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The real reason we dont have free speech anymore

Our stupid defamation laws.

The early days of the internet, the 1990s were a wild west. But largely, it was a great wild west. Barriers came down. Discussion was open.  We could get information by ourselves. We didn’t have to rely on a little group of insider journalists who may or may not decide to write about what policy was announced or filter or slant it their way – we had the revolutionary way of now looking it up ourselves. (And didn’t it make them furious).

During this time, the internet proved itself as a great source of free information.  The One-Tel collapse was presaged by anonymous emails by a whistleblower.  Wikileaks happened.  Information was out there.

Even better, our defamation laws were then reformed in 2005, and made nationally consistent. For a while things looked promising, with limitations put upon claims and common sense rules imposed; including a right to an ‘early retraction’; a commonsense reform.

But judges started loosening the defamation laws straight after they were tightened.  As always, their sympathy to ‘do something’ in the case before them prompted them to push them wider, little by little; granting extensions, increasing the scope of payouts, weakening sensible tests and thresholds. 

At the same time, the web has tightened up. The media business figured out that people just wont pay for news or reporting, and started putting up paywalls. And they began to realize that having lots of comments just isn’t worth it; it doesn’t really bring in any advertising, and just exposes them to legal risk.

As a result, Whirlpool has become a ridiculously overrmoderated joke (that might as well be shut down); Fairfax began censoring its comments, and finally has a ‘subscriber only’ comments policy (which has turned it into a garden of smug) ; and Newscorp is the same.  Facebook is the one remaining exception, but a wave of cases have made them pull up; as well there is now a new censorship movement gathering steam in the mainstream media to stop ‘manipulation’ of facebook (which really means shutting down comment without pre-moderation, which really means no more free speech).

Defamation laws, to state the obvious, only protect the wealthy. The sheer costs of running a defamation action, along with the legal risks, means the rich are its main users.  A recent case of a wealthy couple (who tested positive for Covid 19) then refusing to self isolate, demonstrates this: we are not allowed to know who they are, because of defamation concerns.

Defamation laws are corruption’s best friend.  The wealthy and the corrupt tend to overlap quite a lot (almost totally in some cases) and there have been many trials and cases in Australia that can’t be pursued due to defamation concerns.  I’m aware of one open and shut case of corruption that no journalist wants to write about (despite the facts being very simple), as the main beneficiary is a prominent wealthy person with political connections. Everyone knows it happened- nobody wants to write about it.

Journalists should be our natural allies here.  The defamation laws are ridiculous. They are being invoked in school disputes, by parents fighting about school facilities and uniforms.  They are being waged by councillors against each other, over trivial nonsense which should be a natural part of government discussions. They are shutting down debate, and smothering everything with a patronizing ‘we can’t talk about it’ gloss that’s worse than the pre internet 1980s. Corruption is thriving.

I acknowledge that journalists opposition to the defamation laws often comes from wanting to gossip about celebrities. By and large, this stuff is a waste of free speech, however sympathetic we are to a ‘sleb who’s been unfairly treated.  But the defamation laws overwhelmingly protect the corrupt, no matter how you look at it.

We need, simple, commonsense, bleeding-heart-judge proof defamation laws. A presumption of free speech.  Damages for defamation only in the case of clear, serious injury to someone’s reputation where there was no basis whatsoever to make the comment (and the basis can be a mistaken belief). If I see you dip your hand in the till and take out $30, I’m entitled to report it, even if it turns out you got permission from your boss to take the money earlier. And if you do issue court proceedings, I can make a retraction within six months, which (unless its done in a clearly insincere way); ends the matter with no costs. Damages capped at 100k; an all up global limit between you and me (no matter how many cases you launch or causes you file for).

Free speech is being completely and totally throttled, its getting worse, and we don’t have time for our idiot judiciary to shut free speech down on behalf of the corrupt rich.

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Update

Firstly, yes, we should all be isolating and stopping the spread of this goddamn virus as much as possible. Listen to the public health people and give them/do whatever they want.

That out of the way, I can’t decide who annoys me more in the media chatter. Usually its Newscorp- this is where you find the majority of ‘I’m alright jack’ comments, as well as most of the conspiracy theorists etc; or the morons saying that the fact of the virus proves there’s nothing to worry about from climate change (?)

But, Fairfax is really running a close race. The sheer smugness of its commenters- who all think they have gotten their remarks published on merit, but really because subscriber comments are let straight through. Its pay for play. And the self satisfaction! Oh look I said ‘Scomo’ ; and someone else said ‘Scotty From Marketing’ and its all the PM’s fault (when the issues confronting the virus response are far more human ones driven by our reluctance to change rather than the fault of which side of politics you dislike). You get the feeling that a lot of the commenters work(ed) in the public sector. And don’t get me started on the constant trivia of their press gallery columnists.

Also the constant assumption that government money and debt is a bottomless pit which never has to be paid back starts to grate. I would be happier if they actually acknowledged the need to eventually balance the books and tax the miners a bit more, but nobody ever does…..

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Can you basically trust people?

No.

People only care about themselves. This has been proved time and time and time again.  The bushfires were a good example. Remember those?

