Section 18C and the law of defamation

In the debate concerning the Commonwealth Freedom of Speech (Repeal of Section 18C) Bill 2014, the claim is repeatedly made by supporters of retention of s 18C of the Commonwealth Racial Discrimination Act 1975 (RDA) that s 18C is comparable to the law of defamation as a justified abridgment of freedom of expression in Australia.

In its crudest mantra-like form, the claim is exemplified in "Free speech is not absolute … you can't defame someone." As a bare statement of the law, this is the opposite of the truth since it ignores the legal defences.

It is flawed in a broader sense because it rests on the unexpressed but false premise that there is widespread agreement in Australia that the law of defamation achieves a near-perfect accommodation with the role of free speech in an open society.

A defamatory attack is one which exposes the target of the attack to hatred, ridicule and contempt. By definition, a defensible defamatory publication is a lawfully permitted form of "hate speech" (whatever version of that elastic vernacular term is applied).

On those occasions when defenders of s 18C go beyond the mantra, they rely on what is alleged to be the generous regime of pro-free speech exemptions provided for in s 18D of the RDA: part of which contains language faintly resembling defences available under the law of defamation.

A short survey of the dissimilarities in the purposes, liability criteria and defences of each civil liability regime makes clear that the attempt to rely on an argument by analogy to justify the regime of censorship embodied in sections 18C and 18D of the RDA is misconceived.

Purposes

The two regimes of legal liability serve quite different and, in essential respects, conflicting social objectives. The law of defamation advances the social interest in protecting the good reputation of an individual. Reputation is how others think of us. We hope that, by our words and deeds, others will say that we enjoy a good reputation in the community in which we reside and work.

In contrast, in upholding the representative action in Eatock v Bolt(2011)– the case which more than anything else prompted the call for repeal of s 18C - Justice Bromberg of the Federal Court of Australia said this about s 18C: "Infused by the values of human dignity and equality, the objectives of Part IIA[of the RDA] extend to promoting racial tolerance and protecting against the dissemination of racial prejudice."

InEatock v Bolt, Andrew Bolt's two offending articles in the Herald Sun newspaper (reproduced in Justice Bromberg's reasons for decision) asserted that there were fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, including individuals identified in the article, who were not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, had chosen falsely to identify as Aboriginal, and that fair skin colour indicated a person who was not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

An accusation (with or without reference to race, colour, or national or ethnic origin) that a person is publicly pretending to be something other than what that person is in order to obtain an entitlement to which that other person is not genuinely entitled satisfies the "hatred, contempt and ridicule" standard. It has the tendency to lower the target of the attack in the estimation of hypothetical fair-minded, reasonable persons generally. It imputes dishonesty/deception/hypocrisy/phoniness.

Justice Bromberg's findings inEatock v Bolt about the many factual errors contained in Bolt's articles provide strong support for the speculation that the applicants had a sound defamation claim against Bolt and his employer for damages (which includes an allowance for hurt feelings).

However, the group in Eatock v Bolt did not want damages for injury to their individual reputations. Instead, as a group, they wanted Bolt to be required to recant his opinions about them as fair-skinned indigenous Australians and to be prohibited from repeating his specific claims about the group participants to remedy the (non-clinical) psychic pain and suffering they claimed to have suffered by reason of their being fair-skinned indigenous Australians.