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.
John Quiggin 
i am throughly sickened by this man bolt and his poisonous words which incite hatred and violence from his gullible followers. facts and analysis are rarely a part of his agenda, and i don’t regard him as a journalist. he and his readers constantly look for scapegoats and, like all bullies, choose the most vulnerable and attack them in the basest way.
in this case, the vulnerable chose to fight for their dignity and integrity, and won! what courage, and many congratulations.
only a similarly sick character like rupert murdoch would employ the likes of bolt.
i avoid reading his words or watching him on tv where possible (ie both bolt and murdoch). they behave in a way which is unaustralian – murdoch having ditched his aussie citizenship long ago.
If I said publicly that your mother is Chinese and you should stop passing yourself off as a real Australian, then I could fully understand if you responded by saying my claim was false and offensive. However your article seems to imply you should then be also entitled to sue for defamation without any need to prove damage. Perhaps I have misunderstood your position but that’s how it looks to me. And if that is a correct interpretation of your position it looks completely silly to me and a recipe for jamming up the courts with all manner of trivial accounts of offense.
@kika
Did the judgement say his words incite hatred? Where is this violence you speak of?
I think we should be reducing the scope of defamation law in Australia not opening the door to Simon Singh-like cases – you could could imagine such a law chilling criticism of the catholic clergy handling of paedophile priests for example.
The complainants apparently wanted a prompt & prominent correction & apology for the factual errors in Bolt’s piece – and if News Ltd had provided this they should not have been able to sue for damages. Of course the costs involved mean the complainants probably wouldn’t have been able to exploit our overly-broad defamation laws even if they’d wanted to – even with the power&riches Bolts thinks identifying as aboriginal gives you.
Hmmm … second attempt … Gosh I hate it when you post and then you get an error message! Mostly I copy to the clipboard first, but it’s amazing how often my failure to do so precedes a post method failure!
Briefly — I think your approach PrQ is plausible and in a number of respects tidier, in that the matter arises entirely within the framework of tort law rather than seeming to start from statutory provision. Nevertheless, to ensure that the intended beneficiaries were not saddled with serioius costs, a public fund, administered at arms’ length from the state, would be needed to make this viable. An arrangement could provide that where damages were granted, the proportion of financial burden accepted by the funding body and private parties could determine the division of the proceeds of damage. The funding body could then be charged with delivering programs aimed at improving the standing of marginalised communities harmed by the defamatory actions.
At common law, some kinds of defamatory statements were actionable without specific proof of damage. For example, if somebody spread a false rumour that you had committed a serious crime or that you were professionally incompetent, you could win a defamation action without being required to bring specific evidence of specific harm. The theory was that statements like this were so obviously damage that harm could be presumed without specific evidence (it was still open to the defendant to bring specific evidence that no harm had been done, although I imagine that would have been a difficult burden to meet in practice). Sometimes statements like this have been termed ‘defamatory per se’.
This kind of presumption depends on social context. Traditionally, imputations that a person suffered from a ‘loathsome’ disease (such as leprosy) or that a woman was ‘unchaste’ were considered ‘defamatory per se’. I think it would be much harder to justify such a presumption in a modern context than in the one in which it was established. And, just as society no longer regards some kinds of accusation as being intrinsically harmful as was once the case, it’s reasonable to suggest that some other kinds of accusation should now be included in that category–possibly, for example, racist accusations.
I don’t know what the current legal position on this is in Australia, but despite the fact that US defamation law is generally considered less favourable to plaintiffs than in most places, ‘defamation per se’ is still recognised in the law of most of the American States.
Of course it’s still open to anybody to argue that the whole principle of ‘defamation per se’ is wrong and I’m not insisting that it must be correct and just solely because of its past and present acceptance. What I am saying that it’s not an entirely new principle dreamt up just for this kind of case and a fair assessment should recognise that.
Surely one of the reasons to use the RDA is that, unlike defamation, no money damages are possible.
Thus, it is a lot harder to portray the plaintiffs as money-grubbers out for a quick buck (as would definitely have happened if they’d sued for defamation).
