The following argument as to why a remedy requiring the removal of defamatory speech from a publication was not a violation of the right to free speech is representative of one I have previously put before the court:
- The right to Freedom of Expression is protected by s14 of the Bill of Rights Act 1990 (“BORA”).
- The operational provisions of the BORA provide in section 5 that a reasonable limit to Freedom of Expression can be justified in a free and democratic society where that limit is prescribed by law.
- Section 5 is subject to section 4, which states in mandatory terms that no court can decline to apply any provision of an enactment on the sole grounds that the provision is inconsistent with the BORA.
- Notwithstanding this, section 6 requires the court rule in a manner as consistent as possible with Bill of Rights.
- It is submitted that the Respondent’s actions constitute a breach of s4 of the Defamation Act 1992 therefore the remedy sought, removal of the defamatory material from the publication, does not violate the Respondent’s right to Freedom of Expression.
While this is the standard argument it feels wrong to me. There is something unsatisfactory about appealing to a mechanism in the law that, as argued, feels like it is shearing off a part of an important right and freedom, even if the law says that it is ok.
I find this argument unsettling and lacking something; at the same time defamatory speech is insidious, causes harm, hurts; intuitively it just feels wrong to say that one is morally justified in spreading harmful falsehoods about a person and is not required to account for the wrongs done, because of their right to free speech.
After discussions with Matt about this I have decided that I prefer the following argument:
- Freedom of Expression is defined in the BORA as “the freedom to … impart information and opinions …”.
- Defamation is expression imparted to another that lowers the standing of a person in the eyes of their peers and is not true and is not honest opinion which is genuinely held.(I am ignoring the third defence, privilege).
- A person who expresses defamation is not engaging in Freedom of Expression as where there is no truth or honest opinion then a person is neither attempting to inform another or attempting to express their opinion.
- The basis for this is that to attempt to inform someone is to attempt to increase that person’s repertoire of true beliefs’ and to impart an opinion is to express what one honestly believes to be the case.
- Therefore the speech the BORA protects is all speech that is true or honestly held to be true by the speaker.
That is much better.
Defamatory speech is not free speech therefore legal sanctions against it proportionate to the harm caused are entirely appropriate in both legal and moral senses.