Rainbow Wellington and McDonald's WiFi
Our campaign over McDonald’s WiFi which blocked so many LGBT-related websites, continues. We have received an initial response from the Human Rights Commission, with a legal opinion which basically states that, because other non-gay sites are also being blocked, then we are not being discriminated against. In other words, because others are being discriminated against as well, there is no discrimination on the grounds of sexual orientation; rather like saying that the presence of anti-Semitism justifies homophobia. Tony Simpson, our Chair, has responded as follows:
Thank you for your email of 23 June. We are ready to proceed to mediation at your convenience.
You have our perspective on this matter set out in our letter of 16 May and your summary sent to us with your email. I should for the sake of expediting matters also give you our preliminary response to the view of Sylvia Bell, with which, with respect, we do not agree.
It needs to be emphasized that the Human Rights Act (the Act) does not include a definition of what constitutes discrimination and whether or not its provisions apply depends on the specific facts and circumstances of any matter under review. Thus, the motivations of McDonalds in this particular instance are not relevant in our submission, and we are, in any event in general terms at one with them in their desire to protect children from pornography. Nor is the fact that they are applying their filtering system on a range of criteria. What is relevant is the net effect of the filter they are using. That effect in our submission is to deny access to casual users on the basis of certain key words such as ‘gay’ or ‘lesbian’ or ‘homosexual’ on the grounds that these are not ‘family friendly’.
You will appreciate that we do not know for certain what is meant by the expression ‘family friendly’ but I am sure that you are aware that this expression has come to take on a certain political connotation in New Zealand and internationally in recent years. It usually means that the users of the expression do not approve or are actually hostile to any family relationship which does not involve two heterosexual parents in a relationship sanctioned by a religious ceremony, and excludes any other family relationships, notwithstanding that these latter make up the majority of such relationships in our society. It is particularly directed to defining any relationship on a same sex basis as abnormal or unacceptable.
That this may be so in this case is underlined by the fact that, in our understanding, the filter software in use is owned by a company called Bluecoat. This company has been the subject of some controversy internationally because of their overtly homophobic views, and investigation by interested parties in this country (independently of us) because of this. This, an attempt to access websites through the Grey Lynn McDonalds outlet in January quickly established that the Rainbow Youth site was blocked, despite this particular group being the principal recipient of the Dancing With The Stars charity – deriving from a well known ‘family friendly’ program on mainstream free to air television. There was similarly a block on access to the website of the Gay Auckland Business Association. Both of these organizations are major players in important charity work in New Zealand, and there is not a whiff of a suggestion of anything pornographic or improper, or ‘family unfriendly’ about their activities.
There was, on the other hand, ready access through the wifi in this outlet to a rape scene from an R18 film, the website of the notoriously racist National Front, and the Exodus Ministry which is similarly notoriously homophobic. All of this suggests that the filtering software being used by McDonalds has the net effect of stopping access to anything which presents gay and lesbian matters in a favorable light, a clear instance in our view of discrimination in the provision of a service on the basis of sexual orientation.
What we do not know are the criteria being applied by the McDonalds filtering software when the expression ‘family friendly’ is being used. It would therefore be helpful if that information could be tabled at the mediation and then we would have something clear and concrete to go on.
We should also emphasise the point made in our original application to you that however laudable McDonald’s declared motivations may be, they are not legally empowered to censor material, and any attempt to do so on their part is strictly speaking outside the law in the form of the Bill of Rights Act. You do not, of course, administer this Act but we are all, including yourselves, required to act within its terms.
Finally, I should say that we do not wish this to become an adversary situation between ourselves and McDonalds. That is not the point of the exercise which may come to involve others e.g. the Wellington City Council which is about to provide a similar wifi service according to media reports. No doubt others will follow suit. We are trying to ascertain how the Act applies in an internet world which did not exist when it was formulated.
Ideally our outcome would be one that satisfies McDonalds’ desire to protect children from pornography but which does not do so in such a way that has the effect of discriminating against potential users of the service on the basis of sexual orientation.
As you see, our main aim in this is to gain some sort of judgment that such software discriminates against us, and indeed probably against others as well, and should therefore not be employed. We are aware that the McDonald’s case has alerted WCC that care with the software chosen is crucial, and that simply unblocking selected sites on demand after the event is insufficient.