Burns v Sunol

NCAT Administrative and Equal Opportunity|2015-11-12

REASONS FOR DECISION

John Sunol, the respondent in these proceedings, is an avid internet blogger. He maintains a website on which he posts comments about a wide range of topics, including same sex marriage, paedophilia, the war in Syria and the licencing scheme governing NSW taxi drivers.
Garry Burns has lodged numerous complaints about Mr Sunol with the President of the Anti-Discrimination Board (respectively "the President" and "the Board"). Common to all complaints is the allegation that by the act of publishing material on his website Mr Sunol has vilified homosexuals. Section 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a "public act", to incite hatred towards, serious contempt for, or severe ridicule of a person on the ground that the person(s) is, or is thought to be, homosexual.
These reasons consider two further complaints made by Mr Burns and address whether: 1. The communication of the material about which Mr Burns complains was the "public act" of Mr Sunol 2. If so, whether that publication incited or had the capacity to incite hatred towards, serious contempt for, or severe ridicule of, homosexual person(s), and 3. If so, whether one or more of those emotions was incited on the ground of the homosexuality of the person(s).
We considered similar issues in a recently published decision involving the same parties: Burns v Sunol [2016] NSWCATAD 74 (Burns 2016). The subject matter of the complaints which were the subject of that decision is broadly similar to the complaints the subject of these Reasons.
For the reasons that follow, we found only one of the complaints to be substantiated.

Legal principles

The vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following principles which are relevant to this matter may be distilled from those authorities: 1. an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53]) 2. "incite" in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41]; Margan at [11]) 3. for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or there was an intention to incite (Sunol at [41]; Margan at [12]) 4. it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41]) 5. the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61]) 6. in making that assessment the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).

Complaint 1 (1510408)

On 21 May 2015 Mr Burns complained to the President about material he claimed he had read on Mr Sunol's website on or about Wednesday 20 May 2015. Attached to the initiating complaint was a document that Mr Burns claimed he had printed from Mr Sunol's website. The part of that document about which he complains is reproduced below: alternative text version of blog dated 20 May 2015 (35.3 KB, rtf) For convenience we will refer to the above as the "offending material".

Did the offending material appear on Mr Sunol's website?

Mr Sunol was notified of Mr Burns' complaint on 1 June 2015. In a letter to the President dated 12 June 2015, solicitor for Mr Sunol, Mr Balzola, wrote that there was "no evidence" that the material, which is the subject of Mr Burns' complaint, was published on Mr Sunol's blog. In support, he attached a printout taken from Mr Sunol's website bearing the date 6 December 2015. Mr Balzola went on to assert that in any event the material did not vilify homosexuals and urged the President to dismiss the complaint.
At hearing, Mr Sunol conceded that he (i) maintained a blog: http://johnsunol.blogspot.com.au and (ii) posted the offending material on that blog. He claimed he may have taken the material "straight down" when notified of the complaint.
As noted, Mr Burns attached to his initiating complaint documents said to have been downloaded from Mr Sunol's website on or at about the time he viewed the offending content. (See Attachment A to the report forwarded by the President to the Tribunal under s 94A(2) of the Act (the President's report)). The page carrying the offending material submitted to the President, bears the header "John Christopher Sunol blog on the coming one world order: I pho…k back Graham Gilbert tonight over same sex marriage and ??? … 21/05/2015 7:19 am". The footer to that page carries the address of the website which at hearing Mr Sunol admitted that he maintained.
The document described at [9] above corroborates the claim made by Mr Burns that he viewed Mr Sunol's blog on or about 20 May 2015. Taken together with the admission made by Mr Sunol at hearing, we find that Mr Sunol posted the offending material on his website on or about 20 May 2015.
The length of time the material remained on Mr Sunol's blog may be relevant to the appropriate form of orders to be made if we find the complaint substantiated. It is not otherwise relevant to the question of whether the material was posted on Mr Sunol's website.

