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Not a tweet out of freedom czar Tim Wilson

'The fact that every person now has the means to be a publisher doesn't mean that every person understands the responsibilities of being a publisher.'

'The fact that every person now has the means to be a publisher doesn't mean that every person understands the responsibilities of being a publisher.' Photo: Reuters

Where's our freedom commissioner when we need him? Tim Wilson, human rights and free speech champion, surely should have something to say about the lad who has been lumbered with a $105,000 damages verdict for speaking his mind, via Twitter and Facebook, about a music teacher at Orange High School?

The things Andrew Farley posted about Christine Mickle must have been pretty awful because judge Michael Elkaim, in his damages judgment, felt he couldn't repeat them. Citizens looking for someone to unlock our suppressed thoughts quite justifiably might be confused by Wilson's utterances on the topic of free speech.

When it comes to racist outbursts, people should be ''open about their prejudices'', the human rights commissioner told baffled Lateline viewers. In this way, others can then line up and ''shine a bright light into dark corners and to expose people for their discrimination''. The law should only apply to stop government being discriminatory but should not interfere with the right of private individuals to be vile.

By an equally interesting process of reasoning, Wilson sees a person's reputation as ''a property right'', which suggests it might be traded or exchanged. Naturally, to anyone who hails from the Institute of Public Affairs, property rights are sacrosanct and must be protected. Speech restricted by defamation law, therefore, is OK but racial discrimination law is not, unless it is aimed at government.

Not much help there for those at the intersection of tweeting fingers and wayward thoughts.

However, in Wilson World, if Farley had launched a racist rant against Mickle on social media, that should be beyond the law and up to citizens to rally and shine lights on the misguided youth. I think we're in for a whacko time with this freedoms tsar.

But back to social media, defamation and reputation. The fact that every person now has the means to be a publisher doesn't mean that every person understands the responsibilities of being a publisher. There appears to be a naive belief that you can say what you like on social media platforms and that defamation laws, fairness and fact-checking are for big, rich publishers and broadcasters.

What we see is a cocoon occupied by social media addicts where they know everything but nothing.

You'd have thought the penny would have dropped well before now. After all, there have been quite a number of cases where people have sued for defamatory tweets or Facebook posts.

Farley was on Newcastle radio on Thursday warning people to be ''really careful'' about social media.

''Just because you think you're talking to your friends doesn't mean you're safe,'' he said.

But the same warning was issued in October last year by Sally Bercow, wife of the Speaker of the House of Commons, after she was successfully sued by a former Conservative Party bag man, Lord McAlpine. After a BBC Newsnight program that linked a ''senior Conservative'' to sex abuse claims, Bercow tweeted: ''Why is Lord McAlpine trending? *innocent face*.'' After a secret damages agreement, she said through her lawyer: ''Mrs Bercow wishes and hopes that, as a result of this matter, other Twitter users will behave more responsibly in how they use that platform.''

There was the hard fought English case brought by former New Zealand cricket captain Chris Cairns against Lalit Modi, the ex-chairman of the Indian Premier League. Modi, in January 2010, tweeted that the New Zealander was involved in match fixing. The tweet was estimated to have been read by between 35 and 95 followers. Damages of £90,000 were awarded and Modi's appeal was dismissed in November 2012.

It's not as though we've been without these sorts of cases. In Adelaide, in 2012, a magistrate awarded $40,000 to a former principal at an outback school over a defamatory Facebook page created by two parents of students.

Pollsters and political advisers Lynton Crosby and Mark Textor still have their case grinding through the Federal Court over a tweet from former Labor MP Mike Kelly, alleging they were involved in ''push-polling''.

In Canberra, Immigration Department public servant Michaela Banerji made critical tweets as @LALegale about the department and the government's immigration policies. She unsuccessfully brought a case in the Federal Circuit Court to stop the department sacking her on the ground that she had an implied freedom of political communication.

As Americans are about to celebrate the 50th anniversary of The New York Times v Sullivan, the great free speech and free press case, and the British have just enacted sweeping and generally liberating libel law reforms, what beckons for little old us? Not much, apparently, if we're stuck with a freedoms advocate who thinks that reputation should be protected because it is a property right.

