Article - Jones v Toben - Racial Discrimination on the Internet (October 2002)
In the first Australian court decision on race hate and the Internet, the Federal Court found that a website that denied the Holocaust and vilified Jewish people was unlawful under Australia’s Racial Discrimination Act 1975. Federal Court Justice Branson ordered Adelaide Institute director Fredrick Toben to remove offensive material from the World Wide Web, saying she was ‘satisfied that it is more probable than not that the material would engender in Jewish Australians a sense of being treated contemptuously, disrespectfully and offensively’.
She ordered Dr Toben to remove the document ‘About the Adelaide Institute’ and similar documents; and other material that cast doubt on the Holocaust, suggested homicidal gas chambers at Auschwitz were unlikely, that Jewish people offended by and who challenge Holocaust denial are of limited intelligence and that some Jewish people, for improper purposes, including financial gain, exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
Dr Toben was did not obtain legal representation, and did not actually defend his case; as such, the exceptions permitted under the RDA of academic discussions, public interest matters and fair personal comments were not argued. Nevertheless the case confirms that, at least for Australian sites, the Internet is subject to the same legal standards as other forms of communications such as print, TV and radio. This is the first Australian case where the Act has been applied to the Internet.
The recent case of Jones v Toben in the Federal Court of Australia is a relatively straightforward case in terms of the application of statute law. It does however raise broader social issues connected with the publication of material, in particular opinions, on the Internet that need to be addressed.
The case involved a number of web sites constructed and maintained by the respondent, Frederick Toben, the director of the Adelaide Institute. The web sites contained various opinions concerning the holocaust suffered by Jewish people during World War II. The application was filed to enforce determinations of the Human Rights and Equal Opportunity Commission (HREOC), pursuant to section 25Z(1)(b) of the Racial Discrimination Act 1975 (Cth). The original complaint to HREOC was made a number of years ago on 28 May 1996 by way of a letter. Due to the constant stalling by the respondent, the applicant applied for and was granted summary judgment.
The claim made was that the web sites were unlawful by virtue of section 18C of the Racial Discrimination Act 1975:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or a group of people; and
(b) the act is 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
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images, or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.’
Justice Branson swiftly found that the placing of material, whether text, graphics, audio or video, on a web site that is not password protected, is an act which causes words, sounds, images or writing to be communicated to the public under s 18C(2), in the sense that they are communicated to any person who utilises a web browser to gain access to that web site. Hence, such an act for the purposes of the Racial Discrimination Act is not done in private. Justice Branson went further and found that the placement of materials on the web sites in fact caused repeated publications.
Having decided that a non-password protected web site on the World Wide Web constituted a public medium, the two remaining issues for Branson J to address in deciding the case were those presented by s 18C(1): firstly, whether the material published on the web sites, or any of it, was reasonably likely in all of the circumstances to offend, insult, humiliate, or intimidate a Jewish Australian or a group of Jewish Australians (s 18(C)(1)(a)); and secondly, whether the publication of the material in question was done because of the ethnic origin of Jewish Australians (s 18C(1)(b)).
In relation to the first part of the first issue - that is, that the above imputations be ‘reasonably likely in all of the circumstance to’ - Branson J followed a line of cases on s 18C stating that the test is an objective test. The question is not ‘how did the act affect the complainant’, rather it is ‘would the act in all the circumstances in which it was done be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group’. In relation to this test her Honour relied heavily on the case of Jones v Scully which drew on judgments in the area of defamation to further expound the objective requirements. The court is required to look at the ordinary person’s view of the material - an ordinary person is of fair average intelligence and can and does read between the lines in light of that person’s general knowledge and experience of worldly affairs.
Interestingly, Branson J quoted a portion of the Jones v Scully judgment on the importance of the mode or manner of publication but unfortunately made no direct comment on it. In Jones v Scully, it was said that the reader of a book takes more care in reading than a reader of a newspaper and hence the reader of a newspaper is more prone to engage in loose thinking. Where a newspaper publishes words that are imprecise, ambiguous, loose, fanciful or unusual, there is thus a wide degree of latitude for the conveyance of particular imputations. Where this leaves the Internet is unclear. Although it seems likely that the Internet would be classified at the newspaper end of the spectrum and thus liable to result in a wide range of imputations, Branson J did not expressly decide as such. Instead, her Honour simply found that the material that was the subject of the case made the following imputations:
1) that there is serious doubt that the holocaust occurred;
2) that it is unlikely there were homicidal gas chambers in Auschwitz;
3) that Jewish people who are offended by and challenge the Holocaust denial are of limited intelligence; and
4) that some Jewish people for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
In terms of the second part of the first issue - the meaning of ‘offend, insult, humiliate, or intimidate’ - the dictionary meanings of these words were relied on. Justice Branson found that theses words meant more than mere slights. Her Honour concluded that the web sites would engender in Jewish Australians a sense of being treated contemptuously, disrespectfully and offensively. Hence, the publications were likely in all of the circumstances to offend and insult a group of people, namely Australian Jewry. Her honour was particularly concerned about use of the Internet by Australian Jewish youth, who by reason of inexperience or psychological vulnerability are vulnerable to attacks on their pride and self-respect. Justice Branson noted that the World Wide Web is an important tool which many people, especially young people, use when searching for information. She considered it necessary to avoid the situation where the World Wide Web became a less useful tool by reason of insulting content on the World Wide Web.
