He packed his suitcase and kissed his kids goodbye… Some facts about recent defamation cases

New year, new batch of defamation cases!

Two recent cases have had journalists and media professionals on Twitter all abuzz.  Media companies continue to lobby for changes to defamation law in the same way that vehicle manufacturers continue to lobby against emission standards.  Media organisations wield incredible and largely unchecked powers in Australia.

Until 2005, there was significant variation between Australian jurisdictions in the law of defamation, including whether or not truth alone was a defence.  Some jurisdictions required news organisations to also show something like ‘public interest’ or ‘public benefit’ when using a truth defence (called ‘justification’).

In 2005, it was decided to lower the standard across Australia to ‘truth alone’: if you could demonstrate that what you were saying was substantially true, you had a defence in defamation law.  The quid pro quo of this lower standard was that we were going to get a legislated tort of privacy: if media companies invaded your privacy, they would have to demonstrate a public interest in doing so.

Having obtained the lower standard in defamation law, media companies then lobbied against the privacy tort…

Continue reading “He packed his suitcase and kissed his kids goodbye… Some facts about recent defamation cases”

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All I see is washed away; I am the voice left from drinking… On University Metrics

It is not often that questions about university performance metrics enter public debate.  It’s a niche subject so removed from the ordinary lives of everybody else that it might even surprise some people to discover that there are entire fields of study dedicated to assessing universities.

Anybody who engages — even peripherally — with the discussion soon discovers how broken the system is.  There are perverse incentives, there is significant doubling-up of work, and the cost of managing the processes is extravagent.

However, debate about the issue always starts at the wrong end.  People see the outcomes, notice the immediate absurdities, and say: ‘This is appalling, here is an itemised list of why it is appalling, and it should be scrapped because it is so appalling.’  Extremely commonly, the debate is motivated by hostility towards metrics of any kind, with metrics being viewed merely as a symptom of ‘neoliberalism’ (however vaguely defined) or ‘managerialism’.

A forthcoming chapter by Dr Rebecca Giblin and Prof Kim Weatherall takes this conversation a helpful few steps further, arguing instead for a different set of metrics.  Following a discussion that was mostly about the ARC’s attempt to undertake a research impact evaluation, Giblin and Weatherall argue:

So we propose that, rather than asking researchers to describe ‘what impact has your work had’, we move towards asking ‘what have you done about your discovery?’ […]  Just as we believe that research translation is critical, so too we think that creating a collaborative, enabling research culture is a key part of the role of a research academic that we need to foster and reward. […] We think that one way to start a conversation about leadership, collaboration and mentoring is to encourage researchers to reflect on, and articulate, ‘what have you done to enable the research and careers of others?’.

Continue reading “All I see is washed away; I am the voice left from drinking… On University Metrics”

While your feet are stomping and the jam is pumping… Conservatism in 2021 and Power as a Game

About two decades ago, there was a highly popular television show called Game of Thrones.  After about four or five seasons, they weirdly just stopped making new episodes, leaving it up to fans to discuss how they think the series would have ended.

In the first season, a major character explains the underlying philosophy of the plot: ‘When you play the game of thrones, you win or you die–there is no middle ground.’  Over the remaining seasons, the audience never really got a chance to challenge this assertion.  The show was infamously cynical about the nature of political power, subscribing entirely to the view that lawful authority was little more than the threat of greater violence.

Within a few years, we had a resurgence of political drama.  House of Cards was adapted from an old UK series.  We had a half dozen shows about fictional White House intrigue that made American democracy seem more like a soap opera than a system of government.  We had historical drama set with contemporary political norms, such as The Crown, Reign, and the one about the Medicis that I kept meaning to watch but never bothered.  We even had shows that adapted ‘political drama’ to other domains, such as the music industry (as in Empire) and media industry (as in Succession).

Sure, there is some variance in those shows, but overwhelmingly political power was presented in terms of personal drama.  Cersei doesn’t have a political ideology to represent: she just wants power.  Danaerys articulates a political ideology about emancipation… but ultimately just wants power.

And while that might be fine in the world of fiction, what happens in the real world when democratic processes become little more than a game of who can win elections every three or four years?

Continue reading “While your feet are stomping and the jam is pumping… Conservatism in 2021 and Power as a Game”

The road behind was rocky, But now you’re feeling cocky… Trump v Twitter: the Free Speech Grudge Match of Our Time

Twitter has banned the President of the United States, Donald J Trump and, through this act of chilling speech, has caused a lot of speech in the form of hot takes.  I promised myself that I would not contribute to this deluge of takes; I begged myself not to contribute to this flood of opinion; I implored myself to stay hydrated and embody the best version of myself by not contributing to the swamp of bellyfeel.  Alas, I am mortal and liable to fall.

A private company withholding service on political grounds is absolutely a free speech issue and everybody arguing to the contrary is confused.  The debate is not whether or not this is an issue about freedom of speech (which it absolutely is); rather, the debate is whether or not you should care about some people having their freedom of speech curtailed.  That last point is the relevant bit to this discussion: should the President be permitted to use a service to incite violence and, if not, who should make that call?

