freedom of speech on the internet australia

Online speech and the law

Key message

The internet offers many avenues to express yourself in different ways. A good digital citizen communicates clearly, respectfully and honestly when online.

Australia has a tradition of robust debate and freedom of political speech, but there are no explicit laws that establish a general freedom of expression. Most online forums and social media platforms are run by private organisations, and include some restrictions on permitted speech in their terms and conditions. There are some clearly established exceptions to free speech in law – Youth Law Australia has a good overview of defamation law . Making and distributing personal recordings can be illegal, and some online speech can be classified as cyberbullying.

Cyberbullying

Using technology to bully someone is called cyberbullying. There are lots of resources for supporting victims of cyberbullying – some good places to start are the eSafety Commissioner cyberbullying help page and Youth Law Australia’s overview of the law around bullying .

Defamation is defined as the act of damaging the good reputation of someone, slander or libel.

Defamation law was set up to protect reputations. You may have been defamed if someone posts something false about you that would cause the average person to think less of you. If you believe someone is defaming you online, you should try to collect as much evidence as possible (like screenshots of the defamatory material).

Youth Law Australia goes into more detail about defamation law in NSW, as well as steps you can take if you think you have been defamed.

Photos, videos and the law

Most mobile devices are capable of recording images, conversations and video, so it is important to be aware of the laws around privacy, recording and personal images. In general, it is important to make sure that you have permission from other people before you record a conversation with or take photos of them. This applies even if you are involved in the conversation or are in the photo yourself.

The law around taking photos and making recordings depends partly on where you are, especially whether you are in a public or private space. It also depends on who you are recording or taking photos of, and the nature of the recordings or photos. Just asking for intimate images might be considered a crime in some states and territories, depending on who is being asked.

If someone has shared an image or recording of you without your permission, the eSafety Commissioner site has a guide to responding to image-based abuse .

Youth Law Australia has a more detailed breakdown of the law around photos and recordings .

Additional resources

Related resources, curriculum and syllabus links, nsw syllabus outcomes, australian curriculum content descriptions.

• ' Defamation ', Youth Law Australia, accessed 13 March 2022
• ' Sexting ', The Office of the eSafety Commissioner, accessed 13 March 2022
• ' Cyberbullying FAQs ', The Office of the eSafety Commissioner, accessed 13 March 2022
• ' Bullying ', Youth Law Australia, accessed 13 March 2022

If you have a critical issue or would like help reporting and responding to cyberbullying online, please visit the Office of the eSafety Commissioner's website.

The Kids Helpline is a private and confidential phone and online counselling service for young people aged 5 to 25, available 24 hours a day.

Go to iParent on the Office of the eSafety Commissioner website for tips and advice for parents to help their children have safe and enjoyable experiences online.

Is there something we can do to improve the Digital Citizenship website?

Right to freedom of opinion and expression

Public sector guidance sheet

Disclaimer This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to freedom of opinion and expression?

The right to freedom of opinion is the right to hold opinions without interference, and cannot be subject to any exception or restriction.

The right to freedom of expression extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The right is not absolute. It carries with it special responsibilities, and may be restricted on several grounds. For example, restrictions could relate to filtering access to certain internet sites, the urging of violence or the classification of artistic material.

Where does the right to freedom of opinion and expression come from?

Australia is a party to seven core international human rights treaties. The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR) .

See also articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 12 and 13 of the Convention on the Rights of the Child (CRC) and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD) .

When do I need to consider the right to freedom of opinion and expression?

You will need to consider the right to freedom of opinion and expression if you are working on legislation, a policy or a program that:

• regulates the content of any speech, publication, broadcast, display or promotion
• regulates the format or manner of any form of expression (for example requires prior approval for public protest or places restrictions on the uses of places in which protest activity may take place)
• restricts or censors media coverage, including in relation to political matters
• requires material to be approved before it may be published
• attaches criminal or civil liability to the publication of opinions or information
• regulates or restricts access to information, including on the internet
• imposes censorship or provides for classification of entertainment content, or
• regulates commercial expression (such as advertising).

This list should not be regarded as exhaustive.

When working on a measure that restricts freedom of expression, you should ask yourself whether the measure can be justified under the permitted grounds for restriction, whether it will be effective to achieve the desired ends, whether it impinges on freedom of expression to a greater degree than is necessary and whether there are less restrictive means of achieving the desired ends.

The requirement to prohibit advocacy of hatred that constitutes incitement to discrimination contains mandatory limitations on freedom of expression. You will need to consider the requirement if you are working on legislation, a policy or a program that regulates offensive speech or the publication or broadcast of offensive material.

What is the scope of the right to freedom of opinion and expression?

The right in article 19(1) to hold opinions without interference cannot be subject to any exception or restriction. The right in article 19(2) protects freedom of expression in any medium, for example written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The right protects not only favourable information or ideas, but also unpopular ideas including those that may offend or shock (subject to limitations). Freedom of expression carries with it special responsibilities, and may be restricted on several grounds, discussed further below.

The CRPD provides that for people with disability, the right to accessible formats and technologies is required to enable them to exercise their right to freedom of opinion and expression.

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What is the scope of the requirement to prohibit advocacy of hatred that constitutes incitement to discrimination?

Article 20 of the ICCPR contains mandatory limitations on freedom of expression, and requires countries, subject to reservation/declaration, to outlaw vilification of persons on national, racial or religious grounds. Australia has made a declaration in relation to article 20 to the effect that existing Commonwealth and state legislation is regarded as adequate, and that the right is reserved not to introduce any further legislation on these matters.

Article 4(a) of CERD requires countries to criminalise all dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any racial or ethnic groups. On becoming a party to CERD in 1975, Australia made a reservation in relation to Article 4(a) that it was not then in a position to criminalise all the matters covered in the article. The reservation has not been withdrawn. During Australia's Universal Periodic Review in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties.

Article 4(b) of CERD requires the criminalisation of participation in organisations which promote and incite racial discrimination.

Can the right to freedom of opinion and expression be limited?

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of opinion and expression 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

In addition, under article 19(3) freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.

Rights of reputation of others

In a case which involved a complaint about a law prohibiting denial of the holocaust, the UN Human Rights Committee stated that the restriction of the complainant's freedom of expression was permissible as it was necessary for respect of the rights and reputations of others.

National security

The national security limitation would justify prohibitions on transmission of information, including 'official secrets', which would adversely affect the security of the nation, provided the prohibition is reasonable, is effective to protect national security, and restricts freedom of expression no more than is necessary to protect national security.

Public order

'Public order' is understood to mean the rules which ensure the peaceful and effective functioning of society. The limitation in article 19(3) would justify prohibitions on speech that may incite crime, violence or mass panic, provided the prohibition is reasonable, is effective to protect public order, and restricts freedom of expression no more than is necessary to protect public order.

Public health

The public health limitation has not been tested before the Human Rights Committee.

Public morals

The Human Rights Committee has stated that there is no universally applicable standard for what constitutes public morality. A restriction on certain pornographic material, for example pornographic material depicting minors, would be an example of a limitation on freedom of expression based on public morality. In Australia, the National Classification Scheme is designed to provide consumers with information about publications, films and computer games, to allow them to make informed decisions about appropriate entertainment material for themselves and their children. The Scheme is based on the following principles:

• adults should be able to read, hear and see what they want
• minors should be protected from material likely to harm or disturb them
• everyone should be protected from exposure to unsolicited material that they find offensive
• the need to take account of community concerns about depictions that condone or incite violence, particularly sexual violence, and the portrayal of persons in a demeaning manner.

Which domestic laws relate to freedom of opinion and expression?

There is no Commonwealth legislation enshrining a general right to freedom of expression.

The High Court has inferred a freedom of political communication primarily from sections 7 and 24 of the Constitution . These provisions require that members of the Parliament be 'directly chosen by the people'. The High Court found that for this to be an informed choice, there must be free access to relevant political information. However, the Court has recognised that the implied freedom can be limited, or burdened, but only by laws that are reasonably appropriate and adapted to serving a legitimate end in a manner which is compatible with Australia's system of representative and responsible government. The freedom has been inferred by the court in declaring invalid Commonwealth laws that prohibited the broadcasting of political material in the lead-up to elections and obliged broadcasters to provide free advertising time to political parties during an election period. The right has also been held to allow the distribution in a public place of pamphlets alleging corruption by named police officers.

Restrictions

Some restrictions on freedom of expression exist. For example, the Criminal Code Act 1995 contains offences relating to urging by force or violence the overthrow of the Constitution or the lawful authority of the Government. The Criminal Code also contains offences relating to the use of a telecommunications carriage service in a way which is intentionally menacing, harassing or offensive, and using a carriage service to communicate content which is menacing, harassing or offensive.

Existing laws on the prohibition of advocacy of hatred that constitutes incitement to discrimination

The Racial Discrimination Act 1975 makes it unlawful to do an act reasonably likely to offend, insult, humiliate or intimidate another person or group if the act is done because of the race, colour or national or ethnic origin of the person or group.