In relation to the second issue, it was necessary for Branson J to determine if the act of placing the material on the web was done because of the ethnic origin of Jewish Australians. Her Honour decided that this was in fact the case simply because of the subject matter - it was about the Holocaust and contained many references to Jews and events and people characterised as Jewish.
It should be noted that s 18D of the Racial Discrimination Act 1975 provides certain exemptions from the operation of s 18C:
‘Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
In relying on these exemptions, the onus of proof is on the respondent, who in this case did not establish any such good faith. As no exemption under s 18D was made out, Branson J found that the respondent committed an act that was unlawful under s 18C of the Racial Discrimination Act 1975.
The case raises interesting questions about the role of the Internet as a resource in providing modern society with useful and appropriate information and opinion. There are a number of issues raised with respect to use of the Internet to publish information or opinion, in this case about the holocaust, which do not arise in the case of other forms of media.
Firstly, it raises the issue of content regulation. In traditional forms of mass media, such as television, radio and the print media, there are licensing controls that may be called upon to control and restrict the type of content and opinion disseminated. The Internet is not subject to any such licensing scheme and hence it is difficult to control the type of content that appears on the Internet. The problem is exacerbated by the international nature of the Internet. Not only does the Internet transcend national boundaries, but its international nature ensures that it is extremely difficult, if not impossible, to police every web site in existence. In short, any person with the relevant technical skill can produce a web site expressing whatever opinions they have without a license. The unaccountable nature of the power to mass disseminate opinions is an issue that needs to be considered beyond the traditional legal areas of defamation and censorship.
Secondly, the case raises issues of freedom of speech. While the respondent did not make any submissions for the summary judgment, there were other occasions before the final decision, on which the respondent expressed the view that freedom of speech and academic debate would be stifled by any decision to limit his web sites. In some jurisdictions, notably the United States, there is an express right to free speech. In Australia, while there is a constitutionally guaranteed implied right to freedom of political communication it is unlikely that this would extend to the type of material targeted by s 18C above. Rather, the implied right emanates from the constitutionally entrenched system of representative government. However, the judgment of Justice Kirby in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd must be considered in this regard as it seems to extend the scope of the implied freedom of political communication.
The requirement of free political communication is derived from the system of representative government created by the Constitution. It is suggested that this implied freedom is derived directly from the express terms of the Constitution, particularly ss 7 and 24 which provide respectively that the Senate and the House of Representatives shall be directly chosen by the people.
In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Kirby J further expounded the position arrived at in the High Court case of Lange v Australian Broadcasting Corporation. The case involved secret filming inside a possum abattoir. The owner of the abattoir sought an injunction to stop the film being aired. Justice Kirby found that the full bench of the Supreme Court of Tasmania should have taken into account the implied right to freedom of political communication in two separate ways: firstly on determining the constitutionality of the Tasmanian legislation; and secondly in the court’s exercise of discretion in issuing an interlocutory injunction. It is the second of these that is of interest.
Justice Kirby elucidated the principle that the implied guarantee of freedom of communication only extends to matters concerning political discussion in relation to all areas of government. The Tasmanian legislation in question conferred on the Tasmanian Supreme Court the power to grant interlocutory injunctions that uphold the availability of relief to restrain the use of information obtained improperly where it would be unconscionable. Kirby J stated that such a law was not incompatible with the Constitution, in that the power is consistent with representative democracy, and in fact a feature of that democracy.
In relation to the discretion whether or not to grant an interlocutory injunction, Justice Kirby stated that the implied right to freedom of communication should be considered, and balanced against competing considerations. Because the power is exercised by the Australian Judicature, such exercise must conform to the constitutional setting in which the court functions. In relation to the present case, Kirby J stated that concerns of a governmental and political character must not be narrowly confined. In the Australian democracy, concerns about animal welfare are clearly legitimate matters of public debate across the nation. Indeed, many advances in animal welfare have occurred because of public debate and political pressure from special interest groups. The importance of this consideration must be balanced against the personal denigration, humiliation and invasion of privacy of a particular individual. Kirby J found that the Supreme Court had miscarried in exercising its discretion to grant the injunction.
In relation to the implied right generally, Kirby stated that it must be taken into account in formulating the common law, rules of equity and judicial practice. The relevance of this point to the facts of Jones v Toben is moot. It may be that, given a different set of facts, there are possible grounds to argue for consideration of free speech in exercising judicial discretion with respect to the making of orders.
Yee Fen Lim
B.Sc LLB LLM (Hons)
Senior Lecturer, Division of Law
  FCA 1150.
 Ibid at para 73-5.
 Ibid at para 83.
  FCA 1080.
 Note 1 above at para 87.
 Note 1 above at para 88.
 Note 1 above at para 99-100.
  HCA 63.
 Tony Blackshield and George Williams, ‘Australian Constitutional Law and Theory, Commentary and Materials’, 2nd Edition, The Federation Press, Sydney, 1998 at 1055.
 (1997) 189 CLR 520.