This page looks at hate speech.
It covers -
Questions of speech regulation are discussed in the Censorship
and Governance guides
elsewhere on this site. The operation of the national Racial
Discrimination Act 1975 (Cth) and the Racial Hatred
Act 1995 (Cth) is examined as part of the exploration
of law and racial discrimination in Australia here.
is no Australian legislation specific to online hate speech;
it has been addressed through Federal and State/Territory
antidiscrimination law. That has underpinned action, for
example, against an Adelaide-based Holocaust denial site.
An overview is provided in the 1995 paper
Racial Vilification and ICERD in Australia by Louise
Johns, Regulating Racism: Racial Vilification Laws
in Australia (Sydney: Sydney Institute of Criminology
2002) by Luke McNamara, papers in Hate Speech &
Freedom of Speech in Australia (Leichhardt: Federation
Press 2007) edited by Katherine Gelber & Adrienne
Stone - notably Lawrence McNamara's 'Salvation and the
State: Religious Vilification Laws and Religious Speech'
and Katherine Gelber's 'Hate Speech and the Australian
Legal and Political Landscape' - and the Human Rights
& Equal Opportunity Commission's 255 page Federal
Discrimination Law 2004 handbook.
Critiques include 'So Far So Good: A Critical Evaluation
of Racial Vilification Laws in Australia' by Dan Meagher
32(2) Federal Law Review (2004) 225; 'Has the
Racial Discrimination Act contributed to eliminating racial
discrimination? Analysing the litigation track records
2000-04' by Beth Gaze in
6 Australian Journal of Human Rights (2005).
Other Australian anti-discrimination legislation is identified
The 1989 amendment to the New South Wales Anti-Discrimination
Act 1977 for example makes it unlawful for a person,
by a public act, to incite hatred towards, serious contempt
for, or severe ridicule of a person or groups on the grounds
of race. The Act creates a criminal offence for inciting
hatred, contempt or severe ridicule towards a person or
group on the grounds of race by threatening physical harm
(towards people or their property) or inciting others
to threaten such harm.
For an international perspective see James Jacobs & Kimberly
Potter's Hate Crimes: Criminal Law & Identity Politics
(Oxford: Oxford Uni Press 1998), the
overview of the 1995 Touro Hate Speech Symposium:
Protecting Rights, Protecting Hate? Comparative American,
Canadian, and Israeli Approaches and United
States Hegemony & the Foundations of International
Law (Cambridge: Cambridge Uni Press 2003) edited
by Michael Byers & Georg Nolte.
In the US concern about hate crime (in particular the
firebombing of some community organisations) led to several
laws during the Clinton presidency. The most important
is the 1999 Hate Crimes Prevention Act.
The legislation has been criticised as redundant or overly
restrictive and is still working its way through the courts.
Among academic studies are Samuel Walker's Hate Speech:
The History of an American Controversy (Lincoln: Uni
of Nebraska Press 1994), Franklyn Haiman's Speech Acts
& the First Amendment (Carbondale: Southern Illinois
Uni Press 1993) and Jonathan Rauch's Kindly Inquisitors:
The New Attacks on Free Thought (Chicago: Uni of Chicago
There are broader pointers in the discussion of content
regulation in the Censorship guide
on this site. One example is Susan Herring's concise 1995
Freedom of Speech or Freedom of Harassment.
For Canada see Heather De Santis' 1998 Combating Hate
on the Internet: An International Comparative Review of
Policy Approaches study
for the Department of Canadian Heritage, Senaka Suriya's
Combatting Hate? A socio-legal discussion on the criminalization
of hate in Canada (Ottawa: Carleton Uni Press 1998),
Michel Racicot's 306 page report
The Cyberspace is Not a 'No Law Land': A Study of the
Issues of Liability for Content Circulating on the Internet
and the 2001 paper
Combatting Hate On The Internet by the Hate &
New Media Working Group.
The Canadian Liberty Net Litigation: A Prototype for the
Regulation of Hate Speech on the Internet? a 1998
by John Finlay & Brian Smith offers insights about extension
of traditional telecommunications legislation.
