Online newspaper publisher liable for racial vilification in user generated content

Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012) Summary

Justice Barker in the Federal Court held that Nationwide News, the publisher of The Sunday Times newspaper in Perth, was liable under section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for comments posted by readers underneath articles in the online version of the paper, which amounted to racial vilification.

The Court made declarations of contravention and ordered Nationwide News to remove the comments from its website and pay the applicant damages of $15,600.

Facts

Natalie Clarke is an Aboriginal woman and the mother of three boys aged 15, 11 and 10 who were killed in a motor vehicle accident on 27 June 2008. One of the boys’ cousins aged 17 was also killed in the accident. A fifth teenage boy survived the accident.

On 29 June 2008, The Sunday Times published an article about Ms Clarke’s deceased sons and their cousin. Further articles were published by Nationwide News on its website PerthNow in relation to the same incident on seven other occasions.

Nationwide News invited readers to make comments about the online articles. Comments were reviewed by journalists employed by Nationwide News and, if approved by them for publication, appeared on the website underneath the articles. Ms Clarke complained that 16 comments made by members of the public amounted to racial vilification in breach of section 18C of the RDA. The Court upheld her claim in relation to four of these comments.

Decision

The act of publishing a comment will contravene section 18C 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 some or all of the people in the group.

The second aspect is particularly important when considering the liability of publishers for content published by them.

In the case of Eatock v Bolt [2011] FCA 1103, decided in September 2011, Justice Bromberg found that the publisher of the Herald Sun newspaper in Melbourne was liable under section 18C for publishing two articles by one of its journalists which suggested that certain “fair-skinned Aboriginal people” were not genuinely Aboriginal and had falsely identified as Aboriginal because they were motivated by career opportunities available to Aboriginal people or by political activism.

Justice Bromberg held that where a publisher of an article is aware that the author’s motivation includes the race, colour, national or ethnic origin of the people the article deals with, then the act of publication (as an act in aid of the dissemination of the author’s intent) was done because of the racial or other attributes that motivated the author.

The Clarke case was different in that the comments complained of were not in the articles published by Nationwide News or written by its journalists, but were comments by readers published underneath the articles.

Justice Barker held that where a publisher actively solicits and moderates contributions from readers before publishing them, and reserves the right not to publish or to modify them, the potential for a finding of contravention of section 18C is real. In such circumstances, it will be no defence for the publisher to say: “But we only published what the reader sent us”.

On the question of whether the publication was done “because of” race, his Honour took into account the fact that the comments were objectively offensive because of race and the fact that the comments were moderated prior to publication. In such circumstances, unless the respondent can establish that a comment was reasonably published, his Honour held that the Court should infer that one of the reasons for the publication of the comment was race.

There are a number of exemptions to section 18C in section 18D, for example for things done reasonably and in good faith in the course of a discussion or debate held for any genuine purpose in the public interest. These exemptions were not found to apply, principally because the publication of the relevant comments was found not to be reasonable.

Commentary

The decision emphasises the role of the newspaper publisher in actively soliciting and moderating content prior to publication. In those circumstances, the publisher has a responsibility to ensure that what is published does not amount to racial vilification.

One possible objection to this result is it may have the perverse incentive of encouraging publishers not to pre-moderate content in order to avoid the potential for liability.

However, there are good reasons to think that such a criticism may be overstated. First, many publishers choose to pre-moderate for a range of reasons that are not related to potential liability under section 18C. This includes potential liability under defamation and other statutory restrictions on certain types of publications. Secondly, the actions of Nationwide News in this case in moderating comments (albeit imperfectly) was a relevant factor in considering whether exemplary damages would be awarded.

Justice Barker considered that it was an open question whether exemplary damages could be awarded under the Australian Human Rights Commission Act 1986 (Cth). However, assuming the Court had the power to award them, his Honour was not satisfied that exemplary damages were appropriate in this case.

In particular, his Honour noted that Nationwide News endeavoured to moderate comments before they were published to avoid precisely this kind of claim being brought. Evidence tendered by Nationwide News showed a range of comments that had been culled by moderators and never published. Significantly, Justice Barker considered that Nationwide News had not adopted a “cavalier approach” to the publication of readers’ comments.

In these circumstances, there still seems to be good reasons for publishers to:

• pre-monitor user generated content before it is published;
• prevent the publication of comments that would be in breach of section 18C; and
• promptly take down any comments that are published which would be in breach of section 18C as soon as the publisher is aware of them, particularly if there is a complaint about such comments.

The decision can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2012/307.html

Graeme Edgerton is a Senior Lawyer at the Australian Human Rights Commission. The Commission intervened in this proceeding.