What other rights and freedoms relate to the right to freedom of opinion and expression?

The right to freedom of opinion and expression may also be relevant to:

• the right to freedom of thought, conscience and religion in article 18 of the ICCPR
• the right to peaceful assembly in article 21 of the ICCPR
• the right to freedom of association in article 22 of the ICCPR
• the requirement to provide information to persons with disability in accessible formats and technologies in article 21 of the CRPD.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

• Everyone shall have the right to hold opinions without interference.
• Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
• For respect of the rights or reputations of others;
• For the protection of national security or of public order (ordre public), or of public health or morals.
• Any propaganda for war shall be prohibited by law.
• Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

See also: CERD articles 4 and 5; CRC articles 12 and 13; CRPD article 21.

Where can I read more about the right to freedom of opinion and expression?

• United Nations, Office of the High Commissioner for Human Rights (OHCHR), Human Rights Bodies (human rights treaty bodies that monitor implementation of the core international human rights treaties)
• UN Human Rights Committee General Comment No 34
• UN Human Rights Committee General Comment No 11
• UN Committee on the Elimination of Racial Discrimination General Recommendation No 15
• Australian Capital Television Pty Limited v Commonwealth (1992) 177 CLR 106 (on the implied right to political communication)
• Coleman v Power (2004) 220 CLR 1 (on the implied right to political communication) (AustLII website)
• Australian Law Reform Commission report on sedition
• Australian Government website on classification

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Free to Speak and Free to Believe? What Australians think about freedom of speech

Home » Publications » Free to Speak and Free to Believe? What Australians think about freedom of speech

Peter Kurti , Scott Prasser

April 20, 2023 · AP47

To what extent do Australians think speech is free in this country? According to polling conducted for the Centre for Independent Studies in December 2022, Australians are evenly divided in their views about freedom of  speech. The views of those who think speech is unduly restricted appears to be balanced, for the most part, by those who support restrictions if they serve to protect the interests of those members of society considered vulnerable.

However, the authors argue that these results are also open to the interpretation that Australians are fundamentally ambivalent about freedom of speech: we support freedom of speech when we agree with the opinions voiced but are inclined to withdraw that support when we do not agree the views and opinions expressed by others. Constraints on freedom of  speech in Australia remain an issue of concern. However, the authors of this report argue that polling suggests there is no ‘crisis’ of free speech and that there is no call for heavy corrective action by government.

Introduction: freedom of  speech

The travails besetting Elon Musk and his recent efforts at running the Twitter platform he acquired for US$44 billion in 2022, have re-ignited interest in the issue of freedom of  speech. In particular, attention has focused on the kind of trade-offs that need to be made if online speech is to be free while at the same time adequately protected. As The Economist remarked when taking stock of the status of freedom of  speech on online platforms:

Free expression is not a problem with a solution bounded by the laws of physics that can be hacked together if only enough coders pull an all-nighter. It is a dilemma requiring messy trade-offs that leaves no one happy. [1]

Any approach to protecting the fundamental human right of freedom of speech necessarily entails recognising that the right often conflicts with other rights, such as the right not to be discriminated against on grounds of race, gender or sexual orientation.

In Australia, the plight of Andrew Thorburn, the Christian business leader Essendon football club hired as CEO but dismissed 24 hours later, provides a good example of such conflict.

Thorburn’s ‘sin’ was to have been associated with a church which neither affirmed nor approved of same-sex relationships. Thorburn himself had never publicly expressed a view on this matter; but his association with a church which had expressed views publicly was enough to finish his career at Essendon. [2]

Was Thorburn entitled to hold an opinion on human sexuality? Should his position have been defended on the grounds of protections afforded by the right to religious freedom?  And if so, why was Thorburn’s right trumped by the right enjoyed by another social group not to be discriminated against?

Opinion about Thorburn’s fate divided, and revealed deep differences among, Australians. [3] For some, protecting the sensibilities of LGBTQI+ people was paramount and warranted what was deemed a just — if somewhat harsh — outcome. For others, denying Christians the freedom to express openly their religious beliefs about human sexuality (something which Thorburn himself had not even done, of course) was deemed unacceptably censorious.

A report published by the CIS in December 2019, which was based on other polling commissioned from YouGov, called into question the commitment of Australians to protecting religious liberty. The report observed that preservation of religious liberty requires preservation of the distinctiveness of religious institutions and communities:

To maintain their distinctiveness, such institutions and communities need to have the freedom to select their members and employees on religiously grounded criteria. Without this freedom being protected in some way from the increasing reach of anti-discrimination law, those institutions and communities will not be able to fulfill their roles and functions. [4]

However, at issue in the Thorburn affair was not just the health of religious liberty in Australia. The Essendon saga also showed that Australians seemed to be wavering in their commitment to one of the other fundamental human rights upon which the free exercise of religious liberty depends — free exercise of the right to freedom of speech.

In order to determine the attitudes of Australians towards freedom of speech, the Centre for Independent Studies commissioned YouGov to poll 2169 Australians in December 2022, with the data weighted by a number of factors, including age, gender, education, socio-economic status and religion. This resultant paper provides an important insight into just what Australians think about the extent to which speech is free in this country. Before presenting a more detailed analysis of the results, it will be helpful to give an overview of what the poll disclosed about attitudes to freedom of speech in Australia.

Snapshot of the YouGov poll results on freedom of  speech

Results from the YouGov poll show that Australians are evenly divided about the extent to which they consider the right to freedom of speech to be secure.

Among family, 87 per cent feel free to express their views openly, while 84 per cent feel free among friends. In the workplace, by contrast, only 44 per cent of those surveyed considered themselves free to do so.

When it comes to whether or not the law should restrict what one can say in public, Australians were similarly divided: 44 per cent of those surveyed thought some legal restrictions were necessary sometimes whereas 47 per cent thought the law should never impose restrictions on freedom of speech in public.

Political correctness was considered beneficial by 44 per cent because it offered important protections to the rights of certain groups. By contrast, 42 per cent considered political correctness mostly harmful because it imposes unfair restrictions on free speech.

When it comes to protecting religious freedom, 46 per cent thought Australian protections were at about the right level, whereas only 15 per cent thought protections were not adequate, and 26 per cent of those surveyed thought Australia did too much to protect the religious sensibilities of others.

Satisfied that religious freedom already enjoys adequate protection, 54 per cent of those surveyed thought that when hiring staff, faith-based schools should not be allowed to discriminate against job applicants. Only 37 per cent thought that religious schools should be free to hire only those who shared the school’s beliefs. These results suggest that the concerns expressed by the authors of the earlier CIS report, referred to above, regarding the need for faith-based organisations in Australia to be afforded protection from the reach of anti-discrimination laws were both reasonable and prescient. [5]

Opinion diverged when respondents were asked about the extent to which members of three principal faiths — Christianity, Islam and Judaism — experienced discrimination. Whereas only 32 per cent thought Christians experienced discrimination, this number was much higher for Muslims (70 per cent) and Jews (54 per cent). 59 per cent of respondents thought Christians faced little, if any, discrimination but this number was correspondingly lower for Muslims (22 per cent) and Jews (35 per cent).

A criticism frequently voiced about so-called ‘woke’ culture is that it generates a heightened sensitivity to divergence of opinion. Whereas only 10 per cent of respondents thought Australian society was not sensitive enough to such opinion, 35 per cent approved of our levels of sensitivity but 45 per cent thought our society was overly sensitive.

In general, the results of the CIS/YouGov poll support the conclusion drawn by this paper that opinion about freedom of speech in Australia is evenly divided. The views of those who think speech is unduly restricted appears to be balanced, for the most part, by those who support restrictions if they serve to protect the interests of those members of society considered vulnerable.

However, as this paper will argue, these results are also open to the interpretation that Australians are fundamentally ambivalent about freedom of speech: we support freedom of speech when we agree with the opinions voiced but are inclined to withdraw that support when we do not agree with the views and opinions expressed by others.

Expressing oneself openly

Respondents were asked how free they felt to express their “true opinions and beliefs about politics” in a number of different environments. Not surprisingly, 87 per cent said they felt free to express themselves openly with family and 84 per cent felt free to do so with friends. A small number of respondents (3 per cent) reported that they were not at all free to express themselves openly with either family or friends.

However, responses were different when it came to the workplace: only 44 per cent felt free to express themselves openly at work; while 16 per cent felt they were mostly not free and 11 per cent felt they were not at all free to do so.

Responses were reasonably consistent across all variables such as political affiliation, religious affiliation, gender, age and level of education. For example, 10 per cent of those identifying as ALP supporters said they did not feel free to express themselves openly at work as compared with 13 per cent of Coalition and Greens supporters.

These results suggest Australians are increasingly circumspect about expressing opinions openly in front of colleagues in the workplace where corporate constraints are frequently imposed to enforce policies about diversity, inclusiveness and hate speech. A stumble at any one of those tripwires can be enough to derail or even terminate a career. Accordingly, people watch what they say when speaking to those who are neither family members nor friends. It is easier and more comfortable to speak openly when among family and friends where no diversity policies are being enforced. Polling results suggest this may be so, regardless of political affiliation.

