded the closure of the entire site. The Federal Court narrowed the ruling down to a few documents. In some ways, the Töben case is not a particularly useful precedent because Töben did not argue any of the specific defences allowed in the Act.
The law provides several exemptions protecting free speech, including a broad defence of fair comment, if it is a statement of genuine belief.
Artistic work and discussions with a genuine academic , artistic or scientific purpose are also protected.
The structure of the legislation is similar to defamation law. The plaintiff has to prove vilification and the defendant has to prove a defence.
"It can therefore be used to harass people in favour of those who have the resources to mount complaints put through the court system," Yee says.
The Australian laws "go overboard", Yee says and the US provides better protection of free speech because it permits the dissemination of extreme views but draws a line at direct incitement to violence.
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