An open thread on this topic. Obviously, please avoid anything that might be seen as defamatory, either of Bolt, the plaintiffs, other commentators or anyone else.
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John Quiggin 
@J-D
I was talking there about the “social harm” restrictions on free speech. There are other “individual harm” type exceptions too.
If you look at the passages I quoted above from the judgement, you will see where the judge found that Bolt made erroneous assertions about purely factual matters.
This is quite frankly, the strangest thing I’ve read. Defamation laws to go? It has nothing to do with someone having a moral claim over another’s opinion or restricting what a person thinks.
Defamation is this: when an individual makes very public claims against another that are false. It is not making Bolt’s inner thinking a thought crime. He made documented claims and thus subject to fact checking.
It is a question of where the burden of proof lies. Bolt’s defence to the action brought forth was the veracity of the claims he made. His claims proved to be false.
Therefore, he lost. Simple.
How do you propose the person defamed get redress? Do you have a sensible alternative?
In this instance the person making the false claim is the one of Australia’s most prominent journalists, has the backing of a multi-billion dollar corporation to fund his legal bills who gives them a platform to spread misinformation…
Bolt the victim?
As I’ve always said, Bolt has a glass jaw.
He’ll happily sling insults at his “enemies” but then react hysterically whenever some one lands a blow.
Indeed, reading the HUN today I can’t help but be amused at just how *sensitive* the good ol’ boys at News Corp are.
gerard @ #46 said:
True, in this country though the constraints on straight talking on the touchy subject of cultural identity are extensive (going right down to the comments section of obscure blogs!) they are not especially invasive. Even after this latest legal “liberal” slap down on free-speech.
Bolt is not the main victim of this judgement. He’s a big boy working for a big company and they can look after themselves.
And Bolt’s counsel can still turn to the High Court (Theophanous v HWT) for redress. Note the plaintiff in that case was a race hustler trying to shut-down debate on his scam. C’est plus ca change.
But you miss the point about the intended target. Its the legion of other journalists, writers and commenters whose exercise of free speech will be chilled by this judgement. Basically if you work in the media (MSM or blogs) you can now be made toast if you offend someone from a designated victim group. With the test of offence being pretty much subjective ie “you hurt my feelings!”
Given the paucity of job opportunities in the media and its exposure to consumer boycott’s and flash mobbing by well-organized activists it is unlikely that media professionals or amateurs will be in any mood to be forthright in their criticism.
So the remnants of the ATSIC push will once again be free from public accountability. And how did that work out the last time around?
Worse luck for those Aborigines unfortunate enough to be “clients” of these “service providers”.
@sam
The lies were a bit more concrete than that. From the ruling:
@gerard
Oh OK, I hadn’t heard that. Well if that’s true I agree he should be made to print the correction.
You can read the lengthy ruling (as well as the original Act) for yourself, but it’s not quite as simple as that. Racist speech is still okay if it’s “in good faith”, but Bolt made the mistake of fabricating facts about individuals in the process. There’s a difference between “forthright criticism” and fabrication. And at any rate, nobody’s “toast”; this isn’t even a slap on the wrist.
@sam
If it is true, then their fair skin is remarkable (assuming that the ‘fair skin’ claims weren’t also wrong).
@sam
That’s only one such example Sam. The ruling discusses more.
http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html
The judge was pretty explicit that it was these factual errors and distortions which made Bolt’s articles subject to the RDA. If he had just given his racist opinion without making stuff up about individuals there wouldn’t have been a case.
what I mean is, it was the errors and distortions which made Bolt’s articles not subject to the free-speech (“good faith”) exceptions in the RDA.
@Freelander
Yes remarkable, although not impossible. I’d be interested in hearing more about this.
@sam
Sam I’m not sure that you understood me. My initial post was more or less a comment on the suggestion that defamation laws be done away with, one that you appeared to support. I was definitely not talking generally about laws banning or regulating what I may perceive to be ‘anti-social speech’ as this is clearly very subjective and, quite frankly, highly dangerous. I was rebutting the original argument using an unambiguous ‘stylized’ example where somebody propagates a known lie or other attempt to mislead others about some third party.
You later say that the definition of a ‘lie’ can be a bit nebulous, which I agree with. However I am more than happy to let this be decided by a court on a case by case basis. Your ‘uncompromising individualism’ did not seem to include exceptions for outright lies or deliberate attempts to mislead, which I think we both agree should be subject to defamation laws.
Terje, you are consistent. That marks your position as being principled, if extreme.
