Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512

Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512

The second respondent contravened Pt IIA, s 18C because he published the messages on a publicly accessible website, the messages imputed negative monetary characteristics to the applicant by reason of his Jewish ethnicity and were reasonably likely to offend and insult the applicant or other Jewish persons, and the applicant's Jewish race and ethnicity was a reason for publishing the messages in that form; intention to discriminate was not necessary and s 18D did not apply. Although the first respondent's failure to remove offensive material within a reasonable time was an act capable of falling within s 18C(1)(a), the evidence did not establish that its failure to remove the material was...

Jurisdiction
Australia
Judgment Date
02 October 2007
Procedural Posture
Application Under S 46 PO of the Human Rights and Equal Opportunity Commission Act 1986 (cth) Alleging Breach of S 18 C of the Racial Discrimination Act 1975 (cth) / Final Judgment After Termination of Complaint by the Human Rights and Equal Opportunity Commission
Outcome
Application allowed against the second respondent; proceeding against the first respondent dismissed.
Legal Topics
['offensive Behaviour Because of Race, Colour or National or Ethnic Origin' 'racial Vilification on an Internet Discussion Forum' 'website Operator Liability for User Generated Content' 'publication on the World Wide Web' 'failure to Remove Offensive Material' 'exemptions Under S 18 D of the Racial Discrimination Act 1975 (cth)']
['racial Discrimination' 'human Rights' 'internet Publication'] ['offensive Behaviour Because of Race, Colour or National or Ethnic Origin' 'racial Vilification on an Internet Discussion Forum' 'website Operator Liability for User Generated Content' 'publication on the World Wide Web' 'failure to Remove Offensive Material' 'exemptions Under S 18 D of the Racial Discrimination Act 1975 (cth)']

Case Brief

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Procedural Posture

Application Under S 46 PO of the Human Rights and Equal Opportunity Commission Act 1986 (cth) Alleging Breach of S 18 C of the Racial Discrimination Act 1975 (cth) / Final Judgment After Termination of Complaint by the Human Rights and Equal Opportunity Commission

Legal Issues

  1. 1 ["Whether the second respondent's posting of the First Message and Second Message on an Internet discussion forum was conduct rendered unlawful by Pt IIA, s 18C of the Racial Discrimination Act 1975 (Cth)." 'Whether the messages were reasonably likely, in all the circumstances, to offend or insult the applicant or other persons of Jewish race or ethnicity.' "Whether the publication of the messages was done because of the applicant's Jewish race or ethnicity." 'Whether the first respondent, as controller and manager of the website and forum, published or allowed publication of the messages or failed to remove them in a way that contravened s 18C.' 'Whether any exemption under s 18D applied.']

Ratio Decidendi

The second respondent contravened Pt IIA, s 18C because he published the messages on a publicly accessible website, the messages imputed negative monetary characteristics to the applicant by reason of his Jewish ethnicity and were reasonably likely to offend and insult the applicant or other Jewish persons, and the applicant's Jewish race and ethnicity was a reason for publishing the messages in that form; intention to discriminate was not necessary and s 18D did not apply. Although the first respondent's failure to remove offensive material within a reasonable time was an act capable of falling within s 18C(1)(a), the evidence did not establish that its failure to remove the material was...

Court Disposition

Application allowed against the second respondent; proceeding against the first respondent dismissed.

Orders

  • ['Declares that the second respondent Ken Buckley engaged in conduct rendered unlawful by Pt IIA, s 18C of the Racial Discrimination Act 1975 (Cth) by having published on the World Wide Web at the Builders\' Collective of Australia website the documents headed "God help us" and "Silberberg is out to break the little...