Earlier this year I travelled to England for a series of speaking engagements and meetings. Specifically, I was interested in learning more about the ongoing battle over censorship and media regulation.
The English freedom lovers have been battling legal injunctions (and super-injunctions) used to stop public debate. There are also some prominent people calling for increased regulation of the mainstream media to stifle opinion and thought that others might find offensive.
We face similar calls here in Australia – mostly from the government and the perpetually outraged left of the political spectrum.
Recently the English have had a serious debate about super-injunctions, which are legal instruments used to prohibit the publishing of details related to the lives of those who attempt to protect their privacy.
For example, a famous footballer took out a super-injunction to stop discussion about his alleged affair. When Twitter went wild with speculation and started naming the footballer, he tried to sue Twitter!
In the end, a Liberal Democrat MP, John Hemming, used parliamentary privilege to name the footballer in the House of Commons.
Mr Hemming later said of the footballer, Ryan Giggs: “Basically when he … showed that he was going to go after relatively normal people and try and prosecute them, for gossiping about him on a matter of trivia, I think he has to be held to account for that.”
Stories like this, while they may provide sensationalist fodder for the tabloids, also highlight the seriousness of the debate around regulation and censorship. How can the law manage social media phenomena like Twitter when thousands, perhaps millions of people are transgressing a legal judgment?
Importantly, the question of jurisdiction arises. How realistic is it to bind some media users and not others?
In the case of mainstream media and public comment, each year we see more moves to restrict what we can and can’t say, on the basis of ‘causing offence’.
This was previously the gambit of communist and socialist regimes: authorities wielded power over the press and the public, dictating what could be reported and discussed.
Why are we now seeking to go back to the days of increasing censorship?
Whilst in England, I learned of the Joint Committee on Privacy and Injunctions, set up to examine the enforcement of anonymity injunctions and super-injunctions.
In looking at some of the committee documents, I came across some written evidence to this Committee that made reference to an Australian police murder investigation.
The submission, made by a man called Mark Burby, provides details of a super-injunction filed against him in 2009 by an “ex-spouse of an Asian Head of State.” The injunction was filed by the claimant to protect details about her personal life.
The information in this submission is subject to a super-injunction and cannot be discussed in England yet it can be published under parliamentary privilege.
According to Mr Burby’s submission, one of the areas covered by the injunction was:
“Any information calculated to identify the Claimant as the claimant in English proceedings against another individual or as the plaintiff in Australian proceedings against another individual, whom has since been assassinated, and a company that he controlled…” and “any allegation that the Claimant was involved in or responsible for that individual’s murder.”
Mr Burby also submitted that:
“…the existence of the super injunction is suffocating the truth being either investigated or other witnesses evidence being obtained. It is further compounded by the fact the man assassinated was the subject of a similar/identical super-injection taken out by the same claimant to avoid publication of the same facts. He was assassinated at the juncture of making an application to have the injunction set-aside on grounds that would have, in all likeliness, been successful. This is clearly a matter of public interest.”
My mind immediately turned to the possible consequences of this injunction and how it might impact on the investigations of this murder in Australia. I have since been advised that the super-injunction could be impeding a line of questioning by NSW police.
It is not my place to draw conclusions about the case itself (regarding the innocence or guilt of the accused) but it seems wrong to me that a civil injunction in England is possibly restricting a criminal investigation here in Australia.
Who knows if information covered by this English super-injunction could impact on this murder case – both from a prosecution and defence perspective?
Although a seemingly isolated incident, cases such as this demonstrate that we should remain mindful of the consequences of the push for more restrictions and regulations on free speech and the flow of information.
Those that are upset by criticism or have something to hide will never stop trying to chip away at our most cherished freedoms. However, the consequences of supporting such an agenda can often extend far beyond the initial concerns.
That’s why I am worried about Labor’s push for media regulation. Goaded on by the Greens, the government is seeking to stifle free speech because it can’t stand to be criticised in the public sphere.
We don’t need more regulation of the mainstream media. Just because former Greens Leader Bob Brown harped on about the ‘hate media’, doesn’t mean that Labor should jump at his command.
By applying further government regulations to what our free media or the public are allowed to say, we do a great disservice to our country and future generations of Australians who deserve, as much as we do, to benefit from the freedoms that we enjoy.
Cory Bernardi is the author of seven books and has been a member of the Australian rowing team, a publican, an investment portfolio manager and spent nearly 14 years as an Australian Senator.
