“I disapprove of what you say, but I will defend to the death your right to say it” (Evelyn Beatrice Hall, biographer of Voltaire)
Disapproving of what someone says but defending their right to say it is sometimes very hard. It sounds fine in principle…until you see something that is really challenging to your ideas of what is acceptable.
The Sydney Morning Herald reports today:
The Australian Human Rights Commission has threatened legal action against a widely read but controversial US-based website over an article that encourages racial hatred against Aborigines.
But online users’ lobby group Electronic Frontiers Australia said that trying to stamp out the deplorable content would only create the “Streisand” effect, whereby an attempt to censor online content only brings more attention to it.
In a letter to Joseph Evers, the owner of Encyclopedia Dramatica (ED) – a more shocking version of Wikipedia that contains racist and other offensive articles dubbed as “satire” – the commission said it had received 20 complaints from Aborigines over the “Aboriginal” page on the site.
(AHRC’s letter to Evers is reproduced here)
Evers’ site is an American site published on an American server, and thus he alleged that Australian law could not affect his publication. In response, AHRC cites the Gutnick case, in which Joe Gutnick was allowed to sue for defamation in Victoria although the defamatory material in question was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria. I do wonder how applicable the principle in the Gutnick case is to something like internet hate speech.
The Encyclopaedia Dramatica article on Aborigines has been the subject of legal action before. In January this year, in response to a complaint by an indigenous man, Steve Hodder-Watt, Google removed the link to the site in google.com.au in respect of results for a search with the words “Aboriginal and Encyclopedia”. However, as The Inquisitur notes, the site still comes up with different search combinations, and it still comes up in google.com. Apparently the site also had the distinction of being on the Federal Government’s Internet censorship list.
So I went and looked at ED. Naturally enough, I didn’t much like what I saw. Apparently it is intended to produce “lulz” via trolling. Lulz is often used to denote laughter at someone who is the victim of a prank or to show joy at disrupting another’s emotional equilibrium. I’ve never been much of a fan of that kind of “humour” anyway (too cruel). I found the few pages of ED at which I looked offensive and very unpleasant. It was not in the least funny, to me at least. I’m not going to link to it here because I don’t want to give it publicity. The post on Aborigines claims:
This article was written entirely by Australian aborigines who are satirizing racists in Australia in the same way that Sacha Baron Cohen, a jew, uses the character Borat to satirize anti-semitism. So this article is completely 100% not racist at all.
Evers has written a blog post commenting on the AHRC’s claim:
So here’s the deal. This is an initial investigation into charging me, personally, with the violation of Australia’s Racial Discrimination Act. While I act in complete compliance with both the civil and criminal codes of the United States of America, and am assured the right of free speech according to our Constitution (which, if not the greatest political document in the entire history of law, is certainly on the top five) I can personally be jailed and fined for the violation of this law. Check out the court precedent they cite, Dow Jones & Co Inc v Gutnick, where a United States paper had to pay 580k for publishing an article about a globalized company headquartered in Australia and its CEO whilst completely in compliance with United States civil precedence. This isn’t a far-fetched legal theory, they have used it before. Welcome to the one world government, folks. Is this what you wanted? Is this what you had in mind? Cause this is what you’re gettin’.
Encyclopedia Dramatica will never be censored in any way. We will keep publishing this content and our Australian users will be able to view it up until the point that your God-forsaken government blocks it with their soon-to-be-implemented secret list of banned material. ACMA’s child pornography blacklist is only one half child pornography. The rest is religious and political speech. You really want Soviet-style communism as your future? I know some people that had to escape from the GDR. Many of your children will be in that position. The house of cards is about to come down, and they’re making sure your mouths are taped shut first. Don’t say I didn’t warn you.
My counsel has advised me that I can never under any circumstances visit my family in Sydney again, nor otherwise make any appearances on Australian soil. Here’s to the hidden cost of freedom.
There is also an interview with a moderator from ED here.
I very much doubt that the AHRC’s claim could be enforced in the US. In 2001, a French court order sought to ban sales of Nazi-related material on Yahoo’s US-based auction site. The court ordered Yahoo to block French citizens from accessing auction listings or Web pages on its site that contained anti-Semitic or Nazi-related material. The US Federal Court said:
Although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.
Colin Jacobs, spokesman for Electronic Frontiers Australia, said the article was “indefensible” but continued:
“EFA doesn’t believe that because something is on the internet it should be immune from critical examination or legal redress. Defamation and anti-hate-speech laws have a place even when applied to online content.” …
“[But] a costly and lengthy legal battle would only give these guys more publicity, and the day the case was won, the page would pop up on a web host in another country. Trying to stamp out this fire will just cause it to spread.”
This reminds me of both the recent defamation case filed by Lindsay Lohan against E*Trade for US$100M (after an E*Trade commercial featured a “milkaholic” baby named Lindsay) or the Liskula Cohen “Skank NYC” case (post here). In the end, I doubt I would have known about either piece of defamation if Lohan or Cohen had not sued for defamation.
Similarly, by bringing the action here, the AHRC may have actually given this site a massive burst of publicity it would not have otherwise had. It’s highly unlikely that I would have ever come across ED or any of its articles without the publicity garnered by this claim, and even more unlikely that I would have lingered for more than 5 milliseconds once I realised what the site was like.
As I learned today via the SMH article, there’s a name for this phenomenon which is primarily seen in online media: the “Streisand effect“.The term was coined after Barbra Streisand unsuccessfully attempted to sue photographers for US$50M in an attempt to have an aerial photograph of her mansion removed from the publicly available collection of 12,000 California coastline photographs, citing privacy concerns. As a result of the case, public knowledge of the picture increased substantially and it became popular on the Internet, with more than 420,000 people visiting the site over the next month.
It’s already happened with Hodder-Watt’s claim – when I plug in “Aboriginal and Encyclopedia” into Google, many of the sites which come up now reference ED and Hodder-Watt’s legal action against it.
So ultimately, although ED is very distasteful and offensive, I wonder if it would have been better to leave it alone rather than give it airtime by bringing legal action.
(Hat-tip: Heath Gibson who has a new blog, Minimal State)