Watchlist: Section 18C of the Racial Discrimination Act

There is no protection of freedom of speech in Australian law, unlike many other countries. There is an implied right of freedom of political communication in the Australian Constitution, but this right is about facilitating social democracy, and is not a general protection. There are many laws regulating speech, including (but not limited to) section 18C of the Racial Discrimination Act 1975 Cth (RDA), defamation law and consumer law that protects against misleading representations.

Section 18C of the RDA makes it unlawful for a person to commit an act in public which is reasonably likely to offend, insult, humiliate or intimidate another person or group of people based on their race, colour, national or ethnic origin. Courts have found that posting material on the internet (that is publicly available) is an act done in public. Therefore, an act that offends, insults, humiliates or intimidates another based-on race done through the forum of the internet is a breach of section 18C of the RDA. Section 18C is also an important legislative instrument in regards to Australia’s international obligations. The RDA was drafted to ratify Australia’s signature of the International Covenant on the Elimination of all forms of Racial Discrimination.

Section 18C is controversial. There are arguments that section 18C is an important legislative instrument to protect against racism, but others disagree. Some argue it is ineffective regulation against hate speech, and conversely, others argue it is too much power for the state over what we say. When columnist Bolt was sued for racial vilification in 2011, the case sparked a public debate over freedom of speech and racial discrimination. The case hinged on Section 18C of the Racial Discrimination Act. We will discuss this case in further detail below.

Is racial discrimination online a problem?

Web content containing racially discriminatory material is continuing to increase in online spaces. It is a difficult thing to measure, but there is some data to support this argument. There were over 3000 websites throughout the world that contained content of racial hatred in 2002. By 2009, it was estimated that this figure had grown to over 10,000 websites (Wiesenthal Institute, as referenced by Andrew Jakubowicz). To look at it another way, in 2014, cyber racism represented 41% of racial hate speech complaints within Australia (Australian Human Rights Commission). These statistics reflect the growing concern of online racial discrimination, both on a national and international level.

How does the right to freedom of expression work under 18C?

The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression has argued that the internet has facilitated the capacity of individuals to “seek, receive and distribute information” (A/HRC/17/27). In turn, this has expanded the capacity of individuals to enjoy their right to freedom of opinion and expression. Therefore, some may argue that to limit an individual’s use of the internet, is to limit their freedom of expression.

The balancing act of regulating the internet and enforcing section 18C of the RDA has divided opinion. Some argue that the expansion of the internet has in turn expanded the right to freedom of speech. They often claim that the best way to deter and reduce discriminatory speech is with counter arguments rather than censorship. In contrast to this, others have argued that cyber racism will continue to grow without regulation. Ron Merkel QC has argued that racial vilification should be stopped and regulated at the earliest stage of stereotyping in order to avoid vilification becoming more systematic.

The conflict relating to freedom of speech and section 18C of the RDA was further exemplified in 2014 when a Bill was proposed to limit action under section 18C by only making it an offence to vilify or intimidate. In other words, the proposal was to remove offend, insult or humiliate from the offence. Lawmakers argued they wanted to balance freedom of speech, opinion and expression, while outlawing racial discrimination. This bill was withdrawn under pressure.

It is also important to note that section 18D of the RDA alleviates some of the concerns relating to freedom of expression as this section contains exceptions to section 18C. These exceptions include where the act or speech was done in good faith and reasonably in performance, publishing, public interest etc.  Section 18D is often relied on by those who argue that reform of section 18C is unnecessary.

What are the consequences of internet censorship?

How we should regulate life online, including speech, is something that has long been debated. The internet is not subject to any licensing schemes, and therefore it is difficult to control the information published. Digital publication is not controlled and regulated by the Press Council and the Australian Communication and Media Authority, as more traditional forms of publications are. Therefore, issues arise when it comes to determining who can control published material on the internet.

In addition, Australian lawmakers cannot control content from outside Australia, nor is it desirable for them to monitor the volume of material on the internet (billions of webpages).  Lobbyists against strong censorship often point to the impracticality of any proposed censorship action, whilst also supporting their argument with the potential negative effects of extreme internet censorship.  These effects are seen in countries such as China where internet censorship and its governing law is so extensive that many sites have been blocked, including Facebook and Google. Recently in China, censorship was taken even further when the New York Times and several other online media sources were blocked due to their critical reporting on the political events in the country. This situation illustrates the possible negative implications of allowing Governments to censor online material. Once there is a power to control online speech, it is very difficult to regulate to what extent this power is exercised, and what type of speech censorship power is exercised over.

Furthermore, there is discussion on whether profitable social media companies assume public obligation, and as such should take every necessary step to censor racially vilifying content. Some social media companies have narrow definitions of what constitutes discrimination. This can even be narrower than what the law considers discriminatory, which suggests a reluctance on the part of these companies to enforce regulation of material posted on their social media platforms or a preference for such regulations to be ‘light touch’. For example, Facebook has been slow to regulate such material. In 2014, it took five months of campaigning by the Online Hate Prevention Institute to remove a discriminatory page titled ‘Aboriginal Memes.’

The Bolt case

Perhaps the most well-known case involving section 18C is that involving journalist Andrew Bolt. This case clearly highlights the conflicting views of section 18C. Bolt was sued because of two articles written for the Herald and Weekly Times. These articles contained content that was argued to be offensive and discriminatory to fair- skinned Indigenous people. However, Bolt argued that it was within the scope of freedom of speech. The Court held that Bolt had breached section 18C of the RDA. The Court found that the articles had not been written in good faith, containing factual errors. The decision was not appealed.

The balance of freedom and racism

The arguments surrounding section 18C are deeply complex. Some people find themselves disagreeing with section 18C, arguing against censorship. In this respect, freedom of online expression may be preserved, however there is growing risks of online racial vilification. Others will find themselves supporting section 18C as a tool in the fight against racism, however this may lead to further concerns of internet censorship on a whole new level.

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