The Price Of Freedom: Is Free Speech Under Threat?

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Democratic societies are a balance between order and liberty. They’re also a balance between liberty and equality. the balance is their cornerstones. A free and fearless press is imperative to safeguard our liberty. Have we lost sight of the balancing act we need to perform in today’s highly charged environment?

On 4th June 2019, the Canberra home of News Corp journalist Annika Smethurst was raided by the Australian Federal Police over a story she had published the previous year, which detailed considerations by the government to give agencies greater power to spy on Australians.

The very next day, the AFP metaphorically busted down the doors of the ABC’s offices in Ultimo for a similar – albeit far more sensational – raid over the now infamous ‘Afghan Files’ stories.

The outcry was seismic.

Social media was expectedly alight with outraged journalists and citizens condemning the AFP’s actions, ABC chair Ita Buttrose outlined her “substantial concern” over the incidents, while the ABC, Nine, News Corp, Free TV, SBS and Seven West Media issued a joint statement stating they were “frustrated” at the events.

There is no doubt that week in June was one of the most monumental and defining moments for the Australian media industry and wider concepts of freedom of speech and a free press in recent memory. Or was it?

A power struggle between the media and the law over freedom of speech has been bubbling away for some time now, touching everything from the unsavoury to the unprintable.

“Since 2002, the Federal Parliament has enacted 70 laws in the name of national security which have had direct or indirect impacts on press freedom,” says Media, Entertainment and Arts Alliance (MEAA) director of media Neil Jones.

“Press freedom is a subjective term and while Australia may still be fortunate to have a relatively free press in comparison with authoritarian or totalitarian nations, press freedom in this country is under attack and has been deteriorating for well over a decade,” he argues.

Call in the lawyers

But perhaps the biggest indicator of the continual struggle between free speech and suppression of late is the number of billable hours Australia’s lawyers have been filing for their work on defamation cases.

From Hollywood A-listers to West Indies cricketers, to former soldiers and bandana-wearing commentators. The list of public figures caught up in defamation cases in the last few years is as long as it is eclectic. So why are so many Australian publishers getting caught up in these messy legal battles?

To understand why these cases are so prevalent, it is important to first understand exactly what defamation is – and isn’t – under Australian law.

“There’s no one test for what is defamatory,” says the University of Sydney’s Professor David Rolph.

“Anything that tends to make people think less of you is capable of being defamatory, but also, and this is a quirk of the common law, something can be defamatory if it exposes you to more than a trivial degree of ridicule or it leads people to try and avoid you.”

A widely cited media law expert and published author on the topic, even Rolph seems to struggle to provide a simple definition of defamation. And it is this ambiguity that has caused so many of these publishers to find themselves in a courtroom. “In Australia I think it’s still true to say that you’d much prefer to be a plaintiff than a defendant in a defamation case,” Rolph continues.

“All plaintiffs have to establish in a defamation case is something has been published that identifies them that is defamatory, it’s then up to the defendant to establish a defence – whether it’s true, or whether it’s fair comment or whether it’s privileged.”

Australia’s defamation laws are widely regarded as some of the toughest in
the world. A 2019 press freedom survey conducted by the MEAA found that 80 per cent of Australian journalists believe defamation laws make reporting more difficult, while 10 per cent have received a defamation writ in the past few years.

When compared with the corresponding legislation in the United States, Australia’s laws are a “polar opposite” says Rolph.

“If you’re a public figure – and the concept of a public figure is very broadly defined – you have to prove that what was published was false and it was published with actual malice,” explains Rolph.

With so many of these high-profile cases, it is important to try and identify common errors the infringing publishers have made that left them exposed.

The inability to prove the assertions made in the story are true has been a factor, as has “hasty” publishing, says Rolph.

It seems not getting the facts right is the biggest error a journalist can make when looking to avoid defamation, but a rapid news cycle and the digitisation of the media has no doubt left many publishers sometimes prioritising timeliness over accuracy.

A chilling effect?

Where there is conversation about media defamation, it seems there is inevitably a mention of a potential ‘chilling effect’.

Senior writer for the Sydney Morning Herald Deborah Snow last year penned an article detailing the “fear” now prevalent inside Australia’s biggest newsrooms when it comes to reporting on stories that could be at risk of defamation proceedings.

Broadly speaking, a chilling effect is defined as the suppression of speech due to legal threat. In the context of defamation proceedings, it is easy to see where this argument comes in. “Cases that are commenced, or threatened to be commenced, are only a fraction of what happens with defamation law,” Rolph explains.

“Even before someone may publicly indicate an intention to sue for defamation there’s often correspondence in the background between the person and the publisher.”

The subject of a potentially controversial story is often notified by the publisher prior to publication, usually to give the individual the right of reply. It is from this correspondence that a potential chilling effect can kick in.

“The knowledge or the suspicion of threatened defamation proceedings is often factored into the media’s assessment about whether or not to publish,” says Rolph.

The MEAA’s Jones says the idea of a chilling effect is now more than tangible. “The threat of defamation is also having an impact by discouraging media outlets from investigating stories for fear of being sued,” Jones explains.

“In our survey, 28 per cent of journalists said they had had a news story spiked in the past 12 months because of fears of defamation action by a person mentioned in the story.

“Urgent reforms of defamation laws are needed to ensure they are fit-for-purpose for digital news reporting and are uniform across all jurisdictions in Australia so litigants can’t go forum shopping.”

Hate speech

Amid all of the discussion around freedom of speech and press freedom is another – far murkier – topic: hate speech.

In the hours after a gunman in Christchurch shot dead 50 people in two local mosques, Australian senator Fraser Anning put the blame back on Muslims.

The whole situation put Australia’s hate speech laws under the microscope.