Legal restrictions on public freedom of  speech

Although the consequences of breaching them can be severe, workplace policies about diversity, inclusiveness and hate speech clearly do not have the same moral or legal status as laws enacted by parliament. Nor do such policies face the same kinds of obstacle to reform or repeal as those which face legislation.

Whereas workplace policies only have application in the place of employment, it is clear that legal constraints upon freedom of  speech can apply both in the workplace and beyond in the public realm. When respondents were asked whether “the law should restrict what you can say in public”, the results showed that Australians are evenly divided about this issue.

Some degree of legal restriction on what can be said in public was supported by 44 per cent of respondents whereas 47 per cent of respondents thought “the law should never restrict freedom of speech in public.”

These results, indicating comparable support for the different viewpoints, were consistent across all variables when controlled for age, household income, educational level and religious affiliation. For example, in response to the proposition “Sometimes the law should impose restrictions on what you can say in public”, 42 per cent of those in the 18-24 age group agreed (the lowest response) and 46 per cent of those in the 35-49 age group agreed (the highest response). It is of interest that younger people appear to hold views similar to those of older people on free speech laws. However, some difference occurred when results were controlled for political affiliation.

Whereas 48 per cent of ALP supporters and 43 per cent of Coalition supporters were in favour of some legal restriction on what can be said in public, this figure rose to 58 per cent for Greens supporters. Similarly, whereas 45 per cent of ALP supporters and 50 per cent of Coalition supporters thought the law should never restrict freedom of speech in public, only 34 per cent of Greens supporters thought so.

Nonetheless, even when controlled for political affiliation, there was a fairly equal distribution between those who favoured some legal controls and those who favoured none – although the proportion of those claiming ‘Other’ as their political affiliation favouring no restrictions on speech in public was much greater at 64 per cent. This might explain why successive attempts to reform section 18C of the Racial Discrimination Act 1975 have succumbed notwithstanding the section’s dubious yet powerful prohibition against giving “offence”. [6] Laws constraining freedom of  speech are supported by a sizeable segment of the Australian people and, once in place, appear to be considered indispensable for maintaining social cohesion and civility.

Political correctness

The term ‘political correctness’ refers to an anti-free speech movement that emerged on college campuses in the United States in the 1980s. Its aim was to challenge everyday use of language, both in the academy and beyond, in order to protect groups deemed vulnerable to sexism, racism and homophobia.

Offensive language came to be labelled as ‘hate speech’, a broad term deployed both to discredit dissenting views and to encourage self-censorship. Those who breach the protocols of political correctness run the risk of being ‘cancelled’ for their offence and can find themselves ostracised and vilified for their use of ‘hateful’ speech. [7]

Political correctness spread rapidly through, for the most part, English-speaking societies, such as Australia and the United Kingdom. It has been met with ridicule by some and acquiescence by others. Respondents in the YouGov poll were asked whether they considered “political correctness harmful or beneficial.”

Although 14 per cent of those surveyed were uncertain, a substantial proportion (44 per cent) thought that, on balance, “political correctness is mostly beneficial because it protects the rights of different groups.” Of this group, 48 per cent were women and 40 per cent men.

A slightly smaller number (42 per cent) considered political correctness “mostly harmful because it unfairly limits free speech.” In this group, the gap between the opinions of women and men was greater: 49 per cent of men considered political correctness mostly harmful as against 35 per cent of women. However, results also indicate that as both women and men get older, they are more likely to consider political correctness harmful.

Opinion diverged more sharply when the results were controlled for political affiliation. Only a small percentage of Greens supporters (18 per cent) considered political correctness harmful, as against 54 per cent for Coalition supporters and 31 per cent for ALP supporters. Yet 70 per cent of Greens supporters considered political correctness beneficial, as against 36 per cent of Coalition supporters and 54 per cent of ALP supporters.

In other words, the further to the left one is on the political spectrum, and the younger one is, the more likely one is to consider political correctness beneficial. There is marked difference between the views of younger and older Australians: of those who considered political correctness beneficial, Gen Z was the largest group (56 per cent) followed by Millennials (50 per cent), Gen X (15 per cent) and Baby Boomers (12 per cent).

Younger Australians, attracted to positions on the political left — especially those advocated by the Greens — are far more likely to call for, and support, sanctions against those who breach the protocols of political correctness. Unless age and life experience ameliorate their views, we can expect the norms of political correctness and its concomitant, ‘cancel culture’, to remain influential in the Australian intellectual landscape.

Protecting religious freedom

Discrimination against individuals or groups on the basis of religion has been a vexed issue in Australia in recent years. Whether it has been about wearing religious vesture (such as the burka); running religious organisations (such as schools) according to the tenets of faith; or opposing social developments (such as same-sex marriage) for faith-based reasons, many who are affiliated to religious traditions claim to have been discriminated against on the basis of religion and that their religious liberty has thereby been infringed.

In particular, the debate about same-sex marriage between its proponents and those who opposed it for faith-based reasons became so vexed that the Morrison Government produced two exposure drafts of a religious discrimination bill. Both bills were intended to make it unlawful to discriminate against a person on the basis of their religious belief or religious activity. However, the bills failed to win parliamentary support and, with the defeat of the Morrison Government in May 2022, the issue was consigned to history.

However, advocates for legislation to protect religious freedom continue to argue that those who belong to a faith tradition face the threat of discriminatory behaviour on grounds of religious belief. The CIS/YouGov poll attempted to discover whether the issue of religious freedom remains an issue of concern and asked respondents about the extent to which “Australia protects religious freedom.”

Nearly half (46 per cent) of those asked considered Australia’s protections for religious freedom to be “about right” and only 15 per cent thought Australia needed to do more. Just over a quarter of respondents (26 per cent) thought Australia already did too much to protect religious freedom.

Those with a religious affiliation (45 per cent of Protestants, 54 per cent of Catholics and 46 per cent affiliated to another religion) were more inclined to think Australia’s existing protections were adequate compared with 42 per cent of those who were not affiliated to any religion.

ALP and Coalition supporters (both on 50 per cent) thought current protections were about right as opposed to 41 per cent of Greens supporters. Greens supporters were also more likely to think Australia already afforded too much protection (30 per cent) as opposed to supporters of ALP (29 per cent) and the Coalition (22 per cent). Even when controlled for education level, age group and annual household income, differences in points of view were not great — although fewer with less than $20,000 annual household income (36 per cent) thought protections were about right than those in the $60,000-$69,000 income bracket (57 per cent).

On the basis of these findings, it is reasonable to conclude that the issue of protections for religious freedom is not nearly as pressing as it appears to have been two or three years ago. As economic and cost of living concerns mount in importance, it also seems reasonable to conclude that religious freedom protections are unlikely to be a priority for the Albanese Government.

The role of Christianity in Australia

When asked specifically about “the role of Christianity in Australia”, respondents were evenly divided between those who thought Christianity should have a “central and important” role (47 per cent) and those who believed it should have a minor role or no role at all (42 per cent). The proportion of those strongly in favour of Christianity having a role in Australia (17 per cent) was comparable to those who strongly opposed it having any role (18 per cent).

However, when examined in terms of political allegiance, a different picture emerges (see Table 7). Coalition voters were much more strongly in favour of Christianity having a “central role” (26 per cent) than ALP voters (9 per cent) and Greens voters (just 7 per cent).  However, the outlier here is the group of non-partisan respondents (34 per cent).

When respondents were asked whether Christianity should play an “important” role in Australia, the supporters of the two major parties were both comparable and both were high – Labor at 32 per cent and Coalition at 37 per cent, with non-party supporters at 26 per cent. Greens supporters (15 per cent) were again both different and negative towards Christianity.

Asked whether Christianity should have a minor role or no role at all, respondents who were Green supporters held the strongest views: 31 per cent thought it should have a minor role and 37 per cent thought it should have no role at all. This compares with 9 per cent of Coalition supporters who thought Christianity should have no role (compared to 22 per cent of ALP supporters). A slightly larger proportion of non-aligned respondents (15 per cent) thought it should have no role, a proportion comparable to responses from Greens supporters.

Clearly, Coalition voters and non-aligned voters are more supportive of Christianity than Labor voters, and far more so than the Greens — who are consistently out of sync with this view across the rest of the political spectrum. The broader question is whether Christianity has a place in the contemporary public square. Many — for example, 37 per cent of Greens supporters — think it should not. For the most part, however, our polling suggests that Australians are broadly supportive of the role Christianity plays in our society.

Staffing religious schools

Given the responses to Christianity in the previous section, one would expect a certain overlap regarding views as to whether religious schools should employ only those who share their values, and whether the respondents saw this issue as concerning all religious schools and not just Christian ones.