Was the communication of the offending material a public act of Mr Sunol?

As noted in Burns 2016 at [20], the publication of material on the internet, which as in this case is not password protected, is "a form of communication to the public" and thus a "public act" as defined by s 49ZS(a) of the Act. By posting the offending material on his website, the publication of the offending material is a public act for which Mr Sunol is responsible for the purpose of s 49ZT(1).

Did the offending material have the capacity to incite?

In these reasons, we will apply the statement of principles relating to the vilification provisions of the Act set out in Burns 2016 ([37] - [45]). The submissions made in these proceedings by the parties, did not cause us to depart from the findings made in that decision at ([30]-[34]) about the identity of the relevant audience. We will apply those findings in this matter.
In his initiating complaint, Mr Burns submitted that by publishing the offending material Mr Sunol incited hatred towards, and serious contempt of, homosexual men on the ground of their homosexuality. He went on to write that Mr Sunol had suggested that "homosexual men are dirty, perverted and sick criminals and because of that are a risk when it comes to the adoption of small children".
In response, it was submitted by Mr Sunol that no where in the offending material is it stated, as claimed by Mr Burns, that "homosexual men are dirty, perverted and sick criminals…" or that "homosexual men will adopt children so they can groom them for sex". It is contended for Mr Sunol that the assertion that the offending material conveys any of these imputations is "baseless" and nothing more than a "defamatory aggrandisement … and gross falsification of any comment or public act purportedly made by Mr Sunol".
The first issue we must resolve is what was the likely meaning conveyed by the offending material. That question is not to be answered by reference to Mr Sunol's motive in posting the offending material or Mr Burns' or our understanding of its meaning but rather by reference to the understanding of the ordinary member of group to which it was directed, namely users of Mr Sunol's blog.
We accept as argued by Mr Sunol, that the offending material does not state that homosexual men are "dirty, perverted and sick criminals…" or that homosexual men "… adopt children so they can groom them for sex". Nonetheless, in our view the ordinary reader is likely to have understood that the meaning conveyed was that same sex marriage would permit homosexual men to adopt children and, in turn, allow "all sorts of nasty things" to happen, including "child paedophilia".
The test of whether the offending material has the capacity to incite hatred towards, and/or contempt of, male homosexuals is an objective one. It goes without saying that the offending material is likely to be capable of evoking different emotions in different people. As discussed in Burns 2016 at [38] whether the offending material has the capacity to incite one or more of the relevant emotions rests in part on any pre-existing views held by members of the group about homosexual men. It is reasonable to assume, as we did in Burns 2016, that members of the group held a diverse range of views about homosexual men.
We commented in Burns 2016 at [37] that in Western society paedophilia is a crime and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. In our view, the offending material does more than merely express hatred and serious contempt towards homosexual men; it urges the reader to adopt those feelings (see also Burns v Sunol [2016] NSWCATAD 16 at [47]). We find the offending material had the capacity to incite hatred of, and serious contempt towards, homosexual men in the ordinary members of the group.

Did the offending material have the capacity to incite "on the ground of" homosexuality?

The "target" of the offending material is plainly "gay men". There is nothing to suggest from the language used in, or the context of, the offending material that some feature or characteristic of the group, apart from homosexuality was "the ground" on which hatred and/or serious contempt of this group was capable of being incited. We find the offending material had the capacity to incite each of the relevant emotions towards homosexual men on the grounds of homosexuality.

Conclusion

The offending material satisfies the elements of s 49ZT(1) of the Act. Mr Sunol did not seek to argue that by the operation of s 49ZTA(2) his conduct was not rendered unlawful. It follows that the complaint of homosexual vilification is substantiated.

