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Sep 29, 2011

Bolt decision: ‘Irresponsible journalism illegal’? Think again

Making "irresponsible" journalism illegal? You don’t have to like Andrew Bolt to find that notion worrying, but dressing up this week's decision as a major assault on freedom of speech is putting it far too high.

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.

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163 comments

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163 thoughts on “Bolt decision: ‘Irresponsible journalism illegal’? Think again

  1. fredex

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

    That is a perfectly acceptable statement.

    If you wish to suggest that it is not try arguing in favour of the converse.

    “The public does not deserve to be protected against irresponsible journalism.”

  2. Mark Duffett

    Best commentary I’ve seen on the Bolt case so far.

  3. Michael

    Margaret it kills me to say this because I do hate your politics, however todays article is right on the money.
    If the law holds and I doubt it will stand the rigor of an appeal, then journalism & news publication in Oz becomes a legal and therefore financial minefield.

  4. Damotron

    Andrew Bolt can dish it out but can’t take it, what goes around comes around. He had it coming so he should stop bitching about it, it’s a bad look.

  5. Aphra

    Yet another Henny-Penny argument.

    Had Bolt simply got his facts right there wouldn’t have been any court case.

  6. Ilona

    Is it fair to categorise the court’s decision as declaring the articles “illegal”? Sure, the articles breached the Act, but they don’t even have to be removed from the internet. The only practical restriction on free speech we’re looking at is the disclaimer that needs to be added to them.

  7. Down and Out of Sài Gòn

    The public deserve to be protected against inaccurate journalism.

  8. Modus Ponens

    “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.”

    No its not. The bloke in the pub doesn’t have the power to incite fear, hatred and mis-truths to a wide audience.

    Sorry but widely read journalists should be held to a higher standard. And self-regulation, argument and exposure hasn’t worked as awesomely as you seem to believe.

    If the Press Council had teeth and were independent of media and government influence, there might be a bit more contemplation by journalists before going to print.

  9. Fran Barlow

    Some context. Bromberg ruled that the relief available under s18D (basically protection for good faith statements on matters of public interest) from the more general constraint in s18C was not available because Blot made no serious attempt to get his facts correct. He further noted that had he done so the general claim he sought to make would have been implausible. Thus, a good faith defence was excluded.

    One might note also The News Ltd Code of Conduct which runs in part as follows:

    1. Accuracy

    1.1 Facts must be reported impartially, accurately and with integrity.

    1.2 Clear distinction must be made between fact, conjecture and comment.

    1.3 Try always to tell all sides of the story in any kind of dispute.

    1.4 Do not knowingly withhold or suppress essential facts.

    1.5 Journalists should be reluctant to rely on only one source. Be careful not to recycle an error from one reference source to another. Check and check again.

    So readers had a form of warranty about the professional practice of Bolt (laughable since it is not known to have been enforced but there you have it)

    He can’t claim 18D with that in the baggage he took to court.

    Bolt might have made his trolling claims of misuse of identity for personal profit at the expense of authentic recipients (i.e those having the requisite amount of melanin in their faces to satisfy him) of a program to which he objects in toto (again one coughs at the hypocrisy) if he hadn’t actually referred to any specific living person and avoided the terrible and crushing sanction of having a correction and apology published on his behalf of course.

    Also relevant here in the code:

    8.1 Do not make pejorative reference to a person’s race, nationality, colour, religion, marital status, sex, sexual preferences, age, or physical or mental capacity.

    No details of a person’s race, nationality, colour, religion, marital status, sex, sexual preferences, age, or physical or mental incapacity should be included in a report unless they are relevant.

    This last point — relevance — clearly implies accuracy, since inaccurate things are ipso fact not relevant. Blot ought to have known that even by the published standards of his employer, leave aside those of “lefty lawyers” he was out of order. He choooses to work for them and can’t bleat now about the state oppressing him into noisy silence.

    Moreover, I’d say it’s telling that when you strip away the posturing and consider the “sanction” imposed by law, it’s to publish a correction and an apology.

    The thing that offends Blot most is being forced to co-exist with truth and civilised conduct. This offence is so grave in his view as to truncate his scope to express himself as he pleases, to “silence” him. He dare not run such a risk this morning, according to him.

    Need one add anything to the Blot’s admissions to see how they damn him and the army of the living dead behind him? Probably not.

  10. Filth Dimension

    Aphra, had Bolt got his facts right there wouldn’t have been article.

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