Speech and the balance of intimidation

Many Australians have the misguided idea that we have freedom of speech in Australia. They have been watching too many American movies.

The recent plea by leading media figures and others for greater freedom of expression; Israel Folau’s fight against his employer’s restriction on his speech and the latest of a string of court defamation rulings once again reinstating the speech restrictions of Victorian England just simply would not be necessary or not happen in the US. 

We can pick up a lot of US culture and go to idiotic wars in places of no real concern to us just to please the US, but there is still a large cultural difference between our nations that stems from our very geneses.

The US fought for its independence from Britain and then drew a line, keeping what it saw as worthwhile things from Britain and discarding what it found objectionable.

The resulting Declaration of Independence and Constitution with its Bill of Rights enshrined freedom of speech, freedom from unwarranted search and seizure, checks on Executive power and monarch-free government by the people.

Australia, on the other hand did not have a war of independence and so we only gradually discarded bits of the British inheritance and we are still clinging unnecessarily to a lot of it. 

We have kept the monarchy, flag and a national day that commemorates defeat in a battle caused by British bungling in a place we had no real interest in being. An in the context of this discussion, we kept restrictive defamation laws (which the British themselves have substantially eased); the mentality and many of the legal strictures of the Official Secrets Act; and wide search and seizure laws.

The search and seizure at the ABC and a News Limited journalist’s home; the raft of recent huge defamation damages awards; the ruling this week that media companies are liable for other people’s Facebook comments; the Folau case; and the exposure of the Prime Minister’s Department’s flagrant disregard for both the spirit and law of its Freedom of Information obligations could be the perfect storm that should put an end to the Australian legal system’s unacceptable burdens on freedom of speech.

Police raids on newsrooms and journalists’ homes – criminalising journalism – would not happen in the US as the Pentagon Papers and Watergate cases show. Nor would they happen in the more robust democracies of western Europe.

The raid on the home of News Corp Australia journalist Annika Smethurst was over a leaked plan to allow government spying on Australians. The ABC raid was over leaked information about whether Australian soldiers committed war crimes in Afghanistan.

Both are of utmost public importance. The Government should be putting its efforts into the substance of the abuse revealed by the leaks, not who did the leaking and whether the news organisations publishing the leaks could be threatened with prosecution.

In the interests of democracy and more efficient and effective government we should be reversing the balance of intimidation. Instead of the government intimidating journalists, the government should be intimidated into not behaving badly in the first place because it might be exposed.

A good first step would be to make the leaking of malfeasance or illegality by government and the publishing of it by media prima facie legal.

Similarly, we should reverse the balance of intimidation with the defamation laws.

In 2006 all the states and territories passed uniform law which was supposed to cap damages at an indexed $260,000 for the worse case and provide various public-interest defences. But the reform was not bold enough and since then, the judiciary has systematically overridden the legislative intent.

The result is they now tack on “aggravated damages” and routinely award damages at the high end of the scale for low to mid-range imputations with narrow publication, when the indexed $260,000 (now $400,000) was supposed to be for worst-case situations such as accusations of murder, paedophilia etc published very broadly. They then add aggravated damages, sometimes higher than the base award. And they can further add damages for loss of income, often assumed rather than proved.

The result has been very large damages awards which send out an intimidatory message that protects the rich and powerful, usually men.

In Britain, since a broad public-interest defence and a requirement to prove “serious harm” was included in reforms in 2013, the number of cases has shrunk.

Another difficulty in Australia is the rise of social media. Now anyone can publish to the world without the intervention of the good sense of a media editor. It means all sorts of inflammatory matter is published under naïve illusion that Australia has free speech. Lower no-cost tribunals are being clogged by self-represented litigants spatting over social-media posts.

The law has not caught up, as last week’s Facebook case shows. The owner of a Facebook page will now be liable for comments posted on their page in addition to the person who made the defamatory comment.

To be safe everyone should shut down the comment part of their page. It rather defeats the purpose of Facebook and sends a chill over free speech.

A better approach would be to exonerate the Facebook page owner unless the aggrieved person notifies them and asks for the comment to be taken down and they refuse to do so.

The Folau case (tweeting that all homosexuals, atheists etc would go to hell) is another example of someone not comprehending the power of one person being able to publish to the world without a sensible editor intervening.

Again, though, a better way to look at this would be to take account of the fact that this is just one person mouthing off and that it should not be given the credibility that a considered publication by an organisation that holds itself out to be an authoritative publisher. He should have been ignored or laughed at. The attempts by his employer to constrain free speech that is irrelevant to the performance of the work have only backfired.

We need change. Constitutional protection for freedom of speech, assembly and religion; freedom from unreasonable search a seizure; and a general right to access government information with the onus of proof on withholders of that information would be a good start.

Our democracy and liberties depend on this because only with greater freedom of speech will Governments, the rich and powerful be held accountable for misdeeds of the past and be deterred from committing misdeeds in the future.

CRISPIN HULL

This article first appeared in The Canberra Times on 29 June 2019.