Offence, the Net and the Law

By Legal Eagle

“I disapprove of what you say, but I will defend to the death your right to say it” (Evelyn Beatrice Hall, biographer of Voltaire)

Disapproving of what someone says but defending their right to say it is sometimes very hard. It sounds fine in principle…until you see something that is really challenging to your ideas of what is acceptable.

The Sydney Morning Herald reports today:

The Australian Human Rights Commission has threatened legal action against a widely read but controversial US-based website over an article that encourages racial hatred against Aborigines.

But online users’ lobby group Electronic Frontiers Australia said that trying to stamp out the deplorable content would only create the “Streisand” effect, whereby an attempt to censor online content only brings more attention to it.

In a letter to Joseph Evers, the owner of Encyclopedia Dramatica (ED) – a more shocking version of Wikipedia that contains racist and other offensive articles dubbed as “satire” – the commission said it had received 20 complaints from Aborigines over the “Aboriginal” page on the site.

(AHRC’s letter to Evers is reproduced here)

Evers’ site is an American site published on an American server, and thus he alleged that Australian law could not affect his publication. In response, AHRC cites the Gutnick case, in which Joe Gutnick was allowed to sue for defamation in Victoria although the defamatory material in question was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria. I do wonder how applicable the principle in the Gutnick case is to something like internet hate speech.

The Encyclopaedia Dramatica article on Aborigines has been the subject of legal action before. In January this year, in response to a complaint by an indigenous man, Steve Hodder-Watt,  Google removed the link to the site in google.com.au in respect of results for a search with the words “Aboriginal and Encyclopedia”. However, as The Inquisitur notes, the site still comes up with different search combinations, and it still comes up in google.com. Apparently the site also had the distinction of being on the Federal Government’s Internet censorship list.

So I went and looked at ED. Naturally enough, I didn’t much like what I saw. Apparently it is intended to produce “lulz” via trolling. Lulz is often used to denote laughter at someone who is the victim of a prank or to show joy at disrupting another’s emotional equilibrium. I’ve never been much of a fan of that kind of “humour” anyway (too cruel). I found the few pages of ED at which I looked offensive and very unpleasant. It was not in the least funny, to me at least. I’m not going to link to it here because I don’t want to give it publicity. The post on Aborigines claims:

This article was written entirely by Australian aborigines who are satirizing racists in Australia in the same way that Sacha Baron Cohen, a jew, uses the character Borat to satirize anti-semitism. So this article is completely 100% not racist at all.

Evers has written a blog post commenting on the AHRC’s claim:

So here’s the deal. This is an initial investigation into charging me, personally, with the violation of Australia’s Racial Discrimination Act. While I act in complete compliance with both the civil and criminal codes of the United States of America, and am assured the right of free speech according to our Constitution (which, if not the greatest political document in the entire history of law, is certainly on the top five) I can personally be jailed and fined for the violation of this law. Check out the court precedent they cite, Dow Jones & Co Inc v Gutnick, where a United States paper had to pay 580k for publishing an article about a globalized company headquartered in Australia and its CEO whilst completely in compliance with United States civil precedence. This isn’t a far-fetched legal theory, they have used it before. Welcome to the one world government, folks. Is this what you wanted? Is this what you had in mind? Cause this is what you’re gettin’.

Encyclopedia Dramatica will never be censored in any way. We will keep publishing this content and our Australian users will be able to view it up until the point that your God-forsaken government blocks it with their soon-to-be-implemented secret list of banned material. ACMA’s child pornography blacklist is only one half child pornography. The rest is religious and political speech. You really want Soviet-style communism as your future? I know some people that had to escape from the GDR. Many of your children will be in that position. The house of cards is about to come down, and they’re making sure your mouths are taped shut first. Don’t say I didn’t warn you.

My counsel has advised me that I can never under any circumstances visit my family in Sydney again, nor otherwise make any appearances on Australian soil. Here’s to the hidden cost of freedom.

