Elon Musk’s $64.1 billion acquisition of Twitter has raised an absolute mountain of questions. One of which is around ‘freedom of speech’. It may or may not be news to you, but Australia does not actually have freedom of speech.
Musk is a self-proclaimed “free speech absolutist”, and earlier this month he was asked how an Elon Twitterverse would approach freedom of speech under his ownership.
A good sign as to whether there is free speech is, is someone you don’t like allowed to say something you don’t like? If that is the case, we have free speech. It’s damn annoying when someone you don’t like says something you don’t like. That is the sign of a healthy, functioning free speech situation.
Musk branded his buyout of Twitter around filling the need for an “inclusive arena of free speech”, and also expressed interest in open-sourcing the Twitter algorithm to reduce any behind-the-scenes manipulation.
‘Free speech’ is often raised as a defence in the court of public opinion, particularly when people are called out by their ideological opponents. “You’re attacking my right to free speech!” However, either through forgetfulness or ignorance, many Australians don’t appear to realise free speech is not a legal right they hold.
I asked Professor Mark Andrejevic, a communications and media studies expert from the Monash Data Futures Institute about freedom of speech in Australia, with a Musk lens. Let’s start with a definition.
What is freedom of speech?
As Professor Andrejevic says, the seemingly simplest of terms turns out to be somewhat more complicated.
“We all have a sense of what we mean by this, and it’s usually along the lines of feeling that we are free to express opinions in a public forum without fear of personal or professional repercussions. In its absolute version – which has never existed in any society, ever, it is the freedom to say whatever one wants to whomever, without any negative consequences,” he explained.
“This, of course, would be absurd. There has never been a society where you can insult people (or what they hold dear) without angering them. There has never been a society that did not sanction some forms of speech. Living in a society with others means keeping some thoughts to oneself — or being willing to take the consequences of stating them, whether these by anger, ostracisation, condemnation, or, in some cases, legal consequences.”
The interesting thing about the internet, Professor Andrejevic says, is that it has ushered in the fantasy of the possibility of absolute free speech — the idea that you should be able to say anything you want without any consequences.
“Again, this is absurd — it has never been the case in any society ever, and is unlikely ever to be so. One wouldn’t expect to be able to behave this way in face-to-face relations with people, but there is a sense of insulation online, where one might be able to use a pseudonym and speak to non-present audiences in ways that make it easier to discount their responses,” he said.
But what about your rights?
Australia does not have a Bill of Rights
In the U.S., individuals often cite their First Amendment rights when they feel they have been censored. Setting aside an analysis of U.S. law, Australia does not have an equivalent. Unlike the U.S., Australia does not have a Bill of Rights, and in fact is the only Western liberal democracy not to have one.
For years there has been debate regarding whether Australia needs a Bill of Rights. Arguments for a Bill include that by having a reference point, people will be able to more effectively enforce their rights. Arguments against a Bill include that by defining rights we would by nature be limiting them. In Kruger v The Commonwealth (1997) 190 CLR 1, Dawson J stated, “The framers [of the Constitution] preferred to place their faith in the democratic process for the protection of individual rights.”
The Australian Constitution does not expressly guarantee many rights or freedoms, though it does guarantee a small handful (such as freedom of trade between the states in s 92). Freedom of speech is not one of them.
But Australia does have an implied right to political speech
As a former Gizmodo Australia writer Amanda Yeo wrote for us back in 2017, while Australia does not have an explicit freedom of speech, it does have an implied freedom of political speech. Freedom of political speech was first recognised in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the High Court of Australia finding this right was implied in Australia’s Constitution. It is the nature of a democratic society to require freedom of political speech as if the country is to be led by the people (or individuals representing the people’s interests), then the people must be heard, and be able to develop informed opinions.
This cannot be used as a claim to the right of freedom of speech in Australia, generally. The High Court of Australia subsequently ruled that this implied freedom only protects against laws that infringe upon political speech, which is restricted to matters that may influence voter’s decisions at the poll.
Though the Australian government generally cannot legislate to restrict or burden freedom of political speech, there are exceptions. Laws can be made restricting political speech where the law serves a legitimate purpose (in that it is compatible with the maintenance of a representative and responsible government), is suitable to achieve its purpose, is necessary (there is no less restrictive alternative), and the importance of its purpose outweighs the weight of the restriction. If a law fails any of these tests, it is invalid.
However, this is the extent to which the implied freedom of political speech provides protection.
Freedom of speech in Australia, but on the internet
The above does not protect from an acquaintance shutting you down in conversation, nor a platform/forum from deleting your comments or banning your account. You can say what you want, but others are under no obligation to listen or give you a platform. But that’s not always the case and quite often misinformation is spread (that’s a whole other can of worms) or comments hurting others are left out in the wild.
“The huge fallacy that needs to be addressed is that as long as Jack Dorsey or Mark Zuckerberg or their surrogates do not take posts down or ban users that their platforms are somehow free,” Professor Andrejevic told Gizmodo Australia.
“Even if they had no rules about appropriate content, the platforms still would not be ‘free speech’. They are moderated by algorithms that decide what we see and don’t see. This is their business model. The platforms would not work without this selective curation of content. It is just not possible to listen to everything everyone follows says. We do not have the time or the brain space.
“The real question is what priorities we want built into the algorithms that automatically prioritise some content and discard the rest. Do we want this decided by algorithms whose commercial imperatives that privilege the most extreme, sensational, and often misleading content? If not, we need to rethink the economic model that supports the platforms we use to communicate with one another online.”
What could making Twitter a place for free speech mean?
Professor Andrejevic raised a very good point, one which is of course the root of all of this.
“It’s absurd to find ourselves in a world in which a handful of tech billionaires get to shape our information worlds (I don’t blame them: I blame the society that let them happen). But we do, and until we change that fact, we need them to act with some sense of social responsibility,” he said.
“The exact wrong response would be to say that since they shouldn’t be in charge, they shouldn’t try to act responsibly. Once you accept that the internet fantasy of absolute free speech is an absurd fiction and a social impossibility, it becomes necessary to implement some form of social responsibility.”
What is Professor Andrejevic worried about? Well, that Musk has bought into the internet fantasy and is going to try to implement it on Twitter.
“It’s not like we haven’t seen that tried before. The consequences are pretty predictable. The loudest trolls will have their way with it, many will be driven off, and Musk will likely have to backtrack or watch his huge investment go south,” he said.
This article has been updated since it was first published.