The Coalition has decided that freedom of speech needs protecting in Australia. They would remove the provisions of the Racial Discrimination Act which criminalise acts which are likely to ‘offend, insult, humiliate or intimidate’ on the basis of race: specifically, to only ban humiliation and intimidation. This is supposedly because banning words that offend or insult is ‘an inappropriate limitation on freedom of speech and freedom of public discussion’. As Senator Brandis said, ‘Offensive and insulting words are part of the robust democratic process which is essential to a free country.’

This is true. I just wished he believed it. After all, defamation laws by definition create liability for offensive and insulting words. As Julian Burnside notes:
Presumably Senator Brandis does not think that the law of defamation is an attack on free speech. It would be odd if he did, since he was part of the Howard government which introduced uniform defamation laws for Australia.

Australia’s defamation laws are heavily biased towards plaintiffs. This has a dire effect on freedom of expression in Australia. Perhaps the most eloquent denunciation of Australia’s defamation laws can be found in Justice Deane’s minority judgment in Theophanous v Herald & Weekly Times Ltd. He notes that that the law makes it easy for the plaintiff to succeed. As Deane J explained, ‘a person who publishes an assertion of fact or a comment which injures (or is “likely” to injure) the reputation of another person is guilty of a tort and liable in damages unless he or she can positively justify or excuse the publication in the particular circumstances of the case.’ Thus, ‘a plaintiff may succeed notwithstanding that he or she calls no evidence to establish either that the defamatory statement was false or that the defendant was motivated by malice or was guilty of negligence or some other fault.’ The High Court has recently affirmed that to be defamatory, the ‘general test’ is ‘whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff’.

This is a very low threshold, and essentially places a considerable risk of liability whenever one person criticises another person. The real test of freedom of speech in a society is, in the words of Justice Holmes, ‘not free thought for those who agree with us but freedom for the thought that we hate.’ To allow freedom of expression, except when one person criticises another, is not to permit free expression at all. Furthermore, the law of defamation is highly inequitable. Most people cannot afford to launch a defamation lawsuit. It is true that there are usually limits on the amount of non-economic damages that can be awarded to a plaintiff. However, as Deane J noted:

Quite apart from liability in damages, the direct and indirect costs involved in defending defamation proceedings in a superior court are likely to represent a crushing burden for the citizen who is unable to obtain legal aid from some government source. The result is that the informed citizen who is not foolish or impecunious will inevitably be deterred from making, repeating, or maintaining a statement which causes injury to the reputation of another if there be a perceived risk or actual threat that the publication or further publication of the statement or a refusal to retract it will give rise to defamation proceedings. And that will be so even if the defamatory statement is known or believed to be true.

This represents a possibly more dire threat to freedom of speech than direct state censorship. As Deane J notes, ‘potential civil liability in damages and costs is likely to represent a much more effective curtailment of the freedom of political communication and discussion than the possibility of conviction of most of the many criminal offences which are punishable by a pecuniary penalty.’ Due to its operational class bias, George Monbiot notes that defamation laws serve as ‘censorship by private interests: a sedition law for the exclusive use of millionaires’.

It may be argued that the existence of defences help to offer some balance to defamation laws. However, as Deane J noted, publishing defamatory statements is ‘prima facie wrongful’, unless an occasion of privilege applies, or the author can:

persuade the court by admissible evidence either that each defamatory element of the statement is substantially true (or, if comment, fair) or that the circumstances were such as to found a defence of absolute or qualified privilege. The informed citizen will be aware that, in a context where a plaintiff in defamation proceedings bears no onus of establishing either the falsity of the defamatory statement or the existence of malice, negligence or other fault on the part of the defendant, there will inevitably be cases where problems of proof by admissible evidence result in a defendant being held liable in damages for publishing a statement which was in fact true.

Thus, whilst the honest opinion and justification defences may on occasion be effective, they cannot be regarded as reliable, even when people say things that are true. The result is to discourage people from saying what they believe to be true, even about issues that may be of burning importance.

If Australia is to protect freedom of speech, at the very least, it should allow people to say what they believe, even at the risk of allowing factual inaccuracies. However, the honest opinion defence is only available if the facts on which it is based are true or a relevant protected occasion, and justification only applies if the defamatory imputations are true. New York Times v Sullivan established the value of allowing factual inaccuracies for the sake of freedom of speech, explaining that ‘erroneous statement is inevitable in free debate, and… must be protected if the freedoms of expression are to have the “breathing space” that they “need to survive”’. Brennan J noted that:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions…leads to… ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred… Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone’.

Our laws have a predictable chilling effect. Curiously, this doesn’t seem to trouble many of the current alleged supporters of freedom of speech.

