Content Regulation / Censorship, Hate Speech, Public Order, Religious Expression, Political Expression
Gündüz v. Turkey
Closed Mixed Outcome
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The Federal Court of Australia found that articles written by the First Respondent and published by the Second Respondent were reasonably likely to offend, insult, humiliate or intimidate the Applicants, and that the messages contained in the articles were motivated by the race, colour or ethnic origin of those people. The Court ordered the Second Respondent to publish a 500 word corrective notice next to the First Respondent’s column. Republication of the articles was restricted to “historical or archival purposes” and only where accompanied by the corrective notice.
Australian journalist Andrew Bolt published two articles in the Herald Weekly Times (HWT) alleging that fair-skinned people were “choosing to identify as Aboriginal” in order to gain career advantages. In response, Aboriginal activist Ms. Pat Eatock, along with 8 other applicants, filed a complaint against Bolt and HWT seeking an apology and an injunction against publication of the articles.
The Court reasoned that the articles contravened the racial vilification provisions of Section 18C of the Racial Discrimination Act and because they contained erroneous facts, distortions of the truth and inflammatory and provocative language, they failed to meet the “good faith” requirement needed to satisfy the exception to Section 18D that applies to fair comment on a matter pf public interest.
In 2009, Andrew Bolt published two articles in the HWT criticizing what he called a “trend” of Australian people identifying themselves as aboriginal. The articles were entitled “It’s So Hip to be Black” and “White Fellas in the Black”; they alleged that fair-skinned people were “choosing to identify as Aboriginal” in order to gain career advantages. In response, Aboriginal activist Ms. Pat Eatock, along with 8 other applicants, filed a complaint against Bolt and HWT seeking an apology and an injunction against publication of the articles with the Federal Court of Australia.
Bolt and HWT admitted that each of the 9 individuals in the complaint were of Aboriginal descent and that each person had genuinely self-identified as an Aboriginal person ever since childhood. The Applicants agreed that each of them had fairer rather than darker skin color. Eatock argued that the articles breached Section 18C of Australia’s Racial Discrimination Act (RDA) because they conveyed offensive messages about Aboriginal people who have fairer skin. Section 18C RDA states:
(1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour, or national or ethnic origin of the other person or of some or all of the people in the group.
Bolt disputed the validity of Eatock’s claims, arguing that the articles did not necessarily convey the message claimed. However, in the event that the Court found that the Articles did satisfy the Section 18C RDA test, Bolt argued that the articles fell under the exception in Sections 18D(b) and (c) RDA. Those Sections state:
Section 18C does not render unlawful anything said or done reasonably and in good faith: […] (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing […] (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Judge Mordecai Bromberg delivered the judgment of the Court.
In reaching his decision Judge Bromberg reviewed international case law and conventions as well as national jurisprudence. He held that Bolt and the HWT contravened the racial vilification provisions of Section 18C RDA. Some of the messages which were conveyed in the HWT articles were reasonably likely to offend, insult, humiliate or intimidate the claimants, and the messages of the articles were motivated by the race, colour or ethnic origin of those people.
Further, Judge Bromberg was not satisfied that the conduct of Bolt was excused by the exceptions listed in Section 18D RDA. The articles contained erroneous facts, distortions of the truth and inflammatory and provocative language, which indicated that the “good faith” requirement of Section 18D was not met.
Accordingly, on 19 October 2011, Judge Bromberg ordered HWT to publish a 500 word corrective notice next to Bolt’s column. Republication of the articles was restricted to “historical or archival purposes” and only where accompanied by the corrective notice.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome in relation to Freedom of Expression. While suppressing the publishers’ expression by imposing an injunction against further distribution of the offending articles, it protects the political expression of lighter-skinned Aboriginal Australians by restricting the ability of the publishers to distribute false or misleading information that undermines their political voice.
The Court in reaching its decision referred to the analogy with defamation law principles and the case is correspondingly in line with global trends in defamation which generally find suppression of certain messages permissible if those messages are motivated by racism, inaccurate, or misleading.
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.
Australia is a common law country. The Federal Court of Australia is a trial court of first instance, and as such, this decision is binding within the court’s jurisdiction unless an appellate court vacates the decision.
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