It should be noted that 34 per cent of school children currently attend non-government schools of which over 90 per cent are faith-based schools. [8] Just over one third of respondents (37 per cent) believe religious schools should be able to discriminate on the basis of faith about whom they employ, but a greater proportion (57 per cent) opposed this view and held that schools should not be able to discriminate in this way. The “don’t knows”, at 9 per cent, represented the smallest proportion of respondents.

This finding is significant and could well foreshadow wider political conflict between those demanding freedom of recruitment for faith-based schools (and other faith-based organisations) and those demanding strict compliance with anti-discrimination laws for all organisations. Although our polling results indicate the former is a minority opinion, it is, nonetheless, a sizeable minority whose viewpoint will count in political terms; particularly at elections as it has in the past.

Indeed, the large non-government school sector in Australia, with a third of all school students and with enrolment growth outpacing the government sector, has had from time to time considerable impact on government policy through its campaigning and lobbying efforts. Nor should it be forgotten that the considerable federal and state funding to the non-government school sector was largely based on the principle of giving parents ‘choice’ as to where to send their children.

In January 2023, an initial consultation paper published by the Australian Law Reform Commission proposed the erosion of the right of religious schools to preserve their religious character, standards and teaching. As noted by Dr Elisabeth Taylor, an independent Commonwealth scholar, in a new paper published by the Centre for Independent Studies, “religious schools would be forced to appoint staff who may not understand or support the school’s religious beliefs, and their employment could only be ended if they actively undermined the religious ethos of the school.” [9] At the time of writing (March 2023), it remains to be seen how the federal government will address the concerns of the ’37 per cent’ voiced about the ALRC paper and, in particular, the concerns of voters from Muslim and other non-Christian faith traditions.

On the first question, as to whether religious schools should be able to appoint whom they want, the views of Labor supporters and Greens supporters were comparable; at 27 per cent and 20 per cent respectively.

The outliers here are Coalition and non-aligned voters who are more strongly supportive of religious schools’ rights, at 50 per cent and 45 per cent, respectively. These are vastly different to the responses of Labor and Greens supporters. The difference between Coalition and Labor voters is greater on this issue compared to most others.

On the second question, as to whether religious schools should not be allowed to discriminate, responses from Labor supporters (65 per cent) and Greens supporters (70 per cent) are again very close but at odds with responses from Coalition supporters (43 per cent) and non-aligned voters (44 per cent) who appear to adopt a less interventionist approach.

The issue of religious tolerance is one of the few areas across all the issues canvassed by the survey where there is the closest congruence between Labor and Greens supporters. At the same time, responses from Coalition and non-aligned voters are strongly comparable. Significantly, the 44 per cent of those who responded as “don’t know” or “unwilling to say” is much larger than for any other issue canvassed.

What does all this indicate? Is Labor’s stance a reflection of their past support for free, compulsory and secular education; and now of its current opposition to funding the non-government sector especially religious schools?  The Greens have long been opponents of non-government schools.

Even so, none of the questions in the survey place the matter in any religious context. Thus, the survey is inconclusive when it comes to assessing how this issue would play out in relation to Jewish and Muslim schools.

Religious discrimination in Australia

Even so, the findings of the CIS/YouGov poll indicate that Australians still think members of some faith groups — Islam, in particular — continue to experience moderate degrees of religious discrimination in Australia.

Respondents were asked about the extent to which they thought members of principal faith communities in Australia experienced discrimination. Whereas only 11 per cent thought Christians experienced “a great deal of discrimination”, 17 per cent thought Jews did and 35 per cent thought Muslims did. “Some discrimination” was thought to be experienced by Christians (21 per cent), Jews (36 per cent) and Muslims (35 per cent). The total experience of discrimination thought to be borne by Muslims was far higher (82 per cent) than for Christians (61 per cent) or for Jews (74 per cent).

Even when controlled for educational attainment, age group and annual household income, the level of religious discrimination thought likely to be experienced by Muslims was consistently higher than that for Christians or Jews.

Larger differences were evident when the data was controlled for political affiliation. Whereas 38 per cent of ALP supporters and 28 per cent of Coalition supporters thought Muslims were likely to experience religious discrimination, this view was held by 60 per cent of Greens supporters. Yet Greens supporters appear to consider lower levels of discrimination to be experienced by Jews (16 per cent) or Christians (4 per cent).

Sensitivity to controversy

Respondents were asked how sensitive they thought Australian society was to controversial opinion. The first question just asks whether Australian society is “over-sensitive” to “controversial opinions” – although what amounts to “over-sensitive” or “controversial” was left to each respondent to define for themselves. Overall, a sizeable 45 per cent of respondents thought Australian society is overly sensitive and 35 per cent thought it was about right. Only 10 per cent thought we were not sensitive enough. So, while not completely even, the assessment suggests there is an issue here.

However, responses by political affiliation give a very different complexion to this matter and here we see some of the biggest disparities in the survey between supporters of the major parties: the Coalition (and non-aligned voters), Labor and the Greens.

52 per cent Coalition voters and 70 per cent of non-aligned voters consider that Australia is “overly sensitive”. This contrasts with 39 per cent of Labor supporters and 23 per cent of Greens supporters. Labor voters are allied closely to Greens on this issue.

In summary, there is some real concern about sensitivity across the major party blocks, but the greatest concern is among Coalition voters and non-aligned voters. The large number of “don’t knows” (50 per cent) perhaps reflects the ambiguity of the topic.

Countering this response is the proportion of respondents who considered Australian sensitivity to controversial opinions to be “about right” (35 per cent). This compares favourably with responses to the question of political correctness that on balance it was “beneficial” at 44 per cent; and those who judged religious protections “about right” – 46 per cent.

Here on “about right” there was far more comparability across the parties — 43 per cent Labor, 34 per cent Coalition, and Greens 37 per cent — but non-aligned voters were not convinced with only 14 per cent thinking it was “about right”, which fits with their 70 per cent concerns mentioned above.

When it comes to the view that Australia is not sensitive enough to controversial opinions, few held this view among Coalition supporters (6 per cent). This compares with responses from Labor supporters (11 per cent) and non-aligned voters (5 per cent) who thought we were not sensitive enough. However, this is way below the response from supporters of the Greens (25 per cent) who see the need for more sensitivity — but this is not a big result compared to the other responses from Greens supporters.

Policy and political implications for freedom of  speech

What does all this mean? Any assessment needs to consider both the policy and the political implications of the responses. These are intertwined. If an issue becomes ‘political’ — that is, controversial and marked by disagreement, partisanship and a possible vote winner or loser — it will drive policy to show concern, secure advantage and or solve or reduce the problem. Similarly, no policy solution (regardless of how evidence-based) will avoid producing political impacts that have to be managed or accommodated.

How ‘political’ an issue is will affect whether an issue gets on the agenda for possible government action as well as what policy might be proposed, and over what timeframe. It will also be influenced by whether a party is in office, the electoral cycle (for example, proximity to the next election), party ideology, values and history, polling and its ‘do-ability’ (constitutionality, costs, and administrative ease).

Moreover, it must be appreciated that many issues have different meanings and importance for different groups depending on their values, roles and positions. Issues like ‘freedom’, for instance, can mean many different things.

There are two aspects in considering the policy and political implication of this survey:

• Does the survey indicate there is a problem and thus warrants some sort of government/public policy response? In other words, is freedom of speech an issue warranting recognition, definition and action, or is it just a ‘beat up’ by some commentators? How this is interpreted depends on how freedom of speech is seen — an open slather or with some restrictions. It is the latter that causes problems in developing policy as when, on what criteria, and by whom should restrictions be applied?
• If assessed as some sort of problem, it is important to review that through the partisan prism — Coalition, Labor, Greens — given their importance in driving policy and politics in Australia. The non-aligned voters are included here where relevant as they are seen as a significant group in their own right (more about them later). How different partisan groups/voters see issues affects how the politics are played and the policy adopted.

Is there a policy problem?

All policy is based on the premise that there is a ‘problem’ needing to be addressed and requiring some government action. The nature and extent of the ‘problem’ and hence possible responses to it, are open to definition from a wide range of perspectives.

Overall, responses across several categories combine to suggest there is enough weight to conclude that in Australia freedom of expression/speech is a policy — and thus political —problem.

• QA1 concerning freedom to express opinion across work, family and friends highlights this.

There is overwhelming support that there is freedom to express what people think with family and friends (87 per cent and 84 per cent) where potential government intervention would be limited anyway if it weren’t.

More importantly, that only 44 per cent thought they were free at work is a different and smaller proportion than from the home and friends results. This, and that 28 per cent did not feel free overall, makes freedom of expression a policy problem. It can become a public policy problem because work is an area where government can legitimately exercise some intervention (eg: industrial relations, workplace anti-discrimination laws). Politically, it is an issue because of the large number of the responders who expressed concern about this matter.

