Love for Life

ANOTHER ATTACK ON FREE SPEECH

Partial transcript from an episode of the Media Report - National ABC Radio

Finally this week to new research, which raises concerns about possible changes to the law of defamation in Australia. The Attorney-General has proposed some changes to the existing defamation laws, especially regarding the defence of honest and reasonable opinion. The change would mean that to be defensible, a defamatory opinion must be one that a reasonable person, aware of the facts an opinion is based on, could have formed.

However, new research conducted under the National Defamation Research Project, by the University of New South Wales Communications Law Centre, has cast doubts on the benefits of the Attorney’s proposal.

The CLC’s Roy Baker, is Project Director with the National Defamation Research Project.

Roy Baker: The general rule is that if you make a statement of fact, in other words, if I say ‘As a matter of fact you’ve done something’, and by saying that I damage your reputation, then I have to prove its true, I have to prove the fact is true. That’s the general rule.

Now the law’s always been slightly easier on opinions, because to give an example: let’s say you’re a doctor and I say, ‘I have opinions that are opposed to abortion, I’m a pro-lifer, and I want to criticise you for conducting abortions’. If I say some derogatory remarks to you like ‘You should be struck off as a doctor’, then I’d still have to prove as a fact that you have been carrying out abortions.

But the opinion part of that statement, in other words, ‘OK, you’re carrying out abortions and I think that’s bad’, the opinion bit of that, I don’t have to prove to be objectively true in any way, and of course because it’s difficult to do that. All I’d have to show is that my opinion is something that I honestly hold and that I’m making the comments without malice. So that’s the existing law.

Mick O’Regan: Right. And the Attorney-General is proposing, by way of a draft proposition at this stage, a draft proposal, to add to that a requirement that the opinion must be one that could be held by a reasonable person; in that sense, that it’s a reasonable opinion. Is that correct?

Roy Baker: That’s right. And this is completely new in defamation law. I think (and I think I’d know if I was wrong), I think it’s new in anywhere in the English-speaking world. Traditionally, the law has said that people should be able to express their honestly held opinion, whether or not we agree with them. One judge for instance, said that ‘The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks. In other words, the law’s always tried to encourage broad public debate on the matter to the community.

Mick O’Regan: Right. And in this case the law is very clear that untrue and defamatory allegations of fact won’t be protected, but the principle of free speech demands that opinions be given as broad a run as possible?

Roy Baker: That’s right. It’s a difficult division to get clear in your mind sometimes, because it’s the division between statements of fact, that is, that somebody did something, and statements of opinion, which is normally ‘I don’t like what they did, I don’t agree with what they did’.

Mick O’Regan: OK. Now what’s the nett impact of the Attorney-General’s proposal bringing in this requirement that an opinion must be reasonable?

Roy Baker: It’s never been tested, we don’t really know exactly how it would work, but we have research which we did last year based around a phone survey 3,000 randomly selected Australians, so it’s a representative sample of the Australian population, and what we did in that phone survey effectively was we asked people their opinion on certain issues and then we asked them more importantly to consider the person who would disagree with them.

So if they said, for instance, that they approved of abortion, we asked them to consider people who were pro-life, the opposite point of view. And we asked them to imagine somebody with that point of view and we put to them the question ‘Could you describe that person as a reasonable person?’ Now I think that’s exactly what the Attorney-General’s proposal would bring into law, because the judge or jury or whoever has to consider this issue, would frequently be considering of course opinions that they don’t personally agree with, but would be asked, ‘Could I think of this opinion as a reasonable opinion? Is this an opinion that a reasonable person could hold?’

Mick O’Regan: And yet your empirical survey has indicated that a large minority, up to about 30% of people, can’t agree that an opinion that is contrary to one they hold, could be considered reasonable.

Roy Baker: That’s right, yes. We put to people ten issues actually, and the proportion who were able to consider the opposite point of view to their own as reasonable, varied considerably between issues. It’s really I think a measure of how confident somebody, or how much conviction somebody has in an issue. For instance, we asked people on the issue of HIV status, we said to people, ‘Would you think less of a man who is HIV positive?’ and fortunately, in my mind, the overwhelming majority of the population said, ‘No, I wouldn’t think less of a man being HIV positive’.

We then asked them to consider the person who would think less of that person, ‘Could you think of that person as a reasonable person?’ and about 45% of the population said, ‘Yes, they could consider that person reasonable’. So that suggests to me that although the majority of people are able to accept someone as HIV positive, about half the population are not quite so strong in their convictions on that issue, that they’re prepared to say ‘This is my point of view, and the opposite point of view, the people who disagree with me are outside the realms of reasonableness’.

Mick O’Regan: OK, so what you’re empirical work seems to suggest is that it’s very hard to nail down in any universal way, what is a reasonable opinion. Opinions vary, it’s a bit like beauty I suppose, it’s all about the eye of the beholder, as to the strength with which someone holds a particular opinion. In terms of defending allegations of defamation, what’s the bottom line here? Where does it become an important legal issue that the Communications Law Centre is worried about?

Roy Baker: I think it’s important because I think what the Attorney-General had in mind when he put forward this proposal, was to rule out what he described as ‘prejudiced, biased and grossly exaggerated opinions’. In other words, he seemed to have in mind what might be described as the sort of lunatic fringe of society, people who were expressing rather weird opinions. What we think we’ve found in our research was that actually the sort of opinions that people can’t regard as reasonable, are actually relatively mainstream.

For instance, like the pro-life point of view, people who think that the abortion laws should be tightened up to make abortion less available. Unless we were prepared to say that that’s a grossly exaggerated and prejudiced point of view, to a lot of people that is what they think and it’s a relatively mainstream idea. So I think the problem is that it’s going to really narrow debate on a lot of issues people care about.

Imagine, for instance, that an abortion clinic opens in a town, and there are people who dislike that, and they want to make derogatory comments about the doctors who work there, and say that those doctors don’t deserve to practice in medicine. Now whether or not you like that point of view, you might say if you have an interest in broad debate and free expression, that that sort of opinion should be expressed in the public media.

Under the new law, if somebody were to do that and our figures are correct, then if you had a jury that’s representative of the population, about a quarter of that jury are not going to be able to tolerate the point of view being expressed, because to them, the right to choice for abortion is so acceptable that they’re not prepared to consider the opposite point of view as reasonable.

Mick O’Regan Roy Baker, from the Communications Law Centre, ending the program for this week.

My thanks to the Production team of Andrew Davies and Jim Ussher.
Guests on this program:

Mark Hadley
Director of Anglican Media.

Professor Simon Kaplan
Head of Information Technology & Electrical Engineering, at the University of Queensland.

Roy Baker
Project Director with the National Defamation Research Project.

Presenter: Mick O'Regan
Producer: Andrew Davies

Link to where this document was found: http://www.nutech2000.com/webtext/upaussie/attackonfreespeech.html