There’s been a lot of talk about free speech lately; about what it means, whether there should be restrictions and who benefits most from free speech.
But do Australians already have freedom of speech? And if so, what does that really mean, to our day-to-day lives, legally?
Despite all the debate in the past two years about free speech, it’s not a right that's protected under our constitution. In fact, the only social freedom that’s guaranteed is religion. Australia doesn’t have a bill of rights, which is where free speech usually gets defined and protected in most western democracies. It’s neither incorporated in any federal legislation.
Despite all the debate in the past two years about free speech, it’s not a right that's protected under our constitution.
Free speech is only a common law, which was adopted from the Westminster system, which means it’s a pretty loosely defined concept.
Dr John Budarick, an expert in media and free speech at The University of Adelaide, believes that most Australians would consider ‘free speech’ to mean being free from government interference.
“There are, no doubt, also a lot of people who recognise the need for some limits on what can be said publicly, although there are certainly different interpretations of where the boundaries are on this issue,” Dr Budarick tells SBS.
Free speech has never been about saying whatever you want and being protected from the consequences of what you say. In fact, Australia does have laws regarding free speech, but they are all concerned with limitations and protections. For example, journalists have access to more freedoms, as long as what they report on is in the public interest.
There are dozens of laws across the country that limit freedom of speech, under the reason for public interest, including criminal, contempt, broadcasting, intellectual property and secrecy laws.
Professor Katharine Gelber, from the school of political science and international studies at the University of Queensland, says limitations are appropriate because freedom of speech doesn’t mean that people “have to right to say anything they want to, about anyone they want, at any time”.
“Free speech is not absolute, and like any human right, free speech carries with it responsibilities,” says Prof Gelber. “We have a responsibility to speak in ways that don’t harm other people.”
When arguments over free speech end up in the courts, it’s often about allegations of libel, defamation or vilification. And it’s social media that is increasingly problematic for ordinary people.
“Free speech is not absolute, and like any human right, free speech carries with it responsibilities.”
A recent news story has revealed that social media posts and emails are at the centre of the majority of defamation cases in Australia.
“That means ordinary people increasingly find themselves defending defamation actions in court, often representing themselves in a complex and expensive area of law,” Fairfax Media journalist Michael Bachelard wrote.
Professor Gelber adds: “This is a really important issue on social media, because it’s where cyber trolls and stalkers and revenge porn posters are, and there’s a whole bunch of hatred, and people are targeted, sometimes very personally.”
She says that she’d like freedom of speech to be explicitly defined and protected nationally, much like how the state of Victoria did with its Charter of Human Rights in 2006.
“It could recognise that free speech is a really important but not absolute right and that there are appropriate limits in the interest in democracy.”
Dr Budarick says the debate over free speech has been overly simplified and says that the role of power - and who has access to it - plays a significant role in trying to strike the balance between freedom of speech and protection from hate speech, for example.
One important aspect often excluded in terms of public communication is the power inequalities that exist
“Free speech can mean different things to different people based on the power of their voices,” he explains. “It is no doubt a complex issue that deserves to be treated with sensitivity and thoughtfulness.”
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Want to find out more about this topic? The new legal drama, The Good Fight, wrestles with the idea of freedom of speech and hate speech in the next episode airing on Wednesday 30 August at 9.30pm on SBS. The episode will be available to view on SBS On Demand after broadcast. To catch up on all the series, watch episode one: the show that started it all.