But I must ask you this. If you lie about me to others in a manner that causes me to lose my job, results in people refusing to do business with me, and otherwise causes me significant personal and financial loss, should I have some remedy in law against you? Or am I expected to simply hope that people will believe me rather than you, regardless of any possible differences between us in charm, charisma or skill in expression, and simply suffer in silence if they don’t?
@Tim Macknay
Good point.
Of course another consideration is; what happens if someone lies, with the intent to cause those effects for their own profit?
@NickR
Yeah, so I guess I should have been more nuanced in my original position. For me, defamation laws ought to exist, but only to cover “concrete” lies.
It seems to me that in all this discussion not much if any thought has been given to the claims of the plaintiffs and the proved damage to themselves. Most seem to be concerned with Bolt and the law and possible repercussions on others.
The outrage appears to be centered around the individuals right to use whatever form of abuse, untruth or imputation to support their opinion without consideration of the feelings of others. Without perusing the detail the Coalition have been reported as saying that they will change this law. It would appear that once again free speakers/traders are promoting their ideology at the expense of the individual.
Tim – look who benefits from defamation laws in practice. It isn’t Joe Average taking people to court for defamation. It is a law that protects the rich and famous. And they are not without means to fight such attacks in other ways. In any case it is the silent whispering campaign not the bold public assertion that causes real harm to people’s reputation. Because of defamation laws nobody dares say publicly that Craig Thompson is a liar and a thief. Some that have merely raised questions have been threatened with defamation action. So now they all pussy foot around the issue. However the whisper between people in private across the country is that Craig Thompson is a liar and a thief.
I have no doubt that on occasion defamation law gets used in a way that makes the world a better place. Just as I have no doubt that at times free speech provisions get used in a way that makes the world a worse place. However in evaluating a body of law we ought not cherry pick the most favorable examples. We should evaluate it on points of principle and on the overall practical consequences. Having reflected on this basis I think we should have hard core free speech protection.
I’m not sure who the following quote should be attributed to, and we can quibble over the details, but I think the sentiment is largely correct:-
Tim – to answer your two questions explicitly. No to the first and yes to the second.
I would agree with Terje somewhat.
i would still have defamation laws but have the news organization make the correction in exactly the same way it was originally written, stated etc.
of course that would mean the front page of the Australian would constantly be of apologies but so be it.
@sam
Yes. Remarkable but not impossible. However….
“The Atkinsons’ parents are both Aboriginal as are all four of their grandparents and all of their great grandparents other than one who is the Indian great grandfather that Mr Bolt referred to in the article.”
So a great grandfather is Indian but both parents and all four grandparents are Aboriginal. Interesting. So what Bolt said is untrue and what the judge said is true. Interesting. Maybe seven of the eight great grandparents were Aboriginal, but also were European (using the same method of categorisation in an even handed manner)? If that is the case, then the parents and grandparents were also all European, maybe?
I guess that would make the person European? But also Aboriginal? (And Indian of course.)
Terje, I agree that in practice the wealthy are more likely to take action for defamation Joe Average. That’s true of civil litigation in general, but IMHO it’s not a reason to abolish the right to seek legal redress. I also suspect that the deterrent effect of defamation laws (or the chilling effect, if you prefer) probably does go further than that and prevents many people from deliberately lying to try to destroy the reputations of others. I do think there is a case for considering how defamation laws might be reformed to work more effectively for the purposes for which they are intended.
I’m unconvinced by your example of whispering campaigns. They may or may not be more damaging than bold statements, but in any case they are also subject to defamation law (although perhaps more difficult to prove – but that depends on the particular facts). I think the Thomson example is a poor one – it’s true he did sue for defamation at one point, but that hasn’t stopped the media reportingthe various claims about his alleged actions. If there is a whispering campaign, most of the people doing the whispering are whispering about what they’ve read in daily newspapers or seen on television.
I agree with this principle up to a point – although I don’t necessarily endorse the particular calculus, and it depends on the seriousness of the offence and severity of the punishment (I’m unconvinced that it’s better for a hundred people to evade paying their train fare than for one person to wrongly receive a $50 infringement, for example). However, I don’t really think it’s relevant to the question of civil wrongs like defamation, since such wrongs don’t involve people being locked up (or executed!), but merely paying compensatory damages, or in many cases, simply apologising.
And thanks for the answers to my questions. You are consistent, at least. Personally I think it would be better if there were no need for defamation-type laws, but I can’t really see how a free and civilised society could function effectively if people were able to use lies to destroy others with impunity. But then, I’m not a doctrinaire libertarian.
Yes. Clearly Bolt had it all wrong. But then maybe easy to become confused.
But given that we don’t like Bolt let’s simply convict him, label him with various names and give the matter no further thought. After all, we ought not give him the benefit of the doubt.
