DEFAMATION AS A POLITICAL WEAPON
by Ian Wilson, LL.B.
The Dangers of Internet Publication:-
"It is our right as relatively powerless
and anonymous human beings to criticise
the rich and powerful, a right of which
we should not be deprived."
- Terry Lane, Australian Journalist.
A truly free and democratic society must have
a free press. The Charter for a Free Press, adopted by the Australian
Press Council states:
- Freedom of opinion and expression is an inalienable right of a free
people.
- A free press is a symbol of a free people.
- In a truly democratic society open debate, discussion, criticism and
dissent are central to the process of generating informed and considered
choices.
- It is the responsibility of the press to protect the people's right
to know and to contest encroachments upon that right by government,
groups or individuals.
The orthodox presses across the Western world
hopelessly fail in this so-called calling of preserving free speech.
On the contrary, numerous writers, both of the left and right, have
seen the establishment media as merely the propaganda wing of the ruling
elites.
An article by Eric Beecher, "Trust Us, We're from the Media",
The Independent 3-9/10/04, states that in a series of Roy Morgan
opinion polls, a majority of the Australians sampled say that the media
is unreliable in using "facts" and "invade people's privacy
unnecessarily."
A poll conducted by RMIT University found that 80 per cent of journalists
and editors sampled admitted that they are Left-wing and that media
proprietors "use their outlets as vehicles of influence."
Beecher says that people are cynical about the media because "much
is either wrong, distorted, exaggerated or nuanced out of reality."
ENTER DEFAMATION LAW
Even so, the establishment media faces a problem of its own - defamation.
The very limited role which this media plays in presenting the truth
is constrained by Australia's defamation laws, which are quite strict
relative to the United States.
Australia lacks an explicit Constitutional right to free speech by contrast
to the United States First Amendment. The Founding Fathers felt that
common law traditions would protect the traditional rights inherited
from English legal traditions, primarily the Magna Carta and the Bill
of Rights. But such rights were always constrained by the law of defamation
which originally was devised as a tort to protect the reputation of
noblemen.
The High Court of Australia in Lange v Australian Broadcasting Corporation
[1997] 189 CLR S20 found an implied Constitutional right to freedom
of communication on matters relating to politics and government, based
upon the Constitutionally grounded system of representative government.
Unfortunately this gives us no "private rights" but only places
a limit upon parliamentary and executive power to the extent necessary
for the operation of representative democracy.
Unlike the US First Amendment, this does not protect free speech in
the media, literature or art.
Consequently Australian defamation law is used as a political weapon
by the rich and powerful who typically have something to hide: it is
a shield for rich crooks. It is often said that defamation law protects
the poor and weak from the tyranny of the press: it does not. Defamation
law is for the rich because only they can afford the massive costs associated
with defamation suits which usually take years to be decided.
THE INTERNET A 'FREE TRADE ZONE' IN IDEAS
The Federal government is at present attempting to present uniform defamation
laws for Australia. However the basic problem posed by defamation and
media power is not addressed by this legal reform. How can freedom of
speech be preserved - or more cynically established in Australia? How
can the weak be protected from the tyranny of the media? Those are important
questions which need to be addressed.
The view of this writer is that a truly free press needs to be created
by breaking up the media monopolies and allowing the free flourishing
of the internet. The internet must be a free trade zone in ideas.
The law of defamation needs to be abolished and replaced by a tort (a
legal "wrong") of malicious falsehood: the intentional or
reckless statement of known falsehoods about persons (living only and
not corporations) calculated to cause harm and which causes harm. The
onus of proof of all elements of the tort is squarely upon the plaintiff's
shoulders.
FREEDOM OF SPEECH ON THE INTERNET
In the remainder of this essay I will focus on one important aspect
of freedom of speech - freedom of the internet.
We will focus upon one vitally important High Court of Australia decision
which has had a major impact upon Internet publication: Dow Jones and
Company v Gutnick [2002] 194 ALR 433. This is a case of defamatory material
about an Australian plaintiff published on the Internet, a case does
not need to be made where the "centre of gravity" of the publication
lie, but the plaintiff could sue in the Australian home court. This
in effect has forced the restrictive domestic defamation laws of Australia
upon the whole world.
ENTER DIAMOND JOE
Joseph ("Joe") Gutnick is a well-known Australian Jew. He
has been very successful in the diamond trade - giving him his nickname
"Diamond Joe".
