Should have done him for defamation
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... )
Those provisions are bad law: Jonathan Holmes puts the problem nicely:
... this judgment reinforces all the concerns that ( Read more... )
"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.
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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.
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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.
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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.
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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.
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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.
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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.
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Polylogism. I respond with "I am a man. Nothing human is alien to me."
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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.
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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.
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