Anti-social racism in social media is unwise and illegal

By MARK PEARSON Follow @Journlaw

Two recent cases stand out as examples where racist commentary has landed online writers in legal trouble.

The first was in the UK where a student was jailed for 56 days for Tweeting offensive remarks about a stricken footballer.

Another was in Australia where a Federal Court judge fined the News Limited website PerthNow $12,000 over comments posted by readers to its website featuring racial abuse of four indigenous teenagers who died in a stolen car. It reinforces the Australian law that you are legally responsible for the moderated comments of others on your social media or web sites.

I take up the issue of discriminatory abuse in my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online.

The chapter is titled ‘The fine line between opinion and bigotry’. Here’s a short excerpt:

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The fine line between opinion and bigotry

Sadly, human beings have found the negative energy to hate each other since time immemorial. Hatred of one form or another explains most of the wars and acts of violence throughout history. While the Internet and social media has allowed us to communicate with countless new friends and form all kinds of new professional and personal relationships, we do not just attract the attention of the ‘like-minded’.

There is a war going on in our pockets and handbags in each and every smartphone and on every home computer connected to the Internet. There are people so possessed with hatred and revenge that they are conducting a cyberwar on the objects of their disdain.

No matter who you are and where you live, there are others who might not know you personally but hate you for the category of human being you are: black, white, Asian, Hispanic, male, female, gay, straight, conservative, liberal, environmentalist, climate change denier, Muslim, Jew, Christian, obese, American, British, Pakistani, teenager, rich, poor, lawyer, politician or used car salesman. (Lucky there’s not a ‘hate’ button on Facebook, hey?)

Sometimes even some fun turns sour. A satirical swipe at redheads on the Simpsons television series prompted a 14-year-old Canadian boy to set up a Facebook ‘Kick a Ginger’ campaign in 2008, rapidly ‘friended’ by more than 5000 fans. As the Telegraph reported, dozens of children posted comments on the page claiming to have attacked redheads, with a 13-year-old girl from Alberta and her sister among the victims of the schoolyard bullies.

Such people judge you based on the labels they apply to you rather than who you really are or your life experiences that inform your views and values. And they are online and angry.

If you also have strong opinions and express them without fear or favour, your challenge is to avoid becoming one of them. Because if you do, the force of the law in most places can be brought down upon you.

Some individuals just cannot back away from a fight in real life or cyberspace. They become so obsessed with their causes or grudges that they launch poisonous online assaults on others that can leave their targets as traumatised as they would have been if they had been assaulted physically. Tragically, some victims have become so despairing and fearful that they have been driven to take their own lives.

In the eyes of the law, such attacks go under a range of names according to their type, scale, and jurisdiction. They include: cyberbullying, cyberstalking, online trolling, malicious online content, using carriage services to menace, harassment, hate speech, vilification, discrimination and even assault. Some are criminal offences where offenders can be fined or jailed and others are civil wrongs where courts can award damages to victims. Some are litigated under actions we have already considered such as defamation, privacy and breach of confidentiality.

Some are difficult to explain because the motivations are beyond the imagination of ordinary citizens. Australian ‘troll’ Bradley Paul Hampson served 220 days in jail in 2011 for plastering obscene images and comments on Facebook tribute pages dedicated to the memory of two children who had died in tragic circumstances. He had entered the sites to depict one victim with a penis drawn near their mouth and offensive comments including “Woot I’m Dead” and “Had It Coming”.

At about the same time the US Appeals Court in Virginia was dealing with a suit by former high school senior Kara Kowalski who had been suspended for five days for creating a MySpace page called ‘S.A.S.H’. She claimed it stood for ‘Students Against Sluts Herpes’, but the court found it really aimed to ridicule a fellow student named Shay. She had also incurred a social suspension for 90 days, preventing her from cheerleading and from crowning her successor in the school’s ‘Queen of Charm’ review. Kowalski felt aggrieved at the suspension because she claimed it had violated her constitutional speech and due process rights as it had not happened during a school activity but was really ‘private, out of school speech’. But the court disagreed.

“Kowalski’s role in the ‘S.A.S.H.’ webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful,” judge Niemeyer wrote. “The webpage called on classmates, in a pack, to target Shay N., knowing that it would be hurtful and damaging to her ability to sit with other students in class at Musselman High School and have a suitable learning experience.” The court agreed with the school and the trial judge that ‘such harassment and bullying is inappropriate and hurtful’ and denied her damages claim. A ‘Queen of Charm’ indeed!

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Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print format in Australia and New Zealand (US release in October) and as an ebook elsewhere via Kindle, Google, Kobo and some other providers. [Order details here.]

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.