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Thursday, September 29, 2011

Freedom of speech imperilled or a bad day at the office for Bolt?

Lots of of coverage of yesterday's Federal Court decision by Justice Bromberg in Eatock v Bolt [2011] FCA 1103  which found Andrew Bolt in articles published in 2009 breached the Racial Discrimination Act. Of particular interest is what is being said about what the decision means for freedom of expression. A lot of overblown claims sit alongside reasoned comments about the interplay of rights and how a balance is to be achieved. With an appeal under consideration, there may be plenty of this ahead. Some of the issues that arose in the case are also relevant to the current consultation about a statutory cause of action for a serious breach of privacy.

Bolt himself leads one school with his "terrible day for free speech in this country" remarks followed by a front page lead "Silencing me threatens unity", backed up with two inside pages and an indignant  editorial in the Herald Sun this morning. More along these lines in The Australian's editorial, and from Chris Merritt in the same paper ("If the Federal Court's ruling has correctly applied the law, the entire community has a problem"). The hyperbole prize (so far) however goes to James Delingpole in The Telegraph in far away London-"Freedom of speech is dead in Australia".

But then we have the Chairman of the Australian Press Council Professor Julian Disney on ABC:
"It's fundamental, I think, to note that last point, that (the judge is) saying this area is not a no-go area, the sort of issues that Andrew Bolt referred to; it's only that in the judge's view he didn't do it in a way that complies with the Racial Discrimination Act," he said. "And I think there would be a very clear and worrying risk for free speech, and I think also to eventual social cohesion, if this issue or this case was seen as establishing a no-go area."
 Mark Dunn at Bolt's home base:
Justice Bromberg said his judgment did not ban debate on racial identity issues if it were done "reasonably and in good faith in the making or publishing of a fair comment". "Nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people," he said. 
David Marr in Fairfax papers":
"Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He's attacking lousy journalism."

Andrew Dodd, also in the "concern about free speech" implications camp gave a thoughtful analysis on The Drum.  And Margaret Simons (.."making “irresponsible” journalism illegal? You don’t have to like Andrew Bolt to find that notion worrying") and Charles Richardson (subscriber only) in Crikey respectively take the view that the Racial Discrimination Act should be modified or repealed in the interests of freedom of expression. Similarly Sinclair Davidson of RMIT suggests market forces should sort out where we draw the line ("Bolt is guilty but the law is wrong"). Bridget Griffen-Foley of Macquarie University doesn't like to see legal action taken against the media but "can understand why a group of Aborigines would be grossly offended by the claim that they had chosen to identify themselves as “Aboriginal” in order to win grants, prizes and career advancement" (Bolt loses in court but will condemnation follow"). As to the decision itself..

Freedom of expression
Justice Bromberg outlined and explained the state of the law regarding freedom of expression at some length [227-239]-it's place in international instruments [229], in Australian constitutional law [230] and as a fundamental common law right [231-234]. However "the fact that the right is not unqualified is also unequivocally the case in each sphere [235[.
238. The right of freedom of expression at common law is, by definition, qualified by those exceptions otherwise provided by law. The law of defamation imposes significant limitations on freedom of expression. Other laws imposing limitations include laws dealing with blasphemy, contempt of court and of Parliament, confidential information, the torts of negligent misstatement, deceit and injurious falsehood. Further, a wide range of legislative provisions dealing with obscenity, public order, copyright, censorship and consumer protection place restrictions on the exercise of the right to freedom of expression. These laws recognise that there are legitimate countervailing interests which require the imposition of limitations upon freedom of expression.
Breach of RDA
His Honour found on the evidence [241-335] that Bolt's columns breached s 18C of the act:
18C - Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. 
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence. 
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.

 However s 18D includes a freedom of expression exemption.
18D- Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Justice Blomberg rejected argument that the evidentiary burden regarding the exemption rested on the plaintiff [336-339], examined legal precedents regarding what constituted "reasonably and in good faith"[340-350] and applied the legal principles to the facts of the case [351-429] before concluding the conduct did not attract any of the exemptions [430-446].

Media standards
Given the fact that the Media Inquiry recently announced has as one term of reference the codes of practice that apply to journalism and the media, these passages are of interest:
  1. Ms Eatock also relied upon a number of principles taken from a “Statement of Principles” issued by the Australian Press Council. Those principles include the following:
    • Publications should take reasonable steps to ensure reports are accurate, fair and balanced. They should not deliberately mislead or misinform readers either by omission or commission.
    • Where individuals or groups are a major focus of news reports or commentary, the publication should ensure fairness and balance in the original article. Failing that, it should provide a reasonable and swift opportunity for a balancing response in an appropriate section of the publication.
    • News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.
    • Publications are free to advocate their own views and publish the bylined opinions of others, as long as readers can recognise what is fact and what is opinion. Relevant facts should not be misrepresented or suppressed, headlines and captions should fairly reflect the tenor of an article and readers should be advised of any manipulation of images and potential conflicts of interest.
    • Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence.
    • Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Where it is relevant and in the public interest, publications may report and express opinions in these areas.
  2. Ms Eatock contended and I accept, that the Australian Press Council’s Principles can be regarded as an industry standard. There was evidence that those principles are consistent with those adopted by HWT. She argued that the failure of Mr Bolt and HWT to comply with those principles is demonstrative of a lack of reasonableness and good faith. I need not assess the conduct in that way. It is however of some comfort to the ultimate conclusions I have reached to note that the normative standards of the industry in question recognise that freedom of expression is to be utilised fairly and with reasonable sensitivity.

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