Australia’s Legal Obligation to Remove Online Hate Speech

With the constant developing nature of the internet, the opportunity for hate and illegal speech continues to be present in online social communities. In this instance, illegal hate speech is defined by European law as any utterance which holds the intention of inciting violence or intimidating, insulting or harassing a person or groups of persons on the basis of characteristics such as race, religion, ethnic origin or colour (Brugger, 2002, p.22). The evaluation of the German constitutional law and the European union’s decision to rapidly remove illegal hate speech online has been reviewed as a means to inform as to whether Australia is obliged adopt similar stances towards online moderation. It has been suggested through review that history has had a strong impact on legal frameworks surrounding such issues, specifically in Germany. However, through evaluation and assessment of Australian law, it is concluded that Australia obtains little legal obligation to remove illegal hate-speech on the internet due to its lack of governance over the internet. 

The concept of the internet acting as a medium free of regulation and censorship may be a desirable and appealing principle however, tends not to be the case in many instances. Germany’s approach to freedom of expression is similar to that of countries like Canada and the United States, with Article 5 of the constitution stating that all people have the right to freely disseminate verbal or written opinions without censorship (Fogo-Schensul, 1998, p.267). However, the article specifically states that rights are subject to being restricted due to statutory limitations for the respect of citizens (Fogo-Schensul, 1998, p.268). Hate speech has become increasingly prevalent, so much so that illegal hate speech has been embedded in Germany’s criminal code and is punishable under German constitutional law (Timofeeva, 2017, p.255). Hate speech is assigned as ‘low value speech’ that is often if not always reflective of or motivated by hatred (Brugger, 2002, p.2).  The German law therefore concludes that hate-filled speech demands no free-speech protection as the protected interest by law is that of individual or collective honour, reputation or dignity (Brugger, 2002, p.9). 

The Netzwerkdurchsetzungsgesets (NetzDG) law, whereby social media sites in Germany are demanded to rapidly remove hate speech, illegal material and fake news, was passed in 2017 (Echikson & Knodt, 2018, p.3). Prior to the NetzDG passing, social media websites failed to remove appropriate numbers of hate-speech instances due to the principle that removal could only occur should there be a user report that notifies the site of inappropriate or unlawful content (Echikson & Knodt, 2018, p.4). Therefore, the law was passed as a tactic to increase the modes of report to aid in the rapid detection and removal of racist material and fake news spreading through German media (Echikson & Knodt, 2018, p.2). The most prominent hate motives on the internet in Germany include concepts or themes of white supremacy or discrimination against Jews or people of colour, however, holocaust denial or revisionism and neo-nazism are deemed the most pervasive and legally punishable (Fogo-Schensul, 1998, p.242). Holocaust denial entails partaking in expressive activity that utilises supposed academic theory to conclude that there was no Holocaust occurrence (Fogo-Schensul, 1998. p.243). Germany’s sensitivity to denial instances increased as a result of reunification sparking neo-Nazi youth culture, and the easily accessible nature of social media allowed rapid dissemination of neo-Nazi beliefs that were difficult to counter (Echikson & Knodt, 2018, p.7). In stating this, Jewish citizens of Germany are commonly vilified as a result of revisionist thinking (Fogo-Schensul, 1998, p.244). Germany’s stance towards online hate speech activity therefore stemmed from its desire to create an alternative identity that separated itself from its past. Germany therefore is obligated to remove any online hate-speech not only to protect its new formed identity, but to protect the dignity of victimised citizens whom are deeply affected by the denial of one of the cruelest atrocities of Germany’s reality.