In terms of politics the large 44 per cent concern about freedom of expression at work would be seen as a signal that all is not well in the workplace. It would be seen by Coalition parties as a reflection of:

• too much ‘political correctness’ (see later) and firms taking stands on ‘political’ issues e.g. referendum/climate change they never used to — and, responders may argue, never should;
• it would reinforce their views of the ‘silent majority’ who are against such roles by corporations;
• it could reinforce their natural policy inclination to be wary of such ‘faddish’ behaviour.

The issue would be: what might the Coalition propose to respond to this concern — regulation, exhortation, or just public expression?

The market gap here is that there has been no criticism from the parties about these trends at work; it may just be a public expression of concern is all that is needed.

For Labor, it is that these results signal concern (and votes) that the mantra and restrictions at work may be going too far.

• QA2 should law restrict what can be said in public. 47 per cent thought there should be no legal restrictions compared to 44 per cent who thought there should.

Although relatively even, that such a large proportion thought restrictions should not be imposed is politically significant and a warning against further intrusive government regulation in this area. However, given that a sizeable 44 per cent of those surveyed  supported legal restrictions means that there may be some political opportunity here for some political parties. Accordingly, this split makes it a ‘political’ issue and poses a problem for governments to resolve.

This suggests the status quo should prevail and that government does not seek to define ‘political correctness’ and adopt a less interventionist approach to enforce particular compliance.  The problem is that the ambit of ‘political correctness’ issues appears to be ever-widening; which governments and other social institutions too easily accommodate by some form of intervention regardless of how small the minority group who is making the complaint. To just maintain the status quo requires a certain degree of resisting or rejecting the complaint — of drawing a policy ‘line in the sand’ reflecting clear principles.

Politically, the 44 per cent in favour of some laws controlling speech in public aligns closely across both Coalition (43 per cent) and Labor (48 per cent) voters — but these are lower than the Greens (58 per cent), and the non-aligned who are below all of these at 28 per cent indicating even less enthusiasm for laws in this area.

However, this response needs to be read in conjunction with the next question as to “never restrict freedom of speech in public” for which responses from Coalition (50 per cent) and Labor (45 per cent) are again close; and as before, Greens (34 per cent) and non-aligned at the higher 64 per cent.

Coalition voters clearly want some protections but given their high (50 per cent) desiring of no restrictions they are not only distinguishable from Greens but more importantly there is clearly an untapped non-aligned level of support which could be tapped. Indeed, this group could be part of non-Labor’s “lost base”?

For Labor, the poll shows results distinctive from one of their prime rivals — the Greens. Overall, it is possible to foresee the different political responses: not push too hard on imposing sanctions on freedom of  speech (Labor and Greens); and to defend more and make a statement of principle as this would confirm their bases (Coalition).

• QA3b on whether ‘political correctness’ is beneficial or harmful highlights the same issues as discussed in relation to QA2 above; though slightly in reverse, with 44 per cent saying it is “mostly beneficial” and again a sizeable group, 42 per cent disagreeing. The vagueness of what ‘political correctness’ means (different from straight freedom of expression above) would make this an even more difficult challenge for governments to settle politically. Further, what could realistically be a policy response to this issue? Governments (or someone) would have to identify what areas, policies, practices, utterances constituted ‘political correctness’ — itself a very value-laden process — and then consider how they might address these issues. How this might be played out in political and policy terms will depend on how this is seen through different partisan eyes.

However, in terms of political affiliation, different interpretations can be made with greater division between the Coalition and Labor rankings and between Labor and the Greens (Table 5).

Some 54 per cent of Coalition respondents believe political correctness is harmful compared to 31 per cent Labor and only 18 per cent for Greens. Again note that 71 per cent non-aligned believe it is harmful.

Coalition voters polled lower on the next question (ie beneficial to protect different groups), with 36 per cent believing political correctness is beneficial, compared to Labor’s 54 per cent and Greens’ 70 per cent. Note again that non-aligned voters were also lower at 18 per cent — suggesting this is a potential area for both the Coalition and Labor to exploit.

For Labor, the issue is the disparity with the Greens: 54 per cent vs 70 per cent on the  beneficial nature of political correctness.

• QA4 Australian protection of religious freedom shows 46 per cent believe there are adequate protections, compared to only 26 per cent who think there is too much, and only 15 per cent who consider there is too little. Thus, the policy/political lesson here is that no further government action is needed but to keep some limited safeguards in place.

In terms of partisanship, there is considerable comparability across the political spectrum (see Table 6) — all are giving a moderate response ‘not too much’ — with Coalition a little more sceptical.

However, the question on whether protections are “about right” is also very high  between the major Labor and Coalition parties, equal at 50 per cent with the Greens not too far behind at 42 per cent. The non-aligned voters at 31 per cent are less sure.

In the consideration of “doesn’t do enough to protect religious freedom”, the major parties are at the lower end of scale; with Labor voters at 9 per cent and Coalition supporters 19 per cent — in other words, there is no great demand from these voters for more government protection.  Greens are at 13 per cent. The outlier here are non-aligned voters at 30 per cent. Politically, more protection of religious freedom is not seen as a big issue.  The message to parties should be to leave well alone, given the complexities of developing policy in this area which might produce counter results to what some might want — such as religious protection.

• QA5 Role of Christianity in Australian society

There is another almost even split with 48 per cent seeing Christianity as having an important role, compared to 42 per cent seeing it having a minor role (18 per cent seeing no role). Whether this is an issue really depends on individual assessment.

However, when considered across partisan divide the results are more illuminating (see Table 7). Here, major differences between Coalition (and non-aligned voters) and Labor and Greens are clearly observable.

Coalition voters on central (26 per cent) and major roles (36 per cent) were similar to non-aligned voters (34 per cent and 26 per cent) — while Labor is at 9 per cent on central roles but closer to the Coalition at 32 per cent for major roles.

This time, the outlier is the Greens, who have the lowest scores on supportive roles of Christianity and the highest score advocating no role (37 per cent) while Labor is at 22 per cent, and the Coalition has the lowest result here at 9 per cent.

Given this result, Coalition leaders need to recognise that Christianity underpins much of its supporters’ beliefs, and that is supplemented by the non-aligned voters. In a secular society, this is a difficult path to tread.

For Labor leaders there is still a residue of support for Christianity exerting an important role in society, and again this is in contrast to the Greens — suggesting Labor should be careful regarding this.

• QA8 on sensitivity to controversial views reveals all is not well, with 45 per cent responding that we are “over-sensitive” compared to 35 per cent who saw the right amount of sensitivity. This seems slightly at odds with responses on political correctness (or at least how that term is being interpreted). Nevertheless, 45 per cent being the concerned/alarmed group makes this a political issue — it is an expression of concern that Australia has become too sensitive on too many issues, compared to the more ‘laid back’ culture Australians once cultivated and were known for previously.

What these results show, as in many areas covering social values and issues, is that the public opinion responses are never clear cut, often ambiguous and sometimes, as noted above, contradictory. This makes it difficult for governments and political parties to know how best to respond in both policy and political terms. The meaning in concrete policy terms is unclear except perhaps as a warning to leaders across all organisations to stop genuflecting to every latest alleged aggrieved group. After all, controversial views can often be the forerunner of breakthrough genuine reforms. It is the partisan lens that will make hay with this issue.

Further partisan differences were revealed here (see Table 9) with Coalition (50 per cent) and non-aligned (70 per cent) saying we are too sensitive .   Labor is 39 per cent and Greens again different at a lowly 23 per cent. The “don’t knows” at 50 per cent is very high on this question and is therefore worth mentioning. So, politically this is an issue Coalition parties might pursue, especially given the high response rate from non-aligned voters — there is real concern out there, it seems. Labor also needs to pull back a little in being too condemnatory of some expressions.

While there is general agreement that we are not lacking sensitivity and do not need to be more sensitive — with Coalition, Labor and non-aligned similar (6 per cent, 11 per cent, and 5 per cent) — the Greens are the outlier again here with a higher dissatisfaction rate (23 per cent) seeing a need for more sensitivity.

Conclusions

Overall, the survey supports the contention that constraints on freedom of  speech in Australia are an issue. It cuts across work situations, levels of government regulation and attitudes to religion. It is an issue of concern, but not a ‘crisis’ with a need for heavy corrective action by government.

In political terms, there is potential for those who can develop a cohesive narrative to gain considerable political capital out of supporting greater freedom of  speech, but not in an aggressive free-for-all fashion. It might be linked to Australia’s once more ‘laid-back’ approach, calling a ‘spade a spade’, tolerance, pragmatism and our sense of egalitarianism and fairness.

In relation to policy, it is less clear what the actual government initiatives might be. So many factors in this policy space are not determined by legislation or punitive regulation but by attitudes and practice in everyday life.

However, as the next section suggests, such is not the case in partisan politics and policy where scoring points, collecting votes, and first mover advantage, are the order of the day.

