EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2016-055
PARTIES
Mark Savage
-AND-
Boards.ie Ltd
(Represented by Eamonn Marray BL,
instructed by Gore & Grimes Solicitors)
File Reference: et-154382-es-15
Date of Issue: 14th September 2016
1. DISPUTE
1.1 This dispute concerns a claim by the Complainant, that he was discriminated against by the Respondent in relation to accessing its online discussion forum, ‘Boards.ie’, on the grounds of religion contrary to Sections 3(e) and 5(1) of the Equal Status Acts 2000-2015 (hereinafter also referred to as ‘the Acts’).
1.2 This complaint was lodged with the Director of the Equality Tribunal on 3rd March 2015 followed by a duplicate on 12th March 2015, an ES1 Notification having been sent to the Respondent on 2nd February 2015. On 7th June 2016, in accordance with his powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated this case to me, Aideen Collard, an Adjudication Officer / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is when my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 10th June 2016. The Complainant represented himself and confirmed that he was familiar with the relevant procedures whilst the Respondent was legally represented. All evidence presented and submissions and documentation submitted before and during the hearing have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
1.3 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant explained that he had signed up as a member of ‘Boards.ie’, a well-known Irish online discussion forum on 18th January 2015 to assist in promoting his ‘no’ campaign for the forthcoming Marriage Equality Referendum. Several days later, on 22nd January 2015, in a written message from one of the website’s moderators, he was permanently banned from the forum for being ‘uncivil’. As a person with a Christian/Catholic religious outlook on life which would have been obvious from the content of his postings, he had expressed his own personal opinions in relation to same sex marriage and homosexual lifestyle. He contends that he was treated less favourably on the grounds of religion because the website moderators had not agreed with his particular views. He referred to examples of other posts which he considered uncivil but where the posters were not banned. He felt that the moderators had defamed him, deprived him of his right to freedom of expression and discriminated against him in the knowledge of his religious outlook on life. He submitted that this discrimination occurred in the context of ‘Boards.ie’ being a service provider to him as a member of the public. He sought to have the ban rescinded along with ‘punitive’ compensation. When questioned by Counsel on behalf of the Respondent, he disagreed that the content of his postings were inflammatory, objectionable, defamatory and discriminatory and contended that he was entitled to publicly air his views in an unfettered manner.
3. SUMMARY OF THE RESPONDENT'S SUBMISSIONS & EVIDENCE
3.1 The Respondent wholly refutes the Complainant’s claim that he has been discriminated on the grounds of religion either directly or indirectly as set out in its reply to the ES1 Notification. A summary of the Complainant’s postings on various discussion threads on its forum was produced at the hearing. The CEO gave evidence confirming that the Complainant had been excluded from its forum because of the inflammatory, offensive, defamatory and objectionable content of his postings, having initially engaged with the Complainant through its moderating supervision requesting him to desist from such postings and the Complainant having persistently refused to do so. The CEO further confirmed that the Respondent was at no time aware of the Complainant’s religious status or beliefs and had not at any time, sought to elicit same by way of sign-up form or otherwise. He confirmed that there are many discussion threads dedicated to religious views but that the Complainant had not posted on same.
3.2 The CEO went on to confirm that the Respondent is a commercial undertaking operating a private website which welcomes members of all ages, religions, ethnicities, genders and sexualities. As a commercial business relying upon advertising from third parties for its revenue, it operates on a contractual basis whereby all users of the forum including the Complainant agree to be bound by the Respondent’s Terms of Use, which regulates the manner in which posters may use the website when they post. The Respondent is therefore entitled to exclude members of the public who are unwilling or refuse to abide by its terms and conditions as they have no contractual entitlement to post on its forum.
3.3 In addition to submitting that the Complainant had not made out a prima facie case of discrimination on the grounds of religion in relation to direct discrimination, the Respondent relied upon the defence of objective justification in relation to any claim of indirect discrimination. In this respect, Section 3(1)(c) of the Acts provides that discrimination shall be taken to occur: “Where an apparently neutral provision puts a person referred to in any paragraph of Section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” It contended that its legally binding Terms of Use precluding such posting are appropriate and necessary to achieve the legitimate aim of protecting its commercial interests. Not only would such posts damage the Respondent’s reputation and profile of its business with third party advertisers but they would also expose it to multiple legal claims which would result in the Respondent being unable to avail of insurance cover and/or being subject to prohibitive cover.
3.4 The Respondent submits that accordingly, it would treat all persons who posted in a similar manner to the Complainant the same regardless of religious persuasion and there is no evidence to suggest otherwise in the instant case. It is further submitted that the Complainant’s right to freedom of expression is not absolute and is subject to legal limitations required by the common good. In this respect, reliance was placed on those outlined in The Irish Constitution by Kelly (Pages 1268-1271) Overall, it was submitted that the Complainant’s claim is misconceived and should be dismissed.
4. FINDINGS & CONCLUSIONS
4.1 The issue for decision is whether the Respondent discriminated against the Complainant on the grounds of religion in relation to accessing its online discussion forum and the facts adduced must be assessed in light of the relevant law. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)..." Section 3(2)(e) defines the discriminatory grounds of religion as arising in circumstances when as between any two persons “that one has a different religious belief from the other, or that one has a religious belief and the other has not." In relation to the disposal of goods and provision of services, Section 5(1) provides: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public” There is no issue that the ‘Board.ie’ discussion forum constitutes a service to the public within the meaning of Section 5(1) of the Acts.
4.2 Section 38A of the Equal Status Acts sets out the burden of proof which applies to all claims of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
4.3 The facts giving rise to this complaint are not in dispute, save than that the Complainant disagreed with the Respondent’s view that his postings were objectionable. The Complainant asserted that he has an unfettered entitlement to post his views in relation to contentious matters on the Respondent’s ‘Boards.ie’ forum and its restrictions and consequential ban imposed constitutes discrimination on the grounds of religion, whilst the Respondent contends that it is contractually entitled to limit the content of postings. Having considered the Complainant’s evidence at its height, I am satisfied that there is no evidence that the Respondent was aware of his religious beliefs, or if such beliefs could have been adduced from the content of his postings, that it sought to restrict his access or ban him based upon same.
5. DECISION
5.1 I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has not established a prima facie case of discrimination by the Respondent on the grounds of religion requiring rebuttal and accordingly dismiss same.
__________________________
Aideen Collard
Adjudication / Equality Officer
14th September 2016