“The best way to get a bad law repealed is to enforce it strictly.” Abraham Lincoln, 16th President of the United States
Bromberg J handed down judgment in favour of the plaintiffs in Eatock v Bolt  FCA 1103 this morning. You may recall that I wrote a post while the case was being heard. Bromberg J found that Bolt’s newspaper article contravened s 18C(1) of the Racial Discrimination Act 1975 (Cth), which provides as follows:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
His Honour found that Bolt’s articles were likely to offend, insult, humiliate or intimidate them and that they were written because of the race, colour or ethnic origin of the plaintiffs.
Bolt and the Herald and Weekly Times were not entitled to any of the defences under s 18D of the Act:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
His Honour found that Bolt had not written his articles with care and diligence, and accordingly, that Bolt’s activity was not pursued reasonably and in good faith such that he could rely on any of the defences under s 18D.
The conclusion around the blogging traps, from sites as different as Larvatus Prodeo and Catallaxy, is that the provisions of the Racial Discrimination Act upon which the plaintiffs relied are problematic. I agree. As I have outlined previously, I did not agree with Bolt’s articles and I think that the issue of Aboriginal identity is a very complex one, and attempts to simply reduce a discussion about Aboriginal identity to simple skin colour is utterly wrong-headed. Nonetheless, I am deeply concerned about provisions which seek to prevent people from expressing views simply because such views offend. In my previous post, I said:
…my guiding light determining the reach of the law is John Stuart Mill’s “Harm Principle”: the law can intervene to restrain the actions of an individual if those actions are harmful, but not if they are merely offensive, because the freedom of speech militates that people should be able to express an opinion even if it is offensive. The other thing is that offense is a very subjective concept. So someone may fall foul of this law because they offended another, but they had no intention to do so.
No, it’s not pleasant to be offended and personally attacked. I can understand why the plaintiffs were hurt. However, I fundamentally do not believe that this is the kind of conduct which the law should regulate. Part and parcel of the right of free speech is that people may be offended and hurt in the rough and tumble of exchange of views. The law of defamation deals with public statements which harm reputation, and I think that this is where the limit of law should lie (subject to defences). The 2005 amendments to the Racial Discrimination Act should be removed.
Ultimately, too, I wonder whether this action will be counterproductive. Now the plaintiffs have made a martyr out of Bolt and given his comments a prominence and credence which they never had before (I had not read them at the time, I assure you). I suspect there will be an appeal, in any case. I’ll come back with further comments when I have read the judgment more fully (at the moment I have just skimmed it).
Thanks to David Barrow for tipping me off about the imminent judgment.
Update: Sinclair Davison’s piece at The Conversation makes some similar points (although we differ quite fundamentally on whether the market is adequate to deal with this issue).
Update 2: Mark Bahnisch at Sed probate spiritus in favour of the decision.