We are treating internet users at large as 'the class' to which the publications were
'directed'. It may well be that the people who log in to the websites where these
publications occurred - being in the majority of instances the sites maintained by
Mr Sunol - would be more responsive than 'ordinary' internet users to the
statements attacking homosexual people. But we have no evidence on this
question.
57 Similarly, in this case, there is no evidence as to the nature of the particular
audience to whom the publications were directed. We simply do not know
whether those who actually read the text or viewed Mr Sunol's YouTube clip
were more or less responsive than ordinary internet users to his statements.
First publication
58 In relation to the first publication, referring to people as "criminals", and saying
that they have been "drug dealing and sexually assaulting young children in
the Mardi Gras" are extremely serious allegations. While Mr Sunol says that he
knows such people are involved in these activities he has not provided any
details about those allegations and has effectively accused all those running
the Mardi Gras of these crimes. There is a very high level of social stigma
attached to being accused of being a paedophile and/or a drug dealer. Mr
Sunol goes on to urge that these people be prosecuted and subjected to
criminal checks and investigations. Accusing people of such serious crimes
and urging that action be taken against them, has the capacity or effect of
inciting an ordinary internet user to hatred and/or serious contempt for those
people.
59 The publication relates to those who "run"' the Mardi Gras and the Mardi Gras
"leaders". We take judicial notice of the fact that the vast majority of people
who organise and participate in the parade (and the Sleaze Ball) are
homosexual. In Burns v Sunol [2012] NSWADT 246 at [57], the Tribunal held
that such statements targetting "the leaders" or "those who run" the Mardi
Gras do not incite hatred, serious contempt or severe ridicule "on the ground
of homosexuality". The Tribunal said:
We recognise that these rulings differ from the rulings given on broadly similar
publications by the Tribunal in Collier v Sunol [2008] NSWADT 339. But it does
seem to us that vilificatory statements referring specifically to the 'leaders' or
'those who run' the Mardi Gras should not be viewed as applying to everybody
involved in the Mardi Gras. Equally, such statements do not necessarily imply that
the 'leaders' or 'those who run' the Mardi Gras should be the objects of hatred
and/or serious contempt solely or substantially on account of their homosexuality.
This may in fact be Mr Sunol's opinion, but his opinion is not the issue to be
determined. What matters is the message that his words conveyed.
60 The subsequent decision in Jones v Trad [2013] NSWCA 389 clarified the
causation test. The test is not whether homosexuality was the sole or a
substantial basis for the incitement. It is sufficient if homosexuality is one of
the real, genuine or true reasons for the incitement: Jones v Trad supra at
[98]; Nicholls & Nicholls v Director-General Department of Education and
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