The recognition of political speech as a constitutional principle and the emergence of the principle of legality have driven the doctrinal evolution of freedom of speech at common law. The High Court now treats freedom of speech as something more than a residual liberty. Yet this doctrinal and taxonomic transformation is not complete. This article posits that at some point the High Court may incorporate proportionality into the methodology of common law rights protection. That development would be problematic, but the forces driving it may well be inexorable. However, the article concludes that there is an alternative. The High Court has an opportunity (if so minded) to develop a distinctive, indigenous conception of freedom of speech at common law.Meagher argues
It may seem an odd, if not anachronistic, thing to ask whether there is a ‘right’ to freedom of speech at common law. Surely in our age of statutes and human rights the answer is an unqualified ‘yes’. With the continued expansion in the size and complexity of the statute book, our judges are more alive than ever to the threat this poses to fundamental rights, including free speech. The pressing nature of that threat was outlined in painstaking detail in the recent 600-page report of the Australian Law Reform Commission on Traditional Rights and Freedoms: Encroachments by Commonwealth Laws. Indeed, a chapter of nearly 50 pages was devoted to freedom of speech. Its opening summary noted that, amongst other things, the chapter ‘discusses the source and rationale of the common law right of freedom of speech’. And significantly, the interpretive approaches of our courts was said by then Chief Justice Spigelman to have established a ‘common law bill of rights’ which included freedom of speech.
These contemporary observations seem to assume, if not require, the existence of a common law ‘right’ to freedom of speech. Yet the orthodox view at common law is that freedom of speech is not a ‘right’ but a residual liberty — that in the event of government or legislative action infringing the freedom of speech of an individual, that breach is not directly actionable. Part II will outline this position and explore the nature of a common law ‘right’ to freedom of speech.
There are, however, contemporary developments in Australia and throughout the common law world which have put pressure on the common law’s residual conception of freedom of speech. These developments will be the focus of Part III. In Australia, for example, it will be argued that the recognition of political speech as a constitutional principle and the emergence of the principle of legality have driven the doctrinal evolution of freedom of speech at common law.
The equivalence proposition is considered in Part IV. This is where judges (in both Australia and the United Kingdom) have asserted that the common law provides equivalent protection to freedom of speech as the relevant articles in international human rights treaties such as the International Covenant on Civil and Political Rights (‘ICCPR’) and the European Convention on Human Rights (‘ECHR’). That important doctrinal and methodological claim will be unpacked and critiqued. Part V will suggest that at some point the High Court may well adopt the equivalence proposition. Whilst such a development would be problematic in my view, the doctrinal and normative forces driving it may well be inexorable.
Finally, Part VI considers whether there is an alternative at common law to recognising the equivalence proposition (and proportionality) in order to outline the protection it provides to freedom of speech. It is suggested that an opportunity exists for the High Court to develop a distinctive, indigenous conception of freedom of speech at common law.'Digital Platforms and the Rise of Global Regulation of Hate Speech' by Paolo Cavaliere in (2019) 8(2) Cambridge International Law Journal comments
The EU Code of Conduct on hate speech requires online platforms to set standards to regulate the blocking or removal of undesirable content. The standards chosen can be analysed for four variables: the scope of protection, the form of speech, the nature of harm and the likelihood of harm. Comparing the platforms’ terms of use against existing legal standards for hate speech reveals that the scope of speech that may be removed increases significantly under the Code’s mechanism. Therefore, it is legitimate to consider the platforms as substantive regulators of speech. However, the Code is only the latest example in a global trend of platforms’ activities affecting both the substantive regulation of speech and its governance. Meanwhile, states’ authority to set standards of acceptable speech wanes.Cavaliere argues
The Code of Conduct on countering illegal hate speech online, introduced in June 2016, represents the latest attempt by the European Union (EU) to tackle the rise of illegal content online. The Code is a voluntary agreement subscribed to by a group of information technology companies (Facebook, Microsoft, Twitter and YouTube, later joined by Instagram, Google+ until its shutdown in April 2019, Snapchat, Dailymotion and Jeuxvideo) that agreed on sharing a collective responsibility in promoting freedom of expression online. These intermediaries have bound themselves to prohibit incitement to violence and hateful conduct in their community guidelines; to provide for flagging mechanisms to allow users to submit notices and set up clear and effective procedures to review any such notifications they receive; and to review the majority of them within 24 hours ‘against their rules and community guidelines and where necessary national laws’. After review, platforms may decide to remove or disable access to such content.The increasing centrality of platforms in setting substantive standards of acceptable speech is the focus of this work. Analysing the platforms’ terms of service as de facto normative sources, as the EU Code of Conduct frames them, allows an assessment of the ways that this emerging dynamic comports with the existing legal standards set up by relevant international and regional treaties, national statutes and prominent caselaw. In the remainder of this article, the impact of the private standards included in the platforms’ terms of service is assessed against current international frameworks of hate speech as found in relevant academic literature, legal provisions at the international and domestic levels, and caselaw.
The analysis is based on a framework focusing on four variables of hate speech provisions: the scope of protection, the forms of speech that the provisions seek to restrict, the nature of the harm that the different provisions seek to prevent and the causal link between the speech and the harm. Although based on prominent academic literature, the four elements feature traditionally in legislative processes and judicial reasoning. After introducing, in the next two sections, the EU Code of Conduct and the analytical framework used in this study, the article will illustrate how each platform addresses the variables. For each of these elements, the current state of the academic debate, legal provisions and courts’ practices will be compared with the relevant guidance offered in the platforms’ terms of service. The analysis will eventually inform a discussion on emerging trends in privatised regulation of speech: short- term dynamics raise concerns regarding lack of transparency, lack of accountability and lack of foreseeability of whether content posted online would cross a threshold of acceptability; long-term dynamics involve online platforms acting as speech regulators at the global level, possibly causing states’ authority to set standards of acceptable speech to wane.Last year the Victorian Parliament, following up proposed changes to the Racial and Religious Tolerance Act 2001 (Vic) noted here, launched an inquiry into the state's vilification regime, following up last month's District Court decision in Cottrell v Ross [2019] VCC 2142 noted here and the interesting Reason Party proposal noted here.
The terms of reference for that inquiry are -
An inquiry into current anti-vilification laws, their possible expansion, and/or extension of protections beyond existing classes to the Legal and Social Issues Committee for consideration and report no later than 1 September 2020. The Committee should consider:
1) The effectiveness of the operation of the Racial and Religious Tolerance Act 2001 (the Act) in delivering upon its purposes;
2) The success or otherwise of enforcement of the Act, and the appropriateness of sanctions in delivering upon the Act’s purposes;
3) Interaction between the Act and other state and Commonwealth legislation;
4) Comparisons in the operation of the Victorian Act with legislation in other jurisdictions;
5) The role of state legislation in addressing online vilification.
6) The effectiveness of current approaches to law enforcement in addressing online offending.
7) Any evidence of increasing vilification and hate conduct in Victoria;
8) Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act;
9) Any work underway to engage with social media and technology companies to protect Victorians from vilification.
