Burns v Sunol [2016] NSWCATAD 81

Burns v Sunol [2016] NSWCATAD 81

The respondent was responsible for the publication of material on his own website, which constituted a 'public act' under s 49ZS(a) of the Act. The material posted on 20 May 2015 had the capacity to incite hatred and serious contempt for homosexual men on the ground of their homosexuality and therefore contravened s 49ZT(1). However, simply posting a hyperlink to a third party website, without an express or implied invitation or encouragement to view the linked material, does not amount to a relevant 'public act' under the Act. The context of the post containing the hyperlink did not amount to such an invitation, direction, or encouragement and so the respondent was not liable for the...

Jurisdiction
Australia
Judgment Date
29 April 2016
Procedural Posture
Complaint for Homosexual Vilification Under Anti Discrimination Act 1977 (nsw) / Merits Hearing and Final Decision
Outcome
Complaint 1 substantiated; Complaint 2 dismissed
Legal Topics
['homosexual Vilification' 'meaning of Public Act' 'online Publication' 'liability for Third Party Website Links']
['anti Discrimination Law' 'equal Opportunity Law'] ['homosexual Vilification' 'meaning of Public Act' 'online Publication' 'liability for Third Party Website Links']

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Procedural Posture

Complaint for Homosexual Vilification Under Anti Discrimination Act 1977 (nsw) / Merits Hearing and Final Decision

Legal Issues

  1. 1 ['Whether communication of material on a website was a public act of the alleged vilifier under s 49ZS(a) of the Anti-Discrimination Act 1977 (NSW)' 'Whether published material had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons on the ground of homosexuality' 'Whether communication of content on a third party website via a hyperlink constitutes a public act of the respondent']

Ratio Decidendi

The respondent was responsible for the publication of material on his own website, which constituted a 'public act' under s 49ZS(a) of the Act. The material posted on 20 May 2015 had the capacity to incite hatred and serious contempt for homosexual men on the ground of their homosexuality and therefore contravened s 49ZT(1). However, simply posting a hyperlink to a third party website, without an express or implied invitation or encouragement to view the linked material, does not amount to a relevant 'public act' under the Act. The context of the post containing the hyperlink did not amount to such an invitation, direction, or encouragement and so the respondent was not liable for the...

Court Disposition

Complaint 1 substantiated; Complaint 2 dismissed

Orders

  • ['Complaint 1 is substantiated.' 'Complaint 2 is dismissed.' 'No further orders made under s 108(2) of the Anti-Discrimination Act 1977 (NSW).']