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The problems with Eatock v Bolt

By Graham Young - posted Monday, 3 October 2011


What this case does is to create what you might call "affirmative action" defamation law which is available to minorities (or perhaps majorities as well if someone who is "white" whatever that might mean wants to bring a test case) and operates on the basis not of demonstrating damage to a person's reputation but offense to them or other members of their group.

This much lower standard of proof doesn't make it impossible to discuss matters pertaining to race, but it makes it much more difficult, particularly for those who are less skilled in research and logical analysis and for those who publish them.

In evidence I'd advance this thread that I started on the On Line Opinion forum asking whether we can discuss matters of race on the site anymore. My concern is not so much that it is impossible, but that the resources that I would have to bring to bear to fact check, and to double-guess what might be the "hidden" motive of someone for saying something might mean it is not worth being vicariously liable for the discussion.

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It is obvious from the thread that only the most diligent of the commenters had actually read the judgement, and that without legal training many just fell back on their prejudices.

When you apply complaint moderation as we do, you rely to a certain extent on the intelligence and skill of commenters not to break laws in the first place, or to notify you if they do see a breach by another.

My experience says that rules of defamation are sufficiently commonsense that you will have a good margin of safety. But this new form of defamation is not commonsense and commenters are unlikely to understand the issues.

There are a couple of examples in the thread where matters of race arise which might come under the new offence. In one case I raise Larissa Behrendt's testimony to the court and suggest that it might have been shaded to suit her case. This is something to which the good professor, who is a solicitor admitted to the supreme court, could quite clearly and legitimately take offence. As a servant of the court it would be a very serious matter if she had misled it.

In my case however, I referenced the judge's account of Behrendt's testimony (see paras 117 to 131) and an interview she gave to the Sydney Morning Herald with virtually no additional comment. I'm pretty confident that this does not offend the act.

However, I had less confidence in others and had to demand supporting information for claims made by others. Later in the thread "Antiseptic" makes this statement:

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At the risk of opening still another can of worms, I have to wonder whether the Judge's own religio-ethnic heritage might have played a part in his judgement. Some parts of the Jewish community have become very adept at claiming offence to silence opposition.

And then "Jay of Melbourne" says:

Bolt is an avowed Zionist and we can presume from Mr Bromberg's associations with Zionist groups, such as Chabad that he shares that viewpoint.

Bolt's pro Zionist stance goes beyond the political, he's publicly suggested that in order to better serve the interests of Israel Jewish Australians might want to reconsider their support for Racial and Religious tolerance laws.

What Bolt was saying in effect was that in order for non Jewish Zionists to show effective support for the Jewish state they needed a full range of expression, to be "let off the leash" to deal with Muslims, Leftists and other undesirable viewpoints in order that Jews might be spared any backlash or other indignity.

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About the Author

Graham Young is chief editor and the publisher of On Line Opinion. He is executive director of the Australian Institute for Progress, an Australian think tank based in Brisbane, and the publisher of On Line Opinion.

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