Free Speech & Defamation

In Australia there is no explicit legal protection of freedom of speech. The most commonly understood notion of freedom of speech derives from the United States where the First Amendment to the Bill of Rights reads, 'Congress shall make no law... abridging the freedom of speech, or of the press...' Some argue that freedom of speech in Australia exists to the extent that there is no law restricting it. However in the absence of a positive right to freedom of speech there is little protection against censorship on the part of government or other interests.

The High Court has on a number of occasions been asked to consider whether laws passed by the government restricting speech are valid. This has required the Court to examine whether the constitution contains an implied freedom of political communication. In 1992 the Court (in Nationwide News v Wills and then in Australian Capital Television v Commonwealth) found that there was an implied freedom of political communication and declared two pieces of legislation invalid as they were inconsistent with this freedom. In 1994 a narrow majority of the High Court (in Theophanous v Herald and Weekly Times) created a new defence against defamation based on the constitutional freedom of communication about political matters. While this defence was narrowed in a later case (Lange v Australian Broadcasting Corporation), the principle that there is a restriction on the capacity of government to pass rules which would limit freedom of communication about government and political matters was affirmed. This is not a right but a limitation on the exercise of a legislative and executive power to restrict freedom of communication on government or political matters.

Legal restrictions on free speech

A number of areas of law operate so as to restrict speech in particular circumstances. These include contempt, obscenity law, blasphemy and racial vilification, the regulation of internet content, and classification of film and literature. The two areas of restrictions on free speech that most immediately affect the media are those of defamation and contempt.

Defamation

Defamation is primarily a civil action that allows a person whose reputation has been harmed by the publication of material to sue those responsible. It varies from state to state and parts of the law have been codified in statutory provisions. The main area of variation is that of specific defences and the elements of an action are common across jurisdictions. In order to bring a defamation action a plaintiff must show three things. Firstly the material must have been published, which in this context means that it has been communicated to someone other than the aggrieved person. Most commonly this takes the form of a newspaper publication or television or radio broadcast. The publication of books also gives rise to a number of defamation actions. Secondly the person aggrieved by the publication must have been identified by that publication. Identification need not be by naming the person. It can arise from the inclusion of a number of characteristics that enable a person to be identified. Where a group of people have been collectively defamed, provided the group is limited in size, each member of that group may be a potential plaintiff.

Finally the material published must be defamatory. In terms of a legal test material is defamatory if it does one of four things - expose a person to ridicule; lower their reputation in the eyes of members of the community; cause people to shun; or avoid them or injure their professional reputation.

Clearly, elements of defamation law are subjective and unpredictable.

The law recognises a number of circumstances in which the interest in the material being published outweighs the potential damage to a reputation. These are codified in terms of defences to defamation actions and consist of four main areas.

Truth - a defendant can argue that the meanings implied by the publication are in fact true. In New South Wales, Queensland, Tasmania and the ACT the defence must establish that not only are the defamatory meanings true but that there is a public interest or benefit in having those meanings conveyed through publication.

Reporting of Courts, Parliament and some other proceedings - the accurate reporting of what is said in court or Parliament or certain other official proceedings provides a complete defence to a defamation action. The test of what constitutes an accurate report is strict and intended to ensure that readers receive the information necessary to inform them in a manner equivalent to their having actually been present at the proceedings.

Fair comment on a matter of public interest enables a wide range of critical material to be published as review, analysis, opinion, satire and cartoons. The mere expression of an opinion is not sufficient to attract this defence. The opinion must be based on facts and these facts must be contained within the publication or be known independently to the reader.

Common law qualified privilege emerges from the concept that there are circumstances in which candid discussion is required and protection of speech warranted. Examples include the provision by employers of job references or the deliberations of a selection committee or prize jury. It is this area of law which was expanded by the High Court decisions on political communication to ensure that protection existed for reporting on government and political matters and public discussion thereof.

Contempt of court

The laws of contempt are designed to protect the principle of the right to a fair trial. In general the law of contempt prevents the publication of material that is prejudicial about matters that will be or are currently before the courts. In popular parlance the purpose of contempt law is to minimise the likelihood of 'trial by media'. Types of information which are considered prejudicial include:

details of prior convictions;
the creation of an adverse impression of the accused;
statements about guilt or innocence of the accused; and
in cases where identification of the accused is in issue, the naming of the accused or the provision of other means by which the accused may be identified.

There is a limited form of defence of 'public concern'. However, the closer the comment is directed to the actual subject matter of the trial the less likely it is that this defence will be available. The defence is intended more to protect the publication of material in the context of ongoing public debate about the broader issues, where the risk of prejudice to a trial is incidental and unintended, rather than discussion of the specifics of any particular trial.

Censorship, obscenity and film and literature

Further restrictions on speech are contained in our criminal law and in particular the state Summary Offences Acts which create offences related to the display of indecent, obscene or offensive material. Definitions of 'obscene' or 'indecent' are often not contained in the legislation and courts rely on traditional legal tests such as the capacity of the material to 'deprave and corrupt' and/or community standards. Although few cases proceed to trial there are numbers of instances where the police have initiated action and this has resulted in either a private decision to withdraw material from sale or display or the reclassification of material which had previously been unrestricted. The most recent instance of this was the seizure of the Robert Mapplethorpe book of photographs from a bookshop in South Australia and the subsequent reclassification of this material by the Classification Board.

The offence of blasphemous libel, which some might have considered obsolete, received prominence through the (unsuccessful) attempt of the Catholic Church to obtain an injunction preventing the National Gallery of Victoria from exhibiting the Serrano photograph Piss Christ. The court in its decision raised some doubts as to whether blasphemy would be considered as remaining part of the law of Victoria, but did not decide the point.

More recent restrictions on speech have taken the form of legislation and in particular in the areas of racial and religious vilification where legislation exists at a federal and state level.

The most comprehensive regulation of speech or expression is to be found in the classification system applying to publications, films, videos and computer games. While it has long been a principle of the classification system that adults are free to see, hear or read what they wish, the classification schemes exist to provide guidance as to the suitability of material for other audiences and in particular minors. However a series of amendments to the legislation and the partitioning of areas such as Internet content for specific attention suggests that the freedoms previously enjoyed by adults are increasingly to be subject to qualification. Interestingly attempts to regulate Internet content in the United States have been the subject of a number of challenges under the First Amendment, clearly conceiving such restrictions on content as constituting a restriction on free speech.

Defamation references

Defamation Acts in NSW, Northern Territory, Australian Capital Territory, Tasmania and Queensland
Wrongs Act in Victoria and South Australia
Criminal Code in Western Australia
Law Book Company, Media Law and Practice, (looseleaf service)
Michael Gillooly, The Law of Defamation in Australia and New Zealand, The Federation Press, 1998
Lange v Australian Broadcasting Corporation (1997) 145 ALR 96

Classification

Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Broadcasting Services Act 1992 (Cth)

Other resources

New South Wales Law Reform Commission Discussion Paper 43 (2000) - 'Contempt by Publication'

Communications Law Centre activities / research

The Communications Law Centre is undertaking an ARC project in the area of social attitudes to defamation - contact Roy Baker (Sydney)

Communications Law Centre, 'Free Speech in the New Millenium: a framework for discussion', 2000
Submission to review of Computer Games Classification.

Publications

Publication	Author	Date	CU

Third Person Singular? Instructing the Defamation Jury	Roy Baker	10/2003

Submission to Attorney-General Concerning Proposals for a National Defamation Law	Communications Law Centre	5/2004

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