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An important case that marked a significant shift in the UK law on this point concerned, in the words of one of the Lords Justice, ‘a prima donna celebrity’ and ‘a celebrity-exploiting tabloid newspaper’. In 2003, the House of Lords decided that although there was an important public interest in free expression and a free press, this did not mean that a newspaper could invade the privacy of the model Naomi Campbell by taking and publishing photos of her leaving a Narcotics Anonymous meeting. Interestingly, in coming to this conclusion, some of the justices discussed the relative merits of different types of speech. Baroness Hale said that there are ‘undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others’. ‘Top of the list’, she said, ‘is political speech’.
The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all.17 Political speech may also be ‘top of the list’ in Australia – at least, it is the type of speech that is most clearly protected by the Australian Constitution. But in designing a cause of action, we were also mindful of the need to protect other types of speech, including artistic expression.
It is interesting to compare the balancing of privacy and free speech that we now see in the UK courts since the enactment of their Human Rights Act, with the position in the United States. The law in the United States has recognised various causes of action for invasion of privacy for some time now, but some say the legal protection of privacy is often made impotent, because free expression is so fiercely protected in that country – protected not only legally, enshrined as it is in their Constitution, but also it would seem culturally.
Free Speech 2014 • Symposium papers • 7 1 Opening session
It is also worth stressing that privacy and free expression do not always – much less necessarily – clash with each other. Rather, respecting a person’s privacy should more often than not give that other person the space to speak and act freely – and therefore, promoting free expression. There are no doubt exhibitionists who will comfortably be themselves in the Big Brother house for weeks on end, able to ignore the cameras and the fact that their every word is broadcast to the nation. But I imagine many of us would be fundamentally different people – and speak and act much less freely – if we lived under such conditions. Even the mere fear of public exposure can have a stifling effect on freedom of expression. Not knowing whether a camera in our lounge rooms is turned on, or whether one’s emails might one day be read, or whether the history of one’s internet browsing might one day be publicly revealed, can no doubt make us less free.
Where privacy and free speech do conflict, finding the right balance between them will, I think, only become more pressing in the future. The UK phone-hacking scandal perhaps suggests that beyond a certain point, invasions of privacy will not be tolerated by the public – even in the name of a free press.
Copyright Freedom of speech also arose in the ALRC’s recent copyright inquiry.18 In the final report, we recommended the enactment of a fair use exception to copyright laws. By allowing the use of other people’s copyright material without permission or payment in some limited circumstances – when fair – this U.S. style exception to copyright infringement can allow people to use books, films, music and other material in the creation of new books, films, music and other works. Whether one supports the introduction of this contentious exception or not, it seems clear that overly confined or restrictive copyright laws can risk stifling free expression.
However, it is also important to stress that strong and enforced copyright laws are necessary to properly stimulate and reward creative expression. Many writers, artists, film makers and others might not create at all, if they cannot expect to be paid for their work, or to have some control over how their work is used. The ALRC was mindful throughout the copyright inquiry that both overly permissive copyright laws can undermine this incentive to create, and so inhibit free expression.
One might ask how Mozart would have fared today in writing his 12 variations in C Major K.265 – variations on ‘Twinkle Twinkle Little Star’. It’s not quite ‘Kookaburra sits in the old gum tree’, but analogous? Or Shakespeare in writing As You Like It – which owes much to a novel of Thomas Lodge, including all the main characters.
Censorships Censorship laws perhaps more directly affect freedom of speech. In 2012, the ALRC completed a review of Australia’s censorship laws with the publication of the report Classification – Content Regulation and Convergent Media.19 The report recognised that classification standards should only be changed after carefully considering community standards, and our inquiry was largely focused on the framework of classification laws, but we nevertheless received enough submissions and community input to recommend that the Government at least consider the scope of the (oddly-named) ‘Refused Classification’ classification. This is the material that is essentially banned throughout Australia, and some people told us that the scope of the category was probably too broad.
Secrecy In December 2009, the ALRC published the report Secrecy Laws and Open Government in Australia.20 In this inquiry we considered, among other things, when public servants can be expected to maintain confidences. By restricting Commonwealth officers and others from communicating government information, secrecy laws can limit freedom of expression.
One interesting case that we considered concerned the now repealed regulation 7(13) of the Public Service Regulations 1999 (Cth), which provided that an Australian Public Service (APS) employee must not, without the appropriate permission, ‘give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge’. Finn J of the Federal Court held that the regulation was inconsistent with the freedom of political communication implied in the Australian Constitution, and declared the regulation invalid. It burdened freedom of political communication and was not reasonably appropriate and adapted to serve a legitimate end compatible with maintaining the Australian system of representative and responsible government.
Finn J of the Federal Court held that, while there may be public interests or ‘legitimate ends’ that justify the burden that secrecy provisions impose on freedom of political communication – including national security, cabinet confidentiality, protection of privacy and the maintenance of an impartial and effective public service – a ‘catch-all’ provision that did not differentiate between the types of information protected or the consequences of disclosure went too far. ‘Official secrecy has a necessary and proper province in our system of government’, Finn J said, but a ‘surfeit of secrecy does not’.21 The regulation was later repealed and replaced with another regulation that was limited to situations in which it is reasonably foreseeable that the disclosure of official information could be prejudicial to the effective working of government.
