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Chris Merritt
Legal Affairs Contributor
25 April, 2024
Where to draw the line on freedom of speech

The fight between Anthony Albanese and Elon Musk is not merely about whether Australians should be permitted to see a shocking video of a bishop being stabbed.

The outcome of this dispute will help determine a much bigger issue: do we want the federal government to be the global editor in chief of the internet?

At the moment, the government’s bid for editorial control is being run by the eSafety Commissioner which, according to Musk, is attempting to assert a right to veto what Musk’s X Corp disseminates internationally on its social media platform.

This, however, is merely the opening skirmish. Sooner or later the government could introduce a rejigged version of its widely criticised plan to make another federal agency, the Australian Communications and Media Authority, the arbiter of online truth. This plan, which emerged in an exposure draft last year, would give ACMA the power to impose big fines for online postings that ACMA considers to be misinformation and disinformation.

Unless that exposure draft is radically changed, critics believe this country could be confronted with an Orwellian nightmare: the government, through its officials, would decide what is true and what is false.

At its core, the dispute with Musk is also about freedom of communication.

The focus is the dissemination on Musk’s social media platform of a video showing the knife attack on Bishop Mar Mari Emmanuel during a service at his church in the Sydney suburb of Wakeley.

In response to orders from the eSafety Commissioner, Musk “geoblocked” that video to prevent it being seen in Australia. But the commissioner, Julie Inman Grant, wants it deleted so it cannot be viewed internationally or by Australians who overcome the geoblocking.

If the commissioner wins this fight, it will increase the likelihood that the government’s rejigged disinformation and misinformation scheme will also seek to vest ACMA with global jurisdiction. Together, ACMA and the eSafety Commissioner would then give the federal government global control over what we can read and see online, backed by the power to fine those who refuse to toe the line.

There are two issues here. The first is how other countries will respond when they realise Australia wants to regulate the activities of social media companies within their borders. The second issue is more important: Will Australians accept a system in which the arbiters of truth are federal public servants, and not individuals? Would the benefits of such a system outweigh the loss of autonomy?

This is where the views of Lorraine Finlay, the Human Rights Commissioner, might be useful. She has just made a series of videos on human rights for the Rule of Law Education Centre and one of those concerns freedom of speech.

Finlay makes no mention of the government’s dispute with Musk but her remarks might help people make up their minds about whether Musk – or the government – have gone too far.

She made the point that freedom of speech encompasses a range of associated matters such as the freedom to receive and impart information, freedom of conscience and freedom of belief. “But freedom of speech carries special responsibilities to ensure you are using that freedom in ways that do not unduly restrict other human rights.” She accepts that freedom of speech, while fundamental, can legitimately be restricted.

But she says the significant question for society is what restrictions is it prepared to accept?

That, she believed, was an issue upon which reasonable people could disagree.

But her personal view was that it was important to give the widest possible scope for freedom of speech and it should be in only rare cases that society does not permit a particular form of freedom of speech.

“To my mind that line should be drawn at the point of incitement to violence,” she says. “So the minute your speech is going to produce an action that will cause harm, that is somewhere where the line should absolutely be drawn.”

She believed legal restrictions should not be imposed on speech that merely caused people to feel offended, but that did not mean such speech should be encouraged. “If I say something that is really offensive to you, I don’t think the law should stop me from doing that. I think it should be allowed in a free society. “But I absolutely think you should be able to call me out on that and the community should be able to criticise what I say. “Freedom of speech does not mean freedom from accountability or responsibility. “The question we have to ask is when do we want the law to get involved? And when do we want to stop speech as opposed to simply saying I think we should be able to have robust discussions.

“If freedom of speech only means the freedom to say nice things about issues that everybody agrees on, then it is really a freedom that’s meaningless. “Freedom of speech is at its most important when it means you are standing up for the right of people to say things that you might vehemently disagree with, but you recognise that in a democratic society it is absolutely critical that we have diversity of thought, diversity of perspectives and we actually engage with different ideas. “If we can’t do that then we really lose an important part of who we are as a nation and a community,” Finlay says.

All four of Finlay’s talks on human rights are available on the website of the Rule of Law Education Centre.

Chris Merritt is vice-president of the Rule of Law Institute of Australia and the Rule of Law Education Centre.