The Canadian regime has been underpinned by a willingness
to match rhetoric with action, for example through revocation
in 2005 of David Ahenakew's membership in the Order of
Canada. The former leader of the Assembly of First Nations
had been convicted of breaching federal legislation through
comments that Jews were a "disease" and Hitler
was trying to "clean up the world" when he "fried
six million of those guys" during the Second World
In 2008 a Canadian court convicted white supremacist Keith
Francis William (Bill) Noble for posting hate material
on the net. The judge ruled that Noble, 31, did "willfully
promote hatred against identifiable groups, namely Jews,
Blacks, homosexual or gay persons, non-whites and persons
of mixed race or ethnic origin". The offender was
sentenced to four months in jail, plus restrictions on
his use of computers for three years.
Two UK perspectives are David Capitanchik & Michael
paper The Governance of Cyberspace: Racism on the
Internet and Michael Whine's paper
Cyberspace: a new medium for communication, command
and control by extremists. The Anti-Terrorism
Crime & Security Act 2001 amended the Crime
& Disorder Act 1998 to create new "religiously
aggravated offences" - assaults, public order offences,
criminal damage and harassment. The 1986 Public Order
Act forbids the use of "threatening, abusive
or insulting words or behaviour within the hearing or
sight of a person likely to be caused harassment, alarm
or distress or thereby"
A more detailed profile
offers pointers to Australian and overseas anti-discrimination
In October 2001 the Council of Europe proposed a protocol
that aims to prevent sites based in states with strong
free speech protection (eg the US) from disseminating
hate speech exclusively to audiences within EU jurisdictions.
It is a problematical approach, as it is unclear whether
governments and courts in the US would cooperate with
censorship in other states. It was quickly criticised
as putting national sovereignty ahead of fundamental freedoms
and provoked suggestions that the US should instead extend
its free speech regime to the rest of the world (ie maintain
the status quo).
jurisdiction and free speech challenges
As noted above, national and international policymakers
are grappling with questions of principle and practice
in dealing with hate online.
For many policymakers a persuasive model is that of the
newspaper, with both publishers and authors being identifiable
and taking responsibility for statements made in a particular
publication. Some advocates of that model argue, for example,
that anyone who places racist content on the net should
be responsible if that content is accessed in a jurisdiction
where the content is prohibited under hate speech, personal
defamation or other legislation.
A Canadian or Australian individual or organisation placing
anti-semitic text on a server hosted in the US (where
it enjoys free speech protection) would thus be liable
under French racial vilification legislation if that text
was accessed from France. Emphasis on place of reception
rather than place of 'publication' addresses concerns
that authors will go forum shopping, choosing to publish
from jurisdictions that emphasise free speech (eg the
US) or are indifferent to content unless it attacks a
particular regime or local mores (eg some of the Central
The model has several implications.
The first is that, in the absence of international agreement
about standards, nations with 'strong' anti-vilification
regimes would be seeking to extend their law to those
with strong free speech regimes. Such an extension collides
with the 'lex informatica' assumption underlying much
US policymaking, ie cyberspace as necessarily embodying
US norms regarding free speech.
The second implication is that an author or publisher
might be liable for knowingly or inadvertently breaching
legislation in a range of foreign jurisdictions, although
complying with the law of the jurisdiction in which the
publishing takes place. That liability would have a chilling
effect on both individual authors and media organisations
if they considered that a conviction would be enforced
(eg recognised by courts in the jurisdiction of publication,
by seizing assets located in the foreign jurisdiction
or seizing the individual if unfortunate to venture offshore).
As we have noted in discussing questions of governance,
one response is the so-called upload rule, ie a regime
that stipulates liability can attach to online content
only in the jurisdiction where that content was uploaded.
That regime might be strengthened through geolocation
technologies, eg publisher-end restrictions on reception
of content by users who are identified as located in particular
The upload rule has been criticised as overly permissive,
given that it would apparently insulate entities from
liability for uploading offensive content in a jurisdiction
where that content is legal, including instances where
the entity has sought to target that content to a particular
jurisdiction where it is illegal.
It is unclear whether concern about the potential emergence
of 'cyber-havens' will be substantiated (as yet there
does not appear to have been a major drift towards Tajikistan).
It is conceivable that haven states would face the same
pressures - from major nations and the international community
- as those perceived to host money laundering.
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