J-D – in the modern social context calling somebody a racist does much more harm to reputation than calling somebody Chinese or Aboriginal. Even pejorative racial terms (slope, coon) if used publicly do far more damage to the reputation of those that utter them than those they are directed at. One of the reasons Bolt no doubt feels slighted by this verdict is that it now provides material for all manner of people to promulgate a belief that he is racist. Some will even think it is a point proven at law. One of the lawyers in the case has already refered to Bolt as being like one of the Nazi racists who practiced eugenics. Bolt is clearly offended by that accusation and it is not hard to see why given the modern cultural context. He would probably have a good case under defamation law to sue the lawyer and some have urged him to do so. However I doubt he will.
I think skepticlawyer has hit the nail on the head with her post here:
http://skepticlawyer.com.au/2011/09/30/this-is-a-sad-day-for-adequate-research/
I think it would be vastly more appropriate to bring these claims as individual claims for defamation.
The problem is, as SL has pointed out, is that now Bolt can say that his right to freedom of speech has been impinged upon because his statements were offensive. It is a lot harder to look self-righteous where the basis of the action is that the statements were untrue, rather than merely offensive.
Basically I believe that the RDA provisions are badly drafted and represent bad law, and that these kinds of issues are better dealt with by existing laws such as defamation.
Terje, your post makes a pretty strong case in favor of the RDA action. As you say, Bolt has been found by the court to be a promoter of racially offensive lies. Its unsurprising that Bolt should be unhappy about this – most people are unhappy when courts find against them. Presumably you don’t dispute the facts, so what is your problem?
@Legal Eagle
That’s a “problem” that is more apparent than real. Of course he can say that. As Stalin once said, paper will take anything that is written onto it and in Bolt’s case the things he “can say” repeatedly include arrant self-serving lies. The people who accept his self-serving lies will accept this, and doubtless if civil defamation had been the action, then he’d have invited his flying monkeys to see them as vexatious litigants after money.
The question is not whether he can say that his FoS has been truncated, but whether reasonable people think it has been in ways that are incipiently harmful to the polity. So far, it’s not clear that anyone fitting this description has, whatever one might think of the aptness of s18C.
If the muzzle applied to the Blot were on a pitbull in public space, the public would demand that it be put down as a serious hazrd and the owner fined for want of control.
John – my beef is not with the RDA action. My beef is with the RDA. And my beef is on consequentialist grounds. The RDA asks courts to adjudicate on questions of what is offensive and what opinions ought to be published. If the ruling simply said that Bolt got some facts wrong then other than the waste of funds and court time it wouldn’t be of significant concern. We have plenty of vehicles for adjudication on whether commentators got facts wrong. The media spends a huge amount of time pointing out the factual mistakes of other parts of the media. You yourself have spent time pointing out factual errors made by Andrew Bolt. To suggests that factual errors warrants court action is silly. Which leaves the idea that courts should adjudicator on what is offensive. Which is just as ridiculous.
I follow what you’re saying but I don’t see what conclusion you want to reach from it.
You might be saying that you disagree with the whole idea that some statements should be presumed, as a matter of law, to be harmful without a mandatory requirement to produce evidence of specific damage. That’s an arguable view, but, as I pointed out, in fairness it should be noted that this idea was not an innovation in the Racial Discrimination Act.
Or you might be saying that accusations that somebody is a racist should be included in the category of statements that are presumed, as a matter of law, to be harmful without a mandatory requirement to produce evidence of specific damage. That’s also an arguable view: but it doesn’t support the conclusion that other kinds of allegations should not be included in that category; and it also doesn’t justify the conclusion that accusations that somebody is a racist should not be allowed in court judgements, or in complaints brought to the courts. I mentioned before that accusations that somebody has committed a serious crime were traditionally included in the category of statements ‘defamatory per se’: but that didn’t prevent people being charged with serious crimes, or being convicted of them.
Incidentally, I would be curious to know what specific evidence of specific damage Bolt would be able to produce if he did sue the lawyer you mention for defamation.
In this case the court found that false statements were made AND that they were harmful AND that reasonable efforts had not been made to check them. The court wasn’t adjudicating on any one of these questions alone, but on the combination of them. It makes a difference.
