2016 submission on S18C and Freedom of Speech in Australia

The Online Hate Prevention Institute (OHPI) is Australia’s only Harm Prevention Charity dedicated to the issue of online hate. A large part of our work relates to identifying and combating cyber-racism against various parts of the community. In our work, we seek to strike a balance between protecting freedom of expression and protecting the right to human dignity. We have presented on this topic at international conferences, in published articles, through our website, and in the media. We have been cited as a leader in this field in two recent reports by UNESCO. We welcome the opportunity to make this submission.

Our submission focuses on the first aspect of the consultation, namely, “Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed”. We do so primarily with regard to the balance between the protection of freedom of expression online and the protection of human dignity through the elimination of all forms of racial discrimination online.

Recent research by ourselves and others has highlighted a critical problem of rising online hate and Australia is not immune to this. In December 2015 I told the BBC that “2015 saw a greater normalisation of hate speech in society than in previous years… Where previously a person might make a vague negative allusion to race, religion, gender or sexuality, by the end of 2015 the comments on social media were blatant and overt… Where previously people hid behind pages and fake accounts, by the end of 2015 many people felt their hate was acceptable and were comfortable posting it under their real name or their regular social media account”.

Evidence of rise in 2015 was supported not only by our own data, but also by data from DEMOS, a UK based think tank, which noted a 4800 per cent increase in hate speech in social media in 2015 compared to three years earlier – growth rate far higher than the growth of social media itself in the same period. A recent report by the International Network Against Cyber Hate, a European Commission funded organisation, repeats and supports these findings.
While 2016 is not yet over, it is already clear that the title wave of hate, including online hate, has continued to grow. USA Today reports a “massive rise” in hate speech on Twitter during the US Presidential election, SBS reports that “more than 13,000 racist or xenophobic tweets were sent in the week following the [Brexit] referendum” and that DEMOS reported “60,000 tweets considered Islamophobic in the week after the Brussels terror attacks”.

This surge in online hate poses a threat to freedom of expression. It has a chilling effect on participation in society and the expression of ideas by members of our indigenous, ethnic and culturally diverse communities as well as those who speak out against discrimination. This takes place not only online, but also when hate speech occurs in public spaces, in the course of employment, in trade and commerce, in education and in other facets of public life. The surge in hate speech is harming our society – we need to address this growing problem, not give it room for further growth.

The Australian Courts have already investigated the law and found that it strikes the right balance between eliminating racial discrimination and protecting freedom of speech. The words “offend, insult, humiliate or intimidate” in S18C of the Racial Discrimination Act are given a technical legal meaning: it is not about the hurt feelings of individuals, but rather about preventing the sort of distress which damages the public good of an inclusive society. Change to the wording would force the courts to reinterpret the law, rending previous case law unsafe.

Gaps in the civil law provisions of the Racial Discrimination Act will in the case of online hate be filled by S 474.17 of the Commonwealth Criminal Code. Efforts to reduce the scope of Part IIA of the Racial Discrimination Act will therefore harden Australia’s legal position on online hate. We believe this would be counter-productive.

At a time of an unprecedented rise of hate globally, which is spreading internationally through the internet and inciting extremism and violence, creating uncertainty which may take decades to settle would be incredibly damaging to both our national security and our fundamental freedoms. Such a move would undermine, rather than advance, our core values as Australians.

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The detailed submission elaborates on the following points:

1.1 The operation of Part IIA of the Racial Discrimination Act is by current international standards overly favourable towards freedom of speech as it fails to criminalize hate speech

1.2 Existing criminal provision are broad enough to cover racial vilification and religious vilification online, but not offline such as on public transport. Reducing the scope of Part IIA would see a hardening of the legal position for online hate.

1.3 Alternative pathways to resolve less serous racial discrimination and religious discrimination complaints without court proceedings and the risk of imprisonment are needed.

1.4 A balance between efforts to eliminate racial discrimination and efforts to protect of freedom of speech already took place when the Racial Discrimination Act and S18C & S18D were created

1.5 The law is already balanced so far in favour of freedom of speech that any further tilting in this direction may undermine Australia’s efforts to meet international treaty obligations

1.6 Reasonableness of restrictions on Freedom of Speech and wording of S18C

1.7 Usefulness in protecting Australian values online

1.8 Hate Speech has a chilling effect on freedom of speech

1.9 Protecting freedom of expression of religious groups and ensuring antisemitism remains covered

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Access the full submission

OHPI Submission on S18C and Freedom of Speech in Australia by Andre Oboler on Scribd