Twitter: @JustinianNews

53 comments

  • I can feel a pattern equivalent to drunks defence being established...
    "but yer 'onour, I didn't know what I was doing (in regard to the reach of social media)"

    Commenter
    gbills
    Date and time
    March 07, 2014, 12:23AM
    • Thank you Richard Ackland - a thought provoking piece, as usual.
      I doubt any of us are entirely consistent on this issue - but many may eloquently argue their position.
      Some recent cases to possibly challenge our consistency in these matters (hang on a moment, do I hear you say - apples and oranges)
      The young man in question here - is this the kind of legal response we wish to preserve?
      Chris Kenny taking 'The Hamster Decides' to court - regarding the depiction of Kenny having sex with a dog; Kenny has won the first round in that legal tussle. Do we want to stop this kind of political satire?
      Andrew Bolt and the 18C decision - do we want to preserve this part of the RDA?
      Of course, people will pick and chose here - I don't want this particular restriction but please keep that particular restriction on 'free speech'.
      Yes, things are different in the USA - you have pointed to "The New York Times v Sullivan, the great free speech and free press case", and inform us "the British have just enacted sweeping and generally liberating libel law reforms"; then you ask, "what beckons for little old us?"
      Richard, be careful what you wish for.
      Tim Wilson appears to have quite a Libertarian view - he may advocate far more winding back of these things than you find comfortable; some things you cherish may go if Wilson gets his broad sweep - "oops, there goes 18C. Damn, I wanted that to stay".

      Commenter
      Howe Synnott
      Location
      Sydney
      Date and time
      March 07, 2014, 7:32AM
  • Well I don't see how reputation is a property right.

    What about:

    Who steals my purse steals trash,
    But he who steals my good name
    Enriches not himslf and makes me poor indeed.

    Commenter
    James
    Date and time
    March 07, 2014, 1:33AM
    • Try paying for your groceries with your good name.

      Commenter
      64 magpies
      Date and time
      March 07, 2014, 10:25AM
  • Anti defamation laws can be good when they actually encourage more debate. For example if I make a claim about your life that is unsubstantiated - say that you are involved in a cricket betting scandal. You can take it to the courts where there will be more debate about whether the claims are indeed justified. This is actually good for debate! So Tim Wilson would have no problem with this.

    3 points on anti-discrimination laws, which are separate to libel laws.

    1. To prevent a bigot from speaking does not prevent them from being a bigot. The only way to beat a bigot is through ideas - words, argument. Why are we afraid of letting bigots speak? The only reason could be we are afraid we will not have the ability to defeat their idiotic ideas.
    2. To prevent the victims of bigotry from hearing hateful comments is paternalistic nonsense. Victims find out one way or another about bigots.
    3. Advocates of anti-discrimination laws seem to have no faith in the ability of the general public to make up their minds on these issues. They feel the need to protect the public from our evil instincts. This is condescending nonsense. In fact we have every reason to have faith in the ability of people to be good. And more speech, more public debate, will only help this.

    Commenter
    Patrick
    Date and time
    March 07, 2014, 4:04AM
    • The court system is prohibitive, save for those with deep pockets. Hardly your average high school teacher. Being defamed or discriminated against is not the sole domain of the rich or those with a high profile. I take your point that preventing a bigot from speaking doesn't stop them from being a bigot, but giving financial or other consequences to damaging actions might assist in changing their behaviour, along with debate and counter argument.

      The problem with social media (well, one of the many) is that it's not a forum for debate, reasonable or otherwise. If a school kid posts derogatory comments about a teacher then what is her option? She can't hop on his FB page and start a reasoned discussion.

      Commenter
      Bemused
      Location
      Clovelly
      Date and time
      March 07, 2014, 7:24AM
    • There's nothing more than bigots want than to waste other people's time on useless debates. They will not change their minds unless you do something like save their lives, and that's not even guaranteed. Does every racist have a right to start arguing with you and call you an ape as you sit in front of them in a public transport? These bigots are not really interested in debates, they only want to be able to 'put you in your place'.
      Besides, what would be discussed in these 'debates'? Will you engage in a discussions about one race being inferior to another? Do you want to try and argue and prove to someone that you're not a sub-human and should not be bashed in the head?
      If bigots want to waste time debating this, they can do it in their own time with like minded people. The rest of us just want to get on with our lives and not to have to listen to non-sensical notions and arguments.

      Commenter
      Knee Jerk
      Location
      Sydney
      Date and time
      March 07, 2014, 8:24AM
    • Patrick, couldn't have put it better myself!

      Commenter
      David Marr
      Location
      Canberra
      Date and time
      March 07, 2014, 8:48AM
    • Once again, Patrick, naive and simplistic. I wish the world were as straightforward as you seem to think it is.

      Commenter
      Annabelle
      Date and time
      March 07, 2014, 11:31AM
    • So a person that speaks out about his right to uphold the beliefs and culture of his country. Is classed as a bigot or racist, if people come from another country to reside here, and not take up the countries beliefs and culture. But if we did the opposite an went to their country we would have to uphold their countries beliefs and culture. What would we call them bigot or racist for upholding theirs. This may not get posted. Watch this space for reply comments.

      Commenter
      Hardarse
      Date and time
      March 07, 2014, 1:18PM

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