Earlier this week Mark Meechan, a 30 year old YouTuber in the UK, was fined £800 following his conviction under s127 of the Communications Act 2003. The Act provides a criminal offence for sending “by means of a public electronic communications network a message that is grossly offensive or of an indecent, obscene or menacing character”.
What was the offensive message? In 2016 Meechan posted a video of his girlfriend’s pet pug showing the dog moving its paw in the air in a salute when prompted with the command “Sieg Heil”. The poor taste video went viral, garnering over 3 million views on YouTube.
Meechan’s conviction has proved incredibly controversial, with prominent civil liberties advocates calling for the repeal of s127 of the Communications Act 2003 on free speech grounds. Previous convictions under this offence have proven equally controversial.
However, could a similar criminal case arise in Australia given our current laws? It’s complicated, but possibly.
Racial and Religious Vilification Laws
In Australia, several laws attempt deal with “offensive speech” but very few provide a criminal offence for offensive conduct or messages.
Whilst there was much media fanfare over s18C of the Racial Discrimination Act 1975(Cth) following the Andrew Bolt and QUT Case, this provision does not criminalise speech.
State-based racial and religious vilification laws often contain criminal offences, however most are reserved for ‘serious’ forms of individual harassment rather than “offensive” verbal or written communications. For example, s20D of the Anti-Discrimination Act (NSW) states that:
(1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include:
(a) threatening physical harm towards, or towards any property of, the person or group of persons, or
(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.
The clear outlier is the Western Australian Criminal Code 1913 (WA), which has quite broad criminal offences dealing with racial hatred including:
- Section 77 Conduct intended to incite racial animosity or racist harassment
- Section 78 Conduct likely to incite racial animosity or racist harassment
- Section 79 Possession of material for dissemination with intent to incite racial animosity or racist harassment
- Section 80 Possession of material for dissemination that is likely to incite racial animosity or racist harassment
- Section 80A Conduct intended to racially harass
- Section 80B Conduct likely to racially harass
- Section 80C Possession of material for display with intent to racially harass
- Section 80D Possession of material for display that is likely to racially harass
However, there have been very few prosecutions under WA offences, likely because there are quite broad defences to the provisions under s80G.
The real equivalent to the UK offence is s474.17 of the Criminal Code 1995 (Cth), which provides a Federal offence for ‘using a carriage service to menace, harass or cause offence’.
To be found guilty of this offence, the degree of “offensiveness” must be “serious” [Monis v The Queen], a qualifier which hasn’t been further defined by the Courts.
The vast majority of cases prosecuted under s474.17 have been the result of direct harassment of individuals via social networks such as Facebook. At the time of writing I’m unable to find a case that is directly equivalent to the “Nazi Pug” case – involving public broadcast of controversial humour.
Overall, it does seem possible for a person to be convicted for an “offensive” joke in Australia broadcast online, however given the lack of similar cases it does not appear likely.