Dow Jones is the US publisher of The Wall Street Journal and
also of Barrons Magazine. Barrons often contains pieces
of investigative journalism. An article entitled "Unholy Gains"
in Barrons implied that Diamond Joe was involved in improper
business dealings with Nachum Goldberg. This US Jewish figure had been
gaoled in the US for money laundering and tax evasion. In total 305,563
hard copies of the article were published but only 14 were sold in Victoria
where Diamond Joe lives. The article was available on the website www.wsj.com
to 500,000 subscribers, with 300 of these being in Victoria. Dow Jones
had its server in the United States.
The action before the Victorian Supreme Court Gutnick v Dow Jones [2001]
VSC 305 was before Justice Hedigan. Geoffrey Robertson QC, civil rights
lawyer and star of the TV series Hypotheticals defended Dow Jones. Robertson
argued that "the imposition of liability on the basis of the place
of publication occurring in the place of downloading would have a serious
"chilling effect on free speech". Such a rule was too narrow
for the information age.
These arguments were rejected. Gutnick won. Dow Jones then appealed
to the High Court.
The High Court upheld the decision of the trial judge. In the case of
internet publication, the damage to reputation is done at the place
where the person downloads the material.
The leading judgement was delivered by Gleeson C.J., McHugh, Gummow
and Hayne J.J. but even the leftist Kirby agreed.
The dispute in Gutnick was about the place of the publication of the
defamatory statements. The "choice of law" to be applied i.e.,
Australia or the US, is governed by the law of the place of the commission
of the tort. Dow Jones argued that on public policy grounds it was preferable
that the publisher of the Internet material be governed by the law of
the place where the servers are located. Otherwise publishers would
be obliged to consider every law of every jurisdiction on earth, which
would destroy Internet publishing.
The high Court disagreed. Further they rejected the single publication
rule of the United States. In most US States a single communication
and only one action for damages is possible. Not so in Australia: each
communication constitutes a separate cause of action. Thus for a continuous
electronic medium, like the Internet, there can be in principle an infinity
of causes of action.
Nothing prevents a plaintiff attempting to use litigation as a political
weapon to crush an opponent.
A FAILURE TO UNDERSTAND THE INTERNET
The argument of the High Court was based upon the 19th century case
of Duke of Brunswick v Harmer [1849] 117 ER 7S. In that old case the
Duke sent a servant to by a back issue of a newspaper where years before
he had been defamed. The limitation period for an action of defamation
had long passed. However the English court held that the sale constituted
a new tort and the time now ran on the point of sale. Such a rule was
debateable even in the 19th century and is an absurd one to adopt in
the digital information age. It means that electronically retrieving
allegedly defamation information normally outside any limitation period,
would enliven the tort of defamation. This will have a major impact
upon libraries and information data bases. The rejection of a single
publication rule could lead to an explosion of suits.
The High Court failed to understand the unique nature of the Internet.
They viewed downloading as similar to receiving a radio or TV broadcast.
In this case there is transmission from a locality to a receiver. The
Internet does not work like that. The information seeker actually electronically
visits the source computer and takes back or downloads data. Geoffrey
Robertson was right in his original argument that downloading is essentially
a form of "self publication", much like taking a book from
a library.
Instead of a book, what is taken is a package of data. Downloading then
is a form of "self publication". That is one reason why downloading,
say child pornography, is an offence among other things.
WHAT NOW?
The decision in Dow Jones v Gutnick is too recent in legal terms to
assess its existing impact. The consequence of the decision is that
publishers of material on the Internet which could be defamatory to
Australian based (potential) plaintiffs need to carefully consider whether
the material is defamatory under any of the existing eight defamation
laws. If the Australian decision is followed elsewhere Internet publishers
could be liable for defamation actions in a large number of countries
across the globe and under different systems of defamation. The international
media rightly greeted the Gutnick decision with alarm.
ON THE BRIGHT SIDE
On the bright side the United States is reluctant to enforce foreign
defamation judgements because of its First Amendment protection of free
speech. It is possible that if Dow Jones had dug in their heels and
if they had no Australian assets, they could have held out against the
Australian judgement: US courts may not have enforced it.
Nevertheless Internet publication now has to take this decision on board.
As Australian writers, in exposing our own batch of traitors, crooks
and shady characters (and no corporation or person mentioned here is
included in that designation) we must always be conscious of defamation
and slap-suits used to silence us.
Now it seems Australia's oppressive legal culture has been forced upon
the rest of the world!
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WHAT IS THE VALUE OF AN AUSTRALIAN LIFE?
by James Reed
Well, what is the value of an Australian life? Not much according to
the Indonesian sentencing Abu Bakar Bashir, the mastermind behind the
Bali bombings. Bashir received 30 months gaol for his part in the conspiracy
that led to the death of 88 Australians and 202 lives overall.
The death penalty is given to those who attempt to smuggle drugs into
Bali but murder 202 people (most non-Indonesians) and you are "all
smiles".
