another person or a group of people; and 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.’’ 41
Australian courts applied this law to the Internet for the first time in October 2002
in the Jones v. To ¨ben case. Jeremy Jones and the Executive Council of Australian Jewry
brought a lawsuit against Frederick To ¨ben, the director of the Adelaide Institute, because of material on To ¨ben’s Web site (www.adelaideinstitute.org) that denied the
Holocaust. The Federal Court, ruling that publication on the Internet without password protection is a ‘‘public act,’’ found that posting this material online was in direct
violation of Section 18C of the Racial Discrimination Act 1975 (quoted earlier) and
called for the material to be removed from the Internet. 42
Australia does not, however, give the ACMA authority to investigate complaints or
issue takedown notices for hateful or racist materials online, even if they would be illegal under the Racial Discrimination Act 1975. 43 Schedule 5 of the Broadcast Services
Act 1992 gives the ACMA authority only over materials deemed ‘‘offensive’’ within
the classification scheme described earlier. As a result, there appears to be no venue
other than the courts in which to pursue complaints about hateful or racist materials
online. However, Chilling Effects reports that Google received notice on May 5, 2006,
of a site in its search results that ‘‘allegedly violates section 18C of the Racial Discrimination Act 1975’’ and removed it from the Google Australia site (www.google.com.au). 44
This action may be indicative of a new notice-based system taking form.
New Zealand, in contrast, has both explicit prohibition of discrimination based on
race, religion, age, disability, and sexual orientation in Section 21(1) of the Human
Rights Act 1993 45 and explicit prohibition of the publication of material that ‘‘represents (whether directly or by implication) that members of any particular class of the
public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of
discrimination specified in Section 21(1) of the Human Rights Act 1993’’ 46 in Section
3e of the Films, Videos, and Publication Classifications Act 1993. The DIA uses these
statutes to pursue investigations into potentially discriminatory material.
Copyright
Australia’s copyright laws underwent a significant overhaul following the acceptance
of the Australia–United States Free Trade Agreement in 2004. Pursuant to that agreement, Australia was required to bring its copyright laws closer in line with those of
the United States. 47 Some of the relevant requirements included the following:
1. Agreeing to World Intellectual Property Organization (WIPO) Internet treaties.
2. Implementing an ‘‘expeditious’’ takedown system of copyright-infringing materials.
396
Australia and New Zealand Overview
national or ethnic origin of the other person, or of some or all of the people in the
group.’’ 41
Australian courts applied this law to the Internet for the first time in October 2002
in the Jones v. To ¨ben case. Jeremy Jones and the Executive Council of Australian Jewry
brought a lawsuit against Frederick To ¨ben, the director of the Adelaide Institute, because of material on To ¨ben’s Web site (www.adelaideinstitute.org) that denied the
Holocaust. The Federal Court, ruling that publication on the Internet without password protection is a ‘‘public act,’’ found that posting this material online was in direct
violation of Section 18C of the Racial Discrimination Act 1975 (quoted earlier) and
called for the material to be removed from the Internet. 42
Australia does not, however, give the ACMA authority to investigate complaints or
issue takedown notices for hateful or racist materials online, even if they would be illegal under the Racial Discrimination Act 1975. 43 Schedule 5 of the Broadcast Services
Act 1992 gives the ACMA authority only over materials deemed ‘‘offensive’’ within
the classification scheme described earlier. As a result, there appears to be no venue
other than the courts in which to pursue complaints about hateful or racist materials
online. However, Chilling Effects reports that Google received notice on May 5, 2006,
of a site in its search results that ‘‘allegedly violates section 18C of the Racial Discrimination Act 1975’’ and removed it from the Google Australia site (www.google.com.au). 44
This action may be indicative of a new notice-based system taking form.
New Zealand, in contrast, has both explicit prohibition of discrimination based on
race, religion, age, disability, and sexual orientation in Section 21(1) of the Human
Rights Act 1993 45 and explicit prohibition of the publication of material that ‘‘represents (whether directly or by implication) that members of any particular class of the
public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of
discrimination specified in Section 21(1) of the Human Rights Act 1993’’ 46 in Section
3e of the Films, Videos, and Publication Classifications Act 1993. The DIA uses these
statutes to pursue investigations into potentially discriminatory material.
Copyright
Australia’s copyright laws underwent a significant overhaul following the acceptance
of the Australia–United States Free Trade Agreement in 2004. Pursuant to that agreement, Australia was required to bring its copyright laws closer in line with those of
the United States. 47 Some of the relevant requirements included the following:
1. Agreeing to World Intellectual Property Organization (WIPO) Internet treaties.
2. Implementing an ‘‘expeditious’’ takedown system of copyright-infringing materials.
396
Australia and New Zealand Overview