The Paris shootings in which 17 people were murdered horrified those of good will across the world. They brought communities together declaring “Je suis Charlie” for the 12 killed at the satirical magazine Charlie Hebdo, “Je suis Ahmed” for the Muslim policeman shot dead, and “Je suis Juif” for the four Jews who were slaughtered at the kosher supermarket.
The attacks also saw millions march in the streets of Paris defending freedom including freedom of speech. However, in Australia the debate appears to have been hijacked by some who argue that in Australia, one cannot say “Je suis Charlie” in defence of freedom of speech while supporting section 18C of the Racial Discrimination Act. That section makes it unlawful, not illegal, to do a public act that is reasonably likely to offend, insult, humiliate or intimidate a person or group of people if the act was done because of race, colour or national or ethnic origin of the other person or of some or all of the people in the group. It does not include religion, unlike the Victorian Racial and Religious Tolerance Act, and it is also accompanied by broad exemptions, including for artistic works, academic works and fair comment on matters of public interest, under section 18D.
However, before such proponents claim that 18C means that Australia does not have free speech, perhaps they should have a closer look at the legal situation in France, which has considerably tougher laws against hate speech than Australia – yet Charlie Hebdo was able to operate just fine in the legal environment.
France has laws that criminalise speech that insults, defames or incites hatred, discrimination or violence on the basis of religion, race, ethnicity, nationality, disability, sex or sexual orientation. France’s law on the Freedom of the Press of 29 July 1881 (see legislation in French) ensures freedom of the press but has several restrictions including (source: Wikipedia):
- Article 24 that prohibits anyone from publicly inciting another to discriminate against, or to hate or to harm, a person or a group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap. The penalty for violating this prohibition is up to a year of imprisonment and/or a fine of up to €45,000.
- Articles 32 and 33 that prohibit anyone from publicly defaming or insulting a person or group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap. The penalty for defamation is up to a year of imprisonment and a fine of up to €45,000, or either one of those punishments. The penalty for insult is up to six months of imprisonment and a fine of up to €22,500, or either one of those punishments. Moreover, the legislation “La loi du 29 juillet 1881” allows the public prosecutor to initiate criminal proceedings against a violator of the law either upon the complaint of a victim or upon his own initiative. A victim may choose to undertake a civil action against a violator.
- Act 90-615 of 13 July 1990 or the “Gayssot Act ” introduced a right to respond for any person who considers that a newspaper or other print medium has damaged his honour on the grounds of his ethnicity, nationality, race or religion. The Gayssot Act sets a punishment of five years’ imprisonment and a €45,000 fine for the public expression of ideas that challenge the existence of the crimes against humanity committed by Nazi Germany during World War II as defined in the appendix to the London Agreement of 8 August 1945.
Meanwhile, France’s penal code also forbids private defamation, insult and incitement of a person or group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap (Article R. 624-3, Article R. 624-4, Article R. 625-7).
True Charlie Hebdo was taken to court in 2006-07 for “public insults against a group of people because they belong to a religion”, according to the Guardian. However, the courts found in favour of Charlie Hebdo, on the grounds that the cartoons targeted only terrorists or fundamentalists and not the whole Muslim community.
Many of those who are in favour of repealing 18C have claimed that it stifles debate in Australia. Yet in the aftermath of the Sydney siege and the Paris shootings, one can see that Australia is having a thorough and vibrant debate about Islamist terrorism, and we have even seen cartoons from Charlie Hebdo, including, controversially, ones of the Muslim Prophet Mohammed, published in the mainstream media with little if any protest and certainly no legal barriers.
Australia has a free press, and 18C does not significantly impinge on this reality because of the very important, but not widely discussed, exemptions in section 18D, and because of the way 18C operates and has been interpreted by our courts.
The claim being made by some that a magazine like Charlie Hebdo would be legally barred from operating here or printing similar edgy, irreverent satirical content, does not appear to be true. According to the Australian Financial Review, Race Discrimination Commissioner Tim Soutphommasane said that many controversial cartoons published by Charlie Hebdo could be run in Australian publications without fear of breaching federal law.
Moreover, Charlie Hebdo operated and continues to operate in France, where they have laws which not only use similar language to 18C but offer far fewer exemptions that we have in 18D, and furthermore, provide for criminal sanctions for those who break those laws. Libertarians who imply we should follow France’s example in terms of racial hatred laws should be very careful what they wish for – they almost certainly would not like the result.
Therefore, what kind of debate are these proponents in Australia looking to have if they wish to get rid of 18C? Are we looking to invite crude racisim which already flourishes on the internet, into the mainstream media? And if we abolish 18C on purported freedom of speech grounds, what about the numerous other forms of prohibitions on free speech that include laws regarding defamation, consumer affairs, and laws against incitement to terrorism?
Freedom of expression is a human right, but it is not an absolute legal right in any country in the world, or indeed, according to international human rights law. While Article 19 of the International Covenant on Civil and Political Rights states that “Everyone shall have the right to freedom of expression…” it is limited by (a) “respect of the rights or reputations of others”, and (b) “the protection of national security or of public order… or of public health or morals”. Meanwhile, Article 20 prohibits (1) propaganda for war, and (2) “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.
Last year the Australian Government proposed changes to section 18C which were widely criticised because while they attempted to prohibit speech that would vilify and intimidate, the exemption proposed was so broad it would have enabled almost any pubic statement. The government recognised that it needed to go back to the drawing board on this issue, and decided to scrap the idea.
The attacks in Paris do raise the important issue of freedom of expression, but it is crystal clear that the threat to freedom of speech and a free media comes from the murderous acts of terrorists inspired by a jihadist ideology, not French laws on hate speech. Given this, why would anyone conclude that Australians should react to this outrage by returning to the already much-debated but rejected effort to re-write or scrap 18C?