Other inquiries There are quite a number of other examples of ALRC inquiries in which we have considered freedom of speech, including a 2006 report on sedition laws22 and a 2004 report on Classified and Security Sensitive Information.23 If a broader view is taken of freedom of expression – and we were to consider laws more generally that affect people’s capacity to speak freely, to live the sorts of lives that give some of us the freedom to speak – then other law reform projects might also be mentioned. For example, we have in recent years completed two inquiries about family violence;24 and we are in the final stages of completing a report on disability and capacity.25 Conclusion Rights are rarely absolute and will sometimes conflict with each other. Few think that free speech is an absolute right. The International Covenant on Civil and Political Rights recognises that free speech carries with it special duties and responsibilities, and may be subject to restrictions – but only when necessary and as provided by law.
But the fact that few rights are absolute is not a good argument for too readily diluting one right in the name of another. Lord Hoffmann once said that one will find in the law reports ‘many impressive and emphatic statements about the importance of the freedom of speech and the press. But they are often followed by a paragraph which
begins with the word “nevertheless”.’ He went on to say that:
Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible.26 It seems inevitable that freedom of speech must at least sometimes give way to other interests, but there is little point in calling it a right, if exceptions and excuses are found too easily. It is indeed a difficult challenge.
In the Freedoms Inquiry we will once more tackle this conundrum, as we identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges. We will produce an Issues Paper by Christmas and a Discussion Paper mid next-year – with lots of consultations and opportunities for submissions – concluding in a final report at the end of next year. We will convene an advisory committee of experts, consult widely, and of course engage with the Australian public, including through online forums.
The Attorney has suggested that he wants ‘a Domesday Book, not a Magna Carta... a source of data, in other words, rather than a philosophical or a jurisprudential discussion’.27 We won’t end up with the Articles of the Barons signed by King John at Runnymede in 1215, which in its own way was a precursor to the Glorious Revolution of 1688, but in ending up with recommendations about when encroachments upon traditional freedoms are appropriate, we are likely to end up with a ‘charter’ of some kind.
What I can promise is that I will not paint my face blue, nor will I bare my bottom (in a William Wallace/Mel Gibson aside, prompted by his famous cry, ‘Freedom!’ as he led his force into battle against the English in 1297). When we first received the terms of reference I made this assurance to the excellent team at the ALRC. On further research, however, I discovered that Boadicea, Queen of the Iceni, also adopted the blue painting strategy and her example is quite inspiring. Apparently the Iceni were well known for using woad on their bodies before going into battle.
Apart from looking rather intimidating, it was sensible as woad is an effective antiseptic and it may have been used to help heal battle wounds.
There will be lots of opportunities for involvement and I would encourage you all to do so. All ALRC inquiries start with lots of questions, never any answers and it will be a lively conversation especially throughout next year.
Onwards and upwards – as both William Wallace and Boadicea may well have said, blue-faced or not!
It is, of course, an irony and a consequence of the direct impact of free speech suppression that I’m here and my brother Peter is currently locked up in an Egyptian prison serving a seven-year jail sentence on terrorism related charges, and charges of spreading false and misleading news.
I don’t usually find myself in front of a camera or a microphone. I am not a journalist and by no means an expert on free speech. I am a cotton and grain farmer from Wee Waa in north-west NSW, but I’d like to share with you my experience and the impact his arrest has had on our family.
Peter’s arrest and incarceration has taken me to places a long way from home and away from the introverted lifestyle I normally lead. I have actually skipped out of a cotton conference being held in Queensland to be here, but obviously, at the moment, Peter’s case has taken a very high priority in my life and the life of my brother Mike, and our parents, because we believe in Peter’s innocence. He has no axe to grind or political agenda to push, which was often demonstrated in the way he conducted himself professionally, and the way he presented the stories he covered. We continue to fight for Peter’s release because we believe in his innocence and feel we cannot leave a stone unturned in the campaign for his release.
I have had to try and get an appreciation for the art of diplomacy and foreign relations, putting myself in front of the media, and trying to relate our story in an honest way that does not jeopardise Peter’s ongoing legal case.
As a family, we have tried to present ourselves in the media in a way that does not impact on our ability to retain a physical presence in Egypt, with at least one family member always being on the ground. We have all wanted to maintain our dignity, try to accept the situation we are in, and work within a system that is foreign and very difficult for us to fully understand in terms of the existing cultural and moral differences.
I am sure most people are aware of Peter’s case but here is a quick recap: he was arrested on 27 December last year and formally charged at the end of January. After 13 court sessions, where Mike and I were in attendance, on 23 June he was sentenced to seven years in prison. During this six-month period of court sessions, he was held in a small cell with his two colleagues for 23 hours a day, and for quite a few months without reading and writing material of any sort. As a family, we were not prepared for such a severe sentence and as you can imagine, it took a little time for everyone to re-group and think about the situation rationally. He has now decided to appeal the court’s decision and the next step is for the appeal documents to be lodged, and the first appeal hearing date to be set.