You get used to seeing outrageous bulldust from the Right, but the assertion that this judgment might lead people to think that Bolt is a racist certainly takes the cake. What might lead those with normal mental sufficiency and a little experience in human affairs to feel that Bolt is almost certainly a racist is, in my opinion at least, not just this toxic sludge of incorrect assertions and nasty, malicious and patronising invective, but scores other such matters over years. I mean to say, what further proof do we need of Bolt’s tender affection and concern for his blackfella brothers than his notorious and repetitious assertions that the ‘Stolen Generations’ did not exist, that the Royal Commission into that practise was a disgrace and that, in fact, the children were not ‘stolen’ but ‘rescued’ from hideous conditions. And there are numerous other examples one could quote. ‘If it looks like a duck, waddles like a duck and quacks like a duck, then it is probably a duck’.
Mulga – you’re quacking like an idiot.
@TerjeP
You always quack like that.
I’m very troubled by this third paragraph, advocating banning statements of the kind “All/most Group X members display Bad Characteristic Y.” I can think of several such statements which are both defensible, and socially useful to air.
For example, consider the statement “Australian aboriginals are stupider than average Australians.” On the face of it nothing could be more offensive than such a statement. However, standard educational attainment tests at all levels in schools (as well as on adults) consistently show lower scores. There’s a whole lot of obvious reasons for this of course including: poor diet, alcohol fetal syndrome, substance abuse, parental disengagement etc.
I have no doubt that were these factors to improve, the disparity would disappear and that would be a very good thing. The fact however, remains true for now. What’s more, it’s very hard to fix the root causes if you don’t correctly identify the problem in the first place.
Criminalising frank speech about real social problems will make those problems worse, not better.
Don’t be a goose.
John, my argument wasn’t made at LP, but here:
sedprobatespiritus.tumblr.com/post/10763351311/andrew-bolt-racial-vilification-and-freedom-of
Sam: the problem can be expressed in a way that doesn’t (wrongheadedly, racistly) suggest something intrinsic about a group.
Like: “Many Australian Aboriginals suffer from having fewer economic and social opportunities than their non-Aboriginal counterparts, and may, with considerable historical justification, mistrust centralised attempts to ‘fix’ things.”
Anyone who works in policy evaluation in Australia knows that’s true, probably has some ideas for what to do about it, and furthermore knows that generalisations are completely counterproductive.
@Dan
I wasn’t advocating centralised attempts to fix it exactly, merely that it would be good thing if the problem were fixed. I see no reason to water down the statement using words like “many.” It’s a serious problem, and we should be able to use strong language to describe it. If we use weasel words, people may think the problem is less serious than it is, and devote less effort to solving it. You’re free to disagree of course, but don’t make it illegal to use pejoratives in a constructive way.
Anyone who’s worked with highly qualified, highly skilful, highly knowledgeable people of Aboriginal heritage can see why generalisations such as this are hurtful, inaccurate, and unhelpful. The way you phrased it (for rhetorical purposes, I understand) really gives a misguided impression that the problems suffered by Aboriginal communities and people are *un*fixable.
“Many” is not a weasel word. It’s an attempt to accurately describe reality.
(Incidentally, what you said – again, for rhetorical purposes, I grant – is racially discriminatory).
I think Andrew Bolt and his supporters would still claim his freedom of speech was being stifled if the action had been based in defamation.
LE, that’s a very interesting discussion of the case over at your blog. I’m inclined to agree that the provisions of s18C are too vague and broad.
@Sam
If you can’t see the difference between ‘Australian aboriginals are stupider than the average’ and ‘Australian aboriginals score lower marks on standardised tests of educational achievement than the average’, you’re not trying hard enough.
Fran @11 – ‘As Stalin once said, paper will take anything that is written onto it’.
Fran, I hereby declare that I first read this quote in a copy of Australasian Spartacist (February 1979 IIRC).
It isn’t hard to find other examples that fit Sams point. Eg “Men are more violent than women”.
@Dan
Well I was trying to give the impression that the problems, while severe, are eminently fixable. I agree my statement was racially discriminatory. That’s my whole point. I argue that being discriminatory can be constructive, and should certainly be legal. The idea that we should rhetorically minimise the real problems suffered by a social or racial group in order to avoid giving temporary offence is to me baffling. It seems guaranteed to worsen these problems, not improve them.
