I must admit that I know almost nothing about Australia's Aboriginal peoples. I've had unkind words about a chauvanistic and scientifically questionable attitude towards didgeridoos, but beyond that, I got nada.
But I do know a very small amount about the Australian government's increasingly appalling attitude towards freedom of expression. So it comes as no surprise to me that Australia is threatening foreign bloggers with suit for the crime of being assholes when writing about Aborigines.
The "bloggers" in question are the writers of Encyclopedia Dramatica, which might extremely generously described as a satirical Wikipedia; an trollpedia would be more accurate. Encylcopedia Dramatica's writing, at its very best, approaches the quality of The Onion or Something Awful or other humor sites. More typically, it's just trolling. The satire is often so bad that it's recursive; it's not clear whether it's meant to be satirical about its ostensible subject or whether it's a satire of satirists. Case in point: Encyclopedia Dramatica's entry about Aborigines, a bit of gleefully racist, juvenile, and tediously unfunny drivel that seems less a genuine satire about Aborigines and more a satire about what the kids on South Park would write if they wrote a page about Aborigines, possibly after sustaining a head injury. Search for it yourself if you like; defending the rights of the asshats who wrote it does not require me to promote it by linking it. If you've ever read an eighth-grader's scrawled racial insults, you'll be familiar with the gist of it.
Today Joseph Evers, one of the "owners" of Encyclopedia Dramatica, reveals that he got a threatening letter from the Australian Human Rights Commission, which based upon its logo may or may not be controlled by AT&T. The Human Rights Commission announces that it has gotten multiple complaints about Encyclopedia Dramatica's Aborigine page, and that the page "constitutes racial hatred" and appears to Racial Discrimination Act of 1975 in that it constitutes an act "likely to offend, insult, intimidate or humiliate" another person based on their race. The Human Rights Commission also announces — rather triumphantly, I think — that it does not matter that Encyclopedia Dramatica is hosted and written in the United States, because Australian law, as reflected in Dow Jones v. Gutnik, treats web pages written and hosted elsewhere as if they were published in Australia, subjecting their authors and/or hosts to jurisdiction there.
For some reason Evers omits the second and subsequent pages of the letter, so it's not clear exactly what types of proceeding the Australia Human Rights Commission is threatening. The Racial Discrimination Act of 1975, as modified by the Racial Hatred Act of 1995, does not include its own penalty provision. The Commission itself suggests that violations could, in connection with other laws, yield both civil and criminal consequences. The Commission itself concedes that the proposition that Australia can prosecute people for web content written and hosted in other countries is both controversial and questionable:
It has been argued that the criminal provisions in the ACT, NSW, South Australia, Western Australia and Victoria apply to the publication of race hate material anywhere on the Internet if the material can be accessed in the state jurisdiction concerned.  Thus, the authors of such material and, in some cases, the hosts or Internet service providers that 'publish' it, may be subject to criminal penalties no matter where they are located in the world.  The 'geographical reach' of the state legislation may extend to people and companies operating overseas who communicate racially vilificatory material. 
Such an application of domestically enacted legislation to Internet users and service-providers around the world has been criticized as undermining the principle of state sovereignty and democracy – the right of states to legislate according to the will of their own citizens.  The issue is debatable, however, with at least one expert concluding it would be difficult to apply state legislation to offending websites created outside the state concerned.  Moreover, state criminal provisions against vilification have rarely, if ever, been prosecuted, despite being enacted some time ago. This fact, in combination with the commonly acknowledged difficulties of regulating the Internet, illustrate that this concern is premature at best.
Based on that, some people may say that Joseph Evers is overreacting badly when he says this:
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.
But I honestly can't blame him for reacting that way. (I can, however, blame him for referring to a web site that hosts content like Encyclopedia Dramatica's fatuously bigoted Aborigine page as a "labor of love", which opens a rather regrettable window on his home life.) Australia — or at least Australia's government — has gone completely off the rails when it comes to attacking freedom of expression.
Australia's policy of "you can sue here for anything said anywhere on the internet" has made it, like England before it, a preferred site for libel tourism, which is why the sleazy proprietors of the scummy malware game "Evony" are suing a foreign critic there. We've written previously about how Australia is working on an internet blacklist of sites its inhabitants cannot, in the view of the government, be trusted to visit. It's a list that is both (a) frequently ludicrous and (b) according to the government, illegal to disclose
The Communications Minister, Stephen Conroy, said the leak and publication of the ACMA blacklist would be "grossly irresponsible" and undermine efforts to improve cyber safety.
He said ACMA was investigating the matter and considering a range of possible actions including referral to the Australian Federal Police. Australians involved in making the content available would be at "serious risk of criminal prosecution".
Apparently the first rule of Australian censorship is don't talk about Australian censorship.
Australia, as we've discussed, also has public officials who feel that no Australian should have access to mature games — for the good of the chiiillldruuuunn. South Australia purports to forbid anonymous comments on blogs during elections periods (yeah, you can guess how that turned out for them.
In short, it seems as if Australia, like England and Canada before it, is well on its way for selling its birthright of free expression for the mess of pottage that is multi-culti nanny-state dingbattery. This is a betrayal of their common law heritage. The right weapons against childish bigots is to out them, shun them, criticize them, ridicule them, and otherwise marginalize them — to press our suit not in some (pardon me) kangaroo court, but in the marketplace of ideas.
Is America above reproach on this score? No. We've frequently criticized the instances in which American government (typically local government and small-time officious officials) have burdened free speech. But the Australian government, like the English and Canadian before it, appears to be institutionalizing official censorship and making it a centerpiece of its approach to its citizenry rather than the exception.
Surely our Australian friends (some of whom comment here) can do something about this.
In the meantime, I can't blame Joseph Evers for deciding not to visit Australia. I've always wanted to visit it, as has my wife. But why would I want to spend my tourist dollars on a destination that thinks it has the right to exercise jurisdiction over me because, while writing on another continent, I've hurt somebody's feelings?
Last 5 posts by Ken White
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