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Section 18C: How will online speech change in Australia?

As the Australian Government considers a repeal of Section 18C of its Racial Discrimination Act, we speak to experts about how such a change could effect racist speech online.

Attorney-General George Brandis leads a push to repeal Section 18C. Quinn Rooney / Getty Images

Some Internet service providers voluntarily remove online content that contains hate speech or racial vilification. Others only do so under government or court order. With the federal government releasing draft legislation to repeal section 18C from the Racial Discrimination Act, how will service providers respond to reports of cyber racism?

Section 18C of the Racial Discrimination Act has been used in the past to shut down websites that promote racial vilification. The law has acted in a way to protect people from material that offends, insults, humiliates and intimidates people based on their race or ethnicity.

If the government decides to repeal section 18C from the Racial Discrimination Act, some service providers are unlikely to take an ethical stance on such issues.

Dr Tim Southphommasane, the race discrimination commissioner, said, "If section 18C were repealed in the manner proposed, there may not be a legal obligation to remove such content. An ethical duty is not, of course, a legally enforceable one.

"Experience demonstrates that leaving things to the market may not always result in offensive online content being removed.

"While some Internet service providers may take a strong voluntary stance, others may not. The law plays an important role in setting a civil standard for society when it concerns racial vilification."

Sinclair Davidson, a professor of institutional economics at RMIT said, "Content that undermines a company's business modelling will more likely be removed.

"If people refuse to do business with a company because of particular content then a company faced with public pressure would remove it.

"Generally, companies have their own standards when it comes to disabling content," said Davidson. "It is their property and they make their own rules."

Some service providers have indicated they are unlikely to remove material that is racially offensive without notification from authorities.

A spokesperson from iiNet said that the company will only disable websites where criminal activity has occurred, under legal requests from the government, or due to court orders. The service provider said these types of requests are rare, and it values freedom of the Internet and is unlikely to change its policy under the proposed legislation.

Facebook, on the other hand, has community standards that include disabling content involving hate speech and not allowing its users to attack others based on race.

A spokesperson from Facebook said, "If content is reported to us that does not violate our community standards, but does violate local laws such as anti-discrimination or similar laws, we IP block access to the content in that country out of respect for local laws."

Complaints involving online content

The Australian Human Rights Commission deals with many complaints that involve cyber racism and attempts to resolve complaints between parties concerning racial vilification.

Outcomes that are mediated by the Commission often result in "an apology, a change in policy or the removal of the offending content".

"The Commission has worked cooperatively with Internet service providers on matters concerning racially offensive material. It does so on the basis of legislation which states that material that offends, insults, humiliates or intimidates on racial grounds is unlawful and could be subject to civil liability."

The types of cyber racism complaints the Australian Human Rights Commission usually receives are for social media and video sharing sites.

One instance involved a complainant of Asian background, who said that particular online content advocated violence against Asians.

"On receipt of the complaint, the Commission contacted the Internet service provider, which subsequently disabled the website as it breached the ISP's Acceptable Use Policy," said Dr Southphommasane.

The federal government's proposal to repeal section 18C from the Racial Discrimination Act is likely to worsen the experience of people already vulnerable to cyber racism.

"The current law protects freedom of speech, it protects artistic expression, scientific inquiry and fair reporting or comment of a matter of public interest -- provided that it is done reasonably and in good faith.

"Freedom of speech has never been an unqualified or absolute freedom," said Dr Southphommasane, "People are also entitled to enjoy freedom from racial vilification."

Proposed amendment to repeal Section 18C

The proposed changes will make it more difficult to hold people responsible for producing or sharing racially discriminatory content online.

The exposure draft released by the Attorney-General's department states content that is used to incite hatred or cause fear of physical harm towards a person or group of people based on their ethnicity or race will be unlawful. Content that is used to cause offense or content that might be considered insulting will be tolerated under the changes.

However, after consultation with the public, the Attorney-General's department is now reviewing the exposure draft as it currently stands and "no final decisions have been made".

A spokesperson from the Attorney-General's department said, "The Government is currently considering the reforms to the racial vilification provisions of the Racial Discrimination Act 1975, following a public consultation process on an exposure draft.

"As such it would be inappropriate to speculate on how the final version of the changes will operate in practice."

According to Dr Southphommasane, it will be harder for people to prove their claim under the changes in the exposure draft.

"Proposed amendments to the Racial Discrimination Act, namely those in the exposure draft released by the Federal Attorney-General, would make it much harder to hold others accountable for material involving racial abuse.

"This is because of a proposed exception for anything that is done in the course of 'public discussion', and because of a narrow definition of what would be unlawful racial abuse.

"In short, it would be harder for someone who believes they have been subject to racial vilification in online form to make out their case".

Dr Southphommasane is concerned "about a proposed weakening of racial vilification laws" having an effect of "emboldening a minority of Australians with bigoted views to believe they can abuse and harass others on racial grounds with impunity."