Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697635554077.pdf (Australia)
Submission to the Senate The adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying I am providing this submission as a private citizen.

However it is drawn from the outcomes of research into cyber racism and community resilience funded in part by the Australian Research Council 2012-2017.
I was first named Chief Investigator on that project while Professor of Sociology at the University of Technology Sydney, leading a team of nine researchers from five universities.

The results of the research have been published widely, and collected in our book “Cyber Racism and Community Resilience: Strategies for Combating Online Race Hate”, Palgrave, 2017 (https://www.palgrave.com/gp/book/9783319643878).
Cyber Racism has proven to be the unspoken dimension of online harassment and hate in Australian public policy.

When the E Safety Commission was established the minister of the day was clear that he did not wish racial vilification to be a concern of the Commission if it would undercut government attempts to reduce the protections afforded in civil law through Section 18C of the Racial Discrimination Act.
It was only in late 2017, with the RDA 18C debate closed for the time being, that the E Safety Commissioner for the first time included race hate in the catalogue of issues for discussion and action.

Ever since Australia filed a reservation in 1966 to its adoption of the UN International Convention on the elimination of racial discrimination (ICERD) the reach of the criminal law to encompass racist vilification has been limited.
When the racial vilification provisions were added into the RDA in 1996 opposition to criminal sanctions from certain political groups led to the limitation of the provisions to civil pathways.

While there have been some state based legislation that contains criminal breaches, and the Commonwealth Criminal code could be read to include race as a grounds for action in the promotion of violence, for the most part the criminal law is lax in this area.
We thus have a situation where the citizens who are least resourced to defend themselves, people from Indigenous, ethnic and religious minorities, have the least support from the criminal law to defend their rights to emotional and personal safety.

However the extent of cyber racism has been documented – whether in the USA, Germany or Australia, about one third of Internet users have encountered race hate material.
Most recently in late 2017 the E Safety Commissioner in Australia indicated that up to half of young people surveyed had encountered hate speech, much of it based on racial or religious vilification.

When Australian governments have had the opportunity to introduce stronger criminal penalties for racial vilification, they have been opposed by industry and political groups representing dominant cultural interests, and have thus been abandoned.
When the optional protocol on cyber racism was circulated in the draft legislation for the Australian adoption of the European Convention on Cyber Crime, there was opposition from industry groups.

The final legislation that was placed before Parliament made no mention of the protocol.
In NSW where there is provision for criminal prosecution for racial vilification in the Anti Discrimination Act, community concern that the provisions were impossible to implement led to proposals that Section 20D be revised.
Despite repeated commitments Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 30 from government to act, in late 2017 State cabinet decided not to proceed, even though a report commissioned by the government showed widespread support for the changes proposed.
The relationship between dangerous spaces on the Internet can be presented graphically, showing those areas of concern to government (and therefore action) and cyber racism as a contributor to both bullying and radicalisation, which has been left fairly much alone, to fester.
Indeed the Internet industry continues to be insistent that no further criminal sanctions be considered and that current platforms be excused from responsibility for any incidents that might trigger the limited criminal capacities that exist (especially the use of public carriage law).

Instagram, a Facebook subsidiary, wrote in its submission to this Inquiry that: “online safety is best achieved when government, industry and the community work together.
Given the strong commitment of industry to promote the safety of people when they use our services, we believe that no changes to existing criminal law are required.

If anything, we would encourage the Committee to consider carve outs from liability for responsible intermediaries”.

Instagram does not refer specifically to racism , but it does mention hate speech in general.
Its desire for a “carve out” (ie protection of platforms from any responsibility for harm occurring to their users) underlies the submission.

However Instagram does not recognise the unequal power in such situations, where as a global corporation it has greater leverage than national governments or fragmented communities.

Instagram has many hashtags that promote racialised and racist images and narratives, including against “niggas” and “ching chongs”.
Similarly Facebook’s submission describes its action on creating a safer space for users, while arguing that there is no need for any further criminal sanction.
Facebook makes no reference to the use of its services to promote racist hate speech, even though there Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 30 is now widespread research that Facebook is the most significant location for users across the world where they might encounter such material.
Facebook’s strategy remains one of allowing material to be posted until a significant enough reporting by users draws its attention to the need for some action – its preferred approach remains that individuals create their own ring of privacy, rather than limiting the freedom of others to promote (non-violent) hate on their sites.

Facebook has been documented over and again in Australia as the most intense location for the bullying of targets on the basis of their race, ethnicity and religious beliefs.
The argument of this submission is simple, that Australia has dropped the ball on the racist dimension of cyber bullying and by so doing has ensured an increase in inter group hate, a fragmentation of social cohesion, and the isolation if not radicalisation of members of targeted minority groups.
A key element in the dynamic that has produced this situation lies in the systematic failure of governments to see the important symbolic and practical significance of the criminal law as a signal of social values and norms.

I would urge the Committee to examine in detail the importance of identifying racism as a key element in cyber bullying and address the failure of governments to identify the way criminal law might be developed.
In the meantime it should explore the rights accorded civil society members in legislation such as the New Zealand Harmful Digital Communications Act (2015) which allows for racial vilification as grounds for action in response to incidents of “intentionally causing harm by posting a digital communication”.

I am of course willing to provide further argument and evidence in relation to this submission.
Yours sincerely Andrew Jakubowicz (BA PhD MAICD FRSN) Emeritus Professor of Sociology University of Technology Sydney Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 30