posted August 28, 2006 04:42 PM
Again. More racist comments. I will say it one more time. SOMETHING NEEDS TO BE DONE ABOUT THIS. Otherwise, I am going to have to report this web master for allowing racism and not doing anything about it.This report summarises the key issues discussed by panellists and observers at the Cyber-racism Symposium. The opinions expressed are those of the participants and do not necessarily represent the position of the Human Rights and Equal Opportunity Commission.
The Symposium participants considered the effectiveness of existing regulation of racial vilification and proposed various suggestions for improvement. The participants also discussed the non-regulatory options available to address cyber-racism. [1]
Contents
1) The impact of cyber-racism on the victims
2) Regulatory problems in dealing with cyber-racism and suggestions for change
a) Jurisdictional issues
i. Overseas authors and/or Internet Service Providers
ii. Internet content scheme
iii. Criminal law
b) Administrative issues
i. Time and resources required by victims
ii. Identifying the proper respondent
3) Industry capacities to respond to cyber-racism
4) The diversity of Internet activity
i. SPAM
ii. Chat rooms
5) Non-regulatory responses to cyber-racism
1) The impact of cyber-racism on the victims
"Electronic hate mail is emerging as a major concern for the Arab community in Australia. There are numerous anti-Muslim/Arab sites on the Internet and they are increasing on a daily basis."
This problem occurs amid a marked increase in attacks against people of Arabic-speaking background in Australia since 11 September 2001:
Women have been targeted and many are frightened to leave the security of their homes;
School children have been the subject of taunts and threats;
It is mistakenly thought by many that all Arabs are Muslims and all Muslims are Arabs.
Fear and concern will cause people to act on negative feelings and there is frustration felt by many. The Arabic community feels there is little that can be done.
"The Jewish community has also seen an increase in threatening and abusive email… The Jewish community is inundated with complaints and there are sites that seek out Jews for vilification. The perpetrators are looking for new audiences, such as through Bulletin Boards, and some organizations appear to allow this sort of message on their Boards."
Research by the Human Rights and Equal Opportunity Commission demonstrates that racist material can be found in websites, computer games, emails, chat-rooms, discussion groups and music. Background information prepared for the Symposium provides examples of racist Internet material, including material that has been created by people within Australia.
"If freedom of expression is to be absolute, certain problems arise as we see with the First Amendment in the United States. Freedom of expression is a human right, but it is not an absolute right. There must be limitations when there are legitimate grounds. Interference with rights must be regulated by law. In Europe it is very clear. Freedom of expression is not an absolute over society."
2) Regulatory problems in dealing with cyber-racism and suggestions for change
"Any attempt at improving the regulatory system needs to begin with a rationale: is it to censor, punish, bring about attitudinal change, be symbolic, deter?"
a) Jurisdictional issues
i) Overseas authors and/or Internet Service Providers (ISPs)
The Human Rights and Equal Opportunity Commission administers the Racial Discrimination Act 1975 which makes racial hatred unlawful. A person from the group against which the offensive racist act or material is directed can make a complaint to the Commission. But it is not possible to apply the legislation to ISPs or individuals that are located in other countries.
"The legislation works well when the authors of race hate material are in Australia and can be identified and their material is hosted by an Australian ISP. These were the circumstances in the Toben case. But these circumstances are not common: most racist Internet authors are overseas and/or their material is hosted by overseas ISPs."
International cooperation should be taken into consideration.
Many European countries, individually and/or through the Council of Europe, have made incitement to racial hatred and dissemination of racist materials criminal offences, including when they occur on the Internet.
Australia can rely on these standards in dealing with sites that are created or hosted in some European countries. It may be effective to notify the authorities of the country where racist material originates or is hosted. That country may be able to prosecute the case, possibly in cooperation with other member states of the Council of Europe who have criminalised racial hatred.
There also needs to be more interagency cooperation within Australia. The Australian Broadcasting Authority has international networks that could assist in dealing with cyber-racism if the material originates in some overseas countries. The police also have international networks, though the material would have to be of a very serious nature, perhaps relating to security issues.
Questions and issues:
What international networks are available to Australian agencies to report racist material that originates in Europe?
European laws may make it easier to deal with cyber-racism in some European countries. What about websites that are created or hosted in the United States where there are not strong anti-vilification laws?
ii) Internet content scheme
Internet content regulation is a scheme that has gradually expanded beyond film and video and has now come to be applied to the Internet. The current classification code deals with sex, violence and instructions to commit crime, and does not deal with racism.
The Australian Broadcasting Authority (ABA) cannot investigate complaints about racist Internet content even though the ABA is the key Internet content regulator in Australia.