There is also an interview with a moderator from ED here.

I very much doubt that the AHRC’s claim could be enforced in the US. In 2001, a French court order sought to ban sales of Nazi-related material on Yahoo’s US-based auction site. The court ordered Yahoo to block French citizens from accessing auction listings or Web pages on its site that contained anti-Semitic or Nazi-related material. The US Federal Court said:

Although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.

Colin Jacobs, spokesman for Electronic Frontiers Australia, said the article was “indefensible” but continued:

“EFA doesn’t believe that because something is on the internet it should be immune from critical examination or legal redress. Defamation and anti-hate-speech laws have a place even when applied to online content.” …

“[But] a costly and lengthy legal battle would only give these guys more publicity, and the day the case was won, the page would pop up on a web host in another country. Trying to stamp out this fire will just cause it to spread.”

This reminds me of both the recent defamation case filed by Lindsay Lohan against E*Trade for US$100M (after an E*Trade commercial featured a “milkaholic” baby named Lindsay) or the Liskula Cohen “Skank NYC” case (post here). In the end, I doubt I would have known about either piece of defamation if Lohan or Cohen had not sued for defamation.

Similarly, by bringing the action here, the AHRC may have actually given this site a massive burst of publicity it would not have otherwise had. It’s highly unlikely that I would have ever come across ED or any of its articles without the publicity garnered by this claim, and even more unlikely that I would have lingered for more than 5 milliseconds once I realised what the site was like.

As I learned today via the SMH article, there’s a name for this phenomenon which is primarily seen in online media: the “Streisand effect“.The term was coined after Barbra Streisand unsuccessfully attempted to sue photographers for US$50M in an attempt to have an aerial photograph of her mansion removed from the publicly available collection of 12,000 California coastline photographs, citing privacy concerns. As a result of the case, public knowledge of the picture increased substantially and it became popular on the Internet, with more than 420,000 people visiting the site over the next month.

It’s already happened with Hodder-Watt’s claim – when I plug in “Aboriginal and Encyclopedia” into Google, many of the sites which come up now reference ED and Hodder-Watt’s legal action against it.

So ultimately, although ED is very distasteful and offensive, I wonder if it would have been better to leave it alone rather than give it airtime by bringing legal action.

(Hat-tip: Heath Gibson who has a new blog, Minimal State)

41 Comments

  1. Posted March 17, 2010 at 5:55 pm | Permalink

    My reaction to these issues is simple: is it covered by the common law notion of incitement? If not, prosecution is noxious.

  2. Posted March 17, 2010 at 5:58 pm | Permalink

    Ah, the AHRC. Way to shoot yourself in the foot, people. Now everyone will be reading the thing.

  3. Peter Patton
    Posted March 17, 2010 at 6:40 pm | Permalink

    I had never heard of this site before now. I just went to it, and typed in a number of search terms as one would with Wikipedia:

    Bogan
    Israel
    George Bush
    Americans
    Liberal
    Sport
    Margaret Thatcher
    Catholic
    Capitalism
    Abortion
    Art
    Paris Hilton
    Redneck
    Donald Trump
    Palestine
    Hilary Clinton

    and many, many more. I urge everyone to do the same.

    After searching for 50+ terms (it takes all of about 8 minutes), I can only conclude that it is the Human Rights Commission that is truly sick.

    Given the site – ED – is blatantly satirical, and an equal opportunity offender, as a citizen, I am none too happy with the peculiar attention of this statutory body – AHRC – on only one of the entries.

  4. Posted March 17, 2010 at 6:44 pm | Permalink

    A lot of ED is in poor taste, but that’s literally the entire point. To shock people. Mixed in with the ‘lazy’ shock is the odd nugget of comedic genius.

    ED also represents the repository of an entire subculture centered around sister-site 4chan. 4chan goes even further in embracing total anonymity as the central organising principle of the entire site. There’s no such thing as a username on 4chan — everyone is anonymous. It is, as you can imagine, chaos; but a generous amount of internet culture finds its origins there.

