Should have done him for defamation

[erudito]

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

Comments

Both parties to blame.

[necromancer1962]

I read in a comment on a blog (apologies for the lack of link) that the Liberals vehemently opposed this legislation when it was introduced but then did nothing about it during the next 13 years of office.

The whole removing bad law thing seems to be a problem for government generally.

[bar_barra]

Yep. Pretty much what I said. Odd that Howard never repealed it, as noted above. Politician first, conservative thereafter?

[thorfinn]

http://castancentre.wordpress.com/2011/09/29/andrew-bolt-free-speech-and-racial-intolerance/... )

Not quite

[erudito]

The point of the Act is to prevent people from publishing articles saying things like "white folks associated with conservative think tanks like to kill and eat babies", not unless they actually have some evidence to suggest that that is truly the case. Actually, no, not a racial category so not covered. See Jonathan Holmes's piece.

it's not suppression of free speech, thanks to the "good faith" protections in Section 18D of the Act. You can say whatever the heck you like - provided you actually believe it's true and have done reasonable fact checking appropriate to your circumstances. Also not quite, given all the worrying about "tone".

As for defamation, we have had experience of people losing such cases, and you do not get "free speech" campaigns being launched (not, at least, since defamation law was liberalised somewhat).

Re: Not quite

[thorfinn]

"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

Re: Not quite

[erudito]

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.

"Reasonable' in the RDA

[assassinus]

The problem with the judgement, and a number of journalists have said this, is that the "reasonable" aspect of 18D has allowed for the judge in this case, to decide on the tone of the journalists writing. Some of the commentary, while generally critical of Bolt (and deservedly so) has said at the same time it shouldn't be up to legislation, or the judges interpretation of it, to decide how polite a journalist should be, or what sort of tone they should take in their writing. Have a look at Gawenda's (ex editor of the Age) article - he hates bolt and says he is a bad writer, but he is also doesn't believe Judges and Legislation should be deciding what Journalists write: http://www.abc.net.au/unleashed/3071066.html... )

Re: "Reasonable' in the RDA

[thorfinn]

"The judge has decided what reasonable writing is" Um, no. The judge has not. The judge has to interpret according to what "a reasonable person" would see in the published article, but that has nothing to do with whether the published article was reasonable or not.

Aside from that, the judge had to decide on whether the article as published in "good faith" - i.e., actually had some basis in fact or honest opinion, as opposed to being just some random made up bullshit (which the article in question pretty clearly was).

Re: "Reasonable' in the RDA

[assassinus]

Errh, yes he has. The judge has looked at Bolt's writing, and decided whether it was written in a reasonable fashion, in terms of the 18D

Re: "Reasonable' in the RDA

[thorfinn]

Oops. My bad. You're correct.

[assassinus]

Good point about a defo action, only the indivudals where Bolts facts were incorrect would have been sure of a win, and he had some of them drastically wrong, but facts for other individuals were correct, or near correct.