In my opinion Mr Bolt and his ilk (there are scores such, most, but not all employed by News Corpse) exist to foment and provoke fear and hatred in society, to the perceived political and ideological benefit of the Right, whence all of them emerge. The conflation of hatemongering, often viciously cruel and dripping with malice, with ‘free speech’ is detestable, but revealing, humbug. The sorts of vile aspersions Bolt’s victims suffered (and what a pity that they did not see fit to sue for defamation as well) would never dare to be cast at, for instance, Jews, but blackfellas, environmentalists, unionists, Moslems etc all face this sort of abuse, day in and day out. And the Right, including Abbott, have rushed to Bolt’s side, a hate-peddling MSM being seen as a great ideological weapon for the Right in garnering the votes of the worst in society, a fraction steadily growing in size and belligerence. A society riven by the deliberate production and exacerbation of relentless internecine hatred, is, needless to say, morally diseased.
@Freelander
I’m giving Bolt as much “benefit of the doubt” as he gave his targets.
Bolt could have drawn the same conclusions, as “offensive” as they may have been to the targets, if he had chosen to exercise care in presenting factual and evidence-based chains of reasoning that led to his conclusions; heck, his conclusions could even have been erroneous, so long as care had been exercised in arriving at them.
Instead, Bolt had an exuberance of erroneous and flagrant ficts instead of facts, and further to that, he quite obviously chose not to minimise the likely offence to his targets. Had Bolt stuck to factually based argument, and had he reasonably minimised the likely offence (of his conclusion, without altering the fact of the conclusion), he could have remained exempt from the act, even if his conclusions were drawn erroneously.
Hardly a curtailment of free speech; simply a requirement to be moderately polite even while being extremely vigorous in arguments concerning race, sexuality, etc. Heck, even a mocking tone is allowed…
@Freelander
Massively overblown.
1. Strictly speaking, he hasn’t been convicted as this was not a criminal matter. “We” can metaphorically convict him of a great many wrongs.
2. Blot forfeited any “benefit of the doubt” he might have had a very long time ago. I’m not sure where Deltoid’s “War on Science” series is up to now, but the Blot has been an earnest and insistent contributor. Even on this matter he has had ample time to reflect on the ways in which he has wronged those whose names he used and declined to follow even the News Ltd Code of Practice. Today, in a whining and unconvincing defence, he has conducted a pity party and invited others to share his tears. He has acknowledged no wrongdoing, but has insisted that his style has been cramped by what amounts to a slap on the wrist and an opportunity to play martyr to the cause of calumny.
The man damns himself and yet you want to give him a pass? Astonishing.
The coalition has come out and said they will seek to amend the racial discrimination act in response to the Bolt case. The ALP and Greens should follow suite. Free speech protection serves everybody irrespective of political stripe. The Greens in particular should be supportive given their inclination to mill around in front of Jewish shops making rude remarks.
There’s a push on to have every Australian politician affirm the right of Andrew Bolt to free speech. I believe non-affirmation should be publicly recorded. I’m also of the belief that any person that works for a public institution should be removed if they do not believe in the right of free speech. That would include all academics.
Totalitarism is an evil, and it’s an evil Australia should remove. The opposition is correct and will enjoy large support with any attempt to remove such a terrible stain.
This is a silly proposition. The law should be amended but it is ludicrous to make government employment contingent on support for specific laws. I suspect you are not even genuine in your commentary but anyway I don’t agree. What people think is a personal matter and unless it has direct impact on their capacity to do their job it should in general be irrelevant to employment.
“The Greens in particular should be supportive given their inclination to mill around in front of Jewish shops making rude remarks.”
Please name one other company apart from Max Brenner that has been the subject of the protests you refer to. If you can’t, then please stop with the dog-whistling, and stick to the facts.
Isn’t one enough?
Jarrah – it’s a bit harsh to characterise my comment as dog whistling. What sort of racist am I supposedly calling out to?
The Max Brenner protests have been roundly condemned across the political spectrum. Many in the ALP have been critical (eg Kevin Rudd) and also some in the Greens (eg Bob Brown). Liberal have organised counter protests. I’m arguing that such protests, as distasteful as they are, should have free speech protection. I’m bamboozled by the dog whistling allegation.
p.s. Jarrah – where do you stand on free speech?
@TerjeP
This was a deliberately offensive, trying to taint the Greens in debased antics from other periods when Jewish shops were attacked.
Jarrah is right on this.
Terje’s subsequently playing dumb is odious.
If we are lucky enough to have Bolt in the dock what more do we need? Evidence? Surely not!