"The ABA scheme is underpinned by guidelines that apply to films and videotapes. It would be fair to say that they are primarily, if not essentially, concerned with violent and sexually explicit material. The threshold is high. If it is sexually explicit, violent and racist it would be investigated. If it is racist but is not also sexually explicit or violent it is difficult…"
The ABA can refer Internet material to the classification Board of the Office of Film and Literature Classification (OFLC). The guidelines used by the OFLC to classify Internet material are the same as those used by the ABA. The guidelines were originally designed to regulate 'entertainment'.
"The members [of the Classification Board within the OFLC] are not experts in racism and work within the basic principles of the Broadcasting Services Act: the standard of morality, decency, propriety that is expected by reasonable adults. The system wasn't designed to remove hate or racism from any delivery platform, including the Internet."
The Internet contains more than 'entertainment' and the OFLC Board seeks to reflect community standards in its classification of content. Anti-vilification laws are a community standard. It seems desirable to have consistency in regulatory standards so that the ABA and OFLC can assess and deal with racist content in a way that consistent with Australian law.
The Internet content regulatory scheme gives the Australian Broadcasting Authority the power to order 'take down' notices to ISPs. The ABA also has links with international voluntary hotlines and other networks. HREOC does not have these powers or networks to deal with racist content. Could the classification guidelines be changed so that the OFLC and the ABA can deal with racist content within the existing Internet content framework?
"In Europe it is easier to start a procedure and other persons can intervene and commence a procedure. A watchdog can step in. As an organization they may ask for an injunction."
Should there be a pool of skilled people to identify and evaluate racist content? There needs to be a body that advises the Australian Broadcasting Authority if material is contrary to anti-vilification legislation; an assessing body that isn't there to jail the perpetrator, but to make decisions on content. The OFLC plays this role in dealing with sex and violence, so could another body have these sorts of powers for racism? Could HREOC's powers be changed so it could play this 'assessing' role for Internet content?
The Australian Broadcasting Authority would need to rely on a specialist tribunal. ISPs would also want some confidence that there was a regulatory body that could provide advice and judgement.
Questions and issues:
If the Internet content scheme is intended to reflect community standards and values, why isn't race hate included?
Is it appropriate to regulate the Internet according to the standards applied to 'entertainment' if the Internet is more than just an entertainment medium?
Should there be a specialist body that could advise the Australian Broadcasting Authority and ISPs if particular Internet content offends anti-vilification law?
Could HREOC's powers be changed so that it could make formal assessments of Internet content?
iii) Criminal law
There is currently no criminal offence of racial vilification at the federal level in Australia. There are federal criminal sanctions that can be used in cases of violence, threats, harassment and so on. Serious racial vilification involving a threat of violence is a crime in some States. But there are no federal criminal laws dealing specifically with racial vilification.
Dissemination of racist materials on the Internet has been criminalized by the Council of Europe under the First Additional Protocol to the Cybercrime Convention. This approach makes available criminal enforcement mechanisms, including international co-operation on the basis of uniform criminal standards across various countries.
It would be much easier for Australia to use the international enforcement framework in Europe if Australian standards on racial vilification were consistent with those in Europe. This would also send a more uniform message about the unacceptability of racist content.
"Criminal law can only be used for serious issues and conduct that is harmful. Other issues should be dealt with through civil law. Other measures are also important in fighting racism such as education and economic development. Self-regulation such as informal ISP networks and law enforcement agencies working together to make the system effective. Criminal law has a role to play, but it does not stand alone."
State criminal law in Australia that prohibits serious racial vilification does not seem to be effective as there have been no prosecutions under the legislation to date. Some legislation has only recently been enacted such as the Racial and Religious Tolerance Act in Victoria which specifically covers electronic communications.
"If racial vilification is going to be a criminal offence, it has to be undertaken by the Commonwealth. It is too difficult to undertake this at a State level."
Advantages of introducing federal criminal sanctions against racial vilification in Australia:
Cyber-racism is often an activity of organised race hate groups. Individual victims may feel too intimidated by such groups to undertake conciliation or civil court action against them.
It could provide consistency with European practice and therefore international enforcement mechanisms could be more easily used by Australian regulators.
Criminal law acts as a final sanction when all else fails.
Criminal law would impose stronger obligations on ISP's.
"The existing system of legislation fails to protect the individuals. The Commonwealth's starting point has been about free speech and a non-criminal view. There has been no attempt to deal with this particular problem of cyber-racism... Matters are essentially handled as civil disputes, modelled on the basis that vilification is a 'breakdown of communication'. This of course is not necessarily the case."
Disadvantages of introducing federal criminal sanctions against racial vilification:
It would be difficult to prove allegations of racial vilification to a criminal standard ('beyond reasonable doubt').
