A senior solicitor involved in the successful Andrew Bolt racial discrimination case says US social networking giant Facebook has broken Australian law by hosting a controversial page dedicated to vilifying Aboriginal people.

Joel Zyngier, a senior associate with Holding Redlich, told Crikey this morning the site appears to be breach of section 18C of the Racial Discrimination Act that prohibits an act that “offend, insult, humiliate or intimidate another person or a group of people” on the grounds of race.

“Much if not all of the content on the page would be reasonably likely to do one or more of offend, insult, humiliate or intimidate an Aboriginal person,” Zyngier said.

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“Facebook Inc and the moderator of the Facebook page Aboriginal Memes (and even those who post on the site) may have contravened section 18C of the Racial Discrimination Act by publishing certain images and words on that page. It is clearly an intentional public communication made on the grounds of race.”

On Monday, opposition leader Tony Abbott said he would wind back 18C of the act, partially — it would appear — to placate Bolt and deal with instances of hatred separately under common law.

Crikey can also reveal the Australian Communications and Media Authority, which is responsible for regulating online content, is investigating the page after receiving a complaint. “The ACMA is currently investigating specific URLs that contain the online content you referred to after receiving a complaint yesterday,” an ACMA spokesperson said this morning.

ACMA, however, has little power to act because racially discriminatory material posted online, while unlawful, is not prohibited by the Broadcasting Services Act.

As Crikey‘s deadline approached, 4128 people had “liked” the page, with hundreds more “liking” the individual “memes” that make crass allusions to the use of alcohol, social welfare and petrol sniffing within the Aboriginal population.

These include people who claim to work for Consumer Affairs Victoria, two navy personnel (a boatswains mate and a leading marine seaman technician at the Royal Australian navy), an authorised representative at Combined Insurance Company of Australia, a utility worker at Action Industrial Catering, an employee of Dowerin DHS, and a Centrelink employee. All provide their names, photos and workplaces.

A spokesperson for Consumer Affairs Victoria told Crikey: “The Department of Justice is looking into allegations that a person identifying themselves as a Consumer Affairs Victoria employee ‘liked’ a racist Facebook page. The Department takes seriously any allegations that its staff have behaved inappropriately.

“All employees are expected to abide by the terms of the Department’s social media policy, which sets clear expectations and standards for staff. Staff are advised how to use social media responsibly and that their obligations are defined under the Victorian Public Service Code of Conduct.”

The page’s tagline now carries a “controversial humour” precede following initial complaints launched yesterday. Three individuals are credited with posting the images — Hunter Green, Kurt Christidis and Mitchel Warmington. One of the images is a lifted still from Werner Herzog’s 1984 film Where the Green Ants Dream.

It is a “serious violation” of Facebook’s Community Standards, “to attack a person based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or medical condition”. However, a query directed to the site’s central media unit asking when the page would be pulled from the web was not returned. A standard response sent to Facebook users who “reported” the page as in breach of the standards claimed it did not breach the guidelines.

Former Northern Territory deputy chief minister Marion Scrymgour said she complained to Facebook about the page and was told it did not breach their standards.

“I am Aboriginal and I know a number of my very good non-Aboriginal friends are just as appalled and offended by this,” she said (see comments below). “As Australians we should all be appalled at this sort of material that does nothing to continue the healing between black and white Australians.”

Australian legal precedents suggest Facebook could be in serious strife. In Creek v Cairns Post (2001) Justice Susan Kiefel found that two images accompanying a newspaper article — that juxtaposed a white couple at a house with a Aboriginal woman at a tribal gathering — were offensive to the plaintiff. The two parties were involved in a custody dispute and the pictures implied the indigenous woman was a less-able carer (the indigenous woman also lived in a house).

And in 2000 the Human Rights and Equal Opportunities Commission found Frederick Toben’s Adelaide Institute guilty of publishing material that was “vilificatory, bullying, insulting and offensive” towards the Jewish population on its website.

Zyngier told Crikey that even though Facebook was based in Mountain View, California “based on relevant case law, the publication is therefore arguably unlawful, even though the publisher is a US-based entity”. And the site — and the defendants could not rely on the public interest provisions of the act that modify 18C.

“I don’t think the defendants in such a case could rely on the defence under section 18D of the Racial Discrimination Act, that the publication of the content on the ‘Aboriginal Memes’ page was done reasonably and in good faith, in the course of a genuine purpose in the public interest,” Zyngier said.

Despite the alleged breach, Australian authorities have their hands partially tied when it comes to cyber racism. According to professor Andrew Jakubowicz from the University of Technology Sydney, hate speech is “unlawful but not illegal”.

“The reality is that ACMA won’t touch it and HREOC [now the Australian Human Rights Commission] is limited in what it can do,” Jakubowicz told Crikey. “In Australia we have essentially created a free fire zone on the internet.”

Calls for the page to be taken offline have escalated this morning. An online petition has been posted and a Make Facebook Shutdown Aboriginal Memes page has cropped up demanding it be junked.

UPDATE 3.50pm: An Australian PR contractor acting on behalf of Facebook has emailed to say it has “nothing to share at this time”.

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Peter Fray
Peter Fray
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