I don’t like the word “many” here because it has very little meaning. 100 people suffering educational disadvantage is “many.” We should be using stronger language than that. “Most” is a better word. “Nearly all” is even better. “On average group X performs worse than group Y on metric Z” is best.
Yes, I agree this is the sort of terminology we should be talking in. As indeed we do – whatever you think of, say, COAG’s Closing the Gap agenda, the indicators and targets expressed in decidedly robust and positivistic terms.
This is useful:
Eatock v Bolt [2011] FCA 1103
http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html
@J-D
What does “stupid” mean to you then? Is there any evidence Aboriginal children score better on emotional intelligence tests? There shouldn’t be such outrage here. The fact is that poor diet, drug abuse (both prenatal and taken by the child), hydrocarbon sniffing, and parental disengagement will all ruin a developing child’s brain. It won’t make them more “street-smart,” or give them a heart of gold. It won’t lead them to live happier lives in other ways. It frankly leads to mental inferiority.
These terrible destructive things are orders of magnitude more common in Aboriginals, and this is an outrage against human decency in a civilised nation. It might be offensive to you to hear these things, but it’s even more offensive to me that these things are true.
What does ‘stupid’ mean to you? If you read something describing a person as ‘stupid’, is your first reading that it’s a reference to scores on a standardised test of educational achievement? Seriously? Are you seriously not aware that ‘stupid’ is frequently used as a term of abuse and ‘scores low marks on standardised tests of educational achievement’ seldom or never is?
I just find myself more convinced than ever that you’re not trying hard enough.
attempting to portray victimhood
because lies were identified as lies
and claims that free speech has been denied(woe and alack)
mists over and wafts into a penumbra of deniable denial of the free speech of the ones lied about.
the most untoward example of this,
is the claim by this broadcaster,
that the position when called out
is to retreat into the category of “entertainment”.
“public interest”is another.
or defender of your rights under threat from”insert ideological catch-insult here”.
crafty fox.
Let me be even more inflammatory. Muslims are much more likely to be terrorists than the average world citizen. Is there any reason this statement should be controversial? It’s certainly true. Virtually all Muslim terrorists cite Islam as the motivation for their terrorism. Therefore, there must be a problem with (at the very least) some modern interpretations of Islam.
Should it be illegal to point this out?
I don’t know whether it would be illegal. I’d be interested to know though, if we imagine the hypothetical case of somebody taken to court for saying those things and seeking to produce evidence to satisfy the court that the statements are true, what evidence you think would do the job.
@Sam
how do you know?
it’s a big world.
all sorts of terroristic activities happen without any reporting done.
the ones you name are the ones in the frame(murdering jerks all)
we don’t know what’s being done in the back blocks of Korea or Mexico or Zimbabwe.
and the broadcasting outlet under discussion at the moment is too busy spitting the dummy about other things .
(probly got some sort of wholesale deal going with (i don’t need no steenking costed policies)tony and rob and business interests to get delivery by the truckload.—-
no,i take that back they’d need containersfull and the young mum demographic would notice.)
oh and while we’re on the subject of “muslim”
what’s going on in Bahrain?,Libya?Syria?Egypt?
massive people powered movements happening right now.
a couple of lines and and a sotto murmer and nothing to do with us.
but tha boats,tha boats.
informed commentary?
not so much.
Sam – as far as I’m aware, it’s not illegal. It’s also, to be frank, probably statistically true.
But in what sense does framing issues in such a way contribute to their resolution?
May, It’s a big world, but journalists exist. From Wikipedia;
Statistics compiled by the United States government’s Counterterrorism Center present a complicated picture: of known and specified terrorist incidents from the beginning of 2004 through the first quarter of 2005, slightly more than half of the fatalities were attributed to Islamic extremists but a majority of over-all incidents were considered of either “unknown/unspecified” or a secular political nature. The vast majority of the “unknown/unspecified” terrorism fatalities did however happen in Islamic regions such as Iraq and Afghanistan, or in regions where Islam is otherwise involved in conflicts such as the West Bank, the Gaza Strip, southern Thailand and Kashmir.
Remember, I only had to prove the weak case that Muslims are currently (last 10 years or so) more likely than average to commit terrorism. Specifically, I wasn’t claiming that most Muslims are terrorists, most terrorists are Muslim, or even that Muslims are the group most likely to commit terrorism.