The odious fellow has never gotten so much press. He must be sad indeed. I guess we must conclude that the law works (in mysterious ways).
Chris – I make no secret of the fact that the Greens are frequently vile. And I’m not shy of offending Green supporters in the course of saying so. However this has nothing to do with dog whistling. If it was dog whistling then what sort of racist was it calling out to?
You can see what I mean about how vilification of detested others is second nature for the Right with this idiocy about ‘Greens milling around outside Jewish shops’. The anti-semitic canard, that all-purpose slur mobilised more and more, with, luckily, diminishing effectiveness. Perhaps we could speak of ‘Jewish boys’ milling around the Mavi Marmara and dispatching unarmed Turks, or milling around the skies over Gaza presenting gifts of high explosive out of the goodness of their hearts and their vaunted ‘moral purity’, but the MSM, and its Augean stable of Rightwingers certainly wouldn’t. Those engaged in the BDS campaign, and that includes many Israeli Jews, despite odious, quasi-fascistic legislation in that supposed ‘democracy’, are battling, as did the similarly reviled anti-apartheid agitators of the 60s and 70s, against racist cruelty and sadistic barbarity. No wonder the Right despises them!
I think that Bolt’s undisguised contempt for the judgment and process, evidently shared by the entire Right, who have flocked to defend their equation that hate speech is the essence of free speech, bears comment as well. These bullies don’t like being thwarted, and their monstrous egotism sees courts as well as all other sentient life as merely bit players in the great drama of their existence. And let’s not forget how other diseased organs of the Murdoch Evil Empire joined in the party. ‘The Fundamental Orifice of the Nation’ aka The Australian, did a nice little smear job on Larissa Behrendt, too, with a desultory, but vicious, attempt to destroy her career. Geoff Clark got a vicious going-over years ago, and the targeting of non-compliant Aboriginal leaders and, on the other hand, the manufacture and promotion of collaborators with their peoples’ cultural destruction is a real cottage industry on the Right. These creatures’ appetite for hatred and cruelty is insatiable. A state where ‘Free Speech’ means the exchange of abuse, character assassination and lies is on the road to ruin.
Well said Mulga. Would these people defend toben and his ant semitic website? Or the journalists sprouting the same sort if villification on rwandan radio in the lead up to the horror? Those journalists are now convicted war criminals. But hey they were just exercising their right of free speech.
@Jarrah
One should make a couple of points here.
1. When this matter arose I had a look about to see if any state branch of thThe Greens had endorsed the Max Brenner protests, and as far as I could tell, none had. Nor could I find any local branch that had done so, and while it’s certainly possible that some Greens had participated, I’m not aware that any had. Indeed, until the news of the matter arose, I wasn’t even aware that Max Brenner had any connection to Jewish identity or Israel at all.
2. Max Brenner was being targeted not because it was “a Jewish shop” but because it has explicitly stated on its website that it supports IDF operations, including therefore in the occupied territories. If Max Brenner was controlled by Christian or agnostic supporters of the IDF, the position would be the same. I believe Caterpillar has come in for some protest on the same basis and it is neither a “Jewish shop” nor to the best of my knowledge, a Jewsih business.
3. Even if in some bizarro parallel universe, The Greens were protesting against businesses based on Jewish ownership — i.e. an explicitly racist position worthy of condemnation — TerjeP would favour that enjoying the protections of free speech. How then, his trolling refernces to “Jewish shops” has any bearing on how The Greens should respond to s18C of the RDA is hard to fathom. It is clear that this was merely a pretext for a cheap shot at The Greens based on a Murdochratic slander raised during the March state election.
Now personally, I’m not that keen on s18C of the RDA as it stands. I beleive if I were tasked to redraft it, I could define harms that the section seeks to restrain in ways that would be more resistent to slippery slope arguments about the incipient threat of totalitarianism. That said, the sanction here is a trifle. If this is how North Korea sanctioned dissenters, I doubt it would be a significant news item outside North Korea. The fact of the matter is that this section survived the entire 11 years of Howard governance, including a period of time when they controlled the Senate as well. To the best of my recollection, they never proposed repealing it, and people will recall that they instead brought ina series of measures aimed at restraining sedition in the context of advocacy of terrorism. They brought in the control orders. The ALP has followed them in seeking to sieze proceeds of David Hicks’ book on his time in Afghanistan and Guantanamo on a “proceeds of crime” basis even though he has never been convicted by a properly constituted court and made admissions under duress.
The standing of the LNP to assert support for unfettered utterance is zero.
It is gratifying to see that most people have spotted Terje’s trickery and the context.
