Bolt, again

The case against Bolt began with a series of clearly defamatory claims against individuals, shown in the court decision to be false[1]. That’s never been part of the concept of free speech in Australian law, so, as far as the facts in this particular case are concerned, there is no problem. The main issues are whether it would have been more appropriate for the complainants to rely on ordinary defamation laws, and whether this case sets a precedent that might be used against legitimate expressions of opinion, for example on the appropriate criteria for determining indigenous status.

On the first issue, Mark Bahnisch (at LP, no link because of an annoying bug that stops me reaching the site from here) makes the point that the complainants wanted to address the attack on indigenous people in general embodied in Bolt’s piece, rather than simply the attack on their individual reputations. This is a strong argument. However, for cases of this kind, it might be better to change defamation laws to make racial attacks an aggravating factor, and evidence of malice, so that someone defamed because of their race could secure a judgement that made this clear, both in the findings and in the determination of damages. In particular, in a case like this, there should be no need to prove particular damage: the defamation should be sufficient for a judgement and damages.

As regards defamatory statements about a racial or religious group, of the general form “All/most Group X members display Bad Characteristic Y”, it would be possible to extend existing laws to allow class actions. That hasn’t been allowed in the past, but there is no good reason for a distinction between defaming someone as an individual and as a member of a group.

That would leave the case of statements that might “offend, insult or humiliate” members of some group without being defamatory in the ordinary sense of the term. While it’s easy to imagine some very troublesome cases, there are a number of defenses in relation to academic discussions, public interest matters and fair personal comment, and so far there isn’t significant evidence that the provisions have in fact worked to constrain free speech in any meaningful way. Still, if there are changes needed, this is the place to look.

fn1. In this context, the defence that Bolt honestly believed the claims to be true would be irrelevant. In any case, he obviously took so little care in his research that a defence of this kind would fail to meet the test of reasonable belief.

182 thoughts on “Bolt, again

  1. Paul – the Bolt case has nothing to do with property rights or genocide or any such issues. It was about whether publishing Bolt’s opinion was unlawful under the RDA. His opinion consisted of a series of questions with examples that were incredulous about the allocation of positions and scholarships on the basis of race given that those granted the positions and scholarships did not look like the race in question. He questioned why race is even a criteria. His line of argument is open to rebuttal and in the normal course of public debate that is how it should have been addressed. Diluting his freedom and the freedom of others to safely debate this topic unencumbered by the risk of legal recrimination does not aid aboriginal property rights.

    The RDA is bad law and it needs to be repealed or amended.

  2. @Chris O’Neill

    I have already read the Holmes article but I reread it anyway. I don’t know why Bolt’s lawyers ran the case the way they did. I’m sure with the benefit of this ruling any future case would be run differently. However irrespective of how the case was run it does not turn a bad law into a good law. The RDA is bad law. Even Holmes says so.

  3. If Terje says the RDA is bad law and needs to be repealed etc, then society probably needs the exact opposite.

    As Paul Walter said – Bolt knew what he was doing.

    The RDA act is a fundamental foundation of a multicultural, competitive, commercial society. If people are forced to compete for jobs, and markets, then such provisions protect society from racism and exploitation.

    However the Act could be strengthened to include an offence of aggravated libel when a professional journalist and company produce material they knew they had a responsibility to verify and with the necessary resources to ensure they do not cause defamatory imputations.

    Bolt was using the media to create a political reaction against some Australians based on their identity. Bolt has got off far too lightly. His suggestion that there were “plum jobs” reserved for Aborigines was a deliberate attempt to set society against Aborigines. He also tried to incite social trouble by accusing some people of taking Black jobs.

    Bolt was not just expressing a innocently mistaken opinion in good faith. Everyone has this right. It was a deliberate stream of lies and imputations for political purposes.

  4. @TerjeP

    I don’t know why Bolt’s lawyers ran the case the way they did. I’m sure with the benefit of this ruling any future case would be run differently.

    Well yes, anyone who finds out the consequences of their incompetence usually acts differently in future.

  5. Well yes, anyone who finds out the consequences of their incompetence usually acts differently in future.

    Not always true. The current federal government is a good counter example.

  6. @TerjeP

    The current federal government is a good counter example.

    And of course Bolt himself is doing his best to provide a good counter example.

  7. @TerjeP

    His opinion consisted of a series of questions with examples that were incredulous about the allocation of positions and scholarships on the basis of race given that those granted the positions and scholarships did not look like the race in question. He questioned why race is even a criteria.

    yes AND….

    23. I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.

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