Continue reading “The road behind was rocky, But now you’re feeling cocky… Trump v Twitter: the Free Speech Grudge Match of Our Time”

I hear you dancing every day; Forget the world and let the music play… The Assange Decision, Journalism, and Espionage

By now, everybody’s opinion about Assange is rusted in place.  There’s nothing fruitful in entertaining a discussion about whether Assange was right or wrong, or what kind of person Assange is: we all ‘know’ the ‘facts’ (or, rather, we’ve settled on which version of them suits us best) and each ‘side’ of the discussion struggles to believe that the other side seriously exists.

So it’s important that no discussion of Assange should actually be about Assange.  A level of abstraction is needed for productive discussion.

In USA v Assangethe Magistrates’ Court was unable to release Assange to the United States due to section 91 of the Extradition Act 2003 (UK) which states:

Section 91
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person’s discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.

Baraitser J believed that it it would be unjust or oppressive to extradite Assange because he was a very high risk of self harm.  Assange otherwise lost every other substantive issue of law.

One question sticks out for further inquiry: are the activities described in the judgement the activities of a normal journalist and, if so, how is journalism distinct from enemy intelligence operations?

Continue reading “I hear you dancing every day; Forget the world and let the music play… The Assange Decision, Journalism, and Espionage”

Enter the kingdom but watch who you bring home… Is Victoria’s border closure lawful?

Without straying too much into the Swamp of Sadness that is social media’s discussion of emergency powers, it is worth discussing whether or not States within our federal structure should have the ability to close their borders.  The question emerges as the Victorian Government ‘closed its border’ to NSW, effectively preventing Victorians who were in NSW from being able to return home.

Twice in 2020, the Victorian Government was criticised for its decision-making in emergency situations.  The Hotel Inquiry Report found that decision-making processes were manifestly inadequate and inappropriate; the Ombudsman found that the decision to send police into public housing towers was based both on incorrect information and with unnecessary haste.  We should turn our minds to whether or not closing the border will be three for three on poorly made decisions from the Victorian Government.

Continue reading “Enter the kingdom but watch who you bring home… Is Victoria’s border closure lawful?”

Frauen liebten seinen Punk… Expertise in the time of disease: the @ProfMikeToole and @CrabbBrendan article #MakeMasksMandatory

There is an ongoing debate about the role of expertise in public debate, and it is a debate that is unlikely to be resolved any time soon.  What even is expertise?  How do you recognise it?  How should mainstream media outlets utilise it?

A recent article in the Sydney Morning Herald written by Profs Mike Toole and Brendan Crabb (Burnet Institute) referenced a study co-authored by Toole and Crabb in order to make a number of claims about how NSW should respond to the recent outbreak.

The magnificent efforts of NSW contact tracers and the outstanding response of the NSW community have averted the worst so far. But there is more that can be done to douse the Sydney spot fires and minimise the risk to health and economic disruption. Starting with an immediate mask mandate.

As part of me developing some skills in research communication, I made a video about the mask mandate and the legal puzzles that are associated it (especially why human rights lawyers were so opposed to making masks mandatory).  TL;DW: there are a bunch of policy questions that don’t get asked by STEM commentators.  There is always more that you can do, but the serious question is how draconian is the State permitted to be in doing more?

Continue reading “Frauen liebten seinen Punk… Expertise in the time of disease: the @ProfMikeToole and @CrabbBrendan article #MakeMasksMandatory”

A quick write up of where I’m at with this defamation law project

Back in June 2020, I did a pilot statistical analysis of defamation law cases in Australia, mostly to test if some of the popular intuitions about defamation law were true.  For example, was it true (as the federal president (media) of the Media, Entertainment & Arts Alliance, Marcus Strom, claimed) that the ‘defamation system is stacked against Australian journalists’?   Certainly, the cases he cited — Wilson v Bauer Media [2017] VSC 521, Gayle v Fairfax Media (No 2) [2018] NSWSC 1838, and Chau v Fairfax Publications [2019] FCA 185 — did not seem like typical cases.

But I wanted to test this so that we could elevate the debate about defamation law reform from mere pub talk to something that was more evidence-based.

I looked at some international studies and, in doing so, firmed up my (now almost puritanical) belief that if we are going to do this kind of empirical legal research, the first obstacle is good doctrinal research to ensure that we really have got all the legal content right.  The example I keep using is Naomi Wolf’s Outrages, in which Wolf claimed that the death penalty for homosexual acts continued long after historians had said that it eneded… except her entire thesis was built on a gross misunderstanding of the legal terminology.  Over lunch yesterday, following one of my crazed rants about the centrality of doctrinal analysis to empirical legal research, a colleague noted Andrew Lynch’s review of Sheehan, Wood, and Randazzo’s Judicialization of Politics:

[T]his book suffers from difficulties against which comparativists should remain ever vigilant. Not only is its attempt to give a potted history of the High Court and its judges unsatisfactorily sketchy, but the way in which its empirical data has been developed reflects usage of categories and assumptions that do not have much obvious purchase in Australia.

