MEDIA LAW

Week 2 Free Speech

______________________________________________________________________
Unit Notes - Created by Melissa Keenan

Defining free speech

Free Speech is notoriously difficult to define. Although referred to as speech the concept of
free speech is not limited to speaking, but includes various forms of communication including
the spoken word, writing, the making of gestures or wearing particular clothing.
The State is the primary regulator of activities between citizens. As a result, State laws operate
to both protect certain kinds of speech; as well as restricting free speech which conflict with
other public interests.
DEF: Free Speech could thus be described as: The freedom to express thoughts and opinions
through the physical act of speaking; the written word; the making of gestures; and the wearing
of clothing to the extent that it is permitted by State regulation. (Butler, p 3)

Freedom of expression has been recognised at an International level

-

Freedom of expression including the freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice. (International Covenant on Civil and Political
Rights (ICCPR) Art 19(2); ratified 1980)

Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers (Universal Declaration of Human Rights Art
19)

Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises. (European Convention on
Human Rights Art 10 (1))

NOTE: Freedom of Speech is not an absolute right

-

The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or the rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary. (European Convention on Human Rights Art 10 (2)

Conflicting public interests that impact on free speech

-

Right to privacy

Right to confidences

Political decision-making

Social/ moral standards we want to live by

Cultural development/ preservation

Economic development of the Nation (incl profit-making of the Media)

National security

Public safety

Administration of justice/ Legal (eg peoples right to a fair trial)

ISSUE: Dichotomy between the citizens right to a democratic society vs

the States responsibility to enact laws to protect this right yet place
restrictions on certain kinds of speech which conflict with other rights
within a democratic society.

QUESTION: Why do we need free speech?

-

Human right to be autonomous - All autonomous human beings have a right to make up
their own minds and to do so, we need access to all the information available. Regulation
that removes our awareness of alternatives will thus reduce our autonomy. (Scanlon, p7)

For the discovery of the truth Truth can only be discovered if we have access to all the
alternatives (Milton, p7)

Central tenet of a free democracy (Ballina Shire Council v Ringland (1994) Mahoney JA
@ 702)
Definition of democracy:
Form of government, where a constitution guarantees basic personal and political rights,
fair and free elections, and independent courts of law.

Key elements of a democracy:

-

Guarantee of basic human rights to every individual person; as compared to other

persons within the same society; as compared to the state/ authorities; as
compared to any social groups (eg religious groups).

Separation of Powers checks and balances between the institutions of the state
(Government Executive power and Parliament Legislative power and Courts
Judiciary)

Freedom of speech/ opinion/ expression

Freedom of religion

Equal right to vote (one person, one vote)

Good governance (Focus on public interest and absence of corruption)

KEY POINT: Democracy demands a careful balance between all the key
elements of which free speech is only one element.

QUESTION: If it is essential to protect free speech in order to have a healthy

democracy, why might it also be necessary to restrict free speech?
(a) For Free Speech to work effectively, you cannot have significant inequalities of power when
people communicate
All of the participants in an exchange of views are of roughly similar ability to speak and
roughly similar ability to understand; that neither the making nor the understanding of
communications is distorted by bias; and that all of the participants in the deliberations
will evaluate with care and sympathy the utterances of all others. (Schauer, p10)

Does this sound like Australia today?

Or do you see a need for the State to intervene and ensure equality in the
communicative process to ensure minority opinions are heard and to ensure that
a small handful of powerful individual do not dictate the society we live in?

(b) The democratic consensus may dictate certain limitations of speech

Where the democratic community agrees on a moral principle that it wishes to live by (eg
the prevention of discrimination / vilification of individuals based on their race or sexuality

or gender etc) then any laws made by the State to prevent contradicting free speech will
be laws made to enhance that democracy.

See for example:

Racial and Religious Tolerance Act 2001 (VIC)
[Assented to 27 June 2001]
Preamble
1. The Parliament recognises that freedom of expression is
an essential component of a democratic society and that
this freedom should be limited only to the extent that can
be justified by an open and democratic society. The right
of all citizens to participate equally in society is also an
important value of a democratic society.
2. The people of Victoria come from diverse ethnic and
Indigenous backgrounds and observe many different
religious beliefs and practices. The majority of
Victorians embrace the benefits provided by this cultural
diversity and are proud that people of these diverse
ethnic, Indigenous and religious backgrounds live
together harmoniously in Victoria.
3. However, some Victorians are vilified on the ground of
their race or their religious belief or activity. Vilifying
conduct is contrary to democratic values because of its
effect on people of diverse ethnic, Indigenous and
religious backgrounds. It diminishes their dignity, sense
of self-worth and belonging to the community. It also
reduces their ability to contribute to, or fully participate
in, all social, political, economic and cultural aspects of
society as equals, thus reducing the benefit that diversity
brings to the community.
4. It is therefore desirable that the Parliament enact law for
the people of Victoria that supports racial and religious
tolerance.

