freediver wrote on Nov 30
th, 2016 at 5:01pm:
Quote:Bolt’s articles didn’t fall within the exemption because the court found that his articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language.
I don't think being wrong should be a factor as far as the law is concerned. For example, you could argue the guy who was jailed for denying the holocaust was wrong. In fact, this is exactly what should have happened, instead of putting him in jail. Likewise, Bolt's errors should have spurred public debate around his errors of fact, which should have undermined his reputation. Instead, the opposite happened. It became an issue of rights rather than facts, and Bolt is more popular than ever, despite being wrong.
Using "inflammatory or provocative" language should also be protected under freedom of speech, or at least, not a justification by themselves for legal recourse. Some of our most celebrated works are celebrated because they are provocative.
Let's say Raven is a popular TV personality with an audience of a million plus people. One night Raven does a story where he accuses "Freediver of being the worst child rapist in Australia" using words like predator, vile, abuse of trust. A story that has zero basis in reality.
What do you do?
Obviously you sue Raven for defamation, but what you are doing impinging on Ravens right to free speech.
Yes he used provocative language and the story presented was wrong but by your argument being wrong or provocative shouldn't be a factor.
Freedom of speech, like all rights is a balancing act. Is Raven's right to free speech more important than your right to freedom from defamation? Or your mother's right to freedom from sexual harassment? Or Ms Eatock's right to freedom from racial vilification?
Amartya Sen uses a good analogy.
3 children fight over a toy flute, each has a just claim to the flute. One child has no toys while the others have many, one can play the flute while the others can't and one made the flute when the others did not.
As a society we must balance these rights, which is why 18D is a "get out of jail free" card.
It is a measure of Andrew Bolt's egregiousness in his two columns that he could run afoul of these expansive exemptions.