The High Cost of Truth

 

IFF we had a brand new Constitution and IF it contained a Bill of Rights, what would be the best way to deal with freedom of speech?

Political correctness

The Discussion Draft of a New Australian Constitution Includes a List of Rights and a List of Obligations that go with them. The lists try to find a balance between the need for open-ness in debate, and the need to live in a world that is not overly abusive. Political correctness has a role to play in questioning sometimes defective assumptions or stereotypes, but when does political correctness become censorship?

 

 

 

Defamation

A big issue is the issue of defamation: Most of us rely heavily on others for important information - the truth. The high cost of being sued can be a deterrent that also acts as censorship.

In 2005 each state passed similar defamation acts, in order to create what passes for Uniform Australian law.

In Australia, as in the UK, to claim truth as a defence, the person being sued for defamation must prove that every part of the material published is substantially true.

In the USA the reverse applies – the burden of proof is on the person suing someone else for defamation.

Should the burden of proof remain with the defendant in Australia?

 

 

Going to court is an expensive business for anyone – when publishers bear the burden of proof, they routinely decide not to publish it at all, or publish first then quickly settle out of court later – with an apology that suggests the truth was a lie.

 

In addition, American law requires a plaintiff who is a public figure… to prove that the defendant published the offending statement with knowledge that it was false or in reckless disregard of its truth…

In Britain, an editor or writer who makes every effort to check a statement for accuracy but makes an innocent mistake can be successfully sued for libel.*

 

Anthony Lewis, Introduction History on Trial by Deborah Lipstadt

 

In 1996, David Irving sued both Penguin UK and author Deborah Lipstadt for libel on the grounds he had been falsely labelled a Holocaust denier, falsely accused of falsifying evidence or deliberately misinterpreting it, by which false accusations his reputation as an historian was defamed.

Both Penguin and Lipstadt spent 5 years preparing a defence and fighting the suits. As well as legal representation, they had to fork out for experts to spend 2 years or more examining the evidence Irving was accused of falsifying or manipulating. Lipstadt’s initial quote for simply preparing to fight – which included a great deal of pro bono work – was 1.6 million British Pounds. On top of that she lost a great deal of income over the 5 years, and had to spend money travelling to the UK and living there for months.

 

 

While we might think the world has gone a little mad with rules because everyone is frightened of being sued, it’s not quite the problem here that it is in the USA where people are sometimes awarded millions for being served a dodgy burger.

In the USA the amount of damages is decided by jury, whereas under the UK system it is decided by the Judge.

Even so, the costs Lipstadt might have had to pay had she lost were phenomenal; the royalties from her book Denying the Holocaust had already been donated to charity.

Whistleblowers

The draft discussion also offers protection to bona fide whistleblowers.

At the one extreme we have, as an example, Wikileaks, where anything and everything might be revealed.

At another extreme, we have a situation where medical professionals are at risk of being jailed for talking about what happens in detention centres.

 

 

A reasonable middle ground might be a situation where people are entitled to reveal the truth if it is going to save lives and the only thing at risk is the reputation of a questionable government.

101 and 103 are the main clauses of the draft relevant to this discussion, though 85, 86 and others are also indirectly relevant. You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.