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.

Liability criteria

The tendency of a statement to convey a defamatory meaning is judged objectively according to the standards judicially attributed to the hypothetical reasonable member of the (unified multicultural) Australian community.

The law divides defamatory meanings into those which, judged objectively, are presented as fact and those which are presented as opinion.

By contrast, s 18C is concerned with public acts, "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people" where the act is done because of the race, colour or ethnic or national origin of the other person or of some or all of the people in the group.

As interpreted by the Federal Court, under s 18C the tendency of a statement to offend, insult etc is also judged objectively, but according its effect on the feelings of the hypothetical reasonable member of the relevant racial, national or ethnic group in the Australian community.

Defences/Exemptions

As a general rule, the plaintiff in a defamation case loses if the defendant proves, on the balance of probabilities, that a defamatory meaning presented as a statement of fact is substantially true.

The rationale is a matter of common sense. The truth trumps all.

In the case of a defamatory meaning presented as a comment, the plaintiff loses if the defendant proves, on the balance of probabilities, that the comment was honestly held, relates to a matter of public interest and is based on facts which are truly stated or indicated, or are notorious.

By contrast, although s 18C of the RDA is cut down by s 18D which refers to "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" (my underlining), the prefatory words in s 18D, "anything said or done reasonably and in good faith", impose a burden on the defendant which does not confront a defendant pleading honest comment in a defamation case.

Lawyers familiar with the concept of reasonableness, especially those who are familiar with the law of defamation, will know that there is a world of difference between, on the one hand, acting reasonably and in good faith, and, on the other, acting honestly (or, what is probably the same, "genuinely").

The defamation defence protects all opinions that can be honestly held, however offensively, insultingly, humiliatingly, intimidatingly or "unreasonably" expressed including what, according to the ordinary meaning of the word, would be called "bigoted" opinions.

Its purpose is to expand to the outermost limits, individual freedom to discuss controversial matters of public interest such as race, colour or national or ethnic origin.

Again, the rationale is a matter of common sense. If the audience is given or has the facts, then its members can decide for themselves whether they agree or disagree with the commentator. This is the antithesis of the scheme for compelled respect, dignity and "moderate" public discussion embodied in ss 18C and 18D.

Moreover, s 18C makes no express allowance for the truth. In Eatock v Bolt, Justice Bromberg found that Andrew Bolt had got the facts about the applicants badly wrong. His Honour stated that "When not misused, truth will not generally cause the kind of offence s 18C is concerned with" (my underlining) and, in holding that Bolt was liable under s 18C, stressed that it was in part because Bolt had used "inflammatory and provocative language".

If Bolt had published the same two articles but had referred to other Australians of indigenous descent and had truly stated or indicated (and not distorted) the facts pertaining to those other persons, would he have been exposed to liability (a) under the law of defamation, and (b) under s18C? The answer to (a) is, no, and the answer to (b) is, possibly, perhaps probably.

In short, the case for the retention of s 18C is completely undermined, not buttressed, by the law of defamation.

The inherent vice of "hate speech" statutes

At the centre of the debate about s 18C and the other "hate speech" statutes is a general conflict of principle as to whether free speech is an overarching individual right, and a more specific conflict of principle, namely, whether there are to be privileged types of speech content/viewpoint.

An inherent virtue of the law of defamation – its application to all statements of (purported) fact and all opinions – is indicative of the inherent vice of all the "hate speech" statutes. They elevate public discussion of specific categories of speech content/viewpoint to a privileged legal status and thereby, necessarily, inhibit such discussion.

Had the then Gillard Government'sproposed Human Rights and Anti-Discrimination Bill 2012 been enacted, there would have been no less than 16 categories of protected speech content/viewpoint including the impenetrably obscure category, "social origin".

Section 18C rests on the legal fiction that offensive, insulting etc speech acts/conduct entirely unrelated to invidious discrimination in employment, in the provision of accommodation and in the supply of goods and services (itself a worthy subject of legislative prohibition) amount to acts of discrimination.

Ironically, the ideological foundation for that legal fiction involves a form of stereotyping, namely, the patronising claim that there are entire "minority" groups all of whose members are "vulnerable" or "marginalised" or "victimised" and so lacking in human fortitude as to be quite unable to withstand disagreeable ("hateful") speech pertaining to their group identity.

This has become such an article of faith that it is rarely questioned. It is usually accompanied by the no less patronising assessment of all those who do not belong to one of the groups whose feelings are said to be in need of privileged legal protection that those "majority" outsiders can have no knowledge of what it is like to be a victim of "hate speech".

All the sloganeering about vulnerable/marginalised/victimised groups and their "silencing" is merely the latest ideological pretext for censorship of "hurtful", controversial, dissenting public debate.