Complaint 2 (1510409)

On 25 March 2015, Mr Burns complained to the President about material he claimed to have read after clicking on a link on Mr Sunol's website. The offending link "Bernardgaynor.com.au" was contained in the following post on Mr Sunol's website: alternative text version of blog with link to bernardgaynor.com.au (34.4 KB, rtf) (The handwritten markings were made by Mr Burns.)
Mr Burns claims that when he clicked on the offending link it opened to an article written by Bernard Gaynor. Attached to the initiating complaint were 13 pages of material Mr Burns claimed to have printed from that website. Mr Burns contends that material was replete with content that vilified male homosexuals. For convenience we will refer to the material contained in the printout as the "challenged material".

Was the communication of the offending material a public act of Mr Sunol?

There can be no argument that the publication of the challenged material is "a form of communication to the public" and therefore a "public act" within the meaning of s 49ZS(a) of the Act. The issue in dispute here is whether the communication of the challenged material is a public act of Mr Sunol.
Mr Burns contends that "the linking of Mr Gaynor's blog/website by Mr Sunol to his Google plus account is doing a public act". Mr Sunol disagrees. We understand Mr Sunol to rely on undated submissions filed on 1 October 2015, together with submissions dated 3 June 2015, provided to the President (see Tab 4 of the President's report).
In Points of Claim filed on 3 August 2015, Mr Burns asserted that the words "Shared publicly" and "Add a comment" posted in close proximity to the subject link constituted an invitation to users of Mr Sunol's website to click on the link to the material written by Mr Gaynor. He argued that the material appearing on Mr Sunol's website was "an express invitation or an implied expectation of Mr Sunol that his readership would click on the subject matter and gain access to the material behind it". As a consequence, he contends the communication of the challenged material was a public act of Mr Sunol.
There is no evidence to suggest, and nor is it claimed, that Mr Sunol was the author of any part of the challenged material. Nor is it claimed that Mr Sunol operated or controlled the website on which the challenged material appeared. Whether that website was in fact operated and controlled by Mr Gaynor is not relevant. However for current purposes we will assume that it was.
Whether an alleged vilifier is relevantly responsible for material that does not appear on a website they operate or control but which can nonetheless be accessed by a link posted on a website they do operate or control, has been considered on numerous occasions by the NSW Civil and Administrative Tribunal and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal. In Burns v Sunol [2015] NSWCATAD 178 at [34], citing Burns v Sunol [2012] NSWADT 246, the Tribunal stated that this question requires "consideration to be given to the context in which the impugned link appears, including any surrounding words and images".
In Burns v Sunol [2012] NSWADT 246 (at [33], [34]) the Tribunal addressed an argument made by Mr Sunol that he was not relevantly responsible for publications about which Mr Burns complained because they did not appear on a website maintained by him and only came to the attention of internet users if they (a) went to one of these websites and (b) clicked on a particular phrase. The Tribunal found that argument was "not persuasive" for two reasons (at [34]): [F]irst … that the publications contained material that he himself [Mr Sunol] composed. The second is that his website expressly invited users who had logged into it to click on the requisite phrase and thereby gain access to the publications. He directed users to the link by putting on his website the following statement (quoted above in the context of publication no. 13): 'NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003.'
However, the Tribunal was not satisfied that Mr Sunol was relevantly responsible for one of the publications the subject of Mr Burns' complaint "Publication 15", reasoning (at [35]): On the other hand, it is not clear from the evidence relating to publication no. 15 that any such invitation existed on a website maintained by Mr Sunol. Mr Sunol did not deny that he composed an email including the material in question, that this material was accessible on the internet on a website maintained by someone other than himself, or indeed that it was possible for internet users who had logged into his website to discover the link giving them access to the material. But we do not believe this to be enough to render Mr Sunol responsible for the 'public act' of communicating the material to the public by means of the internet.
