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section heading icon     hate speech

This page looks at hate speech.

It covers -

  • introduction
  • the Australian regime
  • overseas law
section marker     Australian regime

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.

There 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 in 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 here.

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.

section marker     overseas law

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 Press 1994).

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 comment 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 paper 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 War.

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 Whine's policy 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 legislation.

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).

section marker     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 Asian republics).

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 regions.

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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version of March 2008
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