    Every time you say “FAIL”, or laugh at a LOLcat, or embrace the latest internet meme, you are enjoying those fruits of 4chan and ED which have escaped the cage and shaped the wider world.

  5. Posted March 17, 2010 at 7:00 pm | Permalink

    Also well done on tracking down the source of the ‘disagree with what you say’ quote; it’s always ‘attributed to Voltaire’; now I know who actually said it.

  6. Patrick
    Posted March 17, 2010 at 9:13 pm | Permalink

    It just goes to prove why some things are human rights and other things that are called human rights are just twaddle, really.

  7. Tim
    Posted March 17, 2010 at 10:30 pm | Permalink

    I believe this is on-topic.

    The United States Supreme Court has granted certiorari in a case involving free speech defenses to state-law tort claims. The facts are offensive. But the legal issues are interesting.

    In Snyder v Phelps, 580 F3d 206 (CA 4, 2009), the United States Court of Appeals held that a judgment for US$5 million ($2.9 million compensatory, $2.1 million punies), following a jury trial, was void under the first amendment, where protesters (all members of a Kansas church) at a United States Marine’s funeral, protesting the military’s tolerance of homosexuals, hurt the feelings of the deceased’s father, who found-out about the protest after the funeral by reading about it in the paper.

    The father brought state-law claims of defamation; invasion of privacy by intrusion upon seclusion; publicity given to private life; intentional infliction of emotional distress; and civil conspiracy.

    The protesters, after the funeral, also published on their website, bearing the charming name http://www.godhatesfags.com, an “epic,” that made offensive statements about gays and Catholics.

    The Court of Appeals held that, while governments and grieving families may yet protect the sanctity of solemn occasions such as funerals, and reasonable time, place, and manner restrictions by government on protected speech are permissible, some “breathing space” for contentious speech is essential.

    The Supreme Court will decide how much “breathing space” is constitutionally required.

    Is this hate speech?

    Respectfully submitted,
    Tim.

  8. Tim
    Posted March 17, 2010 at 10:41 pm | Permalink

    May I make another comment (which I also believe is on-topic)?

    I know of other Voltaire biographers, one of whom is a facebook-friend of mine, who pull their hair out whenever they see someone attribute that quote to Voltaire. Thanks for getting that accurate and finding the true source. These other biographers argue that Voltaire never would have said any such thing. While he supported free expression, he never would have said that he would go so far as to sacrifice his own life for another’s expression, they argue.

    Respectfully submitted,
    TM.

  9. Posted March 17, 2010 at 11:43 pm | Permalink

    I really don’t know what to do about the Fred Phelps crew (I’m assuming it’s the same bunch, it looks like it is). There’s a part of me that says the law should butt out altogether and leave a bit of ‘self-help’ to the members of the USMC (etc) whose funerals they picket.

    The only thing is, that may result in someone getting killed. I’m still a big fan of ‘get off my lawn’ style self-help, though.

    [UPDATE: Yeah, it’s Phelps and friends; apparently they’re notorious for going after the military. His wiki is interesting — he used to be a civil rights lawyer, and people in his family think he’s got some sort of paraphilia]

  10. Peter Patton
    Posted March 18, 2010 at 10:00 am | Permalink

    The “god hates fags'” crowd is a small localized group of complete loons. While they are offensive beyond anything most Australians could even imagine to be possible, they are quite harmless, in the sense of not being anywhere near on the road to violence/weapons, and so on. Still they do challenge those of us who sympathize with notions of universal human rights, such as free speech.

    The US constitutional protection that Phelps spits under can only be understood in the context of American history, and why it was passed in the first place. To that extent, it is easily argued the protection is a very appropriate and vital part of the US government/legal system, with Bosporo Church a small price to pay..

    In Australia, they would be lynched within seconds. Those sort of civil rights have never really been demanded by the Australian reality, regardless of how much we might revere the sentiment.

