The defamation you have when you do not have a defamation: Eatock v Bolt [2011] FCA 1103

Andrew Bolt
Andrew Bolt

Andrew Bolt, columnist for the Herald Sun newspaper, wrote two articles in 2009 entitled “It’s so hip to be black” and “White Fellas in the Black”. It referred to what he called a “trend” of fair skin aboriginal people who chose to identify themselves as aboriginal to gain access to personal and career based benefits. In the articles, Bolt referred to 18 people as people belonging to this category and said they were “political aborigines”. As is often the way with Bolt, this was just asking for trouble…. possibly deliberately.

Pat Eatock and eight others were named in the article and they sued Bolt and the Herald Sun in the Federal Court, but did not sue in defamation. They sued under section 18C of the Racial Discrimination Act 1975 (Cth). They did not seek damages. They sought an apology and injunction. The section provides:

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour, or national or ethnic origin of the other person or of some or all of the people in the group.

At trial, Bolt and the Herald Sun waved the “free speech” banner around. Nothing sounds better in our society than the words “free speech”. Apparently this is a motherhood concept that everyone can agree on. The fact that real true free speech would mean that people could run around telling customers that their competitors are guilty of genocide – is something the libertarians don’t really address in their arguments.

Anyway, Bolt and The Herald Sun relied on an exemption in the Act. Section 18D provided that:

Section 18C does not render unlawful anything said or done reasonably and in good faith:…

(b) in the course of any statement, publication, discussion or debate made or held or any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing …

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”

The matter came before Justice Mordy Bromberg. After an epic judgment, Bolt lost. Often turning to the law of defamation, his analysis was firstly that the following imputations were conveyed by the articles:

There are fair skinned people in Australia with essentially European ancestry but with some aboriginal descent, of which the identified individuals are examples, who are not sufficiently aboriginal to be genuinely identifying as aboriginal persons but who, motivated by career opportunities available to aboriginal people or by political activism, have chosen to identify as aboriginal; and

• Fair skin colour indicates a person who is unlikely to be sufficiently aboriginal to be genuinely identifying as an aboriginal person.

Undoubtedly, these imputations are defamatory.

His Honour went on to conclude that the articles were reasonably likely

Pat Eatock
Pat Eatock

to offend, insult, humiliate or intimidate the people who were the subject of the articles and they were written because of the race, colour or ethnic origin of those people. This meant that the elements of section 18C were made out.

The next issue was whether Bolt and The Herald Sun could fall within the exemption. The answer was no. Bromberg J held that the fair comment defence in section 18D drew upon the common law defamation defence of fair comment. In determining whether The Herald Sun had acted reasonably or in good faith in publishing the articles, the Judge took the same approach as in a defamation case, when a publisher seeks to establish reasonable conduct when relying upon a defence of statutory qualified privilege.

The Court concluded that the publication was not done reasonably or in good faith, there were multiple errors of fact and distortions of the truth in the article, together with inflammatory and provocative language.

Critically, Bromberg J found that the facts asserted in the articles that the people “chose” to identify themselves as aboriginal, had been substantially proven as untrue. Several other facts relied upon as the basis for the comments were proven to be untrue. For instance, Bolt wrote that one of the applicants, won a “plum job reserved for aborigines”, but this turned out to be a voluntary unpaid position.

Bolt wrote that Eatock identified herself as an aboriginal person for political motives after attending a political rally statement. Bromberg J concluded that was untrue as Ms Eatock recognised herself to be an aboriginal person from when she was 8 years old while still at school, and presumably like most other 8 year olds, did not do so for political reasons.

Bromberg J concluded that there had been “significant distortion of the facts upon which a central part of the offensive imputations were based. On the basis of those deficiencies, I am satisfied that the imputation was not a fair comment”. Defences failed.

Bolt also omitted facts that were likely to be either publicly available or readily obtainable, including by Bolt contacting the individuals involved. Bolt had not produced any evidence that satisfied the Judge that a diligent attempt had been made to make reasonable enquiries. In conclusion, Bolt and the Herald Sun did not act reasonably or in good faith, they contravened the Racial Discrimination Act and the outcome was that The Herald Sun published a 500 word corrective notice.

So trouble is what Bolt got from all of this. But this trouble was not the trouble that corporate heavyweights truly fear. This was like attacking a barking dog with a loud screeching whistle. It makes a lot of noise, probably stops the dog for a short time, people stop to look and see what the fuss is about, but not long after, the dog forgets, people move on and the dog goes back to barking away, just as before.

The question is, why didn’t the applicants sue in defamation? It appears clear that they would have won the case and probably won a reasonable amount of damages. Anyway, we will never know.

What we do know is this: The Herald Sun have not appealed and Bolt will continue typing away at his column and expressing everything that comes with that. No doubt, the free speech libertarians will continue complaining that we live in a nanny state…. But the simple point is this: You can’t write things that are factually wrong. In truth, this case was not about free speech at all.