By getting the law right and then matching it with statistical tools, we avoid creating niche and bespoke tools in empirical legal research that are disconnected from other research traditions and research questions.

But, although the pilot worked fine, I was unhappy with it for two reasons.  First, I had tried to get around New South Welsh Disease by using a sampling method that tried to suppress its dominance over my data.  This comes with a number of trade offs about the conclusions you can form, but I thought it would at least allow me a better shot at doing some interjurisdictional analysis.  This intuition, while noble, sucked: the sheer volume of NSW decisions simply eclipses the smaller jurisdictions, some of which are simply too tiny to say anything interesting.  So I traded off some capacities without any benefit.

Second, this is the first time this kind of data was available and it opened up a number of other research questions that look like they could give better insights into what’s going on in defamation law.

But all the maths worked.  I could show that the MEAA’s point was based on extreme outliers and I could apply some theories about case selection to show that some intuitions about defamation law weren’t based on evidence.

With the pilot working fine, I wanted to beef it up to something more robust and fancier.

I also wanted to do it in a way that I could adapt for other kinds of research question, automating as much as possible.  For the pilot project, I used Stata but I wanted to shift to either Python or R.  I learnt Python when I was a kid and so suffered flashbacks to the dingy classroom where we did IT.  And Dan Nolan informs us all that there’s no reason for Python anywhere.  R it was, and thus set off a glorious adventure in learning to use R.

I won’t lie: had I done my data collection manually, I would be writing up the final version of my article by now.  But I’ve learnt so much by fucking up my code and method over the past fortnight that I don’t actually mind all that much.  The fact that Westlaw spits out cases in three different file formats, the fact that courts can have such a wide variety in how they present information, and the fact that so many ‘tokens’ in legal language are computationally difficult to describe… yeah, I’m having a lot of fun trying to work this one out.

Truth be told, I’m surprised about how much I have to do from scratch.  Surely somebody else has got here first and worked out how to batch process judgements into a tidy format… but I can’t find them.  It seems surprising that nobody else has already created austliir or jader to do most of this already.  I can download every book from Project Gutenberg or a complete library of Jane Austen, but Australian legal decisions are uncharted waters.

Fun times!

I got purple hat, cheetah print… Gender, Fairfax, and Opinion Writing

On 13 December, the Sydney Morning Herald published an anonymous opinion piece complaining that it’s simply ‘too easy’ for children to undergo gender affirmation or reassignment.  It was a shockingly poor article for all the reasons that everybody has already pointed out.  It cites absolutely no evidence; it states things that are manifestly untrue; it will obviously encourage parents in a similar position to make these issues more fraught; and, perhaps worst of all, it was published shortly after the death of a prominent trans person in Victoria.  It was a transphobic article; there’s no debate about this.

The article is a clear demonstration of what I see as the structural problem with how opinion writing works.  On one level, we can (and should) dismiss and criticise the article as just garbage.  On another level, we can (and should) ask why this sort of thing happens regularly and what we can do to fix opinion writing.

Continue reading “I got purple hat, cheetah print… Gender, Fairfax, and Opinion Writing”

Tell me your secrets and ask me your questions… Public confusion over the ASIO Bill

One of the questions to which I keep returning in my research is: ‘Which public?’

When we talk about ‘public opinion’ in law, whose opinion matters?  The basic view (and the view to which I cling dearly) is that we should be interested in the amorphous gestalt called the ‘general public’.  But, of course, we often feel really uncomfortable with their opinions.  If you asked the ‘general public’ if there should be any restrictions on the State’s ability to go after terrorists, we find that they are way happier to herald a police state than any policy official working in national security.

Over the past few months, I’ve been worried about a different group: the hyper-engaged.  Initially, I was interested in ‘right wing terrorism’–by which we mean something to do with White (capital letter intentional there) actors towards non-white society.  One thing we know about this group is that they are really engaged in particular kinds of media.  If we blur our vision a bit so that we’re no longer interested in the terrorist aspect, there seems to be growing divides between your ordinary, disinterested citizen (who might see a few headlines of a newspaper in a staff room, or thirty seconds of political factoid between celebrity gossip and weight loss pills on morning television), the ‘ideal’ citizen (who is a critical consumer of mainstream media content), and the hyper-engaged citizen (who spends most of their time on Twitter getting red and nude about something they’ve read in a blog by a freelance content-writer).

These groups are on a spectrum, and I suspect that most of Twitter lives somewhere between the second two categories.  And this might help to explain why there’s such a massive disconnect between the content of the Australian Security Intelligence Organisation Amendment Bill 2020 and the commentary on Twitter.

Continue reading “Tell me your secrets and ask me your questions… Public confusion over the ASIO Bill”