    In Australia, I doubt it would be possible for either the legislature or the courts to implement or find a “right” to free speech that would encompass the god of fag-haters; at least not beyond the curret right enjoyed by the Catholic church, that is. 😉

  11. Posted March 18, 2010 at 10:08 am | Permalink

    In Australia, they would be lynched within seconds. Those sort of civil rights have never really been demanded by the Australian reality, regardless of how much we might revere the sentiment.

    LE and I were discussing the Phelps crew offblog and we both separately came to the same conclusion. They would need the NSW riot squad to stop from being lynched over here (ie in Oz). It just goes to show how remarkably civil Americans are, ie what they’re willing to put up with in order to maintain their Constitution.

    [Update: I’m now trying to visualize the UK reaction. The Scots would lynch them (like Australians), but I’m not sure about the English. I think it would depend where they pulled the stunt. In genteel downtown Oxford everyone would just cross the street and move far away, but I suspect if they tried it in one of the poorer extremities of the country, there wouldn’t be much left afterwards].

  12. Nick Ferrett
    Posted March 18, 2010 at 11:32 am | Permalink

    I haven’t read the Gutnick case for a while, but wasn’t it about the proper law of the tort? Didn’t it turn on the fact that the content could be downloaded in Victoria so that they could say that an element of the tort, publication, happened in Victoria?

    I think any link between that and statutory jurisdiction of the Human Rights Commission is pretty tenuous.

  13. Nick Ferrett
    Posted March 18, 2010 at 3:17 pm | Permalink

    LE, I think that’s the very reason the Trade Practices Act has those provisions on extra-territorial application.

  14. Posted March 18, 2010 at 5:46 pm | Permalink

    That’s a good point, Nick — I think the AHRC may be engaging in a bit of jurisdictional overreach. I suspect there’s probably a conflict of laws issue right on point, but it’s so long since I studied conflicts that I’ve forgotten what it might be.

  15. Posted March 19, 2010 at 4:57 am | Permalink

    As someone who has been demonised on a a page of the ED site I am rather less than impressed by the arguments about free speech on the net when it comes to this net entity. Because when it boils down to it if the right to free speech is not balanced by an obligation that what is published can be challenged on its veracity and its authors and publishers held responsible for its content then it is by no means a virtue and any exemplar of the free speech idea.

    Oh and don’t let the visual similarity to Wiki fool you; this site is set up so that the original author of a page has continuing control of its content and they can not only remove any corrections that may be made to the page but they can also exclude the person who made them from making any future edits.

    Frankly it is sites like this that make me think that Senator Conroy’s net filter may not be such a bad idea.

  16. Posted March 19, 2010 at 6:07 am | Permalink

    The trouble is that there is no affordable way to redress issues of defamation on such sites unless you have the wherewithal to take legal action. Frankly I don’t have the spare cash to do anything through the courts and the authors of that hate page know this as well as they know that the jurisdictional issues and their anonymity makes it hard for me or anyone else to seek redress.

    Anyway I look forward to your piece on Net Bullying. If you need any examples let me know I have a whole website where I have catalogued the attempts to bully me. (It’s private but you can access it if I allow it).

  17. Posted March 19, 2010 at 6:41 am | Permalink

    There’s a fine but distinct line between defamation, invasion of privacy and online harassment, but finding it can be a real challenge. There is a danger that by dragging everything under the ‘free speech’ umbrella we may actually imperil free speech.

    It’s only a matter of time before some US serviceman ‘goes postal’ on Phelps (or someone like Phelps) because the legal instrument has been too blunt to bring out the differences between expressing an opinion and what would probably be harassment (in person, obviously).

    There’s a similar analogy to be had when it comes to privacy issues; the British tabloids really overdid it with Max Mosley, and now their ability to blow the lid off any actual scandals (as opposed to confected ones) has been seriously limited — in large part because they conflated privacy with free speech.

