Ruling deems social media posts proper relief for contravening Racial Discrimination Act
Australia’s Federal Court has ruled that asking parties to “pin” a corrective notice on top of their Instagram profile and “feature” the notice on Facebook was a redress proportionate to the nature and extent of the wrong they committed.
Wertheim v Haddad (No 2), [2025] FCA 820, arose from the Federal Court’s declaration that the first and second respondents contravened s 18C of the Racial Discrimination Act 1975 (Cth) by making and publishing three lectures on Rumble.
The court deemed the speeches – with statements insulting Jewish individuals in general and repeating racist stereotypes about them – reasonably likely to offend, insult, humiliate, or intimidate Jewish members of the Australian community.
The court ordered the respondents to remove the lectures, refrain from repeating or continuing their acts considered unlawful, and pay the applicants’ proceeding costs.
The applicants requested relief by publishing notices of the court’s conclusion that the respondents had contravened part IIA of the Racial Discrimination Act on the relevant social media platforms for 30 days. The applicants wanted the respondents to use Facebook’s “feature” tool and Instagram’s “pin” tool.
The respondents accepted the correction notice’s proposed wording and acknowledged that they should publish it on the pertinent social media accounts. However, they challenged the requirements seeking to ensure the notice’s prominence on Facebook and Instagram.
The respondents alleged that entrepreneurs and individuals selling products and offering services usually used Facebook’s “feature” tool and Instagram’s “pin” tool.
The respondents asserted that requiring them to do more than simply publish and upload the corrective notice as a regular post would go beyond an appropriate redress and compel them to advertise and promote the notice.
In line with the revised orders, the Federal Court of Australia directed the respondents to:
The court noted that a 7 July affidavit explained how an account holder on each platform could prevent material from swiftly disappearing from view and prevent subsequent posts or mechanisms aiming to promote fresh content from overtaking the material.
The court found that requiring a “pin” of the corrective notice on Instagram and a “feature” of the notice on Facebook would not entail a service fee or be onerous, complicated, time-consuming, or unduly burdensome from the perspective of dominating or cluttering the social media accounts.
The court noted that the respondents could make other posts and would only need to keep the notice up for 30 days, in line with the proposal. The court accepted that “pinning” and “featuring” the corrective notice would indeed constitute “promoting” the notice to an extent.
However, the court held that “promoting” the corrective notice in a relatively constrained way was part of its intention, given that the respondents had promoted unlawful lectures.
Lastly, the respondents argued that they had never “directly” uploaded the lectures to Facebook or Instagram. The court said this argument missed the point because sharing the links of the lectures posted on YouTube and Rumble on Instagram and Facebook enabled easy access for those interested in viewing them.
