‘Government is Already on the Right Track by Highlighting the Dangers in Parliament’
t was pleasing to read the end of sitting statements in Parliament two weeks ago from the Assistant Minister for iTaukei Affairs, Selai Adimaitoga, and the AttorneyGeneral, Aiyaz Sayed-Khaiyum, regarding media freedom, hate speech, harmful speech and defamation.
The Assistant Minister referred to perceived media bias in the Fiji context (past and present), their harmful content and how they can be a carrier of much hate, misinformation, and harm to citizens and the state as a whole.
The Attorney-General then endorsed a recent High Court of Australia judgment that touched on relevant and related issues.
High Court of Australia judgment
I am no recent follower of the recent High Court of Australia judgment in the matter of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021).
It touched on issues relevant and related to what the Assistant Minister and AttorneyGeneral discussed in the FIjian parliament.
I was a follower and fan of the Australian judicial decisions in this matter from when it first came to prominence in 2019 in the matter of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (24 June 2019) in the Supreme Court of New South Wales and on appeal to the New South Wales Court of Appeal in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 (1 June 2020) before it reached the High Court of Australia as the final court of appeal.
All of those courts held that media companies can be held liable as publishers of third party commentary on their social media pages even if the media companies are unaware of those comments being made.
That is, if a media company publishes something on their Facebook page and members of the public get on to those pages to make harmful, hateful and defamatory speechthen those media companies that own and operate those pages will be deemed publishers (and therefore liable as publishers) of such harmful, hateful and defamatory speech even if they do not know that those comments/ speech have been posted on their pages.
Please note, the judgment is from the liberal democracy of Australia. Not North Korea. And from the same Court that endorsed the gift that was Eddie Mabo to the common law world, when the court extinguished terra nullius in Australia in 1992.
That all seven justices of that court heard the matter and in their knowledge of the law, intellect and wisdom resolved by a 5 - 2 majority that harmful and hate speech should be curtailed in the manner in which they did should speak volumes to all of us who love and support a free media landscape.
Whistleblower plunges Facebook into crisis
And almost by magic, weeks later a former employee of Facebook who worked as a highly qualified and trained expert in algorithms and design testified to the United States Senate just a few days ago that the media giant Facebook ‘puts astronomical profits before people, harms children and is destabilizing democracies.’
The chair of the Senate committee that heard the testimony, Senator Blumenthal of Conneticut (also former Attorney-General of Connecticut) said after the hearing that the ‘testimony showed that Facebook is amplifying and weaponizing (through their algorithms) hate speech, disinformation, but also the anxieties and insecurities of teenagers, particularly girls, negative self image, eating disorders and online bullying.’
And that is from the United States of America, land of the free. Not North Korea. The testimony is reported to have sparked some bipartisan support for reform of the laws governing free speech on the internet.
As many of us will know, bipartisan anything in American politics at present is like making North Korea or the Taliban the BFF of best practices in human rights.
‘Courts right on track’
All of that is saying that the High Court of Australia, NSW Supreme Court and NSW Court of Appeal were very much on the right track with putting more brakes on speech which is harmful, hateful and defamatory.
The courts in Australia were not impressed with any argument that media companies were not actively participating in the publication or promotion of third party commentary which is harmful, hateful or defamatory.
“The High Court responded by noting that when media companies created and maintained public Facebook pages they were showing their “intentional participation in the process” of sharing third-party comments.
“[T]he appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality,” wrote two of the justices, Stephen Gageler and Michelle Gordon, in a judgment.
“Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.””
All liberals, libertarians and human rights supporters love and support free speech. But free speech has always been limited by law when it does harm to others. That is why free democracies around the world have laws that regulate speech- defamation laws, hate speech laws, harmful speech laws.
Fiji’s social media laws, general elections
Fiji too has laws against harmful, hateful and defamatory speech and the development of the law in Australia and other free media loving countries around the world should be a welcome guide for us.
The Swedish Federal Supreme Court has gone further, it held that individuals are liable
for publication if they like or share public commentary on Facebook.
Two general elections in Fiji in 2014 and 2018 have seen the prolific use of social media to publish harmful, hateful and defamatory speech.
I declare my interest as a politician that has received my share of such commentary but from the horse’s mouth that is the Facebook whistleblower to the United States Senate - ‘Facebook puts astronomical profits before people, harms children and is destabilizing democracies’.
The Facebook business model like every other media outlet is primarily a matter for them but the interests of the people, citizens, children and healthy democracies is the primary business of Parliament.
On Thursday this week, the Australian Prime Minister labelled social media a ‘coward’s palace’ where unknown trolls and profiles go to, to make harmful, hateful and defamatory speech and the Australian government has indeed had their issues with social media giants recently.
But the Australian courts have spoken definitively recently on these important issues of free speech, free media, harmful speech, hateful speech and defamation.
Australian state governments (New South Wales, Victoria, South Australia and Queensland) have amended defamation laws from 1 July of this year and there appears to be some bipartisanship out of Washington.
Fragile political history
Fiji does have a modern political history which is fragile.
I hope that if the Fijian Government acts on these issues, it will do so through a consultative parliamentary committee and a team of specialist lawyers working with that committee to make recommendations on the way forward to ensure that in the digital age, free speech is free, responsible and speech that does not harm our fragile democracy.
The Fijian Government is already on the right track by highlighting the dangers in Parliament and endorsing the judgment of the High Court of Australia.
Fiji too has laws against harmful, hateful and defamatory speech and the development of the law in Australia and other free media loving countries around the world should be a welcome guide for us. The Swedish Federal Supreme Court has gone further, it held that individuals are liable for publication if they like or share public commentary on Facebook.