    As to representation issues, well, I’m a huge fan of contingency fees. They give the little guy a chance. One of the things that’s helped pull the press into line over here has been ‘no win, no fee’ in defamation cases. Often it’s been poor people on council estates who’ve been able to get at the Red Tops who’ve made their lives so miserable.

  18. Posted March 19, 2010 at 11:23 am | Permalink

    It’s when the ignorant bigot says

    “Welcome to the one world government, folks. Is this what you wanted?”

    that I feel the most sympathy towards the action. Although I’m feeling some (unusual) common ground with Iain Hall’s comments too.

    One World govvie is when ignorant Americans conflate their own bizarrely interpreted Consitutional provisions with the laws and interests of every nation in the world, not when a country seeking to protect its citizens takes action in respect of something that directly affects those citizens.

    That being said, it isn’t they that cause the material to be published in Australia and to Australians…

  19. Posted March 19, 2010 at 2:07 pm | Permalink

    I looked up Encyclopedia Dramatica and it’s obviously satirical. Yes it’s in that mode of satire, distasteful to about 99% of the human race, that attempts to offend approx 100% of the human race. But any litigation launched at in some attempt to stop hate speech is a waste of money.

    I think Skeptic has a point about Free Speech envelope pushers endangering the right but the trouble with politically correct codes of speech is twofold. #1 You actually create an audience for people who enjoy this stuff precisely because it’s risque. #2 You force actual haters, for example Storm Front, to use reasonable language so that their views are obscured and modified and seem actually moderate.

  20. Patrick
    Posted March 19, 2010 at 5:34 pm | Permalink

    Armagny
    One World govvie is when ignorant Americans conflate their own bizarrely interpreted Consitutional provisions with the laws and interests of every nation in the world, not when a country seeking to protect its citizens takes action in respect of something that directly affects those citizens.
    I admit I don’t understand this comment. When has this arisen? Are you referring to the American courts’ refusal to recognise/enforce foreign judgements which are at odds with their Constitution? That is rather ‘plain vanilla’, even the EU doesn’t bind Member States that far (or at least does not plainly do so).
    Or are you referring to the ‘ignorant bigot’ assuming that everyone would be better off if they lived under American free speech rules? Free speech is about as universal a norm as one can find, so I don’t know that this is so absurd either. And I don’t know that any of the comments above could really be read as expressing anything more than his being very content with his own country’s Constitutional framework, which is also not an unreasonable position to adopt.

  21. Posted March 19, 2010 at 7:04 pm | Permalink

    Adrien, it’s a conundrum and I don’t have any easy answers. Both your # are entirely valid, especially the second one — it starts to get impossible to work out who the real jerkasses are. At least in the US their speech is so obvious it’s like they have ‘JERKASS’ branded on their foreheads, so everyone sane can just… move away.

    I think I’ve encountered an example of what I suspect armagny is getting at. I was discussing this issue with a geneticist on my staircase who happens to be German, and we talked about German laws prohibiting the Nazi party and the use of Nazi symbols in public life, along with the German prohibition on Holocaust denial.

    On an intellectual level, I think laws like that are wrong, but as I admitted, I’m not German and I don’t live in Germany. Germans, however, do have to live in Germany, and that’s obviously a bit of history they’re very sensitive about.

  22. Posted March 20, 2010 at 6:59 am | Permalink

    LE regarding the Phelps “God Hates Fags” pickets at funerals:

    If it was my relative’s funeral at which these guys were protesting, I’d be tempted to indulge in some “self-help” – although I think ignoring them totally is the best.

    Anyone who attempts to physically restrain the Phelps clan from picketing is falling into their trap – they actually fund their “church” by the proceeds of lawsuits against those who assault or impede them in their “consititutionally protected” free hate speech.

    The most effective measures taken against them have been by twofold:
    1. local councils passing bylaws saying that demonstrations must be at least across the road from the location of the funeral
    2. veteran groups forming flying pickets that park a row of large lorries across the road from the funeral venue so that the Phelps picket cannot be seen from the venue or approaches to it, and they ride loud motorbikes outside the venue and rev the engines so that the Phelps picket cannot be heard.

