Balancing Freedom of Speech and the Rights of the Individual

Like the Scales of Justice a journalist must balance competing interests: their duty to ensure the public is informed and their responsibility to prevent possible harm to particular individuals as a result of disclosing information. Journalists must also ensure that their commentary does not contravene laws and codes designed to protect vulnerable sections of society e.g. in Australia the racial vilification and equal opportunity provisions of the Australian Human Rights Commission Act 1986.

Indeed, freedom of speech in Australian journalism has been a topic of hot debate in recent times particularly following the introduction of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill in late 2017. This Bill, designed to safeguard Australian security, has the potential to “undermine the ability of the news media to report in the public interest and keep Australians informed”, according to the MEAA (Media, Entertainment and Arts Alliance).

More generally, however, some believe that a shift in social norms and a growing intolerance towards controversial views in Australia has led to an effective suppression of the right to freedom of speech within the media industry. Arguably this has led to the balance between full disclosure of information and the protection of the rights of the individual/ sections of society shifting further towards the latter. As David James, financial journalist of 28 years, wrote for Eureka Street Magazine, “the push for politically correct language may be well intentioned enough, but its consequences are often appalling. It can rob us of one of the most important of all human freedoms: the right to use words to mean what we want them to mean”. This perspective would indicate that we may have become more “politically correct” and therefore less tolerant, leading to the sanitisation of journalism in fear of running afoul of legislation or community values.

It is widely recognised by individuals and journalist codes alike that the ethical practice of journalism is essential, and that protecting the individual is of primary concern in most cases. Outlined in the MEAA Journalist Code of Ethics, for example, a journalist should not allow personal interest, or any belief, commitment, payment, gift or benefit, to undermine accuracy, fairness or independence. Nor should they place unnecessary emphasis on personal characteristics, or exploit a person’s vulnerability or ignorance of media practice. The MEAA states that “only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.”

It appears that most would agree the basic human right to freedom of expression is fundamental in enabling a functioning democracy, but it is also recognised it is “cut back” by a variety of laws, codes of practice and restraints designed to protect the interests of the individual. According to the ALRC in a recent Traditional Rights and Freedoms Interim Report, “a wide range of Commonwealth laws may be seen as interfering with freedom of speech and expression … some of these laws impose limits on freedom of speech that have long been recognised by the common law.” These include secrecy, contempt, media, broadcasting and telecommunications and anti-discrimination laws.

The case of Israel Folau’s social media posting of Bible verses referring to homosexual individuals is an excellent example of the potential conflict between the right to religious freedom, and essentially freedom of speech, with legislative controls on discriminatory comment which harms individuals or groups.

Folau, one of Australia’s highest profile Rugby players, sparked social media outrage in April 2018 when he said gay people were headed to “hell... unless they repent of their sins and turn to God”, in response to a question. From a journalist’s perspective, this situation is very difficult to navigate as both parties (Folau & the homosexual community) are protected by various laws and codes. To an extent, the homosexual community is protected under Under Section 9 of the Australian Human Rights Commission Act (1986) - Protection from vilification and harassment on the basis of sexual orientation and sex and/or gender identity, while Folau’s right to the free exercise of any religion is implied under Section 116 of the Commonwealth of Australia Constitution Act.

Reporting on this case should have been a very careful and considered task for journalists, who would hopefully have acknowledged that both parties have rights and defence arguments in the situation. However, many reports appeared borderline, if not legally defamatory of Folau. Zara McDonald said in an article for Mamamia that “being religious doesn’t give anyone an excuse to be an asshole”, and The Australian published an article saying that Folau has “the right to be a jerk, which is exactly what hes being”. Qantas said it was “very disappointed’’ in him, and would possibly reconsider its $850,000 sponsorship deal with Rugby Australia. These comments undoubtedly do harm to the individual who has expressed a rightful view; but a view which has arguably inflicted hatred on a public platform toward a significant section of society. Therefore the issue remains - what happens when a religion condones discriminative comment? This is almost impossible to answer.

With this in mind, Australia is fast becoming “the worst in the free world for criminalising journalism”, according to Johan Lidberg (Associate Professor, School of Media, Film and Journalism, Monash University), which, in turn, will lead to the continuation of self-censorship within media outlets. A number of journalists and journalism ethics bodies have argued that amendments to already “strict” freedom of speech laws will result in fair reporting in the public interest becoming “increasingly difficult”, with there being a “real risk that journalists could go to jail for doing their jobs” (source: MEAA).

There are few media outlets that still risk making controversial comments under strict public scrutiny and codes; notably programs such as Media Watch and radio shock jocks continue to push the boundaries. During the research stage of writing this piece, it was made evident that there are very few recent cases exemplifying transgressions of journalists within Australia. This potentially indicates that self-censorship within media organisations and bureaucracies has either succeeded, or gone too far - depending on your perspective.

A reasonably recent, well-known case was in 2011, when Andrew Bolt (Herald Sun columnist) lost an action brought to the Federal Court by 9 indigenous applicants accusing him of breaching the Racial Discrimination Act (Section 18C). The Herald & Weekly Times released a statement following the proceedings, defending the journalist saying that they “maintain that the articles were published as part of important discussion as a matter of public interest” and that they “defended the action because we believe that all Australians ought to have the right to express their opinions freely, even when their opinions are controversial or unpopular”.

The debate of freedom of speech verses the rights of the individual is one that will continue to shift in response to changes in community values. While the current trends indicate that full disclosure may be taking a back seat to the rights of the individual, this could well change over years to come. Generation Z (that being those born in 1995 or later) is “possibly the most conservative generation since World War II”, according to Ashley Stahl in Forbes Magazine. American polls found “that eight out of ten members of Gen Z considered themselves ‘fiscally conservative’”(Huffington Post), and are generally more individualistic. A more conservative society would likely re-shift the focus more toward encouraging the right to free speech, in a backlash against language censorship and “politically correct” ideals.