Freedom of speech in Australian defamation law: Ridicule, satire and other challenges

Abstract

This article argues that freedom of speech has a shifting and uncertain status in Australian law. Part 2 argues this case at the level of media law generally, suggesting that this uncertain status reflects the present, "volatile" regulatory environment. Part 3 argues that the restricted scope for the constitutional protection of freedom of speech, as outlined in Lange v ABC, has necessarily resulted in an impoverished philosophical notion of freedom of speech as well. Part 4 focuses on defamation law, arguing that the freedom of speech implications of judicial decision-making tend to be obscured by technical requirements, resulting in subtle and incremental derogations from freedom of speech. The article gives particular attention to political satire, defamatory ridicule, and to defences in New South Wales and the Code States, to illustrate these themes. The article argues that the moral dimensions of defamation law should be acknowledged, and provides examples of how defamation law, in addition to simply balancing reputation with freedom of speech, is subjecting the daily work of journalists to substantive legal scrutiny. To argue that freedom of speech deserves more explicit recognition is not to oppose any restraint upon speech as a matter of principle. Rather, it is to suggest that the values underlying freedom of speech deserve a more visible role within the doctrinal calculus of defamation law.