    So far Phelps has not come up with a way to sue anybody for doing that at the same time as he’s picketing a funeral.

  23. Posted March 20, 2010 at 9:40 am | Permalink

    My personal favourite encounter with the Phelps clan is, of course, courtesy of the boys from “The Chaser” – when (I think) Charles Firth wanders right up to Papa Phelps, declares his undying love, and proposes in bent knee….. the looks on everyone’s faces is absolutely hilarious …..

  24. Posted March 20, 2010 at 11:11 am | Permalink

    Gutnick is clearly not applicable: that is a tort, and even then there may be some difficulty in enforcing any damages in the US rather than in Australia.

    So I’m sorry to say that, so far as AHRC’s citation of Gutnick is concerned, it seems like yet another case of bossy people in cardigans or natural-born-prosecutors. (Oh dear: with such antagonism to the Govt I will soon look like a SL-ish libertarian, and I’m not, believe me!)

    As to extra-territorial laws, they might bite once you come within the jurisdiction of the state making the extra-territorial claim, but the prospects of extraditing someone for them in this case at least must be pretty slim. If it were otherwise, we would, for example, be sending a lot more people home to PRC, Zimbabwe, etc etc than we generally do.

  25. Posted March 20, 2010 at 12:11 pm | Permalink

    natural-born-prosecutors

    LOL, Marcellous, good line.

  26. Posted March 20, 2010 at 2:36 pm | Permalink

    On an intellectual level, I think laws like that are wrong, but as I admitted, I’m not German and I don’t live in Germany. Germans, however, do have to live in Germany, and that’s obviously a bit of history they’re very sensitive about.

    I can see the wisdom of those laws for a period of time. But it hasn’t rid Germany of fascism. Germany still had a lot of lingering fascism in the government until the 70s and then on the trash-covered streets later on.

    The other thing that interests me is how true to street sensibilities ED is. Albeit extreme. Political correctness as an ethos doesn’t impact much on the lives of most people and freewheeling racial/sexual humour using standard terms of abuse is commonplace. Funnily enough it usually doesn’t denote actual racism.

    Kevin Rudd’s bid to become a hybrid socialist/social conservative is beginning to get really irritating.

  27. Posted March 20, 2010 at 3:11 pm | Permalink

    LE

    I’m not sure what bit of my comment provoked your self-justificatory response. There must be some cross-fire from somewhere else.

    (But I might be tempted to have a go at you for “the law is not a panacea for all ills.” Can you say that again again?)

  28. Posted March 20, 2010 at 3:13 pm | Permalink

    Oh dear, commented twice. Can I say that again again? Take your pick. Second is my more considered thought. Feel free to remove one and this.

  29. Posted March 20, 2010 at 6:16 pm | Permalink

    I’ve removed the double comment, Marcellous, but I’ll leave the other to LE, who I think has gone out.

  30. Posted March 22, 2010 at 6:35 am | Permalink

    Free speech a universal norm?

    Respectfully, I think not, not even close. The very case in point shows that even 2 countries at the ‘liberal’ end of interpreting individual rights can have significant divergences on this issue.

    I loved the concept of ‘norms’ in international law, it was with great reluctance that I let go of the idea that many had managed to establish themselves. Undoubtedly the norm (backed by explicit law) against use of force is right at the top, yet it’s been all but junked in the past few years. Genocide, where explicit, characterised by Charney’s sufficient numbers test and confined to mass killing or democide, rather than the removal of cultures, with all those stipulations, is probably the only clear cut, undisputed binding norm.

