Insights into litigation, sports law, media and legal culture

Free speech is not absolute: Triple M’s Caroline Wilson fiasco tests us on where laws should draw the line

Comments made by stars of Triple M footy about AFL journalist Caroline Wilson have ignited a firestorm.  The intention behind the comments, the nature of apologies offered, internal recriminations and the AFL’s condemnation are being reflected on at length.

This is an important conversation because Australia’s laws have never condoned unfettered free speech.  It appears community standards are now following suit.

One of the last occasions when there was such vigorous debate about media comments was a number of years ago, after Andrew Bolt wrote two columns for the Herald and Weekly Times implying that light-skinned people who identified as Aboriginal did so for personal gain.  He was found to have contravened the Racial Discrimination Act.  The trial judge found, amongst other things, that Mr Bolt had not written the columns in good faith and that they contained factual errors.

Many people consider that the comments made on Triple M footy about Ms Wilson at the end of a Queen’s Birthday long weekend also ‘crossed the line’.  The nature of the comments made can be located on Erin Riley’s blog here.

My personal reaction when the comments were made was that they could only have been made about a woman, but I appreciate that reasonable minds can differ.  Our subjective reactions to words illustrate the difficulty in arriving at a uniform view.

What conveyed the gendered nature of the comments to me was that: only men were on what is essentially a ‘blokey’ radio panel (with Eddie McGuire telephoning in), the comments were about a woman who was not there (even if a powerful, opinionated one), the reference to “Black Widow” could only have been about a woman, and the tone was derogatory (as if Ms Wilson was an outsider and not a member of that blokey club).  The concept that Ms Wilson could be “held under” or choose to “stay under” water also conveyed to me a sense of relative physical powerlessness on her part.  I suspected such comments would never be made about an AFL football champion with physical strength such as, say, Tony Lockett, Barry Hall or Jonathan Brown.

My partner and I were returning home on the Queen’s Birthday long weekend when we tuned into Triple M Footy.  Often, listening to Triple M Footy is amusing, even if one often feels like an interloper listening to the table next to you at a loud pub.  Most of the time, it is impossible to understand anything said.  Everyone has a nickname like “Spud”.  The boys talk in half sentences.  They interrupt each other and roar at the mere suggestion of something that is humorous, to them.  My partner and I talked at length about the comments as soon as they were made and eventually turned the radio off.  Our immediate reaction was that the tone was awful and horrifying.  I wondered why a producer hadn’t used the ‘dump button’ (there is a typically a short delay in any broadcast to allow this) given Triple M’s liability risk.  The uneasy reaction of at least two members of the panel indicated the off kilter tone.

What is that line, at least from a legal perspective?

In the United States, the legal line tends to be liberal indeed.  First Amendment Rights are often proudly invoked to enable people to say appalling things about each other.  Harmful and hurtful speech are justified as a lynchpin of a functioning democracy.  United States’ defamation laws distinguish between ‘public figures’ and the rest of us.  Public figures are considered fair game, and it is very difficult for someone in the limelight to sue for defamation unless the person can show the maker of the comments was actuated by malice.

That said, even in the United States, cyber stalking laws and other legal attempts to grapple with the effect of bullying on the Internet are starting to encroach on those preciously held free speech rights.

In Australia, there are a number of legal avenues:

  • Defamation law – common law and legislation
  • Anti-Discrimination laws – legislation
  • Rules and policies – contractual

In the present context, if Ms Wilson wished to do so, she would, in my view, have a strong case for defamation, including against the broadcaster.  After all, going on air and suggesting someone should be killed is likely to cause reasonable people to think less about the targeted individual.  Further, most defences are defeated if the publication is actuated by malice, and the tone and nature of the comments in their plain and ordinary meaning appeared malevolent.

Anti-discrimination laws in Australia tend to be quite specific to issues such as the location of a person at work, a school, or when buying goods or services.  Bullying comments about a person in the public arena are less likely to be subject to such laws, although if Ms Wilson was an employee of the same broadcasting ‘stable’ (which does not appear to be the case) the position could be different.

Contractually, the AFL has rules designed to sanction ‘unbecoming conduct’, although these are rarely invoked.  In the present case, it appears that the two Presidents of AFL Football Clubs who participated in the comments are unlikely to face repercussions under these AFL rules, although the AFL’s Chief Executive, Gillon McLachlan, has condemned the comments.  “In the past we might have ignored the comments as part of the culture of footy”, he said. “We can’t say we are committed to making and leading change if we don’t step up and call it out”.

The application of the AFL’s disrepute clause, Rule 1.6, was the subject of a comprehensive article by Peter Ryan on 13 August 2013.

Examples he referred to included:

  • In 1985 Leigh Matthews was charged and deregistered for four weeks in 1985 after striking Geelong’s Neville Bruns behind the play at Princes Park
  • In November 2007, Brownlow medalist Ben Cousins was charged with bringing the game into disrepute after a very public battle with drug addiction and his arrest in Perth
  • Melbourne Football Club, following the infamous ‘tanking investigation’, accepted a financial penalty of $500,000 for the actions of coach Dean Bailey and football manager Chris Connolly, who received suspensions after being charged under rule 1.6 for acting in a manner that was prejudicial to the interests of the AFL
  • In 2002, former Western Bulldogs and Richmond forward Nathan Brown and Port Adelaide star Chad Cornes were charged after making insulting gestures to the crowd. Brown was fined $5000 and Cornes $3000 respectively
  • In 2005, St Kilda coach Grant Thomas was charged for making comments at a midweek press conference about the direction and culture of umpiring. He was fined $10,000 and given a suspended sanction of $5000 for a previous breach of AFL rule 1.6.

It appears Caroline Wilson does not intend to take advantage of her legal rights nor to encourage others such as the AFL to exercise theirs.  She has exercised her right of reply in the public domain and otherwise said she accepts the apologies made.

For the rest of us, we should continue to debate what repercussions should follow, if any, from the negative strength of powerful words.  With the eradication of domestic violence now on the national agenda, the relationship between words and deeds is but one reason to pursue this topic with vigour.

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