Questions for discussion

1. Why is the concept of free speech fundamental to the Australian way of life?
2. Where do we find our main source of protection for free speech in Australia? Is the
protection unconditional?
3. If free speech is of fundamental importance to our democratic society, why do we
need State regulation/ laws limiting our right to free speech?
4. Think back to the video clip we watched in class (Week 1, Millie Dowler, see
vUWS). What were the conflicting public interests impacting on that story?

THE CONSTITUTION (P 11, Butler)

Constitutional laws and its interpretation are arguably the greatest evidence of a
communitys commitment to its democracy. It offers the greatest protection of free speech
by limiting the powers of the legislature to restrict free speech.
America
In the US, the Constitution was ratified in 1788 and amended by the Bill of Rights in 1791.
The First Amendment states: Congress shall make no law abridging the freedom of
speech or of the press.
Interpretation of the First Amendment has led to what is known as the clear and present
danger test.
TEST: Speech could be restricted if there was a clear and present danger that the words
will bring about the substantive evils that Congress has a right to prevent (Schenk v
United States, Holmes J)
Australia
Unlike the US Constitution, the Australian Constitution does not include an equivalent
express guarantee of free speech. It does however provide an implied freedom of political
communication.
High Court case law development:
-

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital
Television Pty Ltd v Commonwealth (ACTV case) (1992) 177 CLR 106: HELD (by
majority) that the representative nature of the Australian Government was the
basis upon which a freedom of political communication was implied into the
Constitution.

Theophanous v Herald & Weekly Times (1994) 182 CLR 104 and Stephens v West
Australian Newspapers (1994) 182 CLR 211: HELD: Extended the implied freedom
to include a Constitutional defence to a defamation action. Described as the
closest the Court has ever come to finding a personal right to free speech

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Ex NZ Prime
Minister took defamation action against the ABC in relation to a Four Corners
episode). HELD: Constitutional defence identified in Theophanous was no longer
good law. Instead, all 7 justices relied on ss 7 and 24 Constitution to find that the
freedom operates as a restriction on legislative power and the Constitution does
not confer personal rights on individuals (Lange v ABC @ 560).

Note: Implied constitutional freedom is limited:

-

Legislative power is not a general right, but limited to political communication only

Parliament can still make laws that restrict political communication if the law is
reasonably appropriate and adapted to serve a legitimate end (Lange v ABC @
561) see eg Levy v Victoria (1997) 189 CLR 579.. Public safety: preventing political
protesters from entering a duck shooting area; Rebelais Case (1998) 82 FCR 225..
Preventing publication of instructions to commit a crime.

Compare though: Victorian Charter of Human Rights and Responsibilities (2006) where
the freedom is not limited to communication between electors and Parliament, but ALSO
extends to communication between electors.

FREEDOM OF EXPRESSION AND THE ROLE OF THE MEDIA

Compare these 2 statements:
Nothing less than the highest ideals, the most scrupulous anxiety to do right, the
most accurate knowledge of the problems it has to meet, and a sincere sense of
moral responsibility will save journalism from a subservience to business interest,
seeking selfish ends, antagonistic to public welfare. (Joseph Pulitzer, 1904)
******
A newspaper is a private enterprise owing nothing whatever to the public, which
grants it no franchise. It is therefore affected with no public interest. It is
emphatically the property of the owner, who is selling a manufactured product at
his own risk (Siebert et al, 1956)

ISSUE: What is the social responsibility of the Media?