In contrast, in Burns v Sunol [2015] NSWCATAD 131 (Burns 2015), the Tribunal concluded (at [40]) that comments posted by Mr Sunol on his website "had the effect of directing viewers to the subject publication via the link": In our opinion, the use of the words by Mr Sunol appearing at the top of the blog on his website "some very interesting videos on corruption from Luke McKee", had the effect of directing viewers to the subject publication via the link. The words used are plainly an invitation to those viewing the site to access the material complained of. The "very interesting" nature of the material referred to on the website cannot be determined by a viewer unless it is accessed. In line with the finding of the Tribunal in Burns v Sunol [2012] at [34], in our view the communication to the public of the subject material in the third complaint by way of invitation to access it via a link is a "public act" within the meaning of s 49ZS(a).
In Burns v Sunol [2016] NSWCATAD 16, the Tribunal reached the same conclusion (at [35]): We agree with the submission made by Mr Burns that the words posted on Mr Sunol's website constitute an express invitation to people visiting Mr Sunol's website to click on the offending link and view the offending content. The statement "I think all should read this and make their own decision if they back it [the legalization of Phedofelia [sic]]" does not make the words appearing on Mr Sunol's website any less of an invitation or encouragement to view the offending content. Read in context we find that the material appearing on Mr Sunol's website constituted an express invitation to users to click on the offending link and access the offending content.
More recently in Burns 2016, the Tribunal reached a similar conclusion (at [26]): Read together with the statement, "Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements", we find that the material appearing on Mr Sunol's website constituted an express invitation to users to click on the offending link and view the offending passages. (See also Burns v Sunol [2016] NSWCATAD 74 at [54] - [56].)
Consistent with the line of authority discussed above, the context in which the subject link appears is highly relevant to the determination of whether the communication of the material behind that link is a public act of the alleged vilifier. Of itself, the posting of a link on a website maintained by the alleged vilifier is unlikely to be sufficient to establish that the alleged vilifier communicated the material behind that link to the public. Generally something more will be needed such as an express or implicit invitation, direction or some other form of encouragement. Whether there was such invitation, direction or encouragement requires careful consideration to the context of the subject link, including any surrounding words or images.
We are not persuaded that the words surrounding the subject link - "Shared publicly", "Homosexual marriage is just the beginning…" and "Add a comment", - read in context could be said to constitute an invitation, direction or form encouragement to viewers of Mr Sunol's website to view the challenged material. While the first of these statements could, arguably, be seen as a teaser, given its somewhat obscure meaning, we are not persuaded that either alone or in combination with the other statements surrounding the link, it could be said to be an express or implicit invitation, direction or encouragement by Mr Sunol to users of his website to view the challenged material. In reaching that conclusion we acknowledge that the dividing line between material that constitutes an invitation, direction or form an encouragement and that which does is not always clear.
The facts of this case, in our opinion, are distinguishable from those discussed above where it was found that the alleged vilifier was relevantly responsible for the communication of the offending material. In each of those cases, it was more readily apparent from the context in which the subject link appeared that visitors to the alleged vilifier's website were being invited, encouraged and/or directed to view the material behind the link.
For these reasons we are not satisfied that Mr Sunol communicated the challenged material to the public. We note that Mr Burns does not contend that paragraphs (b) of (c) of the definition of "public act" are satisfied. It follows the complaint must be dismissed.

Relief sought

The final issue to be determined is what if any order should be made under s 108(2) in relation to Complaint 1.
In Points of Claim, Mr Burns sought orders that Mr Sunol cease "homosexual vilification". At hearing, he advised that he no longer sought an order of this type, namely an order under s 108(2)(b) of the Act enjoining Mr Sunol from continuing or repeating the type of conduct the subject of this Complaint 1, because he acknowledged orders to that effect are already in place as a consequence of the decision in Burns v Sunol [2015] NSWCATAD 131. We note that an Appeal Panel of NCAT dismissed Mr Sunol's appeal against that decision on the ground that the Tribunal lacked power to make orders of that type: Sunol v Burns [2015] NSWCATAP 207.
For these reasons we make we make no orders under s 108(2) of the Act. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2016

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