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ZGeek is named in a defamation suit along with the co-defendant, Google are being sued for user comments on the site and Google is being sued for listing these in their search results.This case is very important; if we are found liable, all webmasters in Australia will be liable for their user comments. Basically this is Australia's version of SOPA. If they win, no webmaster is going to allow free comments on Australian based sites as they could be sued.
International BackgroundIn 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 19 affirms the right to free speech:Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.(1)Members of the Commonwealth Parliament reaffirmed the principles of the Declaration during a sitting on 10 December 1998 to mark the 50th anniversary of the UDHR and pledged to give wholehearted support to the principles enshrined in the Declaration.(2)Article 19 of the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR) states that:Everyone shall have the right to freedom of expression ... (3)Australia is a signatory to this treaty(4) and, in order to incorporate treaties and conventions into Australian law, governments must pass a specific Act of Parliament. Although some parts of the treaty have been implemented into law, such as the Human Rights Commission Act 1981,(5) no government has implemented the free speech provisions and therefore they are not enforceable by Australian courts.Freedom of Speech and the ConstitutionThe Australian Constitution does not have any express provision relating to freedom of speech. In theory, therefore, the Commonwealth Parliament may restrict or censor speech through censorship legislation or other laws, as long as they are otherwise within constitutional power. The Constitution consists mainly of provisions relating to the structure of the Commonwealth Parliament, executive government and the federal judicial system.(6) There is no list of personal rights or freedoms which may be enforced in the courts. There are however some provisions relating to personal rights such as the right to trial by jury (section 80), and the right to freedom of religion (section 116).Since 1992 decisions of the High Court have indicated that there are implied rights to free speech and communication on matters concerning politics and government, e.g. permitting political advertising during election campaigns.(7) This is known as the 'implied freedom of political communication'. Issues arising from these decisions include defining when communication is 'political' and when the freedom should prevail over competing public interests.(In 1942 a Constitutional Convention held in Canberra recommended that the Constitution be amended to include a new section 116A preventing the Commonwealth or a State passing laws which curtailed freedom of speech or of the press.(9) The government did not accept this proposal and it was not included in the referendum on 19 August 1944, when other constitutional amendments were proposed.The advantage of having such rights written into the Constitution is that they are 'entrenched' and cannot be amended or removed by any government without the overwhelming approval of the people voting at a referendum to amend the Constitution.(10) Rights contained in other legislation, such as the Racial Discrimination Act 1975, are not entrenched. They may be amended or repealed by any government with the consent of Parliament.
