How often have we heard that expression? Probably more so if we are the parents of children born in the Internet or Cyberspace age! But what does this have to do with racism and vilification? Quite a lot, it would seem.

Image – techaholika.com

In recent years I have been involved with a number of cases of what was tantamount to clear cases of vilification occurring on the Internet. And it has had me thinking about the whole area of Cyber Racism.  Before looking at this issue we need to define what it is we mean by “Cyber Racism”. The Australian Human Rights Commission (AHRC) has put out a fact sheet on the issue. This in itself is indicative of the pervasive nature of this particular issue.

In the AHRC document they define Cyber Racism in simple terms as any racism that happens in the cyber world. This is a very broad definition that encompasses all sorts of material that may currently be published in an ever increasing and bolder cyber world. Like all other forms of racism the world of cyber racism is designed to intimidate and vilify others. The “others” can actually be anyone who does not fit our own paradigm of what is acceptable or unacceptable as a community. There are therefore racist elements and racist websites of all descriptions. My own involvement in this area has been as an advocate in trying to shut down some sites here in Australia that have ridiculed and vilified the Australian Aboriginal and other minority communities. Three recent examples that come to mind are as follows: Firstly there was the website of a Perth film maker Simon Barker that uploaded a video he had produced titled “Flubba Wubba Noongar”. This particular video was one of the worst examples of stereotyping that I had seen in a long time. Following complaints to WA Police, the matter was prosecuted. At the first level of hearing the film maker argued that this was part of a comedic routine that he had developed and subsequently filmed. He was successful in this defence. The Public Prosecutor appealed the case and the decision was referred back to the lower court for further examination.

The second case involved two young students from a University south of the river in Perth. The two students had maintained a website which parodied Australian Aboriginal people along the lines of the completely unacceptable and non humourous Billy Cokebottle of the late 1980’s. WA Police acted swiftly after my tip off and their actions resulted in the shutting down of that site and the prosecution of one of the two young lads. The net result was a fine of $750 being imposed on that young man. It also sent a significant message to others that this type of behaviour was unacceptable. There was also a whole series of other attendant debates that occurred at that time around the concept of restorative justice being meted out in this instance. There was some negotiation around trying to have the young men who perpetrated the crimes to work with Aboriginal history and advocacy groups to help them understand the deep seated issues that arise herein. Unfortunately, that was something that was not able to be accommodated in the legal system at that time.

The third case that I was involved with did not involve the Aboriginal Community but did involve a very high profile West Coast Eagles player, Nic Naitanui. The then Sports columnist of WA Today, Tim Clarke contacted me to advise me of a website that he had seen that had uploaded a video perpetuating some stereotypes of Nic Naitanui as a spear waving tribesman. Following discussions with the men that uploaded the video, they immediately withdrew the offending items and apologised profusely to the young West Coast Eagles player. Unfortunately, publicity surrounding the racist attitudes of Australians had been disseminated right across the world, with papers in India, America and New Zealand, among others running the story fairly prominently.

In all of these cases I adopted my usual approach of discussing the offending material with the relevant communities before taking any remedial action. Unless they found the material offensive I did not believe that I was in any position to take action. In all three cases the relevant communities found the material offensive and were able to give me statements to that effect.

The experience of dealing with these cases and others of a similar ilk did give me cause to consider the means by which we can, as a community, deal with this material. The Internet is seemingly without strictures, rules or regulations of any kind. It would almost seem possible to upload and publish anything without regard to who this may cause offence to. I don’t profess to be a legal expert of any kind but as I understand it there are two conflicting decisions in the area of race hate on the ‘Net. The first of these involving Joseph Gutnick took the view that material was considered to have been published in the place in which that material was accessed. In other words, the fact that the website or publisher was domiciled in Kazakhstan was immaterial. If I as the end user downloaded the website in Perth, Western Australia would mean that is where the publishing occurred. Accordingly, the laws of WA would apply for the defamation or vilification to have occurred. Intuitively, this has merit in my view. The WA Criminal Code amendments in 2004 with which I was significantly involved in getting the passage through our parliament does provide for penalties in regard to the publishing of racist material and causing offence therein.

The other case involving the Adelaide Institute and Frederick Toben comes to a different conclusion. It takes the view that the commission of the offence occurs in the country where the website is actually hosted. Under these circumstances the laws of the host country applies. In the case of the Internet, the host countries very rarely have laws that prohibit the publishing of such material. Further, of course, we have the amendments to the American constitution that allow for the freedom of speech that allow unfettered publication rights to anyone.

Despite the conflicting views expressed above the bottom line is that this is a terribly vexed issue. The need to allow freedom of expression and speech come into consideration. There are arguments that freedom of expression and speech should be allowed. However, I am also of the view that there is a public interest and public good criterion that needs to be satisfied. Where the relevant website is breaching that criterion they should be held accountable.

On the AHRC fact sheet they outline some suggested actions in respect of the different websites that may carry offensive material. It is probably fair to say that AHRC recognises that they have major jurisdictional issues in attempting to regulate some websites such as Facebook and You Tube. In most cases they have suggested that some discussions can be commenced by them with the relevant websites to try and negotiate a settlement of the issues.

Having had some completely fruitless discussions with some of those websites in the past when offensive and threatening material regarding my family and myself was uploaded, I do not hold out much hope for the success rate for the AHRC. What this does highlight is the need for governments at all levels to be aware that this is an issue that requires some considerable delicate manoeuvring between the various parties. The need for free speech needs to be balanced against the need to ensure that vilification is prevented.  

This is one of the challenges for law makers in the area of race relations. A suggestion that has been made which I have not thought through the full implications of is the prospect of establishing some form of ethicist committee that will take the “reasonable person” approach to these issues. In other words the committee will receive the matters referred to it and utilising this “reasonable person” approach makes a determination as to whether the public good is served by the publication or uploading of that material. I can see the Neo Nazi websites running into paroxysm of hysteria as they read this!