@Dan
Dan, I know it’s not currently illegal; I’m responding to JQ’s suggestion that this type of speech ought to be made so. I think that minimising language can cause a head-in-the-sand effect. Frank language to address real problems I say.
@Dan
Under Prof Q’s proposed model, it would be illegal.
As I take it, Sam’s point (with which I agree) is that badly framing an issue, or expressing it in an unconstructive way, are not good reasons to outlaw particular speech.
Well it appears that I have stirred some turg-id waters, and the turg-idiots are emerging. To assert that the majority of the world’s terrorists are Islamic depends entirely on the definition of ‘terrorism’. If you take terrorism to mean the deaths of all innocents at the hands of those who wish to impose their demands on populations by terrorising them into submission, then the greatest proportion of the world’s terrorists are Western, ie Christians and Jews. The state terror of the West, whether the regime change aggressions in Iraq and Libya, with the millions of victims, or the brutal economic terrorism of sanctions regimes and Structural Adjustment Plans, has blighted two or three orders of magnitude more lives than all Islamic terrorism. And much Islamic terrorism is really resistance, just like that in Europe to Nazi rule, (the Nazis callled the Resistance ‘terrorists’, too)and much more is false-flag operations, like the ‘Salvador Option’ exercised in Iraq by the USA. Moreover Islamic ‘terrorists’ like al-Qaeda were once hailed in the West as ‘freedom fighters’ and ‘the moral equivalent of our Founding Fathers’ in Reagan’s unintentionally ironic words, and were used by the West for their nefarious purposes in Afghanistan, Bosnia, Kosovo, Chechnya, Xinjiang, Algeria and, now, Libya and Syria. Terrorism as defined by Western state propaganda is a meaningless term of abuse, designed to demonise resistance to Western brutality and aggression, which is the real terror that stalks the planet, and has done so for 500 bloody years.
@Sam
[Muslims are much more likely to be terrorists than the average world citizen. Is there any reason this statement should be controversial? It’s certainly true. Virtually all Muslim terrorists cite Islam as the motivation for their terrorism. Therefore, there must be a problem with (at the very least) some modern interpretations of Islam.]
1. It’s certainly not true because the questions “what is a terrorist?” and “who qualifies as a Muslim?” admit no clear answer. Much of what we would consider on the way to such an answer would be controversial. One could argue that a nation carrying out amost daily drone strikes with a non-combatant-combatant kill ratio of 10:1 was a terrorist state. That might bias the stats somewhat. Moreover, we have no precise statistics on the relationship between the size of those who qualify as Muslims and those who qualify as terrorists.
2. As offensive as the observation would be, it is likely that s18D would offer a defence, since one might have a good faith belief that this was so, there would be no clear way to disprove it and it might arise in the course of discussion of a matter of public interest.
Of course if you went onto say that Person X was a known terrorist, in virtue of his adherence to Islam and the propensity of Islam to produce terrorists, and this turned out to be a claim that a person with a modicum of investigative comepetence ought to have known was wrong, then the good faith defence collapses. You could say this in private but if you say it in public and your words are likely to be taken seriously by a substantial audience then we are again ticking the boxes for s18C and the Blot matter.
Mulga, Sam – quite right. I was uncritically using the lay understanding of the term “terrorist” which connotes irregular warfare.
@Fran Barlow
Point 1 taken. It’s true given certain interpretations of the word “terrorists.”
The fact that it is difficult to precisely define what constitutes defamatory speech doesn’t mean that the libertarian solution (which admittedly has its merits) is automatically correct.
Awkwardness of this nature is typical in almost all conflicts where it is difficult to establish unambiguous right and wrong. For example if person X kills person Y, it may be purely in cold blood (and therefore contemptible) , purely in self defence (totally justified) or somewhere in the middle. To me the idea that we should forget about, or have a high tolerance for potential murder, defamation or anything else because it is hard for us (all non experts) to grapple with seems misguided.
@Tim Macknay
Although I do agree with this point too.
One of the most irritating characters in the media to me is our dear Bolty. Free speech is not defamation and it does not allow you to incite hatred or violence. Look at the old example of shouting “Fire!” in a crowded cinema.