Similar stances have been taken throughout Europe. In May 2016, the European Commissioner for Justice presented Twitter, Microsoft and Facebook a code of conduct which would be enabled to counter illegal hate speech online (European Commission, 2016, p.1). The code proposes that the IT companies obtain the commitments of creating effective removal processes of illegal hate speech in less than 24 hours (European Commission, 2016, p.2). In order to assess the code’s methodology utility, a study whereby 12 organisations in the European Union reviewed 600 sample notifications and flagged hate speech where appropriate, was conducted (European Commission, 2016, p.1). The study uncovered that the majority of flagged hate speech belonged to social media websites, with 45% of flagged hate speech present on Facebook, and 27% on Twitter (European Commission, 2016, p.2). Data collated that the success rate of the new policy was high, with Facebook and Twitter successfully removing 92% of hate speech within 24 hours (European Commission, 2016, p.2). 

When considering whether Australia should adopt similar stances towards hate speech as Germany and the European union, it is required to take into account inherent unique features of Australian context (Gelber & Stone, 2018, p.2). The Australian government’s (2019) International Covenant on Civil and Political Rights states the current view that the right to freedom of expression entails the right to hold unobstructed and unrestricted opinions. This right extends to both oral and written forms of communication, including media and broadcasting (Australian Government, 2019). Article 19(2) of the ICCPR (International Covenant on Civil and Political Rights) identifies the protection of freedom of expression in any written or oral communication on any medium. Australian law currently holds the capability of limiting freedom of expression if necessary for protection of national security, public health and morality (Australian Government, 2019). Through analysis of Australia’s criminal code, it is additionally apparent that anti-vilification laws exist and enable the possibility of persecution should online vilification occur (Gelber & Stone, 2018, p.5). However, Australia’s enforcement of these legal frameworks is relatively weak, with there being only one case where a man from Western Australia was criminally persecuted (Gelber & Stone, 2018, p.8). Dissimilarly to Germany, in order to be punished under criminal provisions, the offence tends to require a public act of ridicule which is capable of escalating to threatening physical harm to a person or groups of persons or property (Gelber & Stone, 2018, p.9). Restrictions are therefore, implemented no more than is necessary in order to abide by Australia’s stance on freedom of speech. In terms of public morality, the Human Rights Committee underlines that the absence of a standard that is universally applicable does not subject Australian’s to prohibition of online material (Australian Government, 2019). Therefore, the provided information indicates that Australia’s stance toward online hate speech is relatively neutral. 

Aligning with the findings, it can be argued that Australia should adopt a similar policy of limiting hate-speech and inappropriate content to Europe due to the idea that its existing frameworks are unsubstantial in protecting the dignity of social groups. Social media websites such as Reddit, a widely used social networking platform in Australia, is identified as a breeding ground for ‘toxic technocultures’ and discrimination towards women and minority groups. Reddit’s administrators appear to be lenient with published content, presumably to encourage a sense of candor (Massanari, 2015, as cited in Massanari, 2017, p. 332). However, this content is highly demonstrative of the systematic online abuse or vilification of persons or groups of persons that occur as a result of unrestricted speech.  

However, Barlow (1996) highlights some facts which suggest that Australia has no legal obligation to regulate the internet, including social media, in any way. Barlow suggests that politically, the government obtain no moral right or legality to censor or enforce internet content due to the idea that legal concepts cannot be applied to non-matter (Barlow, 1996). Aligning with Abbate (2017), the internet is a constructed virtual space that facilitates free interaction between social groups. Therefore, a user should be able to govern the space without restriction. 

Therefore, it can be suggested that it is not Australia’s legal obligation to remove content from social media platforms. Germany adopts a strong stance due to its obligation to protect those harmed by the country’s history. It can be suggested that social media platforms themselves should hold the responsibility of moderation. Currently, inappropriately deemed material is archived or even removed from Facebook rapidly (Gillespie, 2018). However, difficulties in moderation arise considering the lack of clarity surrounding appropriate standards. Facebook therefore, has its limitations in moderation and needs to address guidelines in order to be more productive in assessment (Gillespie, 2018).

Considering the Australian government have already identified the lack of universally applicable law, it is therefore concluded that Australia’s legal obligation remains to protect freedom of speech amongst its citizens. 

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