The Indonesian government is expressing its contempt for Australia -
but what else is new?
IRAN'S REAL THREAT
One idea which is 'doing the rounds" on the world-wide-web is that
Iran's real threat to the American empire is that Iran is planning to
set up an international oil exchange in the Euro currency rather than
the American dollar. If the world prices crude oil in the Euro, America
being a net importer of oil will face disaster. Iran's move will be
war declared on the Socialist Warfare-welfare State of America. This
is an interesting hypothesis which may or may not be true. Its main
proponent is William Clark and material be found on the Lew Rockwell
website (via Google search) for readers with Internet access.
TELSTRA - THE AUSTRALIAN PEOPLE'S "FAIRY
GODMOTHER"
Following the swearing in of the new Senate in July this year, the Federal
Government will possess control of the Senate. Perhaps the most significant
action Government will take is to use its majority of Senators to force
through the full sale of Telstra.
To prevent the sale, we must use the only social mechanism we have to
act legitimately, morally and SOCIALLY DYNAMICALLY; we must convince
a majority of the 76 Senators to defeat the sale by legislation. This
will require about 4 or so Liberal/National Senators to vote against
the demand of their respective Parties - TO, IN FACT, DO WHAT IT IS
THEIR RESPONSIBILITY TO DO IN PARLIAMENT - REPRESENT THE VIEWS OF THE
MAJORITY OF THE PEOPLE OF AUSTRALIA.
But the people must exercise that moral and socially dynamic power by
informing their political representatives they DO NOT WANT TELSTRA SOLD.
There is an increment, a benefit, a powerful
social force, WHEN WE COME TOGETHER AND INSIST OUR WILL BE DONE.
Australians need to act NOW, they need to exercise the legitimate social
power their forefathers provided for them through the Parliamentary
System; by making their will known to their Parliamentary Representatives.
It is clear, the majority of Australians - DO NOT WANT TELSTRA SOLD.
Over the last 15 years or so, the people of Australia have watched with
increasing frustration Governments sell off our infrastructure built
up over the last century by our forefathers. Whether the assets be schools,
hospitals, roads, ports, airports, railways, Qantas, the Commonwealth
Bank of Australia, our electricity systems, gas, water supplies ....
The list is endless; as are the politicians' promises of "better
services and lower prices", and the inevitable, predictable adverse
results.
The worst piece of political stupidity is the bloody-minded determination
of the Liberal Party to sell the remaining Federal Government owned
51% of Telstra despite the evidence available from previous sell-offs
of either State or Federal Government assets and the original 49% of
Telstra.
"Telstra" is an example of Government's fundamental role of
providing the National infrastructure for the health, welfare, prosperity,
and safety of the people of Australia.
In times past, we had Governments that built roads, ports, airports,
police forces, medical services, education facilities and so on. Each
of these Government instrumentalities functioned as separate DEPARTMENTS.
Thus the infrastructure of our Nation developed. Modern-day Telstra
is nothing more than the evolution of the old Post Master General's
Department that delivered communication services to the people of Australia.
The Government claims that following its recent electoral win and in
particular, control of the Senate, that the people of Australia have
for the fourth consecutive time, endorsed the complete sell-off of Telstra
as demanded by the Liberal Party.
There has never been any serious debate about privatising Telstra! Very
few people have any real knowledge of the Company, what it delivers,
the services it provides to Australians spread across millions of square
kilometres, nor the revenues it contributes to our National Treasury.
All that we have heard is the Liberal Party mantra of "privatising
Telstra":
All we have heard is that, "Telstra should be opened up to competition
and that competition will improve its service delivery." That "Government
should not be involved in service delivery" - DESPITE THE FACT
THAT SERVICE DELIVERY IS THE FUNDAMENTAL ROLE OF GOVERNMENT!
MAYBE THE TIME HAS COME TO ASK THEM JUST WHAT THEY THINK THEY ARE THERE
FOR!
What are the facts? The financial facts of Telstra
should be understood by all Australians:
The Government shareholding in Telstra is valued at approximately $3,250
million at $5.00 per share.
That is the current value the taxpayers of previous generations of Australians
have left us as a National Asset. It is not money contributed recently
by us TAXPAYERS.
Telstra returns Federal Government two revenue streams that total $3,500
millions annually. Government receives approximately $1,750 millions
from taxation and a further $1,750 millions from its dividend stream
Thus, it should be obvious that Telstra is giving Government a financial
return of something like 12% on the infrastructure built by past generations
of taxpaying Australians - based on today's share price.
So what does $3,500 Millions divided by 20 million Australians represent?