In summary the key findings of this survey are:

• Freedom of speech is an important issue overall, as there is a sizeable proportion of voters who rank it as being very important;
• Importantly, many of these concerns are interpreting freedom of  speech in terms of restricting people’s abilities to say what they think, wherever they want;
• However, there is not a ‘crisis’ – yet;
• In policy terms, it is not clear what specific actions governments should take, or that much can be achieved by legislation that might create another set of problems rather produce any benefits;
• Much can be achieved in policy less by specific legislation or regulation and more by clear statements of principles. This is an area where this has been lacking;
• Politically, there is more congruence between the Labor and Coalition parties than between Labor and the Greens;
• Importantly, non-aligned voters express more concerns and tend to be more aligned to Coalition voter concerns about restrictions on freedom than to Labor supporters. Non-aligned voters have little in common with the Greens. This indicates there are considerable votes for those who can enunciate clear views about  protecting freedom of speech and resisting political correctness and regulation;
• The Greens are generally out of sync with everyone; so Labor needs to appreciate that in driving their policy orientation to head off a loss of voters to the Greens, they have the potential to lose votes;
• The Coalition parties need to assess where this survey (and the responses from non-aligned voters) reflects their base and traditional philosophy and should respond accordingly;
• Labor needs to understand that their move to accommodate the Greens is making them an extremist leftist party — the opposite to the Whitlam reforms.
• The Greens’ agenda risks them being labelled as extremists.

[1] “A $44bn education”, The Economist , (24 December 2022) Elon Musk’s $44bn education on free speech | The Economist

[2] Ashleigh Barraclough and Judd Boaz, “New Essendon CEO Andrew Thorburn steps down”, ABC News , (4 October 2022) New Essendon CEO Andrew Thorburn steps down – ABC News .

[3] Stan Grant, “Essendon, Andrew Thorburn and Christianity: The battle of values that cost a man his job”, ABC News , (9 October 2022) Essendon, Andrew Thorburn and Christianity:  The battle of values that cost a man his job – ABC News

[4] Monica Wilkie and Robert Forsyth, Respect and Division: How Australians View Religion , (Centre for Independent Studies: Sydney NSW, 2019), 3.

[5] Monica Wilkie and Robert Forsyth, as above.

[6] Section 18C Racial Discrimination Act 1975 
 states: “(1) It is unlawful for a person to do
an act, otherwise than in private, if: (a) the act
is reasonably likely, in all the circumstances,
to offend, insult, humiliate or intimidate
another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.” See further, Peter Kurti, The Tyranny of Tolerance: Threats to Religious Liberty in Australia , (Connor Court: Redland Bay QLD, 2017), 28.

[7] See further, Peter Kurti, Cancelled! How ideological cleansing threatens Australia , (Centre for Independent Studies: Sydney, 2020).

[8] It is worth noting that a greater proportion of students (50 per cent) attend secondary non-government schools in capital cities.

[9] Elisabeth Taylor, How Adequate are Australia’s Protections for Religious Freedom? , (Centre for Independent Studies: Sydney, 2023, forthcoming).

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Australia: Social Media Bill must meet freedom of expression standards

On 21 January 2022, ARTICLE 19 submitted comments on Australia’s Draft Social Media (Anti-Trolling) Bill, raising concerns that several provisions do not meet international human rights standards. In particular, we argue that the removal of immunity from liability for social media platforms will have a chilling effect on users’ freedom of expression and warn that the system of data collection and disclosure violates the standards on freedom of expression and privacy.  

The Draft Social Media (Anti-Trolling) Bill (the Draft Bill) was released in the last days of the 2021 Parliamentary sitting year. The Government announced that the Draft Bill would aim to protect Australians from online harms and defamatory comments, in particular, by limiting the possibility for comments to be posted on social media anonymously.

ARTICLE 19 is concerned that several provisions of the Draft Bill do not meet the requirements of international freedom of expression standards. In particular:

• Many provisions of the Draft Bill are vague and undefined and do not meet the requirements of ‘legality’ under international human rights standards. For instance, the Draft Bill establishes limits to the right to free expression regarding ‘comments’ posted on social media platforms, but it fails to provide a definition of what ‘comment’ means for the purpose of the Bill. Similarly, Section 20 imposes the obligation to establish a nominated entity in Australia for those social media companies with at least 250,000 Australian persons who hold accounts but fails to define what ‘Australian’ means, as well as where these persons are supposed to be based in Australia to be counted for the sake of the threshold. The lack of clarity can ultimately lead to legal uncertainty for all actors and misuses, increasing the risk that defamatory claims are abused as tools to suppress.
• The Draft Bill proposes to limit immunity from liability for social media companies . In Section 14, the Draft Bill establishes that social media platforms are to be considered publishers with regards to comments posted by users, and implies they can be held liable for defamatory comments posted by their users. This can lead to increased censorship or removal of any incentives for companies to engage in content moderation.
• The Draft Bill puts the right to anonymity at risk . It obliges social media platforms to collect and retain the name, phone number, and email address of every Australia-based ‘commenter’ and disclose the relevant content details of the commenter under certain circumstances in order to assist in potential defamation proceedings. The Bill thus imposes a vast collection of personal data from individuals but provides no guarantee that the data will be gathered, stored and used according to international privacy and data protection standards. The requirement to collect and store such a vast amount of personal data raises a variety of challenges in terms of security breaches, lack of remedies if the personal data is hacked, and misuse of data, to name but a few.
• Requirements to have a nominated entity in Australia raises human rights concerns: According to the Draft Bill, a social media platform that has 250,000 Australian account-holders must have a nominated entity in the host country. ARTICLE 19 has previously criticised such requirements in countries like Russia, Turkey and Nigeria. We are concerned that in countries where the judiciary lacks independence, these requirements will ultimately contribute to even more human rights abuses. Social media companies cannot resist pressure from law enforcement for long, especially when not complying means heavy fines and/or blocking of the website itself. We are worried that if Australia adopts these types of requirements, the worst offenders in the region will use this as an example for their own and potentially abusive legislation. Additionally, this requirement is much more difficult to implement for small platforms that meet the account criteria. They may not always have the means to have a nominated entity in every country. Such requirements benefit the bigger platforms in the long run as the requirements directly impact the competitive market and entrench their dominant position.

Read full analysis

What does 'freedom of speech' really mean in Australia?

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What does freedom of speech mean in the internet era?

More than two-thirds of the world is using the internet, a lot. Image:  REUTERS/Fred Prouser

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Stay up to date:, media, entertainment and sport.

• The US Supreme Court is weighing in on whether social media sites can be compelled to include all viewpoints no matter how objectionable.
• The high court’s decision could have a broad impact on how the internet is experienced.
• Its deliberations raise questions about regulation, freedom of speech and what makes for a healthy and equitable online existence.

In 1996, a man in South Africa locked himself into a glass cubicle and mostly limited his contact with the outside world to an internet connection for a few months . “The exciting aspect is realizing just how similar we all are in this growing global village,” he gushed to a reporter on the verge of his release.

What was an oddball stunt 28 years ago now verges on a rough description of daily existence. When Richard Weideman locked himself into that cubicle to stare at a screen all day, only about 1% of the global population was online, and social media was mostly limited to the 5,000 or so members of the WELL, an early virtual community. Now, more than two-thirds of the world is using the internet, a lot – and the global village is not in great shape .

The US Supreme Court is currently attempting to sort out exactly how internet discourse should be experienced. Are YouTube, Facebook and TikTok places where top-down decisions should continue to be made on what to publish and what to exclude? Or, are they more akin to a postal service that’s obliged to convey all views, no matter how unseemly?

By weighing in on two state laws mandating that kind of forced inclusion, the high court could end up ensuring free expression by erasing editorial guardrails – and the average scroll through social media might never be quite the same. A decision is expected by June .

This potential inflection point comes as just about everyone and their grandparents are now very online. Not participating doesn’t seem like an option anymore. “The modern public square” is one way to describe it. Oral arguments before the Supreme Court have surfaced other analogies , like a book shop, or a parade.

Excluding people from marching in your parade might seem unfair. But, it's your parade.

More than a century ago, a Supreme Court justice made his own analogy : speech that doesn’t merit protection is the type that creates a clear and present danger, like falsely shouting “fire” in a crowded theater.

“Shouting 'fire' in a crowded theater” has since become a shopworn way to describe anything deemed to cross the free-speech line.

As it turns out, falsely shouting “fire” in crowded places had actually been a real thing that people did in the years before it showed up in a Supreme Court opinion. In 1911, at an opera house in the state of Pennsylvania, it resulted in dozens of people people being fatally crushed; another incident two years later in Michigan killed far more.

More recently, social media services banned certain political messaging because they believed it had also fatally incited people under false pretenses.

Those bans prompted reactive laws in Florida and Texas, triggering the current Supreme Court proceeding. The Texas legislation prohibits social media companies with big audiences from barring users over their viewpoints. The broader Florida law also forbids such deplatforming, and zeroes in on the practice of shadow banning .

