In paragraph 388 of his judgment in the Bolt matter yesterday, Justice Bromberg quotes a phrase from a Privy Council case. It should strike a chill into the hearts of journalists and media organisations in Australia, particularly at this moment in our history.

“The public deserve to be protected against irresponsible journalism.”

So who should do the protecting? This judgment, and the very fact that there is a Racial Discrimination Act, suggests that legislators and the courts see this as their role, at least on matters of race.

The worry being that one person’s irresponsible journalism is another’s forthright and courageous publication. So where do we draw the line?

The question is particularly pointy at the moment, with a media inquiry set up to examine, among other things, the effectiveness of the codes and standards that apply to journalism. We are in the middle of a major push to address “irresponsible journalism”, or journalism that is seen as irresponsible. Nobody who cares about freedom of speech can be unconcerned about where the line is drawn, and who gets to do the drawing.

Having said all that, to dress up yesterday’s decision as a major assault on freedom of speech is putting it far too high. The judgment does not fundamentally change the current rules of the game for journalists.

It is clear that had the plaintiffs taken defamation actions, they probably would have succeeded. The test Justice Bromberg applied is broadly the same as has applied to the fair comment defence in defamation law for most of my career.

If Bolt had got his facts right, if he had made a conscientious attempt to weigh the evidence, then he probably would have won this case even if his words did offend, insult, humiliate and intimidate. He would have been exempted under Section 18 D of the Act, which protects fair comment.

As David Marr puts in his piece in Fairfax newspapers today, Justice Bromberg’s judgment is not an attack on freedom of speech, but on bad journalism. But should such journalism be declared illegal? I think not.

The most fascinating, and in the long term most powerful part of the judgement is his investigation into Bolt’s methods — not only his factual errors, but the way in which facts that did not serve his purpose were ignored. The judgment amounts to an expose of which Media Watch could be proud.

Justice Bromberg analyses the way Bolt built his case, and exposes errors and the way in which other evidence was overlooked.

The idea that even opinion writers should get their facts right is not new. It has been upheld not only in defamation cases, but also in Australian Press Council adjudications in recent years. It is an accepted industry standard. In his column today,  Bolt makes only a glancing mention of his many errors, and says “none seemed to me to be of consequence”. That is a gobsmacking statement.

There were so many wrong or distorted facts that the inaccuracy undermined the comment, the core of the articles, which was the allegation that the named individuals had chosen to identify as Aborigines for political advantage. That is why the case against Bolt succeeded.

So why should we worry?

The fact that this judgment is about race, and a racial discrimination case, is not without significance. It makes it clear that when writing about someone’s racial identity, there is an extra range of legal hurdles to worry about.

Let me experiment. And in doing so, I will, to quote Justice Bromberg, use “language and structure highly suggestive and designed to excite” and also use a “derisive tone … provocative and inflammatory language and (including) the inclusion of gratuitous asides”.

So let’s say I call Andrew Bolt an arrogant, dishonest and irresponsible tosser who routinely bends the facts to suit his rhetorical purpose. I can say all that, and my only legal fear is defamation. I can also deride him as an arrogant man without running afoul of any extra laws.

But if I call him an arrogant white tosser, or an arrogant Dutch tosser then I have to worry not only about defamation but also about the Racial Discrimination Act. I can make aspersions about his gender, his occupation and his mental health and worry only about defamation. If I raise his ethnic identity and his race, then there is an extra legal worry.

The test will then be whether I am offending people, and whether I am expressing an opinion in good faith. On Justice Bromberg’s standards the test would include, not only my use of language and my factual accuracy but also an assessment of my readership and my influence — the “harm likely to have been caused” — and this opens a giant can of worms.

Is the audience of Crikey, reading these words about Bolt and his Dutch ancestry, particularly likely to racially stereotype Dutch people, or white people? Is my (limited) influence on the Crikey readership likely to mean that Dutch people will be intimidated?

Should the Crikey audience be protected from my irresponsible journalism?

Justice Bromberg took into account Bolt’s “significant public standing and influence”.

“His evidence suggests that his columns are popular and widely read.  They will have been read by persons inclined to regard Mr Bolt as speaking with authority and knowledge.  They will likely have been read by some persons susceptible to racial stereotyping and the formation of racially prejudicial views.”

So would it have made a difference if Bolt’s articles had been published in a small circulation literary magazine, or on a little-read blog?

These are unanswered questions, likely to be further examined in the likely event of an appeal.

Whatever the worth of what Bolt wrote, and I think it was highly offensive and wrong, it was in one sense not all that extreme or unusual. Similar views can be heard in many pubs and cafes, on the street, and indeed among some Aboriginal people. Justice Bromberg’s judgment contests the rationality of Bolt’s defence of his words. No problem there. The problem is that the conclusion to the argument is a finding of illegality.

The judgment means that journalists, particularly well-read, influential journalists, are to be held to higher standards than ordinary people. That the public “deserves to be protected” from them. It’s a dangerous notion.

Civil libertarians have for a long while argued that the Racial Discrimination Act is too broadly worded. I agree.

It would be overstating the case enormously to say that freedom of speech is at stake here. Yet it is also true to say that, particularly in the current climate, we should be concerned about this notion of using the law to protect people from irresponsible journalism.

The way to deal with irresponsible journalism is, in almost every case, a mix of self-regulation, argument and exposure. I have argued in the past for better and more meaningful self-regulation.  I would have no problem with the publication of corrections being mandated by the reformed Australian Press Council style body now under consideration.

But making “irresponsible” journalism illegal? You don’t have to like Andrew Bolt to find that notion worrying.

Peter Fray

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