Since Theophanous, the High Court of Australia has extended the categories of qualified privilege to protect ‘communication made to the public on a government or political matter’. The defendant, once again, has the onus of proving that ‘its conduct in making the publication was reasonable in all the circumstances of the case.’ Such conduct:

will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.

Even then, the plaintiff can defeat this defence by showing the publisher was ‘actuated’ by common law malice. This serves as an explicit justification for censoring political debate.

It should be noted that the requirement of ‘reasonableness’ also applies to the defence of honest opinions. Thus, if a person proves that their defamatory imputations were ‘an expression of opinion of the defendant rather than a statement of fact,’ that their ‘opinion related to a matter of public interest’, and that ‘the opinion is based on proper material’, they then face the hurdle of showing their opinion’s ‘reasonableness’. However, what is considered ‘reasonable grounds’ by one person may not be considered reasonable by another. It is the politically unorthodox, who offer the harshest challenges to society’s most cherished orthodoxies who are most likely to be considered unreasonable. As Mill noted, it is ‘often argued, and still oftener thought, that none but bad men would desire to weaken’ those cherished beliefs society would like to protect from attack. These are the people who are supposed to be protected by freedom of speech, and precisely those whom these provisions are unlikely to protect.

In every age, societies have felt it permissible, if not important, to censor certain morally pernicious, outrageous views. Yet as Mill notes, these ‘are exactly the occasions on which the men of one generation commit those dreadful mistakes which excite the astonishment and horror of posterity.’ He goes on to note that ‘Mankind can hardly be too often reminded, that there was once a man named Socrates’ who ‘was put to death by his countrymen … for impiety and immorality’. Indeed, even Jesus ‘was ignominiously put to death, as what? As a blasphemer.’ Whilst we regard these persecutions as unjust now, we should remember their persecutors were ‘men who possessed in a full, or somewhat more than a full measure, the religious, moral, and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected.’ Most Australians would regard themselves as incomparably more enlightened than such persecutors, without any comparable blindspots. It is, therefore, salutary to contemplate what would be regarded as a reasonable opinion in Tasmania on homosexuality 50 years ago, which was legalised in Tasmania in the last 20 years.

Freedom of expression is necessary for a society to be able to experiment in thought, to allow both individual and societal flourishing and development. In political discussion, it is crucial to maintaining a functioning democracy. Justice Black warned of his ‘doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.’ Deane J, recognising the crucial importance of the freest political debate possible, adopted the comments of the Judicial Committee of the Privy Council:

In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.

Deane J consequently wanted to ‘preclude completely the application of State defamation laws to impose liability in damages upon the citizen for the publication of statements about the official conduct or suitability of a member of the Parliament or other holder of high Commonwealth office.’ This was consistent with the minority judgment of Justice Goldberg, who held that ‘To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect “the obsolete doctrine that the governed must not criticize their governors.”’

Whilst I am sympathetic to Deane J’s view on the importance of free political discussion, it is limited. The government is not the only matter that it is important to discuss. Considering much political discussion revolves around political commentators, it may be of equal significance to discuss their views, and possible failings. It has been quite recently that, Andrew Bolt, the editor of the Australian Chris Mitchell, Australia’s richest man Andrew Forrest, and media commentator Melinda Tankard Reist have threatened defamation lawsuits against people who have criticised them. It is not just politicians whose actions may deserve close scrutiny, and, at times, harsh criticism.

What is not widely known is that, as Lord Reid noted, ‘repeating someone else’s libellous statement is just as bad as making the statement directly.’ If I were to repeat what was said about any of these people, I would be just as liable for defamation as if I were the original alleged defamer.

It is unpleasant being subjected to such harsh criticism, especially if one feels the criticism unwarranted. However, society suffers more severely when it is not free to discuss issues that it feels are of significance. I think a superior balance would be struck if political discussion, broadly construed, was entirely free of defamation laws. In other areas, the burden on the plaintiff should be increased they should have to prove: the defamatory statement was false, damages and common law malice. If it becomes difficult for a plaintiff to win a defamation lawsuit, it will at least become less effective as a threat.

In terms of freedom of speech, the difference between defamation laws and racial vilification laws is that the latter seem to be used far less often. Which is perhaps why the Bolt case saw no chilling effect. The different socioeconomic groups these laws are designed to protect seems to also be a significant difference. The Racial Discrimination Act is to defend racial minorities. Defamation laws protect the wealthy and powerful. Right-wing politicians and commentators are urging the right to offend and insult racial minorities. If they do not equally speak out in opposition to our defamation laws, we will know this is not because of their concern about freedom of speech in Australia.