Case: Citron v Z&uuml;ndel (No 4) (2002) 41 CHRR D/74 
Outcome: referred to
her Honour found that the respondent controlled the Adelaide Institute and thereby was responsible for its actions, and for the material which was published on the Adelaide Institute's websites. She found that the material contained in the AI Document conveyed the imputations which were the subject matters of the orders mentioned above. She found that publishing material on a website which is not password protected had the effect of communicating that information to the public. Such publication allows persons who access the website with a browser to view the material. Her Honour described how the material moves through the World Wide Web by relying on the description given in the Canadian Human Rights Tribunal in Citron v Z&uuml;ndel (No 4) (2002) 41 CHRR D/74 at [60]: The Internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information. Two related sets of communication instructions, Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how information will move through the system, defining addresses, routing systems, and all the regulation necessary to permit communication among users. Her Honour also relied on the Tribunal's description of the World Wide Web at [67]: The World Wide Web, (the "Web"), is a specific application that uses the Internet to send and display data, including text, graphics, audio and video. There are two active components on the Web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A "web site" is a collection of computer files that are coded in a specific way ... to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique Uniform Resource Locator (URL), akin to their Internet address. Once connected to the Internet, the URL ... is necessary to gain access to a given web site ... Her Honour found that publication of the AI Document on the World Wide Web amounted to conduct which was rendered unlawful by the Racial Discrimination Act and made a declaration accordingly. Her Honour found that the AI Document and other material published by the respondent on the World Wide Web conveyed the imputations in paragraph 2 of the September 2002 orders. Her Honour found that the first and second imputations would engender feelings of hurt and pain within members of the Jewish Community who would, by reason of the publication, consider themselves being treated contemptuously, disrespectfully and offensively. She also found that the third and fourth imputations would offend, insult, hurt and wound members of the Jewish Community and engender the same senses. The judge found that the publication of the AI Document was unlawful under s 18C of the Racial Discrimination Act and that it was published because of the ethnic origin of the people in the group identified in the document, namely Jews and it was an act reasonably likely to humiliate and intimidate Jewish people. The judge found that the respondent had not established any exceptions under s 18D of the Racial Discrimination Act . Her Honour made a permanent injunction restraining the respondent first, from publishing to the public on the World Wide Web the AI Document or any document with substantially similar content to that document; and secondly, from publishing any material which would convey the imputations which she had previously found to be unlawful. The respondent's reaction The respondent appealed against the September 2002 orders. The respondent deleted all material on the website within the time prescribed by paragraph 1 of her Honour's orders. That action indicates an awareness of the September 2002 orders. However, some time before 23 September 2002, the material which was contained in the AI Document was again published on the same website. On 14 December 2002 the respondent attended the 3 rd International Historical Revisionism Conference in Italy and published further material on the website. On 5 February 2003 the respondent entered the September 2002 orders. Initially the respondent argued that the sealed order now on file did not reflect her Honour's reasons but that argument was abandoned. The respondent's appeal On 22 April 2003 the respondent filed an amended notice of appeal against the September 2002 orders. The notice of appeal did not challenge the finding made by Branson J that publication of the material was conduct which was rendered unlawful by s 18C of the Racial Discrimination Act , being conduct which was reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the groups or persons identified by her Honour. Three matters were argued on the appeal. First, that Part IIA of the Racial Discrimination Act was unconstitutional. Secondly, the material which had been published on the website did not have a sufficient degree of causal connection with race, colour or national or ethnic origin as required by s 18C of the Racial Discrimination Act . Thirdly, the published material fell within the exemption to the provisions of Part IIA in s 18D. In May 2003, at or about the time the matter was heard by the Full Court, the respondent published on the website "that the appeal would signal how strong the Jewish Zionist influence is in Australia's judiciary where a battle rages between common law and talmudic law." The Full Court dismissed the respondent's challenge to the validity of Part IIA of the Racial Discrimination Act . Carr and Kiefel JJ found that the provisions of Part IIA were supported by the external affairs power. Allsop J found that Part IIA , ss 18C and 18C (1)(b) "in its statutory context, are reasonably capable of being considered as appropriate and adopted to implement the obligations ... assumed by Australia" under the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 7 March 1966. The Full Court found that the AI Document was calculated to offend in itself those who maintain that the holocaust occurred and, in particular, Jewish people. It concluded at least one reason the AI Document was published was because of the race or ethnic origin of Jewish Australians. It found that the AI Document was deliberately provocative and inflammatory, and contrived to smear Jews. It rejected the respondent's contention that he was entitled to an exemption by reason of s 18D(b) which provides that s 18C does not render unlawful anything said or done reasonably and in good faith in the course of any publication made for genuine academic or other genuine purpose in the public interest. I disagree. The intention of the September 2002 orders is to prevent Dr Toben from continuing to engage in conduct that is rendered unlawful by s 18C of the Racial Discrimination Act . The September 2002 orders were designed to achieve that result in two ways. First, in paragraph 2 by requiring Dr Toben to remove from the Adelaide Institute website the AI Document and any other material which conveyed the imputations in paragraph 2(a)(iii). Branson J made that clear when she approved at [111] the approach taken by the Canadian Human Rights Tribunal which considered the utility of making any order in a similar case. In the case of Citron v Z&uuml;ndel 41 CHRR D/74, the Tribunal said at [300]: Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practises is only one of the outcomes flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision. Paragraph 3 of the orders was designed to ensure that once there had been compliance with paragraph 2 of the orders, conduct of the kind which gave rise to the declaration in paragraph 1 would not be repeated. To that end, paragraph 3 restrains Dr Toben from publishing the AI Document anywhere on the World Wide Web and further restrains him from publishing material with substantially similar content to that document. It was necessary to include paragraph 3(b) because otherwise it might have been said by Dr Toben that he was entitled to publish on the World Wide Web information which was in slightly different form to that which was contained in the AI Document. Paragraph 3(c) of the orders is designed to reflect, insofar as future conduct is concerned, that which Dr Toben was obliged to remove from the World Wide Web website in accordance with paragraph 2(a)(iii). In my opinion, the orders are not imprecise or vague and uncertain. They do not become so because they require the party to whom they are directed to make a subjective assessment of the material which may be published on the World Wide Web.