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Australia – Moderating The Moderators: User-Generated Content Published On Newspaper’s Website Breaches Racial Vilification Laws.

29 October, 2012

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307

 

In brief

 

  • On 27 March 2012, the Federal Court of Australia declared that Nationwide News Pty Limited had contravened section 18C of the Racial Discrimination Act 1975 (Cth) (the”RDA”) by publishing four readers’ comments underneath two online articles. The Court held that the comments were reasonably likely to offend a reasonable member of the local adult Aboriginal community.
  • Justice Barker ordered that Nationwide News Pty Limited take down the contravening comments from its website and pay $12,000 in damages to Natalie Clarke (the applicant in the proceedings) by way of compensation

 

Background

 

On 27 June 2008, five indigenous Australian boys were involved in a motor vehicle accident in a stolen motor vehicle in Western Australia. Natalie Clarke was the mother of three of the four boys who were killed in the accident (the fifth survived). On 29 June 2008, Nationwide News Pty Ltd (“News”) published a front page article in The Sunday Times (a newspaper which circulates within Western Australia) reporting on the accident.

 

Seven further articles that related to the accident were published by News on its website www.perthnow.com.au. Readers were invited to submit their comments on the articles to News for publication. The comments were then published underneath the articles. Prior to publication, the comments were moderated by experienced journalists, the majority of whom had between 10 and 20 years experience. The comments were moderated by either approving, declining or editing the content so as to avoid the publication of comments which, in the moderator’s opinion, expressed views which were unrelated to the issues raised in the article, contained abusive language, were defamatory, or not honestly held or made in good faith.

 

Procedural history

 

Following a complaint by Ms Clarke to the Race Discrimination Commissioner of the Australian Human Rights Commission (the “AHRC“), pursuant to section 46P of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”) Ms Clarke made an application to commence proceedings against News in the Federal Magistrates Court of Australia. The proceeding, which was brought in respect of 16 of the approximately 350 comments posted by readers, was subsequently transferred to the Federal Court of Australia following an unsuccessful court-ordered mediation.

 

Ms Clarke’s application was partially successful, and on 27 March 2012 Justice Barker found that News had contravened section 18C of the RDA by publishing 4 out of the 16 readers’ comments (the “Comments”) which Ms Clarke contended breached the RDA. The Court held that:

 

  • the Comments were “reasonably likely to offend, insult, humiliate or intimidate” a reasonable member of the “adult local Aboriginal community, including parents and carers of children”; 
  • the Comments were published for a number of reasons, including because of the race of Ms Clarke and her children; and
  • News’ conduct was not exempted from being unlawful pursuant to section 18D of the RDA, as the Comments were not published reasonably and in good faith.

 

Section 18C(1)(a) – Were the Comments reasonably likely to offend, insult, humiliate or intimidate?

 

The Court held that the Comments contained imputations including that, the five indigenous Australian boys involved in the motor vehicle accident:

 

  • learned to start stolen cars due to the “criminal histories” of their families;
  • were “criminal trash”;
  • were “scum” and should be used “as landfill”; and
  • had hopeless mothers who should not have been allowed to breed.

 

In considering whether News had contravened section 18C, Justice Barker assessed whether the Comments were reasonably likely, in all the circumstances, to cause offence to a reasonable member of the class of persons who was isolated by the Comments. His Honour defined the relevant class of persons as the local adult Aboriginal community, including parents and carers of children (the “Relevant Class”). His Honour did not explain how the “local” element of the Relevant Class was to be construed (eg by town, region or State). His Honour defined the Relevant Class broadly in order to include persons who were likely to be offended by the Comments, but not so narrowly so as to invite consideration of the subjective or emotional concerns of a grieving parent (such as Ms Clarke). His Honour was of the opinion that defining the Relevant Class narrowly and adopting the perspective of a grieving parent, would be “too far removed” from the proper inquiry suggested by the authorities – that being an inquiry into whether the Relevant Class was likely to suffer “serious discriminatory effects” as a result of the publication of the Comments.

 

His Honour determined that the Comments were offensive within the meaning of section 18C(1)(a) because certain parts of the Comments were without rational basis and gratuitously insulting.

 

Section 18C(1)(b) – Were the Comments published because of the race of the Relevant Class?

 

Justice Barker found that News published the Comments because of the race of the Relevant Class. This was despite News’ contention that it was merely a conduit in publishing various comments written and submitted by its readers. His Honour held that a media outlet which publishes a comment in contravention of section 18C, and in circumstances where that comment has been moderated or vetted, will offend as much as if that comment had been published by the original author.

 

His Honour considered that if a comment was found to be reasonably likely to offend in all the circumstances, it should be inferred that one of the reasons for publication of the comment was because of the race of the Relevant Class. In order to satisfy the test under section 18C(1)(b) it is sufficient to establish that the race of the Relevant Class is one reason, as opposed to the only or dominant reason, for publication. His Honour held that the race of Ms Clarke and her children was one of the reasons for publication of the Comments by News.

 

Section 18D – Was the conduct of News exempted from unlawfulness?.

 

His Honour found that the Comments were not published reasonably and in good faith under section 18D because they were made without foundation or rational basis and departed from a legitimate discussion of issues of public concern raised in the articles, including juvenile crime and parental responsibility. His Honour also held that some of the Comments contained gratuitously insulting, abusive and offensive remarks such that they could not be considered reasonable under section 18D. In particular, his Honour described the comment which stated that the “scum” [the boys who had died in the car accident] should be used as “landfill”, was “so deeply offensive, insulting and humiliating” that it was “breathtaking.”

 

Declarations of contravention and orders made

 

On 4 April 2012, Justice Barker declared that News had contravened section 18C and ordered that it take down the Comments from its website and pay $12,000 in damages to Ms Clarke by way of compensation in addition to her legal costs. His Honour awarded compensation for the shame and humiliation suffered by Ms Clarke as a result of the publication of the Comments and the fact that she felt compelled to move interstate temporarily to avoid the opprobrium of her local community.

 

His Honour did not consider it appropriate for News to pay exemplary damages (if a power to award exemplary damages under the AHRC Act exists) because News had not adopted a “cavalier approach” to the publication of its readers’ comments and had a process in place to moderate comments which, although not “fool proof”, was applied with “a degree of seriousness”.

 

Lessons

 

  • Publishers should ensure that user-generated content (such as comments, posts or blogs) submitted by readers or users is not likely to contravene the RDA, by ensuring that effective processes for moderating objectionable content are in place. Objectionable content includes content which is gratuitously abusive or offensive, without foundation or bearing no rational relationship to the issues raised in the publication.
  • In the event that a publisher becomes aware that it has published objectionable user-generated content, or a complaint is received, it should consider whether such content should be taken down.

 

 

 For further information, please contact:

 

Sophie Dawson, Partner, Ashurst

sophie.dawson@ashurst.com

 

Paul Dimitriadis, Ashurst

paul.dimitriadis@ashurst.com

 

Susan Goodman, Ashurst

susan.goodman@ashurst.com

 

Ben Teeger, Ashurst

ben.teeger@ashurst.com

 

 

 

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