I do think - as evidently does Brull - that we need some kind of limited defamation law. I made that point in writing on the ABC Religion and Ethics Portal awhile back, while also making the point that defamation law must be carefully constrained in what it seeks to achieve.
Though I am a free speech advocate, I don't oppose defamation law completely. We do need some protection of individual reputations from lies that could ruin careers or lead to ostracism. Human beings are social animals, and we cannot survive - we certainly cannot flourish - if our good reputations are trashed beyond a certain point. A credible sounding lie to the effect that somebody is a paedophile, for example, could inflict a kind of social death on that person.In the thread, Helen Pringle accused me of contradicting myself, but there is no contradiction. You can quite consistently (1) think that some restrictions of defamatory speech are needed, particularly against highly-damaging but credible lies from parties with great access to the public AND ALSO (2) ask just how protective these laws should be, particularly in relation to such matters as the lobbying activities and motivations of public figures AND ALSO (3) conclude that the law is currently too protective and should be scaled back to try to avoid chilling legitimate speech.
But the question still remains: How protective should defamation law be when it comes to such things as speech about the motivations of public figures when they engage in political activism?
Bear in mind that public figures are well placed to put their own sides to a story, especially when they are misrepresented by individuals who actually have less public reach than they do. Bear in mind, too, that individuals can be ruined financially by the costs of defamation proceedings. This can force people with ordinary resources to back down and give humiliating insincere apologies, in order to avoid litigation. Alternatively, some might be deterred from publishing in the first place on what appear to be matters of public interest.
I submit that, as a general rule, defamation law should not be used to chill debate about the public images and motivations of politicians, political activists and other such public figures. If current defamation law in Australia allows that to happen, so much for current defamation law in Australia. It needs to be amended, especially to provide individuals such as unaffiliated bloggers - who don't have the resources of media corporations behind them - with sufficient protection from litigation.
Apparently this did not sit well with Pringle, who doesn't seem (judge for yourself from what she says on the thread) to have been able to make head or tail of it all, but it is a perfectly coherent and principled position.
Meanwhile, is current defamation law in Australia too protective of plaintiffs and too restrictive of legitimate speech? Yes, it is. Brull tells us quite a bit about why he'd like to pare the law of defamation right back. He concludes:
It is unpleasant being subjected to such harsh criticism, especially if one feels the criticism unwarranted. However, society suffers more severely when it is not free to discuss issues that it feels are of significance. I think a superior balance would be struck if political discussion, broadly construed, was entirely free of defamation laws. In other areas, the burden on the plaintiff should be increased they should have to prove: the defamatory statement was false, damages and common law malice. If it becomes difficult for a plaintiff to win a defamation lawsuit, it will at least become less effective as a threat.
In terms of freedom of speech, the difference between defamation laws and racial vilification laws is that the latter seem to be used far less often. Which is perhaps why the Bolt case saw no chilling effect. The different socioeconomic groups these laws are designed to protect seems to also be a significant difference. The Racial Discrimination Act is to defend racial minorities. Defamation laws protect the wealthy and powerful. Right-wing politicians and commentators are urging the right to offend and insult racial minorities. If they do not equally speak out in opposition to our defamation laws, we will know this is not because of their concern about freedom of speech in Australia.