The Freezing of Free Speech

The Australian Constitution still does not have any express provision relating to freedom of speech. In fact, the Federal government has over time, increasingly restricted speech through censorship and anti-terrorism legislation and the failure to protect whistleblowers.

In the Sydney Morning Herald in August 2007, it was reported that the international monitoring group Reporters Without Borders rated Australia 35th in its press freedom index, alongside Mali and Bulgaria, and lagging behind Ghana, South Korea and Bolivia in press freedom.

Today, our laws result in journalists being convicted and fined for not revealing their sources in stories that embarrass the government (Michael Harvey and Gerard McManus), and whistleblowers being convicted and nearly jailed (Allan Robert Kessing).

This all raises concerns for new media and old alike, professional journalists and bloggers, as to their rights and protections in reporting on issues of public interest.

The latest issue, as revealed on ABC Radio’s PM program today, David Weber reports the story of author Kingsley Flett, co-author of a book about the life of armed robber David Everett. While the law restricting convicted criminals from profiting from their crimes is a law common to most states, the Western Australian legislation has one teeny omission. As Kingsley Flett revealed to PM:

The legislation in WA, it’s just written slightly different to the rest of the country and it doesn’t exclude people who haven’t committed crimes. I can’t remember the exact wording of the legislation but it basically states that no-one can profit from the notoriety of criminal acts, something like that.

It’s pervasively stressful. It’s like a dripping tap. The worry of how much it’s costing me because I’m having to engage lawyers, because the burden of proof is on me, in all of these cases the DPP just says well we think you’ve profited from crime so we’re going to seize your assets. You’ve got prove it to us that you haven’t.

And so I’ve got to engage legal counsel to do that. And that runs into the tens of thousands of dollars. And so you’re always throwing the money down this sort of bottomless pit and wondering when is it going to stop and should I pull out now. And I think that might be part of their strategy, just to test my endurance slightly.

A lot of people in Australia are interested in this case because if the DPP were to succeed, journalism itself is at threat. It’s no less than a challenge to free speech.

The implications are serious. One has to ask how it is that Mr Flett writing a book on the subject is different to a salaried journalist writing a series of articles on the same subject? There is no question the salaried journalist would be earning more. Authors are simply not that well paid.

Does this mean the West Australian can no longer report on any criminals? It has a cover price, sells subscriptions and advertising, clearly profiting from its content. If it covers the likes of David Everett, would it not find itself in the same position as Flett?

Let’s say this is the correct interpretation of the law for a minute. Does that then mean that unpaid bloggers, and/or blogs without advertising and other forms of direct revenue writing the same material, would be treated differently?

Mr Flett makes a further relevant point:

I think the other theme around this whole scenario is this assumption that people make a lot of money from these things and you just don’t. So there’s this idea that society needs to be satisfied that criminals are not profiting from their crime is flawed to begin with because no criminal is going to make more than say an average wage for a year from writing a book and they’d be better off with a day job.

I have absolutely no regrets. It’s been stressful and it’s been hard, but I feel that it’s a story that needed to be told. It’s not just an out-and-out thriller that’s just exploiting Dave’s story. There’s a message there and it’s quite a strong anti-crime message if people bother to read the book. It’s not glorifying his deeds at all. It’s the story of a man whose mind is gradually coming undone, making increasingly dangerous choices.

Publishing director with Penguin, Bob Sessions, says, ”The implications are that anybody working with someone who has committed a crime and who is earning money from it might have their assets frozen. Now think if all the authors in the world who have written books about criminals, or about people who have… it means that you know very, very well-known journalists who might write a book about someone who is currently in prison could have their assets frozen. I mean it’s just nonsensical.”

I’m curious. What do you think?

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Tags: bloggers, free speech, government, kingsley flett, media

Category: Internet as Media, Reputation Management