Racial discrimination laws as a means of protecting collective reputation and identity

Abstract

Defamation law is intended to protect individual reputations. It is inadequate to protect collective or group aspects of identity, yet these aspects are important and integral to many people’s sense of self. Hate speech or racial vilification laws, such as the Racial Discrimination Act 1975 (Cth) Pt IIA, are intended to address this lacuna in legal protection. This chapter analyses the interaction between defamation and racial vilification laws as a means of protecting individual and collective aspects of identity, through a close study of two Federal Court of Australia decisions, Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 and Eatock v Bolt (2011) 197 FCR 261. The latter decision in particular is focussed upon, given the intense public debate it has generated about the intrusion of racial vilification laws on freedom of speech.