The fires caused about 100bn of losses (houses lost, businesses, tourism down etc). An appeal was held, and about 1% of what was actually needed was raised. There then was a fake scandal where, literally, a few people in some focus groups said they were concerned how the donations were being spent, the media beat it up (of course) and everyone jumped online to say how it had ruined it for them and they weren’t donating any more.  The excuse to stop donating to a cause (so big it would have caused real financial pain) had been provided, and we accepted it greedily.

The houses are still burnt out, people are still homeless, and nobody cares. I wonder how long it will be before we’re told the homeless people in the bushfire zones need to accept personal responsibility, and go after $3 per hour fruitpicking jobs in the outback?

Its really time to stop deluding ourselves that people are meant to care about each other.  I found out what a mistake this is many years ago when I started working. The scope of human selfishness really is boundless.  Need to testify to help a mate? Sure I will- until I have to actually do it and it might cost half a day’s pay; then my phone will ring out and you’ll never hear from me again.

People can point to the doctors and nurses keeping everyone alive in the coronavirus crisis, and, yes, good for them.  But its notable how powerful the underlying altruistic idea has to be in public health (with everyone reinforcing it) to motivate a group to keep striving to a common goal.

Meanwhile in early March the Australian newspapers are full of paid for ads by the mining industry talking about how dynamic it is (in other words signalling to the press gallery/elites they don’t want their diesel rebate touched or any mining taxes increased from their present pathetically low level). The press gallery, as always, pick up on this, automatically assume this is what ‘the readers’ want; and any increase in mining taxes is quickly binned as ‘too hard’.  Selfishness grinds on.

One thing that gets me is the constant surprise at the selfishness. Basically someone (if they have the time) will give you a jumper lead start for your car, and that’s about it.  Then we’ll go back to opposing that local shelter for veterans (you just know its inappropriate for the area); any sort of tax rise; anything that would have the slightest impact on your life.  All this as my phone lights up with scamming phonecalls and messages.

I honestly think we’d all be better off stopping trying to project fake altruism.  The wide eyed appeal from union leaders about ‘members money’ (when they’re stealing it themselves); press gallery journalists dressing up the desire for gossip as a right to know; politicians virtue signalling. Lets accept that many times (not always; not in health care) those that want to expand government have their own self or business interest at heart.  Lets accept that self interest is a bedrock human motivation (the motivation) and adjust our perceptions accordingly; and still do business with people on this basis. Life is a seething mass of competition over not enough and always will be. We’d all be better off assuming that truth.

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Precious Pinstriped Prison Punts the Point.

This is a belated review of a book from 2008 from a disaffected former lawyer ( at a top law firm, colloquially known as a ‘Top Tier’), who wrote what she felt would be a savage indictment of elite talents gone to waste in law firms.

Hammered over and over is the tragic waste of young elite graduates with top skills forced to while away their time working for soulless law firms, when they could be doing so much more.

Unfortunately, none of this is right or has any connection to the real world.

Anyone who’s worked in law knows the total, almost comical, bias toward the ‘top tier’. Even 30 years after graduating, your resume will be haunted (in fact binned before you start) by the fact that you haven’t worked at a ‘top tier’.  Experience and skills are irrelevant without this background.

And yet the Top Tier is a symbol of nothing. Nobody who works there is anything special. For all the bluff and bluster about their ‘elite’ skills, Top Tier firms add as much as high flying overpaid CEOs or consulting companies (ie, nothing). In fact, ironically there’s a big overlap between the consulting companies and the Top Tier firms. And nobody’s forced to work there.

It is very difficult for anyone who’s struggled in ‘SmallLaw’ (there’s another nickname but I wont use it) to have any sympathy for the poor struggling Top tier grads in this book.

I wonder if Top Tier grads have ever had the following experiences: been bailed up by an endless stream of mentally ill clients, screamed at for not taking someone’s traffic fine to the high court (not because they’re a client and you’ve agreed to work on it, but because their de facto has a ‘no win no fee’ injury case with your firm, so of course you’re responsible for everything that happens in their extended family); received death threats at midnight because of some case you’re running, and, above all, been triumphantly told the client ‘ is on a pension’ (thus meaning you have to work for them for free for life).

Compare that to the horror for the poor little dears who managed to score high marks on the law marks lottery- by aceing irrelevant issue-spotting exams (in first year) on topics long forgotten; and then spent (oh the tedium!) boring long hours with their corporate clients.  And the hours for SmallLaw and the Top Tier are about the same, contrary to rumor.

The other massive difference between Top Tier grads and all other law grads are exit options. You work in small law, you stay in small law, forever. Nobody cares about how good you are, what you know, how you appear in court. All they know is you didn’t work in the Top Tier. The elite jobs for govt, public sector etc etc, are ringfenced for the Top Tier grads, totally and completely. It usually takes till your fifth year out when this dawns on you.

Pleasingly, since 2008, the most notable feature of the law graduate ‘market’ (if you can call it that) is the slow collapse of the ‘Top Tier’. People have woken up to the overpricing and lack of value. (Well, most people, but it’s still taking public companies and governments a while).

Of course, the other dominant group not mentioned in the ‘Pinstriped Prison’ are those who never get to go to any prison to begin with- the unemployed. And with a quintupling of grads, thats the main experience law grads will have.