Should have done him for defamation

Sep 30, 2011 12:32

I suspect people might have been expecting me to launch some denunciation of columnist Andrew Bolt being done under 1995 amendments to the Racial Discrimination Act. (A useful lay-friendly analysis of the judgement is here.)

Those provisions are bad law: Jonathan Holmes puts the problem nicely:
... this judgment reinforces all the concerns that ( Read more... )

media, indigenous, pc, law, antipodes

Leave a comment

Re: Not quite thorfinn October 1 2011, 08:10:17 UTC
"White folks" is a racial category, so it's certainly covered. The other thing is thrown in randomly and not relevant, yes.

"Tone" isn't the only factor. You can perfectly well have a nasty tone, provided you actually have "good faith" and facts to back you up.

From the judgement: "7. Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of section 18C with the need to protect justifiable freedom of expression."

And the act: Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

So, yes, "tone" matters, but it isn't sufficient.

Reply

Re: Not quite erudito October 1 2011, 08:40:58 UTC
I doubt anyone could plausibly argue that the operative element was 'white folk' rather than 'conservative think tanks'; or that it is at all a likely case. But the point is this offers a very specific protection which is generally not going to be available to most folk.

Which gets back to the issue of truth: there is no general legal liability for getting one's facts wrong. There is if you harm someone's reputation. This provision of the RDA makes error liable on much more dubious grounds, see Skepticlawyer's post. The provision's similarity to blasphemy law is rather telling.

Reply

Re: Not quite thorfinn October 1 2011, 11:31:27 UTC
It's an extremely unlikely case, of course. The point is that "white folk" are privileged (at least here in Australia) - you don't get discriminated against just because you're white. But if you *were* being racially vilified because you were white, this legislation would certainly be available to you as a defense.

There's no general legal liability for getting fact's wrong, no. There is specific liability in this legislation and in defamation legislation for doing so, with the extra requirement in this case that you're only required to be factual when a "reasonable person" would assume that you would reasonably be factual, e.g., when you're a major journalist in a major newspaper, as opposed to some random person yelling on a street corner.

That's actually a stronger free speech protection than exists in defamation law, where you actually have to be factual for it to be a defense.

You keep saying this "provision" is similar to blasphemy law - but I don't see any proof whatsoever of that. You're going to have to do a lot better than just stating so.

If there was no "good faith" defense, I would perhaps agree that there is a similarity. However, there is a good faith defense.

Reply

Re: Not quite erudito October 1 2011, 12:22:45 UTC
I quote Skepticlawyer:
That is because the relevant statutory provisions turn on vague and subjective notions like ‘offence’ and ‘insult’
Blasphemy is giving offense to/insulting God.

There is a good reason why these sort of subjective provisions have been fading from the law.

Reply

Re: Not quite thorfinn October 1 2011, 23:59:51 UTC
And the difference between the two? Blasphemy is somewhere between an offense against some entity which is much more powerful than man or else non-existent, but in any case is in no real position to be affected by the offense.

Encouraging racial intolerance? There are real people here, and there are very clearly proven links between encouraging racial intolerance and directly causal increases in racial violence. This is not some mythical theoretical connection, it's been well studied both statistically and experimentally.

As far as "subjectivity" and the law goes - interpretation of the law has always, and will always be, subjective. There's a vast amount of law that turns on what "a reasonable person" would believe, and that's not restricted to old laws by any stretch of the imagination.

If laws weren't subjective, there would be no need for judges - you could just let the police decide every case, because every case would be super clear and obvious. That just doesn't mesh with the messy reality of human laws, which are always a balancing act of competing tensions.

It's very seductive to think that there should always be pure objectivity in laws - and it's definitely a good goal to aim for. However, it's a very long stretch to believe that there are no circumstances where subjectivity is required in law.

Reply

Re: Not quite erudito October 4 2011, 12:38:38 UTC
It is not subjectivity that requires judges, it is indeterminacy and the need for an adjudicator. Law always involves a certain amount of "fuzzy logic", but that is a very different thing from the level of subjectivity involved in terms such as 'offence' and 'insult'.

And what Bolt did was a long way from encouraging racial intolerance. The issue here is not the RDA itself, it is very specific provisions regulating speech.

Reply

Re: Not quite thorfinn October 4 2011, 23:48:26 UTC
I submit that you have no clue whatsoever about whether what Bolt did encourages racial intolerance, since you have no experience about what it's like to live with racial intolerance on a day to day basis and have that reinforced by the kind of clearly-trolling-for-offense-with-lies article that Mr Bolt published. And as I already said, this area actually has been well studied (with real science), aside from random anecdotes.

As far as subjectivity goes, the test is not whether the complainants in the case were offended, the test is whether "a reasonable person" within the racial group being maligned would be offended. That sort of "subjective" test is extremely common in law, as I've already said. And again, offense is merely part of the issue - it's not enough on its own to be an illegal act under the RDA.

Reply

Re: Not quite jordan179 October 5 2011, 16:02:48 UTC
I submit that you have no clue whatsoever about whether what Bolt did encourages racial intolerance, since you have no experience about what it's like to live with racial intolerance on a day to day basis and have that reinforced by the kind of clearly-trolling-for-offense-with-lies article that Mr Bolt published.

Polylogism. I respond with "I am a man. Nothing human is alien to me."

Reply

Re: Not quite jordan179 October 5 2011, 16:06:04 UTC
Oh, and by the way, very nice weasel-wording on Lorenzo never having lived with racial inteolerance on a day-to-day basis. You're right -- he probably hasn't. Put exactly that way.

I mean he probably has experienced intolerance on a day-to-day basis, etc. And he probably has experienced racial intolerance, occasionally. Just not both, at the same time.

Reply

Re: Not quite jordan179 October 5 2011, 16:07:48 UTC
And what will you do, Thorfinn, if a more or less right-wing racist government comes to power and uses those very same laws against you? Once one criminalizes free speech, one cannot be certain that the law will be used only against the targets one had in mind when one passed it.

Reply

Re: Not quite thorfinn October 3 2011, 06:15:34 UTC
As yet another example, there's specific legal liability for "getting your facts wrong" in fraud legislation - i.e., you're not allowed to tell lies to deceive someone else to profit from them.

That's yet another similar legal situation, given that Mr Bolt gets paid to make comment, preferably as controversial as possible. He wasn't trying to deceive Geoff Clarke et al, but he was certainly trying to deceive his audience in this particular case.

Reply

Re: Not quite erudito October 4 2011, 12:33:39 UTC
No, that is not "getting your facts wrong", that is intentionally deceiving: not the same thing at all.

Reply

Re: Not quite thorfinn October 4 2011, 23:39:09 UTC
In this particular case, it is exactly the thing. Bolt was intentionally deceiving in order to make a racist argument. That's the whole point of the good faith defense available in Section 18D of the RDA. If you're not intentionally deceiving, you're in the clear.

Reply


Leave a comment

Up