Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The New South Wales Civil and Administrative Tribunal ordered a blogger to pay Aus $2500 for breach of orders prohibiting him from publishing online blog posts vilifying Gary Burns, a homosexual man, under Australia’s Anti-Discrimination Act 1977 (AD Act).
Gary Burns brought a case against John Sunol for breaching Australia’s AD Act through publications on Sunol’s blog. Sunol had published eleven pieces making allegations against Burns, accusing him of being a child sex abuser and a “lying faggot” and making other derogatory and defamatory comments. Burns made several complaints against Sunol for vilification and victimization, and the Administrative Decisions Tribunal ruled that Sunol was to apologize, remove the offending material, and refrain from posting further material. However, Burns subsequently alleged that Sunol had failed to comply with these orders.
The AD Act makes it unlawful to publicly vilify a person based on homosexuality. The New South Wales Civil and Administrative Tribunal, which has jurisdiction to hear complaints under the AD Act (jurisdiction formerly given to the Administrative Decisions Tribunal), noted that there was an important balance to be struck between vilification actions and freedom of expression. The Tribunal put forth three questions to decide whether a matter has breached the AD Act: “(1) What is the relevant act and is that act a ‘public act’?; (2) Does that act incite serious hatred towards, serious contempt for or severe ridicule of a person or group of people?; [and] (3) Is the incitement on the ground of the homosexuality of the person or members of the group?”
In regards to the second question the Tribunal laid out the following principles:
“1) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.
2) It is not necessary for a contravention that a person actually be incited. The test is an objective one.
3) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must have the capacity or effect of inciting such emotions in an ordinary member of the class to whom it is directed.
4) If there is specific evidence about the audience, it will be necessary to make a finding of fact as to the nature of the audience to whom the public act is directed.
5) It will also be necessary to consider whether the public act would reach the mind of an ordinary member of that audience as something that would encourage the requisite emotion.”
The Tribunal found that Sonol had committed a public act by posting discriminatory posts on the Internet. Although the Tribunal found two of the publications were not public acts, it moved forward with the remaining publications on the second question and found that the statements in several of the publications constituted homosexual vilification within the meaning of the AD Act (the first, third, seventh, ninth, and tenth publications).
Burns had to establish detriment based on Sonol’s actions in order to prove victimization. This is an objective test based on the reasonable person standard. The Tribunal found that Burns met this burden: Burns asserted that he already suffered from Post Traumatic Stress Disorder due to having been the victim of several hate crime attacks years earlier, and the Tribunal found that Sonol’s repeated publications and refusal to comply with the former tribunal’s orders “caused him to be re-traumatised.” The Tribunal ruled that Sonol had to remove all the offending material and refrain from publishing similar material, publish an apology on his website, and pay Burns damages in the amount of Aus $2500.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome because, although it contracts expression by requiring Sunol to remove the offending posts, the Tribunal attempted to balance the rights granted by virtue of the freedom of speech with the personal rights afforded under the AD Act.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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