He now wants to divert to some inane discussion about the term dog-whistling, and whether or not the Greens are vile.
All this should be ignored.
It is a complex issue, when politics, economics, ethnicity, and religion all get mixed together. So we have Semitism, Zionism, Judaism, and expansionism – all apparently destroying the rights of the original inhabitants. Zionist expansionism and Zionism itself are the problems.
If you want to protest against Zionism or the IDF, rightwingers will always try to defend Zionism and the IDF by claiming you are protesting against “Judaism” (and in a way so that it is associated with previous anti-Jewish pogroms).
Australians have every right to protest and boycott proponents of Zionism and the spread of Israeli settlements over Palestinian land.
Remember it was the Zionist terrorists who started this mess in the 1940’s and Israel only exists today because wealthy individuals in the US corrupted political processes and exploited world sympathy for the Jews.
Gee Chris good to see you can’t be diverted . Suffice it to say the BDS is against Israeli businesses not Jewish businesses in the same way as the anti apartheid boycotts were against the South African regime.
Fran – I think it is appropriate that you mention the anti sedition laws. It illustrates that both sides of politics in Australia need a good kick in the arse. It is imaginable to me that there might be some regulation of free speech more optimal than the hard core right to free speech I have advocated however given the poor instincts of our legislators there is no way I would wish to grant them much license to formulate a compromise. What is ironic is that parliamentary privilege implies that politicians can be trusted to speak nicely more so than the average citizen.
TerjeP – as an ethnic Jew I can easily see your whistleblowing for what it is. You ought to be ashamed.
There is a diversity of Jewish voices, both in Israel and elsewhere, on the strategy and tactics of the current militant Zionist program. I for one am deeply against, because frankly in the short, medium, and long term it is not only immoral in terms of its effects on the oppressed, but also deleterious to the legitimacy of the Jewish state.
As for Max Brenner – if you cheerfully supply an occupying war machine – from wherever – with lousy chocolate, protests and boycotts are what’s in store. Simple as that.
*whistleblowing -> dogwhistling – mea culpa
Dan – I’m no fan of Zionism and I think the creation of Israel was colonialist stupidity. I don’t agree with the boycotts but I understand their logic. The way they have been conducted however has entailed racist overtones and has caused offense. They have also led to accusations of racism against those involved. Criticism has come from across the political spectrum. As such proponents of the boycotts ought to be assertive about free speech principles.
I reject entirely the notion that I was dog whistling. Nothing that I said was an appeal to racists. If you think it was then please articulate what sort of racist would be heartened by what I said. Accusations of trolling might make some sense but dog whistling does not.
The hysterical demand that all politicians be forced to support Bolt’s ‘free speech’ rights is lurid hypocrisy, even for the Right. Every decent politician (the handful that remain) ought to unambiguously declare that vile, vicious and intensely malicious hate speech is not ‘free speech’. As Holmes of the US Supreme Court asserted, free speech does not extend to shouting ‘Fire’, falsely, in a crowded theatre. And to spread lies and contempt with the quite clear purpose of denigrating and belittling others, for political advantage, is every bit as malignant as that act. It tells you everything you need to know of the real’ character’ of the Right that they so histrionically defend the peddling and fomenting of crude hatred.
It’s certainly the case that governments of all stripes in Australia tend to put a low priority on civil liberties. If there is some short-term political gain to be had from some move that diminishes or curtails a civil liberty, they will tend to do it with little hesitation.
Opponents of militant Zionism are easily smeared with the anti-Semitism brush. I didn’t think the Max Brenner boycott had racist overtones, but maybe that’s because I distinguish between Judaism and militant Zionism. Others fail to, and that’s disappointing.
Still, you should have been more careful in your phrasing, as it implied that those boycotting Max Brenner (that includes me, though the quality of their wares isn’t doing them any favours) were doing so because it was a “Jewish shop”. That’s a misrepresentation of why people are boycotting it and you’d have to be wilfully oblivious not to notice the historical resonance of such phrasing.
Dan – some of the Max Brenner protesters have confused Zionism and Judaism which is why I describe the protests as entailing racist overtones. And some of them have chanted songs that imply an end to Israel and a one state solution. Which isn’t racist but also isn’t particular productive peaceful or practical. They also blockaded the shop in Melbourne and impeded the freedom of others to come and go. They had to be dispersed by police.
Terje’s understanding of these issues is pretty poor.
Judaism – is not a racist dimension. Anyone can convert to Judaism. A Jewish nation consists of many different races.
Semitism is the ethnic type, and you can get Jewish Semites, Christian Semites and atheistic Semites.