Discriminatory activity on the part of Mcdonald's ltd
DISCRIMINATORY ACTIVITY ON THE PART OF McDONALDS LTD
As you will be aware Rainbow Wellington is a Wellington based group which, among other activities, monitors matters relating to the human and civil rights of gay, lesbian and related oriented people (gltbi) on a national basis. We are writing to you because we believe that a breach of the Human Rights Act (the Act) may have occurred arising from the activities of the fast food company McDonalds Limited.
The factual situation
On 18 January a member of our organization entered the premises of McDonalds Limited situated opposite the Wellington railway station. She was aware from media reports that the company had recently installed a system (WiFi) which allows customers to connect portable computers to the internet. She sought to connect to the website for this organization under an identification which contained the words ‘Rainbow Wellington’. However, she found that she was unable to do so and that access was blocked.
Because of media reports she was aware that this was not an isolated incident. Others had reported in gltbi media that they had experienced similar blocking problems when they attempted to link to gltbi sites. Our member reported this to us and at her request we contacted McDonalds who confirmed that the site had been blocked and who agreed to unblock it. This has subsequently happened we gather, but that is not, in our view, the end of the matter. There appears to be a discriminatory practice in place here which is based, in part, on the sexual orientation of the customers of this company. This is one which, in our view, needs to be looked into by the Human Rights Commission as a body charged with overseeing the human rights legislation in this country.
Our understanding
It is our understanding, also from media reports, that McDonalds, in supplying access to the internet for customers in store do not want this to allow children to gain access to offensive web sites, particularly of a pornographic nature. That seems to us, as it happens, to be an unlikely outcome because children are usually accompanied to these outlets by parents who can monitor the access on the spot, but that is the motivation as we understand it. To undertake this task McDonalds have contracted the services of a specialist company in this field (of which there are a number in this country offering such services, this particular company trading as Blue Coat). We also understand that this monitoring is conducted by the use of key words such as ‘gay’ or ‘rainbow’ and when one of these is detected in website content the monitoring system automatically blocks access to that website. Thus the blocking of the Rainbow Wellington website, and we gather, a number of others on a similar basis.
We should make it clear that our website does not carry pornographic material but deals with information, communication, and educational material, and with notification of forthcoming social events and other items of interest to gltbi people whether members or not.
Our view
We have no quarrel with McDonalds’ motivation in seeking to shield children from pornography of any kind. That is a sensible and laudable objective. We do take exception, however, to the effect of the manner in which this is being done by their contractor, which seems to us to offend against the requirements of the Human Rights Act.
As you will be aware, S.21 of the Act forbids discrimination on the grounds of sexual orientation. S.44 furthermore forbids such discrimination in the provision of goods and services. By providing a service which is not immediately accessible to all but which prevents some people from accessing it on the basis that certain key words or phrases identify gay or lesbian sites (which might carry pornography but, as our own instance shows do not automatically do so) McDonald’s, it seems to us, is in breach of these two sections of the Act.
That their motives in doing so are laudable is irrelevant. McDonalds are not empowered to enforce the provisions of legislation designed to protect children from pornography or other objectionable material. That is a legal role reserved for the censor. Nor in adopting a business practice to that effect are they free to also include within its compass on a broad basis a practice which prevents gltbi customers, on the basis of what is in practice their sexual orientation, from accessing legitimate websites. If they want to protect children from accessing pornographic images they must find some other way to do so within the compass of the connection service they offer.
We should also remark for the sake of completeness that we consider their actions to be in breach of Part 2 S.14 of the New Zealand Bill of Rights Act 1990, which provides that everyone has the right to seek, receive, and impart information and opinions of any kind in any form. Although we recognize that this does not fall within the brief of the Human Rights Commission we believe that in arriving at any conclusions the Commission must take this consideration into account.
We have taken this matter up with McDonalds. They have expressed their confidence that they are not in breach of the Human Rights Act. This exchange is attached. With respect, we do not endorse this view.
We are referring it to the Human Rights Commission, therefore, for further consideration
Yours sincerely
Tony Simpson
Chair
This letter was reported in both GayNZ.com and Express.