If the human rights of a US President and fascist agitator are to engender another debate about free speech in this country, it’s critical to appreciate our existing legal framework. For much of what passes for debate about free speech is confused and misconceived.
Speech has never been free. There has never been a law that guarantees absolute free speech and there never will be. Laws restricting speech that harms others are as old as Methuselah. The Ten Commandments proscribed bearing false witness “against your neighbour”. In the words of the High Court: “Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the constitution.”
The many laws that regulate speech recognised that words can cause immense harm. It’s unlawful to falsely publish statements. A false accusation of terrorist affiliation or paedophilia can have catastrophic consequences for the victim. Defamation laws are an important check on abuses of power. In recent years Alan Jones, Miranda Devine and Mark Latham, among others, have been made accountable for the damage that they have caused others by their words.
The numerous laws that restrict freedom of speech in Australia include those dealing with consumer protection, workplace bullying, electoral regulation, copyright, confidential information, privacy, obscenity, racial discrimination, nuisance, treason and contempt of court.
If a corporation deceives or misleads customers in the course of business, it can be sued under competition laws. Fraud, a criminal offence, also punishes those who deceive others with their speech. Speech that involves grooming a minor is also a criminal offence.
In 2018, Attorney-General Christian Porter controversially decided that a whistleblowing ASIS officer and his lawyer, Bernard Collaery, should be prosecuted for breaching section 39 of the Intelligence Services Act 2001. That law deems it a criminal offence for a person to communicate any information that was prepared by the Australian Secret Intelligence Service in pursuit of its functions. It is no defence to a prosecution that the communication was about illegal conduct by Australia’s intelligence service.
When the member for Wentworth, Dave Sharma, takes umbrage about private companies regulating the speech of others, he clearly hasn’t considered the standard private sector employment contracts that bind millions of employees in Australia. Employment contracts severely limit employee rights to speech and expression both at work and outside work. In fact, in 2015 a number of Mr Sharma’s colleagues ensured that SBS sacked its sports reporter Scott McIntyre over his tweets criticising the glorification of war on Anzac Day.
While the First Amendment in the US constitution is said to enshrine the strongest protections for free speech, it too is widely misunderstood. It imposes important limits on the US government’s ability to suppress speech but does not provide an unqualified right to free speech. The First Amendment doesn’t inhibit the private sector from restricting the speech of its employees. Ask Lynne Gobbell who was legally sacked because her car sported a John Kerry bumper sticker in the lead-up to the 2004 presidential election.
The great irony of the recent actions of Facebook and Twitter is that these immensely powerful, unregulated monopolies have caused incalculable harm by fuelling the age of disinformation. In the absence of proper regulation, the companies have propagated an extraordinary array and volume of harmful speech in the form of disinformation, lies, hate speech and conspiracy theories.
In 2019, a study by Oxford University found evidence of digital disinformation campaigns by a government or political party in 70 countries. In the last decade disinformation disseminated by Facebook alone has been linked to atrocities perpetrated in Myanmar, India, Pakistan, New Zealand and the Philippines.
Like the destructive, marauding monopolies of the Gilded Age, the digital behemoths need to be broken up and properly regulated. Major anti-trust lawsuits aimed at breaking up the Big Tech companies have been launched in recent months by US states, justice departments and the Federal Trade Commission. These actions may take years but it is vital that they succeed.
Facebook and Twitter evaded proper regulation by their early success in persuading naïve US lawmakers that they were not publishers, but technology companies. The result was section 230 of the Communications Decency Act which provided the companies with statutory immunity from liability for content published on their platforms. The fastest way to arrest the enormous damage done by these platforms is to reverse gear completely and render them liable for the harm caused by what they publish.
Josh Bornstein is a lawyer and writer. Twitter @joshbbornstein
Josh Bornstein is head of Maurice Blackburn’s national Employment Law department and is a member of the company’s board.