Silberberg v The Builders Collective of Australia Inc

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Silberberg v The Builders Collective of Australia Inc
Coat of Arms of Australia.svg
Court Federal Court of Australia
Full case nameSilberberg v The Builders Collective of Australia Inc & Buckley
Decided2 October 2007
Citation(s) [2007] FCA 1512, (2007) 164  FCR  475
Case history
Prior action(s)none
Subsequent action(s)none
Case opinions
The forum user had unlawfully racially discriminated against Silberberg. The failure of the forum operator to remove the discriminatory postings was not proven to be racially motivated.
Court membership
Judge(s) sitting Gyles J

Silberberg v The Builders Collective of Australia Inc, [1] is a 2007 judgment of the Federal Court of Australia, and the first Australian case exploring the liability of Internet forum operators for racial vilification under the Racial Discrimination Act 1975 . [2]

Federal Court of Australia Australian superior court

The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law, along with some summary criminal matters. Cases are heard at first instance by single Judges. The Court includes an appeal division referred to as the Full Court comprising three Judges, the only avenue of appeal from which lies to the High Court of Australia. In the Australian court hierarchy, the Federal Court occupies a position equivalent to the Supreme Courts of each of the states and territories. In relation to the other Courts in the federal stream, it is equal to the Family Court of Australia, and superior to the Federal Circuit Court. It was established in 1976 by the Federal Court of Australia Act.

Internet forum online discussion site

An Internet forum, or message board, is an online discussion site where people can hold conversations in the form of posted messages. They differ from chat rooms in that messages are often longer than one line of text, and are at least temporarily archived. Also, depending on the access level of a user or the forum set-up, a posted message might need to be approved by a moderator before it becomes publicly visible.

Racial Discrimination Act 1975 Act of the Parliament of Australia, currently registered as C2016C00089

The Racial Discrimination Act 1975 (Cth), (RDA) is a statute passed by the Australian Parliament during the Prime Ministership of Gough Whitlam. The RDA makes racial discrimination in certain contexts unlawful in Australia, and overrides States and Territory legislation to the extent of any inconsistency.

Contents

Background

The applicant, Dr. Ron Silberberg, was the managing director of the Housing Industry Association Ltd (HIA), a company representing the interests of people involved in the residential building industry. The Builders Collective of Australia Inc (the Collective) was an incorporated association of predominantly small builders and opposes the policies of the Housing Industry Association in many areas. The Builders Collective operated a website containing a discussion forum, which contained confidential information regarding the building of transmitter sites for the Digital Radio Oceane project.

The Housing Industry Association (HIA) is an association of more than 40,000 members working in the housing industry. It is the peak national industry association for the residential construction and home building, renovation and development industry in Australia.

In May 2005 and January 2006, a registered user of the forum posted messages which suggested that Silberberg's Jewish background was responsible for a perceived unhealthy monetary focus on the part of the HIA. Silberberg complained to the Human Rights and Equal Opportunity Commission and, when that complaint was terminated by the Commission, sued The Builders Collective and the forum user in the Federal Court.

The judgment

Justice Gyles held that the forum postings conveyed the anti-Semitic imputations alleged by Silberberg, and that the forum user (the second respondent) had posted the comments because of Silberberg's Jewish background. He held that the messages were reasonably likely, in all the circumstances, to offend and insult Silberberg or other Jews, and that their posting contravened section 18C of the Racial Discrimination Act 1975 (Cth).

Roger Vincent Gyles is a former Australian judge who is currently the Independent National Security Legislation Monitor. In this role he is tasked to monitor and examine the Australian Government’s new counter-terrorism legislation. He has previously been an Acting Judge of the Court of Appeal of the Supreme Court of New South Wales, a judge of the Federal Court of Australia and a Royal Commissioner.

Antisemitism is hostility to, prejudice, or discrimination against Jews. A person who holds such positions is called an antisemite. Antisemitism is generally considered to be a form of racism. It has also been characterized as a political ideology which serves as an organizing principle and unites disparate groups which are opposed to liberalism.

Section 18C of the Racial Discrimination Act 1975, deals with offensive behaviour "because of race, colour or national or ethnic origin" in Australia. It is a section of the Racial Discrimination Act 1975, which was passed by the Australian Parliament during the term of the Whitlam Government and makes racial discrimination unlawful in Australia. Section 18C was added by the Keating Government in 1995. The Section has been controversial and subject to much debate.

Justice Gyles held that the Collective had knowledge of the presence of one of the offensive postings in the forum (which they had denied), and had failed to remove it. However, there was no evidence that they had failed to remove it because of the Jewish race or ethnicity of Silberberg, as required by the Racial Discrimination Act 1975 (Cth). The case against the Collective was dismissed with Silberberg to pay some of the Collective's costs.

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References

  1. Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 , (2007) 164 FCR 475(2 October 2007), Federal Court (Australia)
  2. Racial Discrimination Act 1975 (Cth).