2018 volume 22 Issue 2

Abstract

The national, uniform defamation laws enacted around Australia at the beginning of 2006 included a specific provision for a 5-year review as to the legislation’s policy objectives and appropriateness in a media world increasingly dominated by online publication. Despite a procedure for lodgement of submissions in 2011, the Review was not published until 2018. This article argues that further, more detailed consideration of law reform, technology and the societal issues driving the changes in online communications is necessary, not only in relation to defamation or media law, but law reform generally.

Abstract

Despite being the subject matter of one of Australia’s most controversial public debates, the legal meaning of pt IIA of the Racial Discrimination Act 1975 (Cth) is often misunderstood or ignored. This was certainly a vice of the Racial Discrimination Amendment Bill 2016 (Cth), which sought to remove from s 18C the words ‘offend’ and ‘insult’. While the Amendment Bill was far from novel, it was introduced into Parliament at an interesting juncture in Australian free speech discourse. The Australian Law Reform Commission and Parliamentary Joint Committee on Human Rights have both recently released extensive reports considering the relationship between free speech and Commonwealth racial vilification legislation. Informed by these reports, this paper attempts to recalibrate the s 18C debate by reference to the properly construed legal meaning of the provision’s terms. It contends that s 18C’s narrowly defined scope saves it from any inconsistency with fundamental human rights or the Australian Constitution.

Abstract

Through a comparative analysis of United States, English, German and European Court of Human Rights jurisprudence, this article considers the viability of relying exclusively on either speaker or audience interests to underpin a free speech right within the context of anonymous and pseudonymous social media and online speech. It argues that this approach, which has hitherto been applied in these jurisdictions, can lead to a ‘double-edged sword’: on the one side, pursuant to audience interests, people may be dissuaded from participating in the exchange of information and ideas, because their anonymity or pseudonymity is not protected; on the other side, a constitutionally protected right to free speech based entirely on speaker interests could inadvertently protect unwanted and damaging speech.

Abstract

The ‘true crime’ genre conjures notions of cheap paperback thrillers, second hand bookstalls and gratuitous violence. However, since 2014, a new species of true crime is challenging and transforming these conventions. This paper charts the rise of ‘new true crime’ podcasts in the United States, and their parallel success in the Australian market — with a primary focus on the implications of translating an ‘American’ genre into Australia’s media law landscape. By reinvestigating unsolved cases or unsatisfactory verdicts, new true crime is a tool of corrective justice in cases where a real or perceived injustice has occurred. While recognising the productive potential of new true crime, this article raises concerns about the genre’s potential to negatively impact the fair trial, or unjustifiably diminish public confidence in the administration of justice. It considers whether existing mechanisms for controlling prejudicial publicity in Australia can adequately manage the unique risks posed by the genre — which arise not only through the actions of the journalist, but the reactions of its listeners.