State criminal laws against racial vilification do not seem to have been effective and some of these have cumbersome procedures such as requiring special consent from the State Attorney-General.
Criminal justice may not be appropriate to solve some social problems.
"The ordinary individual may feel censored and this could be far more intrusive to individuals. Short of incitement to crime, they should be able to say what they want."
Alternatively, the civil regime could include stronger penalties. There are regimes where bureaucracies have been established to 'police' with civil penalties such as the Office of the Employment Advocate.
The problem of prosecuting people outside Australia, and particularly in the United States, would also remain.
"In reality, people will not be prosecuted if they are outside Australian jurisdiction. This would involve extradition with enormous resources required and there are limitations, restrictions and difficulties with this. The Australian Federal Police are currently focusing on terrorism. It is a political question of determining priorities."
Questions and issues:
Would stronger civil penalties improve the effectiveness of the Racial Discrimination Act?
Would it be possible to have a 'two tiered' system of racial vilification laws at the federal level:
1) the Racial Discrimination Act to deal with behaviour that is offensive; and
2) a federal criminal Act to define and punish behaviour that threatens or incites to violence on the basis of race?
Does the system for referring violent material from the ABA to the police deal adequately with violent racist content?
Vilification is a criminal offence in many States. What mechanisms exist to refer vilificatory Internet material for investigation in these jurisdictions?
b) Administrative issues
i) Time and resources required by victims
The Racial Discrimination Act places the onus on the victims of racism to combat the problem. A person lodging a complaint must be from the targeted group. Other Australians who may find the material offensive, but who are not from the racial group that is vilified, cannot act.
The reality is that most victims of racism do not have the resources to pursue cases through HREOC, and then through the courts, as happened in the Toben case. That case was possible because the complainant was supported by the community he represented, and had the unpaid assistance of a solicitor and barrister. Most victims of vilification suffer disadvantage and would not be able to find the resources to do this.
ii) Identifying the proper respondent
In legal prosecutions it can be difficult to trace the originator of material (including emails) or the owner of a site, even when they are located within Australia. How is action to be taken against anonymous sites or emails? How and by whom is the proper respondent to be located?
"Racism on the Internet is a new problem for human rights institutions. It is a challenging problem and it requires the development of new IT competencies so that anti-discrimination agencies can investigate complaints effectively."
3) Industry capacities to respond to cyber-racism
"No ISP would want to associate themselves with racism on a web site. If there was a formal complaint, it would be hard to imagine any ISP wanting to keep that information. If they wanted to defend their customers it may require seeking additional advice, but generally the organisation's reputation is important."
The Internet Industry Codes of Practice provide some scope to deal with racist content on the Internet as Australian ISPs can respond to the directions of a 'relevant authority' to remove Internet content. HREOC cannot make an assessment of the content of a site in the way that the Australian Broadcasting Authority can. HREOC can only investigate and attempt to conciliate complaints but has no enforcement powers. HREOC could not order a site to be taken down. The courts are a 'relevant authority' and could make an order for an ISP to remove offensive content.
"The Industry would prefer a system where material can be judged by an authorized agency and then the ISP can be ordered to remove the material. Industry providers don't want to be in the position of classifying content."
ISPs may be considered a 'publisher' of the material and therefore liable for it. ISPs have a responsibility to make sure racist content is dealt with and to send a clear message to their customers that it is unacceptable. This is the expectation in Europe.
Industry can assist with investigations. There is a difficulty with pre-paid Internet accounts as there is no physical address. However, customer and caller details can be provided to law enforcement agencies to assist in identifying people involved in criminal activity on the Internet. There are initiatives towards caller-line identification (CLI) to assist police and other investigative bodies. This may permit better identification of the authors of vilificatory material.
ISPs are required by the Codes of Practice to provide customers information about adhering to Australian law. Providers also have obligations to advise customers on how to limit access to content that they may find unsuitable. There are online safety tools such as filters that can block racially offensive material and ISPs have to provide advice and at cost filtering products.
Questions and issues:
What are the liabilities of Australian ISPs which host racist material? Are they effectively 'publishers' of the material and therefore have some legal responsibility for it?
The courts do qualify as a 'relevant authority' and could make an order that an ISP remove a site.
Is the information provided by ISPs in investigations available only to the police or to other investigatory bodies as well? Will this information be available to anti-discrimination agencies investigating complaints?
Is the advice to ISP customers about adhering to Australian law currently effective
"Internet industry groups are trying to do the right thing. Industry needs to be seen to be pro-active. But monitoring everything is impossible, and there are legal risks involved. It's a balancing act: to identify offenders, but also to protect privacy."
4) The diversity of Internet activity
Lindaland
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posted August 28, 2006 04:42 PM
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