It represents $175 PER YEAR for every man, woman and child living in
our Nation. That's not quite 50 cents per day per person every year.
Alternatively, if we divide $3,500 millions by the days of the year
we get $9.6 MILLIONS PER DAY, EVERY YEAR, THAT TELSTRA IS PAYING THE
GOVERNMENT
Mr. Barry Wakelin, M.H.R. for the seat of Grey, South Australia, told
a recent Pt. Lincoln City Council meeting there are approximately 10
million taxpayers in our Nation, and that they pay approximately $14,000
per person.
When challenged about the financial consequences of selling Telstra
he responded with the remark that an extra $300 or so per Australian
taxpayer represented "only a 2% or 3% tax increase and was thus
of little consequence".
That the remnant staff of Telstra do their very best to provide good
service to all Australians is well known despite the delays and frustrations
that occur. That Telstra staff numbers have been savagely slashed in
the name of "efficiency" is well known. Thousands of Australians
have lost their Telstra jobs as with other "privatisation examples."
And we now wonder why our young cannot gain apprenticeships as we busily
encourage "skilled immigrants" to come and fill skilled vacancies.
But let us consider what Telstra has done in
an emergency:
On 11th January this year, there was a catastrophic bushfire that burned
across Lower Eyre Peninsula, South Australia. It killed 9 people, destroyed
thousands of livestock, 80 farms, several thousand kilometres of fencing
and, of course, Telstra's infrastructure.
Most of Telstra's poles, wires, communications towers and general infrastructure
were destroyed.
Telstra's response was to immediately issue every Telstra-disconnected
family with a mobile phone using their established home phone number
and with a period of extended free dialling. It could not have done
more to assist fire victims.
By comparison, Austar, a private pay TV company, sent letters of demand
to people who had lost their entire worldly possessions to immediately
repay Austar $300 for the loss of their reception equipment. It is true
that Austar has since rescinded this action, but fire victims are now
receiving legal letters of demand from a debt collection agency. One
wonders what would be the reaction of a fully privatised Telstra. One
suspects it would probably be similar to Austar's actions.
What about Lifeline?
Or we can consider Telstra's sponsorship of Lifeline, the telephone
assistance system to help people facing life crisis situations. Telstra
has for some years provided free phone access to Lifeline. Two years
ago, Telstra advised Lifeline that it would cease sponsoring free calls
towards the end of this year and that it would consider sponsoring some
other community body.
Lifeline made public its pending financial cost burden with resultant
negative public criticism of Telstra.
It is one of life's ironies that the chief proponent of selling Telstra,
John Winston Howard, the Prime Minister, publicly suggested to Telstra
that it "reconsider its decision not to support Lifeline."
Thus, we have the spectacle of the "chief-seller" using his
clout to instruct the company in the way it should conduct its business!
Surely Mr. Howard should understand that if he sells Telstra he will
not be able to influence its activities "in the National interest".
The point to grasp is that Telstra delivers major community benefits
that a fully privatised Telstra will cease to do. Whilst there is Government
control of Telstra, Government can instruct Telstra what should or should
not occur.
The dividend stream:
If one considers the capacity of Telstra to deliver cash assistance
from the dividend stream it pays Government, the benefits are enormous.
Consider the Asian tsunami. All Australians would endorse the Government's
actions in delivering $500 million in aid and $500 million in interest
free loans to the people of Aceh over a 5-year period.
Just remember, Telstra delivers the Federal Government over $1,500 millions
in dividends annually. The retention of Telstra, together with a commitment
to use the DIVIDEND STREAM to undertake humanitarian or environmental
reconstruction gives Government instant colossal financial clout.
Telstra - Australia's "Fairy Godmother":
Truly, Telstra is Australia's Fairy Godmother" - 50 cents per day,
per Aussie, must be worth defending. The Liberal/National parties will
definitely sell our asset unless we take steps to defend Telstra.
There is only one way to save Telstra.
We MUST get at least 40 Senators across Australia to vote to refuse
to sell Telstra. PLEASE, SPEAK TO YOUR FRIENDS, CONTACT SENATORS YOU
KNOW, CONTACT YOUR STATE POLITICAL REPRESENTATIVES. WE MUST urge the
protection of Australia's "Fairy Godmother" - Telstra.
Just remember, if Telstra is sold, every man, woman and child will need
to contribute 50 cents daily for the rest of our lives to make up the
financial shortfall flowing to Government from our "Fairy Godmother".
THE AUSTRALIAN PEOPLE DO NOT WANT THE POLITICIANS TO SELL OFF TELSTRA
- BUT THEY MUST INFORM THEIR POLITICIANS ABOUT THE MATTER!
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