Only liars need worry: why the Protection from Harassment Bill matters

The bill, recently passed in parliament, will make it easier (and less expensive) to correct falsehoods. But will it also curtail freedom of speech online? Walter Woon weighs in.


Is online freedom of speech under threat?

Detractors will immediately protest that internet freedom of speech is under threat. They are right, but for the wrong reasons. Freedom of speech is under threat when people abuse it to deliberately spread falsehoods or to form virtual lynch mobs to attack those whose views they do not like. Yesterday it was Anton Casey, whom many will say deserved it. Tomorrow who will the ravening pack decide to tear apart?

Political correctness in some countries has reached a point where if anyone has a contrary view on certain red-button issues (which vary from country to country) they are shouted down by howling online mobs. If you don’t believe me, just try praising the Black and White Minstrel Show on YouTube.

Coming back to section 15, let’s start with the premise that it is not a human right to tell lies about someone else (of course, if you think that telling lies is a fundamental right, then we have an irreconcilable difference of views). If one person deliberately tells lies about another in order to hurt them, it would be unjust if the victim had to accept this without remedy. For example, say that D and V are competing for the same job. D deliberately spreads the story that V was convicted abroad for criminal breach of trust in order to ruin his chances. Or suppose that D is a spurned lover and in revenge spreads rumours that V has been sleeping around with several other men. Would any reasonable person accept that D is merely exercising his right of free speech and that V should not be allowed to do anything about it?

In the pre-internet days, D’s vicious vitriol could have been contained. Unsolicited poison-pen letters would be consigned quickly to the dustbin. Newspapers wouldn’t print them. But with social media and Wikipedia and Facebook and whatever else cybernauts may dream up in future, lies can spread widely and become firmly entrenched in cyberspace. Anyone who thinks that this is an anti-libertarian fantasy should check out the John Seigenthaler incident. A certain person for reasons of his own had edited Seigenthaler’s Wikipedia entry to falsely allege that he was involved in the killings of President John F Kennedy and his brother Robert Kennedy. This incident had a happy ending in that Seigenthaler had the clout to get the character assassination corrected fairly quickly. Others with less influence may not be so lucky.

Section 15: a less expensive solution

This is where the new section 15 will make a difference. A victim of character assassination can apply to the district court for an order that the publisher of the false information also publish the true facts. Traditionally, the law’s answer to this problem is the defamation suit; but this is an expensive hobby where the cards are stacked in favour of those with deep pockets. A section 15 application shouldn’t be as costly (one hopes). More importantly, it is for the victim to satisfy the court that the statement is false and that it is ‘just and equitable’ that an order should be made. This gives the judge a fair amount of leeway to weed out frivolous (or malicious) applications and determine where the justice of the case lies.

What of inadvertent falsehoods? One presumes that a fair-minded person would correct an inaccuracy if it was pointed out. But there can be honest differences of opinion on the interpretation of facts. The publisher of the statement may insist that his take on the matter is the right one. Section 15 allows the victim to tell his side of the story and let the reader make up his mind. Damages are not the issue; fairness is.

Perhaps the day will come when public discourse is conducted in a polite, sensitive and rational manner with due consideration of other people’s points of view (I’m not holding my breath). Getting rid of the Carnevale atmosphere of anonymous impunity would go a long way towards this. Until that day comes, however, we need some rules to ensure that people who are unfairly attacked have the means to defend themselves, both online and offline. Section 15 of the Protection from Harassment Act will provide some defence.

A final word to the critics. I presume that you are fair-minded and not given to vicious anonymous sniper-shots aimed at damaging other people’s characters. In that case, you have nothing to fear. Only liars need worry.

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