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.