Regional Overviews
169
submits any such material not already classified
to the Office of Film and Literature Classification
for a ruling. 26 This office then classifies the material as “unrestricted,” “objectionable,” or “objectionable” except in certain circumstances of
restricted access or for “educational, professional, scientific, literary, artistic, or technical purposes.” 27
Unlike in Australia, however, there is no
explicit legal mechanism for the take-down of
objectionable material. Instead, the nonprofit
InternetNZ is in the process of establishing an
industrywide code of conduct that would require
its signers to agree not to host illegal content. 28
As a result, the government focuses its efforts on
prosecuting the distributors or possessors. The
Films, Videos, and Publications Classifications
Amendment Act 2005 sets the penalty for distributing objectionable material at a maximum of ten
years in prison (up from a maximum of one year)
and for knowingly possessing objectionable
materials at a maximum of five years in prison or
a NZ$50,000 fine. 29 According to various
sources, the DIA has almost completely focused
its enforcement of Internet censorship on child
pornography. 30
Hate speech
Both Australia and New Zealand have legislation
addressing hate speech generally, and both have
applied this legislation to the Internet through different means. New Zealand, however, has an
institutionalized investigation system, while
Australia does not.
Australia addresses hate speech through
the Racial Discrimination Act 1975, which makes
it “unlawful for a person to do an act, otherwise
than in private, if: the act is reasonably likely, in all
the circumstances, to offend, insult, humiliate or
intimidate 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.” 31
Australian courts applied this law to the
Internet for the first time in October 2002 in the
Jones v. Toben case. Jeremy Jones and the
Executive Council of Australian Jewry brought a
lawsuit against Frederick Toben, the director of
the Adelaide Institute, because of material on
Toben’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 §18C
of the Racial Discimination Act 1975 (quoted
above) and called for the material to be removed
from the Internet. 32
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. 33 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). 34 This may be indicative of a new
notice-based system taking form.
New Zealand, on the other hand, has both
explicit prohibition of discrimination based on
race, religion, age, disability, sexual orientation,
and so on in §21(1) of the Human Rights Act
1993, 35 as well as 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 §21(1) of the
169
submits any such material not already classified
to the Office of Film and Literature Classification
for a ruling. 26 This office then classifies the material as “unrestricted,” “objectionable,” or “objectionable” except in certain circumstances of
restricted access or for “educational, professional, scientific, literary, artistic, or technical purposes.” 27
Unlike in Australia, however, there is no
explicit legal mechanism for the take-down of
objectionable material. Instead, the nonprofit
InternetNZ is in the process of establishing an
industrywide code of conduct that would require
its signers to agree not to host illegal content. 28
As a result, the government focuses its efforts on
prosecuting the distributors or possessors. The
Films, Videos, and Publications Classifications
Amendment Act 2005 sets the penalty for distributing objectionable material at a maximum of ten
years in prison (up from a maximum of one year)
and for knowingly possessing objectionable
materials at a maximum of five years in prison or
a NZ$50,000 fine. 29 According to various
sources, the DIA has almost completely focused
its enforcement of Internet censorship on child
pornography. 30
Hate speech
Both Australia and New Zealand have legislation
addressing hate speech generally, and both have
applied this legislation to the Internet through different means. New Zealand, however, has an
institutionalized investigation system, while
Australia does not.
Australia addresses hate speech through
the Racial Discrimination Act 1975, which makes
it “unlawful for a person to do an act, otherwise
than in private, if: the act is reasonably likely, in all
the circumstances, to offend, insult, humiliate or
intimidate 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.” 31
Australian courts applied this law to the
Internet for the first time in October 2002 in the
Jones v. Toben case. Jeremy Jones and the
Executive Council of Australian Jewry brought a
lawsuit against Frederick Toben, the director of
the Adelaide Institute, because of material on
Toben’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 §18C
of the Racial Discimination Act 1975 (quoted
above) and called for the material to be removed
from the Internet. 32
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. 33 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). 34 This may be indicative of a new
notice-based system taking form.
New Zealand, on the other hand, has both
explicit prohibition of discrimination based on
race, religion, age, disability, sexual orientation,
and so on in §21(1) of the Human Rights Act
1993, 35 as well as 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 §21(1) of the