Published in The Sydney Morning Herald on 24/06/2019
GoFundMe’s abrupt shutdown of Israel Folau’s fundraising page yesterday for “violation of… terms of service” is a troubling development for his religious freedom case and has disturbing implications for freedom of speech. Folau’s GoFundMe campaign has been highly criticised. Rugby Australia chief executive Raelene Castle and various media outlets have condemned Israel Folau for fundraising on a forum that, apparently, is only for kids with cancer. Apparently, his campaign opens a legal can of worms. Yet, GoFundMe continues to list 17,000-plus legal fund campaigns. Greens Senator Sarah Hanson-Young continues to raise funds on her year-old GoFundMe campaign for defamation claim against Senator David Leyonhjelm. The much-celebrated “egg boy” protesting Fraser Anning also raised money for legal fees on GoFundMe that were never used for legal fees.
None of these campaigns attracted the hue and cry from Rugby Australia, the media and the other bien-pensants now pursuing Folau. Only his campaign has been pulled. This appears somewhat hypocritical unless Israel is somehow breaking GoFundMe’s rules for fundraising.
GoFundMe’s Terms and Conditions list 27 forbidden grounds for fundraising. It has been suggested that Folau’s campaign breaches ground 8 which bars campaigns for the legal defence of alleged crimes of hate or intolerance. There is no allegation that Israel has committed a crime, so this condition does not apply. It appears that the only other ground GoFundMe can rely on is that Israel’s campaign comes under the catch-all condition 27 “any other activity that GoFundMe may deem in its sole discretion to be unacceptable.” Folau has breached no fundraising rules. Going by its media statement, GoFundMe has simply judged that Israel’s cause is unacceptable because apparently his case threatens values of inclusivity and promotes discrimination and exclusion. Yet Folau would dispute this characterisation and indeed wants these issues to be argued and decided by a court.
GoFundMe’s conduct should alarm all Australians interested in fair and equal access to justice. Anyone who wants to fundraise to have their day in an Australian court now has an extra barrier. Our law firm, the Human Rights Law Alliance has assisted a variety of Australians who have stories similar to Folau – university students, doctors, teachers, taxi drivers, counsellors and many others who claim religious discrimination. These average Australians do not have the fame, wealth or public support of Folau. If they want justice, they face expensive legal fees, long and complex court proceedings, the uncertainty of potential appeals and ultimate responsibility for an opponent’s costs if unsuccessful. On top of that, GoFundMe has now placed another barrier in front of victims of religious discrimination who want to fund raise – a prejudgment from GoFundMe about whether they are bigots or not. Freedom of speech suffers if certain claimants’ legal claims are decided by a corporation before they can get to the courts.
GoFundMe could have let people choose not to give to Israel Folau, but instead they cancelled his campaign. This is wrong. The courts should judge Folau’s claim, not GoFundMe unless it clearly sets out in its terms and conditions that it will be judge, jury and executioner of all issues of fairness, tolerance and diversity.
Human Rights Law Alliance