While legislation like section 18C of the Racial Discrimination Act make it unlawful to do an act which is likely to “offend, insult, humiliate or intimidate another person or a group of people”, many still believe there is more to be done.

There is a complex relationship between ideas of freedom of speech and hate speech. One could argue that anti-hate speech laws are an affront to freedom of speech, but without such laws, where would we be?

Speaking at the 42nd Annual General Meeting of Inner Sydney Voice in Sydney last year, Civil Liberties Australia vice president Tim Vines said the right-wing suggestions that free speech is dying (look no further than Alan Jones’s recent commentary around Israel Folau) are “exaggerated”.

“Freedom of speech is not absolute,”
Vines said at the time. “Sometimes we accept one harm in preference to a greater harm.

“Is the harm to individuals exposed to hate speech outweighed by the harm to society of censoring speech?”

He suggested that while Alan Jones may be lighter in the pocket from defamation proceedings “he is still on air and able to wield immense power over premiers and political parties”.

Freedom of Speech or a Press Freedom?

Although ‘freedom of speech’ and ‘press freedom’ are two terms often used interchangeably, their definitions are quite different.

To see the difference, look no further than the Parliament of Australia website to read snippets from the parliamentary inquiries into both matters over the past three years.

The Senate referred an inquiry into press freedom earlier this year in light of the recent journalist raids, while a similar inquiry was called into free speech in 2016 to ask whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposed unreasonable restrictions on freedom of speech.

“The concepts are connected and related, but possibly serve different purposes,” says Rolph.

“Freedom of speech is a right that individuals have, whereas freedom of the press obviously conceives all the media, all the presses.

“[The media has] commercial interests as well as the interests of individual journalists, who have a right to free speech.

“The media collectively has an institutionalised presence. The idea of the media as the fourth estate – that they’re a watchdog on democracy and the government, which suggests freedom of the press then serves functions that are different from or additional to freedom of speech.”

So, does Australia have a free press?

“The widespread use of defamation, excessive court issued non-publication orders and national security and metadata retention laws are all making it more difficult for Australian journalists to do their jobs,” says Jones.

“If we do not have a free press, our democracy breaks down.”

How did we get here?

Assuming press freedom is in the toilet and that our freedom of speech as Australians is under threat, the question then becomes – who’s to blame?

Yes, tough defamation laws put publishers at heightened risk and, of course, raids on the homes and offices of journalists will inevitably scare off others. But the advertising model that so much of the Australian media uses to pay the bills also has something to answer for in this discussion.

British columnist and editor Simon Jenkins wrote a piece for The Guardian in 2015 outlining the “institutionalised hypocrisy” that are newspapers.

“They [newspapers] speak truth to power and then sup at its table,” he said.

“They stick their moral noses in the air while their bottoms rest on festering heaps of deals, perks, bribes and ads, without which they would not exist.”

In theory, advertising and a free press should go together like oil and water. And yet advertising is now what is keeping many of these historic publications, most of which were built on the concept of a free press, alive in the digital world.

While The Sydney Morning Herald has touted its ‘Independent. Always’ slogan for the past few years (at times leaving it open to cries of hypocrisy), an American newspaper is said to have used a slightly altered motto internally – ‘As independent as resources permit’.

Advertising has an unavoidable impact on the media and the way news is going to be reported. But the MEAA’s Jones doesn’t believe this necessarily impedes on press freedoms as such.

“Advertising has been a feature of the media since the first newspapers were published,” he says.

“Most of Australia’s media is privately owned and commercially operated and paid advertising is an important part of their business model and will continue to be for the foreseeable future.

“Advertising does not impede press freedom as long as there are strict lines between advertising and editorial so that the agendas of advertisers do not influence how news is covered.”

What’s an advertiser to do?

But the relationship between press freedom and advertising goes both ways. As much as the media is reliant on the money of advertisers to stay afloat, advertisers are in the position to turn their noses up to any publications that abuse their rights to press freedom. And if recent events are anything to go by, this certainly can be the case.

There is perhaps no one in the Australian media who has exercised their right to freedom of speech more than Alan Jones.

Around 100 advertisers boycotted Macquarie Media in August this year following Jones’ unsavoury comments regarding the New Zealand prime minister Jacinda Ardern.

“If Alan Jones is free to speak, in a free market his sponsors are too,” said the Australia Institute chief economist Richard Dennis in an opinion piece for The Guardian.

RMIT University lecturer in marketing Dr Amanda Spry believes the Alan Jones saga shows brands are now more conscientious of the associations they make with the media.

“I think there is a lot of attention being paid to who brands are partnering with, be those personalities or media outlets,” she says.

Publications that are continually proven to have published stories that are defamatory may soon be able to expect a similar exodus, Dr Spry suggests.

“What one person thinks about a certain media publication could become linked to a brand if it advertises in that outlet,” she says.

“I think we will see brands perhaps being increasingly choosey to where they might place their advertising.”

It all comes back to consumers being increasingly aware of the advertising model that enables them to view ‘free’ news content and also a growing desire to purchase products “that align to their values”.

Spry points to the decisions by Lego and the Body Shop to boycott advertising on the controversial Daily Mail in recent years as an example.

“They don’t want to be associated with those political and social views that the Daily Mail is thought to have,” Spry says.

“These are brands that we do think of as being quite innovative and progressive, so it makes sense that these brands don’t want to be associated with a newspaper that is thought to be promoting social division and being quite right-wing.

“We as consumers definitely associate publication outlets with certain viewpoints, certain levels of quality and certain levels of objectivity – and advertisers are aware of those viewpoints and I’m sure this will become more of an active consideration.”

There is a complex relationship between ideas of freedom of speech and hate speech. One could argue that anti-hate speech laws are an affront to freedom of speech, but without such laws, where would we be?