Holocaust denial is unlawful in Australia
Section 18C of the Racial Discrimination Act 1975 makes it unlawful to do an act, other than in public, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
There is strong judicial precedent that publishing material on a publicly-accessible website that conveys the imputation there is serious doubt that the Holocaust occurred is unlawful under section 18C.
I realise this provision may cause the blood pressure of some people to rise, so I will point out there are exemptions for certain acts done reasonably and in good faith, and the words of the statute have to be read in context. I'm not going to canvas these matters; instead, I'm going to try to explain the relevant case law as succinctly as possible.
The Federal Court, in Jones v Toben [2002] FCA 1150, held the publication of Holocaust-denying material contravenes section 18C. This ruling was upheld on appeal where the decision was challenged on narrow grounds (Toben v Jones [2003] FCAFC 137; 129 FCR 515). The judge found material, published on a publicly-accessible website, contained the following imputations:
(a) there is serious doubt that the Holocaust occurred;
(b) it is unlikely that there were homicidal gas chambers in Auschwitz;
(c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and
(d) some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
Quoting the relevant part of the judgment (emphasis added):
93. The applicant gave evidence that the Australian Jewish community has the highest percentage of survivors of the Holocaust of any Jewish community in the world outside of Israel. Each of the first two of the imputations identified in [88] above thus challenges and denigrates a central aspect of the shared perception of Australian Jewry of its own modern history and the circumstances in which many of its members came to make their lives in Australia rather than in Europe. To the extent that the material conveys these imputations it is, in my view, more probable than not that it would engender feelings of hurt and pain in the living by reason of its challenge to deep seated belief as to the circumstances surrounding the deaths, or the displacement, of their parents or grandparents. For the same reason, I am satisfied that it is more probable than not that the material would engender in Jewish Australians a sense of being treated contemptuously, disrespectfully and offensively.
94. I am also satisfied that it is more probable than not that the third and fourth of the imputations identified above, by reason of their calumnious nature, would offend, insult, hurt and wound members of Australian Jewry and engender in them a sense of being treated contemptuously, disrespectfully and offensively.
95. For the above reasons I am satisfied that the publication of the material set out in [81] above on an website which is not password protected was an act reasonably likely in all of the circumstances to offend and insult a group of people, namely Australian Jewry.
96. It also seems to me to be objectively likely, in the sense discussed above, that the publication of the material set out in [81] above on an website which is not password protected would cause damage to the pride and self‑respect of vulnerable members of the Australian Jewish community, such as, for example, the young and the impressionable. The World Wide Web is now an important tool which many people, including students, may be expected to utilise when searching for information. Vulnerable members of the Jewish community, as a result of being exposed to material of the kind set out in [81] above, might well experience, whether consciously or unconsciously, pressure to renounce the cultural differences that identify them as part of the Jewish community. I am satisfied that it is more probable than not that there are members of the Australian Jewish community who will become fearful of accessing the World Wide Web to search for information touching on their Jewish culture because of the risk of insult from the material set out in [81] above. For these reasons I am satisfied that the act of publishing that material was an act reasonably likely, in all of the circumstances, to humiliate and intimidate a group of people, namely members of the Australian Jewish community vulnerable to attacks on their pride and self‑respect by reason of youth, inexperience or psychological vulnerability.
As I stated above, on appeal by the publisher of the material, the issues were somewhat narrowed. All three judges dismissed the appeal. Perhaps most relevantly, Justice Kiefel (as she then was, currently Chief Justice of the High Court) stated:
66. With respect to the imputations at (a) and (b), doubt is cast upon the Holocaust, or the extent of it, and the methods of extermination utilised. The article is clearly concerned to challenge, and call for proof of, the events said to constitute the Holocaust and for which the German people have, in the writer's view, been held to account. It concerns events of great significance to Jewish people. Even if it does not amount to a complete denial of the Holocaust, it is more than likely to offend and insult many Jewish people.
It is widely accepted in Australia, following this precedent, that Holocaust denial is unlawful. Political debates about section 18C often relate to the risk any amendment will make Holocaust denial lawful.
Holocaust denial is, or should be, against the site's rules
Allowing Holocaust denial places NS in the absolute fringes of even the worst of purely vile stuff you can find on the Internet. Holocaust denial calls millions of people liars on the basis of their ethnicity. At its core is the idea that Jewish people lie about the deaths of their closest family for political gain. It humiliates people on a personal level, it diminishes their loss, and it reenlivens their trauma. If someone posted "my grandfather died" and someone else continuously hounded them for lying about that for gain, we would ban them. This is no different. It is not legitimate political expression. It is hatred, it is defamatory, and it is antisemitic. The situation where it is allowed under the site's rules, but calling someone who says those things about you 'an idiot' is actionable, is bizarre.
The two most widely-used definitions of antisemitism, the International Holocaust Remembrance Alliance definition and the Jerusalem Declaration, both unequivocally state that Holocaust denial is antisemitic. IHRA says:
Holocaust denial in its various forms is an expression of antisemitism. The attempt to deny the genocide of the Jews is an effort to exonerate National Socialism and antisemitism from guilt or responsibility in the genocide of the Jewish people. Forms of Holocaust denial also include blaming the Jews for either exaggerating or creating the Shoah for political or financial gain as if the Shoah itself was the result of a conspiracy plotted by the Jews. In this, the goal is to make the Jews culpable and antisemitism once again legitimate.
The Jerusalem Declaration on Antisemitism states:
Denying or minimizing the Holocaust by claiming that the deliberate Nazi genocide of the Jews did not take place, or that there were no extermination camps or gas chambers, or that the number of victims was a fraction of the actual total, is antisemitic.
