No, ‘offensive’ social media posts won’t put you behind bars

^{By Caitlin Cefai}

A Daily Mail Australia article is gaining significant traction on social media after claiming that “offensive” social media posts will become punishable by imprisonment if a bill introduced by the Queensland Labor government becomes law.

The article states the proposed changes to the law “could see Australians jailed for three years for posting what's deemed ‘offensive’ on Facebook in an attempt to protect minority groups”.

But the claim is false – the proposed amendments in the bill will not affect social media.

The article refers to the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Bill 2023, which is currently under consideration by the Queensland Legal Affairs and Safety Committee. The committee is due to table its report on June 30 and then the government will have until September 30 to respond to the report’s recommendations.

The bill aims to amend multiple Queensland legislation, including the Anti-Discrimination Act 1991, and the Criminal Code. The amendments do not attack, or attempt to suppress, the expression of opinion on social media; except in cases of inciting harm or violence on the basis of a protected attribute such as sex or race.

Notably, the bill seeks to ban the display of hate symbols and increase penalties for offences motivated by hatred or severe contempt. It would increase the maximum penalty for serious vilification offences from six months to three years in jail, but does not propose any change to the language used to describe such offences.

Its introduction follows legislative amendments passed in Victoria and New South Wales last year to ban public displays of the Nazi swastika symbol – with religious exceptions.

But, as FactLab’s weekly newsletter, CheckMate, reports, the proposed legislation makes no changes to what is considered "serious vilification" in Queensland, nor does it make any changes in relation to social media.

In fact, despite the Daily Mail's quotation marks, the word "offensive" does not appear in the bill at all, and only appears once in the Anti-Discrimination Act in an unrelated section.

Nevertheless, the article by Daily Mail Australia has been viewed more than 100,000 times on social media. It has been shared in multiple freedom rights Facebook groups, including Family Voice Australia and Human Rights Advocates Australia where it has had more than  500 interactions. 

Additionally, Queensland LNP senator Gerard Rennick shared the claims made in the Daily Mail article on Facebook, gaining over 600 direct reactions and 300 comments.

In the post’s caption from June 3, Senator Rennick referred to the proposed amendment bill as “the censorship industrial complex … out of control”. 

Experts say the claims are unfounded, telling FactLab that the bill has been misconstrued.

Currently, the offence of serious racial, religious, sexuality or gender identity vilification is contained within Queensland's Anti-Discrimination Act. 

Scott McDougall, Queensland's Human Rights Commissioner, told FactLab the changes proposed in the government's bill did "not broaden the scope of conduct considered to be serious vilification". 

"Nor does it allow for posts (or other acts) which are 'offensive' but which do not involve a threat of harm or incitement to threaten harm to be categorised as serious vilification," he said.

According to Mr McDougall, the changes included moving the serious vilification offence to the Criminal Code and removing the requirement for the need to obtain the consent of the Director of Public Prosecutions before laying charges.

Mr McDougall said it was "not correct" to say that the serious vilification offence criminalised "merely 'offensive' posts".

"A requisite element of the offence is 'threatening physical harm' or 'inciting others to threaten physical harm'," he explained.

Mr McDougall noted that only five charges of serious vilification had been laid in the 20 years since the law came into force in Queensland in 2001.

"The Department of Justice and Attorney-General informed a previous parliamentary inquiry into this issue that as of 30 April 2021 there had been five charges laid and three convictions under the existing offence," he said.

"The commission is only aware of the outcome of two of those convictions: one was a sentence of imprisonment for two months (wholly suspended) and the other was 40 hours' community service. Neither involved online posts."

Bill Swannie, a lecturer at the Thomas More Law School at the Australian Catholic University, added that the bill made "no changes regarding social media".

Mr Swannie told FactLab that “the requirement of knowingly or recklessly inciting hatred towards, serious contempt for, or severe ridicule of a person or group is a very high threshold”.