Does Your Boss Remind You of Hitler?

by Sonia Hickey

It seems there was a time when pretty much anyone and anything could be a punchline.

But in this day and age of political correctness, it can seem as though the pendulum has swung in the other direction, and that no one can take a joke anymore.

Not so, according to a recent ruling by the Fair Work Commission which decided that an employee did not deserve to lose his job after creating a meme which compared his boss to perhaps the most notorious ruler in history, Adolf Hitler.

The story so far

The employee, a technician on a BP oil refinery in Western Australia, was originally sacked after he used a scene from the film ‘Downfall’ about the final days of Hitler and Nazi Germany, to depict his bosses during a tense wage negotiation.

The original scene shows furious Hitler finding out that his generals have let him down and the war is lost. He calls his soldiers “cowards, traitors and failures”, his veins popping with rage.

Since the film’s release in 2004, this particular scene has taken on a life of its own, and has been used to create thousands of memes depicting Hitler raging about everything from election results, to social media outages and roadworks.

After he was sacked, the BP worker took his case the the Fair Work tribunal, and the deputy president Melanie Binet sided with BP in finding the video was “inappropriate and offensive”.  BP argued the video “attributes to Hitler’s character” comments the refinery manager had made during the wage negotiations and while.

In Ms Binet’s ruling, she stated that she did not accept that ‘labelling something as a parody was a ‘get out of jail free card’ nor did it mean something was not offensive’.

Successful appeal

But after an appeal, the Fair Work Commission overturned the original decision, finding that the widespread use of the scene as a meme had the effect of “culturally dissociating” it from its original context.

The Commission found that: “the clip has been used thousands of times over a period of more than a decade for the purpose of creating, in an entirely imitative way, a satirical depiction of contemporary situations has had the result of culturally dissociating it from the import of the historical events portrayed in the film.”

“After this period, any interest which remains in the clip will usually reside in the degree of inventiveness involved in successfully adapting the scene to fit some new situation. Anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving Hitler or Nazis.”

It’s conclusion was that even “in isolation from its memetic context” the worker’s parody did not compare his employers to Nazis or Hitler.

“It is apparent that the video does not liken BP management to Hitler or Nazis in the sense of stating or suggesting that their conduct or behaviour was in some sense comparable in their inhumanity or criminality,” the judgement stated.

“What it does do is to compare, for satirical purposes, the position BP had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945.”

It likened the comparison to the idiom that “someone is like Napoleon at Waterloo”.

“This is obviously not to be understood as drawing a comparison between the person and the personality, behaviour, deeds or stature of Napoleon Bonaparte; rather, it is a stock way to say that the person is facing a final, career-ending defeat,” the Commission rules

Be careful about what you post online

While the Australian Worker’s Union welcomed the decision, calling it both a victory for “workers’ rights in the digital era” and “Aussie larrikinism,” and the incident has ended well for the employee in question, it still doesn’t give us all free reign to take the mickey out of our colleagues or bosses, and post it online.

It is against the law to discriminating against or defame an individual, and they could find themselves not only facing the Fair Work tribunal, but a court room as well.

Discrimination laws in NSW

The Anti-Discrimination Act 1977 is a complex piece of legislation outlying all of the ways that people can be discriminated against. If a perpetrator is found guilty of discrimination, they may have to pay compensation to the victim.

Defamation

Defamation refers to something said or written by one person which negatively affects the reputation of another person, and that thing said or written is not true or is unsubstantiated.

Defamation laws vary only slightly across the states and territories of Australia. In New South Wales they are outlined in the Defamation Act 2005 (NSW).

You do not need to prove whether there was any damage to you as a result of the defamation. But, if you intend to file a defamation claim, then you must do so within 12 months of the original incident. A court can, if necessary, provide an extension on this timeframe if it’s needed. Defamatory material about a person who has died cannot be subjected to a defamation claim.

Defamation claims are increasing every year, as our use of social media also increases.

While defamation is usually considered an offence dealt with in a civil defamation case, it can also attract criminal liability, depending on its nature and seriousness.

Criminal defamation

Criminal defamation is an offence under section 529 of the Crimes Act 1900 (NSW). The law

prescribes a maximum penalty of 3 years’ imprisonment for anyone who, without lawful excuse, publishes a matter defamatory of another living person:

(a) knowing the matter to be false, and

(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused

Section 529(4) provides that a defendant has a lawful excuse if, and only if, he or she would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation.

Section 529(5) makes clear that the prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant.

Section 529(7) requires the consent of the DPP before proceedings can be instituted under the section, and subsection (9) states that a prosecution under the section does not a bar civil defamation proceedings.

There are many examples of people who have found themselves on the wrong side of the law, simply because they didn’t think carefully before using social media to vent frustration, send up a situation, or take revenge.

Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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