    But really I admit this guy just got up my nostrils so I was venting. I do tend to sympathise with the argument that satire, even quite offensive satire, should be left alone (if for nothing else then pragmatic reasons)…

  31. Posted March 22, 2010 at 6:41 am | Permalink

    I just proved the fact that I tend to comment without serious thought or research. Went to check, the genocide scholar whoa sserts that there must be mass killings by a government to satisfy the elements of genocide is Frank Chalk, not Israel Charney. Anyway, that’s meandering way off topic- although the messy genocide debate IS the outcome of the rare recognition of genocide’s prohibition as a universal norm..

  32. Posted December 24, 2010 at 8:06 pm | Permalink

    I think in reality that you might have a bit of difficulty convincing Americans to alter their Constitution.

    Re: The Gutnick Case – Irrespective of the legalities, there was a lot of fallout over the case. Around 15 internet start-ups came to Australia, the journo went to an international body regarding the violation of his free speech rights. The US passed legislation just over a year ago refusing to recognise or enforce foreign judgements which violate or are inconsistent with First Amendment protection.

    I have read some fairly offensive hate speech cases which have been deemed acceptable under the First Amendment of the US Constitution.

    My counsel has advised me that I can never under any circumstances visit my family in Sydney again, nor otherwise make any appearances on Australian soil. Here’s to the hidden cost of freedom

    This is really the practical effect of his activity.

    a French court order sought to ban sales of Nazi-related material on Yahoo’s US-based auction site.

    There is very little tolerance for anything that chills free speech in the US. as was seen in the ebay situation.

    Perhaps your best shot in a US court would be a claim that such content as was posted on the Aboriginals was incitement of some kind. “Kill the Jews”. The case with the abortion clinic doctors, their faces being greyed out as each one was murdered by anti-abortion advocates comes to find. Villification is foreign to US legal thinking.

    The US constitutional protection that Phelps spits under can only be understood in the context of American history, and why it was passed in the first place. To that extent, it is easily argued the protection is a very appropriate and vital part of the US Government/legal system, with Bosporo Church a small price to pay.. In Australia, they would be lynched within seconds. Those sort of civil rights have never really been demanded by the Australian reality, regardless of how much we might revere the sentiment.In Australia, I doubt it would be possible for either the legislature or the courts to implement or find a “right” to free speech that would encompass the god of fag-haters; at least not beyond the curret right enjoyed by the Catholic church, that is.

    agree. It isn’t practical to apply the systems, principles and Statutes of one country to that of another. If you did it in this case the Aborigines would allege you aren’t giving us equal protection if we said something intemperant in Australia the rules in Oz are different. You can’t just change the rules of the game.

    Gutnick is clearly not applicable: that is a tort

    Agree with marcellous on the above.

    Free speech a universal norm?
    Respectfully, I think not, not even close. The very case in point shows that even 2 countries at the ‘liberal’ end of interpreting individual rights can have significant divergences on this issue

    There is very little universal consensus in the application of what that ‘universal norm’ is. culturally dependent.

    I don’t know how many people have read all the cases on the Religious and Racial Intolerance Act, but I really find some of them disturbing.

    The one that sticks out in my mind is not the most infamous example. The Gaiaguys case involving Legg and Devine which raised even more disturbing consequences, when Legg and Devine were arrested in NSW and imprisoned in Vic for 9 months for failing to purge their contempt. They didn’t turn up at the VCAT hearing and refused to take down the allegedly infringing material.

3 Trackbacks

  1. By Minimising the harm from online hate on March 17, 2010 at 6:54 pm

    […] at the Skepticlawyer blog, LE explains the risks of the AHRC’s chosen course: “ This reminds me of both the recent defamation case filed by Lindsay Lohan against E*Trade […]

  2. […] WAS RACIST ON THE INTERNET AND MIGHT GET PUNISHED FOR IT!!! Frikkin’ amazing!!! (That last link is mostly useful as a link round-up kinda way — […]

  3. By Skepticlawyer » Tolerating the intolerant on March 12, 2011 at 6:00 am

    […] to speak merely because they are offensive to me, much though I might like to tell them to go away. As I’ve noted before, such a view sounds more attractive in the abstract. There are times when my instinct cries, […]

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