That particular form of surreptitious censoring isn’t confined to the US, even if many popular social media services are headquartered there. The EU’s Digital Services Act, approved in 2022, is meant to prohibit shadow banning. In India, users trying to broach touchy subjects online have alleged that it’s happened. And in Mexico, some critics have actually advocated for more shadow banning of criminal cartels.

‘A euphemism for censorship’

In 1969, computer scientists in California established the first network connection via the precursor to the modern internet. They managed to send the initial two letters of a five-letter message from a refrigerator-sized machine at the University of California, Los Angeles, before the system crashed. Things progressed quickly from there.

In 2006, Google blew a lot of minds by paying nearly $1.7 billion for YouTube – an astounding price for something widely considered a repository for pirated content and cat videos.

By 2019, YouTube was earning a bit more than $15 billion in ad revenue annually, and had a monthly global audience of 2 billion users. It’s now at the crux of a debate with far-reaching implications; if the Florida and Texas laws are upheld by the Supreme Court, the site would likely have a much harder time barring hateful content, if it could at all.

That might be just fine for some people. One Supreme Court justice wondered during oral arguments whether the content moderation currently employed by YouTube and others is just “a euphemism for censorship.”

In some ways, we’ve already had at least a partial test run of unleashing a broader range of views on a social media channel. When it was still called Twitter, the site banned political ads due to concerns about spreading misinformation, and even banned a former US president. Now, as “X,” it’s reinstated both .

According to one recent analysis , X’s political center of gravity shifted notably after coming under new ownership in late 2022, mostly by design . The response has been mixed; sharp declines in downloads of the app and usage have been reported.

Government intervention to force that kind of recalibration, or to mandate any kind of content moderation decisions, would likely be unpopular. X, for example, has challenged a law passed in California in 2022 requiring social media companies to self-report the moderation decisions they’re making. The Electronic Frontier Foundation has called that law an informal censorship scheme .

Pundits seem skeptical that the Supreme Court will let the state laws requiring blanket viewpoint inclusion stand. During oral arguments, the court’s chief justice asked whether the government should really be forcing a "modern public square" run by private companies to publish anything. An attorney suggested the result might be so disruptive that, at least until they can figure out how to best proceed, some sites might consider narrowing their focus to “nothing but content about puppies.”

Workarounds are already available to some people who feel overlooked online. Starting an entirely new social media site of their own, for example . Or, if they happen to be among the richest people in the world, maybe buying one that’s already gained a huge audience.

Neither option is very realistic for most of us. And there may be a legitimate case to be made that ubiquitous platforms do sometimes unfairly marginalize certain voices.

(It's also possible that “content about puppies” would be preferable to what’s often available now).

Ultimately, no sweeping legal remedy may be at hand. Instead, we'll likely remain in an uneasy middle ground that only becomes more bewildering as artificial intelligence spreads – mostly relying on algorithm-induced familiarity , maybe wondering if it’s social-media ineptitude or shadow banning that’s keeping us from getting the attention we deserve, and not infrequently stepping out of our online comfort zone to steal a glimpse of something jarring.

More reading on freedom of expression online

For more context, here are links to further reading from the World Economic Forum's Strategic Intelligence platform :

• “The US Supreme Court Holds the Future of the Internet in its Hands.” The headline says it all. ( Wired )
• This pole dancer won an apology from Instagram for blocking hashtags she and her peers had been using “in error,” then proceeded to publish an academic study on shadow banning. ( The Conversation )
• “Social media paints an alarmingly detailed picture.” Sometimes people don’t want to be seen and heard online, particularly if asked for their social media identifiers when applying for a visa, according to this piece. ( EFF )
• “From Hashtags to Hush-Tags.” The removal of victims’ online content in conflict zones plays in favor of regimes committing atrocities, according to this analysis. ( The Tahrir Institute for Middle East Policy )
• Have you heard the conspiracy theory about a “deep state” plot involving a pop megastar dating a professional American football player? According to an expert cited in this piece, it’s just more evidence of our current era of “evidence maximalism.” ( The Atlantic )
• Everyone seems pretty certain that internet discourse has negatively affected behavior, politics, and society – but according to this piece, truly rigorous studies of these effects (and responsible media coverage of those studies) are rarer than you might think. ( LSE )
• One thing social media services don’t appear to have issues with publishing: recruitment campaigns for intelligence agencies, according to this piece. ( RUSI )

On the Strategic Intelligence platform, you can find feeds of expert analysis related to Media , Law , Digital Communications , and hundreds of additional topics. You’ll need to register to view.

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What a surprise! Free speech absolutist Elon Musk doesn’t really love free speech

The X owner is paying legal bills of people ‘unfairly treated’ over their posts while weaponizing the law to shut down his critics

Elon Musk is unravelling

Let’s check in on the platform formerly known as Twitter shall we? Let’s have a gander at how it’s doing since Elon Musk , the world’s cleverest man, decided to set its extremely valuable brand equity on fire and rename it “X”.

Huh, what do you know, it looks like it’s doing X-tremely poorly. Usage in the US has dropped by more than a fifth since Musk took the platform over in late 2022, a recent analysis found . This week Musk, who once named himself “Chief Twit”, also chaotically reversed his policy of making people pay for “verified status” and started forcing blue ticks on the site’s most-followed accounts – to the dismay of many users.

X might not be at the top of its game right now but, to be fair, Musk has plenty of other companies. So how’s Tesla doing? Not so great either, apparently. Inventory is piling up and the company is resorting to big discounts in order to shift cars . Meanwhile the Biden administration recently criticized SpaceX (another Musk company) for how heavily its operations are subsidized by the public.

While some of his biggest businesses are plagued with problems, Musk’s attention seems to be elsewhere. Half the time he seems to be tweeting about how he’ll never go to therapy or dramatically unfollowing his ex on X. The rest of the time the billionaire appears to be consumed by his favourite hobby : funding ridiculous lawsuits .

Last year Musk, who likes to refer to himself as a “free speech absolutist”, grandly announced that he would help pay the legal bills for people who felt they were “unfairly treated” for posting on Twitter. Musk was inundated with people asking for help and, last week, X officially announced that it was funding a lawsuit filed by Chloe Happe against her former employer Block – the financial technology company set up by Jack Dorsey, the founder of Twitter. While it’s not clear why Block terminated Happe, the lawsuit alleges it was because of her behaviour on Twitter.

“Block fired Chloe because of the political opinions she expressed on X,” the official X News account tweeted . “Chloe had two pseudonymous accounts on X, @bronzeageshawty and the now-deprecated @samsarashawty … because some of the opinions she expressed in her X accounts did not conform to the prevailing political orthodoxy, Block fired her, in violation of the law.” So what were those brave views that X is defending? Well, there are two key tweets (both of which Happe subsequently deleted) that are at the center of the lawsuit. One, described in the court filing as the “Restroom Post” said: “Looking fear in the eyes today as I’m using the ADA gender neutral restroom in the office and a retarded tranny in a wheelchair knocks on the door.”

The other tweet is described as the “Refugee Post”. In this one, posted soon after 7 October 2023, Happe pretended to be a “citizen” of Kurdistan (which is a region, not a country) and joked about refugees from Gaza coming to the area. Happe regularly uses this particular pseudonymous account to pretend to be a woman in Kurdistan with a sheep-herding husband and tweet “witticisms” like : “beautiful big tittie kurdish women just don’t fall out of the sky you know.”

Regardless of what you think about Happe’s comments, this seems like a bizarre case to throw your weight behind. I mean, let’s be very clear here: one of the richest and most influential men in the world has decided to invest his considerable resources in fighting for a woman’s right to say “tranny” and “retarded” online.

A cynic might say the motivation behind this lawsuit is not so much free speech as it is childish trolling. Musk, after all, has routinely demonstrated that he has the maturity of a 12-year-old. This is a man, let us not forget, who whited out the “w” on the Twitter office sign because he thought it would be funny for people to work at “ titter ”.

Despite the fact that he styles himself as a free speech warrior, Musk has also made it very clear that he’s not keen on certain forms of free speech. He will defend someone’s right to use transphobic and ableist language online to the very end but God forbid anyone should exercise their freedom of speech to say anything bad about him! The thin-skinned billionaire has forced employees to sign restrictive non-disparagement agreements and Twitter has been accused of suspending the accounts of journalists who have covered the platform . There are also claims that the platform has censored Palestinian public figures and suspended accounts which have been critical of Israel’s war on Gaza.

Musk has also weaponized the law to try to shut down his critics. Last month, for example, a judge dismissed a case X had filed against the Center for Countering Digital Hate (CCDH), a non-profit that has published reports detailing a rise in hate speech and racist content on X since the Musk takeover.

“Sometimes it is unclear what is driving a litigation …” wrote Charles Breyer, the US district judge, in the ruling. “Other times, a complaint is so unabashedly and vociferously about one thing that there can be no mistaking that purpose … This case is about punishing the defendants … X Corp has brought this case in order to punish CCDH for CCDH publications that criticized X Corp – and perhaps in order to dissuade others who might wish to engage in such criticism.”