Problems with the democratic discourse rationale directly relevant to the

Media:
-

The Media may skew coverage to promote issues they support

The Media may omit important information that the public should take into account

The Media may reduce the quality of discourse (dialogue, communication) in the
drive for profits

Balancing act Social responsibility vs need to make a profit

-

A newspaper has two sides to it. It is a business, like any other, and has to pay in
the material sense in order to live. But it is much more than a business; it is an
institution; it reflects and it influence the life of the community it has,
therefore a moral as well as a material existence, and its character and influence
are in the main determined by the balances of these two forces. (CP Scott, editor
of Manchester Guardian, 1921)

The media exercises power, because and to the extent that, by what it publishes, it
can cause or influence public power to be exercised in a particular way. And it
needs no authority to say what it wishes to say or to influence the exercise of
public power by those who exercise it. The media may, by the exercise of this
power, influence what is done by others for a purpose which is good or bad. It
may do so to achieve a public good or its private interest. It is, in this sense, the
last significant area of arbitrary public power. (Ballina Shire Council v Ringland
(1994) 33 NSWLR 680 at 725.

Privileges of the Media

To ensure the preservation of free press and its pivotal role in our democratic society, the
Media enjoy certain privileges which are beyond the practical reach of the community at
large. These privileges are essentially components of free speech, designed to ensure
journalists are able to pursue their craft without interference. (News Ltd submission to
Finkelstein Inquiry, 2011)
These privileges are afforded to journalists, information providers, media organisation
and media.
-

Protection against disclosing sources (See Evidence Act 1995 (NSW) s 126K) **

Exemption from misleading and deceptive conduct prohibition (see Consumer and
Competition Act 2010 (Cth) sch 2, s 18)

Exemption from Privacy Act (see sch 3)

Defences to criminal offences (eg stalking)

Restrictions on speech that apply to the Media

-

Official secrets

Treason and sedition offences

Restrictions to protect community standards

Classification laws

Restrictions on reporting judicial proceedings

Contempt of Court **

Suppression orders

Super injunctions

Restrictions on commercial speech

Restrictions on speech to protect private rights

-

Defamation **

Copyright

Confidential information **

Privacy and other restrictions **

RECENT DEVELOPMENTS
Report of the independent Inquiry into the Media and Media Regulation
(Finkelstein Report - 13 July 2011)
Introduction
Following revelations that journalists at the UK newspaper, News of the World intercepted
the personal voice messages (phone hacking) of politicians, actors, footballers, the royal
family and murder victims, an inquiry was established under the chair of Lord Justice
Leveson (The Leveson Inquiry) to investigate the culture, practices and ethics of the
press. This inquiry prompted calls for a similar investigation into the media in Australia.
On 14 September 2011, an independent inquiry was established under the guide of former
Justice of the Federal Court of Australia, Mr Ray Finkelstein QC and presented to
government on 2 March 2012.
Summary and Recommendations
It was agreed that:
-

a free press plays an essential role in a democratic society, and no regulation

should endanger that role

a free press has a responsibility to be fair and accurate in its reporting of the news

a free press is a powerful institution which can, and does, affect the political
process, sometimes in quite dramatic ways

a free press can cause harmsometimes unwarrantedto individuals and

organisations

a free press should be publicly accountable for its performance

codes of ethics regarding accuracy, fairness, impartiality, integrity and

independence should guide journalists and news organisations.

Who currently regulates:

-

(a)

must comply with standards imposed by the Australian Communication and

Media Authority (ACMA) + self regulation

-

(b) Newspaper industry is subject to self regulation (only) through:

-

the adoption of ethical codes or standards which at a minimum impose

obligations of fairness and accuracy (Can be manipulated; no penalties)

the appointment by some newspapers of an ombudsman or readers

representative to handle complaints from the public (Funding provided by
the newspaper and can be withdrawn; question independence;
consequences for breaches?)

the establishment by the newspaper industry of the Australian Press

Council (APC) to handle complaints from the public and monitor
professional standards. (Voluntary sign-up by newspapers; APC lacks
power to and money to carry out its functions; only covers printed
newspapers, not online)

Problem:
-

Currently mechanisms for regulating the newspaper industry are not sufficient to
achieve the degree of accountability desirable in a democracy

It was recommended:
-

that a new body, a News Media Council, be established to set journalistic

standards for the news media in consultation with the industry, and handle
complaints made by the public when those standards are breached.

that the News Media Council control news and current affairs coverage on all
platforms, that is, print, online, radio and television. (A first for online News!)

News Media Council should have secure funding from government and its
decisions made binding, but beyond that government should have no role.

the News Media Council should have power to require a news media outlet to
publish an apology, correction or retraction, or afford a person a right to reply. This
is in line with the ideals contained in existing ethical codes but in practice often
difficult to obtain.