Musk actively trying to suppress criticism while posturing as a free speech warrior? Gosh, it’s almost like the man is a raging hypocrite.

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Teachers’ union leader calls for inquiry into misogyny among young men in UK

“It’s very fair to say that there’s a real problem with sexism and misogyny within schools,” the leader of the UK’s largest education union said . “It’s not just influencers such as Andrew Tate , but aggressive hardcore pornography which is really easily accessible to young people. This stuff is having a real impact, particularly on young boys and young men and their views of women and relationships.”

Florida supreme court clears way for both abortion ballot measure and six-week ban

If that headline sounds confusing it’s because the situation in Florida right now is very confusing . Florida was one of the last states in the south-east where abortions were still somewhat accessible; now, however, a six-week ban is imminent. The good news, however, is that Florida residents will get the chance to vote on a ballot measure to enshrine abortion rights in the state constitution.

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How life has changed in Hong Kong under sweeping security laws

Aaron Han Joon Magnan-Park had been working in the literature department at the University of Hong Kong for about 10 years.

But last year Mr Magnan-Park, who specialises in Hong Kong action films and Asian cinema, decided he wouldn't be returning; he feared his work may land him in jail.

"Everything is ambiguous," he says, talking about the island's new security laws.

In 2020, Beijing imposed a National Security Law (NSL) on Hong Kong, and expanded on it last month with what's known as Article 23.

Article 23 introduces new crimes such as sabotage, sedition, the theft of state secrets and espionage, and threatens up to life imprisonment for the most severe offences, including treason and insurrection.

Trials can be run behind closed doors and suspects can be held for up to 16 days without charge.

Mr Magnan-Park says the laws have made it impossible for him to feel safe in his work.

"We were told in clear terms that any violation of the NSL would be seen as a personal matter between the individual academic and the government – the implication was that the university would not come to our defence," he tells the ABC.

The risk of someone in class recording an accidental violation of the laws and reporting him was too great, he says.

"I had to advise my students collectively and individually that the NSL needed to be respected and steer them away from pursuing research topics that had previously been safe and legal to pursue."

Mr Magnan-Park says he believes self-censorship is only going to increase under Article 23.

Martin Krygier, a professor of law and social theory at the University of NSW, recently gave a lecture at the University of Hong Kong.

But before he departed Australia, he said he "cleaned out" all references to China in his manuscript, worried he might say the wrong thing.

"Lots of people that I came in touch with are very apprehensive about what they can say," Professor Krygier says.

Former Hong Kong parliamentarian Ted Hui, who lives in Adelaide, says "the red line can be anywhere", particularly with vague wording around the charge of sedition.

"It can be any criticism towards the governments on the internet, that people do every day or just speaking of public policy that could be interpreted as criticism and incitement to hate the government," Mr Hui says.

The uncertain landscape has prompted media outlets like Radio Free Asia to close their Hong Kong office.

And just this week, Aleksandra Bielakowska, a representative from the watchdog group Reporters Without Borders, was detained and then deported as she arrived to monitor the landmark trial of pro-democracy media tycoon Jimmy Lai.

"There's so many cases of people … being surveilled or basically being monitored by the government, so the atmosphere is really getting worse and worse," Ms Bielakowska says.

The Australian government's travel advisory was updated last month and advises people to "exercise a high degree of caution".

A spokesperson said the Department of Foreign Affairs and Trade was "deeply concerned that the Article 23 legislation will further erode rights and freedoms in Hong Kong" and have implications for its future as an international financial centre.

Despite those concerns, many remain optimistic about Hong Kong.

Australian expats Scottie Callaghan and James Wilson, owners of Fineprint cafe, report minimal changes to their daily lives.

"We're currently in a really healthy spot and a lot more expansion is our intention, and frankly Hong Kong's kind of thriving at the moment," Mr Wilson explains.

They both acknowledge concerns around how quickly Article 23 was pushed through but say the return of events like the Hong Kong Sevens rugby tournament and the Art Basel fair have added buzz to the city.

"Life in Hong Kong today is very similar to life in Hong Kong seven to 10 years ago for me, it doesn't feel any different," Mr Wilson says.

"It's an evolving beast and it always has been," adds Mr Callaghan.

Hong Kong remains Australia's largest commercial presence in Asia with around 100,000 Australians living and working in the financial hub.

"We're seeing greater numbers of Australians moving to Hong Kong, some are returning after a period away and some are moving here for the first time," says Josephine Orgill, the chair of the Australian Chamber of Commerce in Hong Kong.

She points to growth in industries like healthcare, food, construction and technology.

Steve Vickers, a political and corporate risk consultant, says rather than being "over", Hong Kong is just different.

"Hong Kong is rapidly becoming 'China's financial centre' and is also acting as a trade and finance intermediary for companies from India, Russia, the Middle East, and South-East Asia."

Mr Vickers says "the 'new' impact of Article 23 on business is not so significant" as the bulk of the key provisions were already in place under the 2020 security law.

While many businesses remain upbeat, the local stock market tells a different story.

The Hang Seng Index has fallen more than 40 per cent since 2019, slumping behind Asian market rivals in Mumbai and Tokyo, while the city has seen an exodus of people and capital.

Chung Ching Kwong, a member of the Inter-Parliamentary Alliance on China, says the decision to leave is a privilege for expats that many locals don't have.

"I sometimes feel expats live in a parallel universe … they live in a very different space in the society – not speaking the language and not really participating in local politics and social affairs," she says.

Ms Kwong, who now lives in the UK, says one of her family members in Hong Kong was taken in for questioning last year by security forces, prompting further paranoia.

"You're like, 'shit, why am I drawing people into this?' I chose to be an activist but my family members never chose to be a family member of an activist."

For many, it's a different vibe in a city where "Lennon Walls" were once packed with colourful post-it notes, advocating pro-democracy messages.

Dexter Tse, who owns a small bookstore mostly selling historical and academic texts, says despite the crackdown, memories can't be erased.

"I think people cherish their identity more than ever," he says.

"Censorship is getting more serious year by year … but there are still a lot of people collecting things and archiving online or overseas and we're hoping some day they can bring these things out."

The iconic independent bookstore Mount Zero, which closed its doors last week, still has one message above its front door: "Ideas are bulletproof."

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Salman Rushdie, in first TV interview since near-death attack, says US faces ‘bad moment’ for free speech

Salman rushdie, in his first major tv interview since he was stabbed in 2022, also read excerpts from his upcoming memoir about the horrific attack, article bookmarked.

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Famed author Salman Rushdie has given his first major televised interview after the stabbing that nearly killed him two years ago .

Mr Rushdie was repeatedly stabbed in 2022 while preparing to deliver a lecture on free speech in New York. The vicious stabbing put the author in the hospital for six weeks and left him blind in one eye. The attack came after an assassination order was placed on Mr Rushdie — called a “fatwa” — in 1989 because of his novel, The Satanic Verses .

His 1988 novel generated massive controversy and Iran’s former Supreme Leader, Ayatollah Ruhollah Khomeini, declared it blasphemous because of its depiction of the Prophet Muhammad. While the fatwa was later lifted, Mr Rushdie went into hiding for a period before rejoining public life.

Mr Rushdie, in conversation with Anderson Cooper on 60 Minutes , said the US is facing a “bad moment” for free speech and criticised both sides of the political aisle.

“It used to be the case that very conservative voices were the places from which you would hear that such and such books should be banned or is obscene or disgusting or whatever,” Mr Rushdie told Mr Cooper in the interview televised Sunday.

“The thing that’s different now is that it’s also coming from progressive voices that there are progressive voices saying that certain kinds of speech should be not permitted, because it offends against this or that vulnerable group,” Mr Rushdie continued.

Mr Rushdie also told Mr Cooper about the day he was nearly killed. He gave a chilling account of how he dreamt of the attack just two days before it happened.

“I said to my wife, Eliza, I said, ‘You know, I don’t want to go,’” Mr Rushdie said. “Because of the dream. And then I thought, ‘Don’t be silly. It’s a dream.’”

Mr Rushdie is releasing a new memoir that will hit shelves on Tuesday. Knife: Meditations After an Attempted Murder focuses on his experience of the 2022 attack.

He read passages of the memoir on 60 Minutes , sharing one section about the moments leading up to the stabbing.

“In the corner of my right eye – the last thing my right eye would ever see – I saw the man in black running toward me down the right-hand side of the seating area,” Mr Rushdie read. “Black clothes, black face mask. He was coming in hard and low. A squat missile.”

“I confess, I had sometimes imagined my assassin rising up in some public forum or other, and coming for me in just this way,” he continued. “So my first thought when I saw this murderous shape rushing towards me was, ‘So it’s you. Here you are.’”

Hadi Matar is accused of attacking Rushdie and has been held without bail since the August 2022 attack.

“I don’t like the person. I don’t think he’s a very good person,” Mr Matar previously told officials. “He’s someone who attacked Islam, he attacked their beliefs, the belief systems.”

Mr Matar’s trial, initially scheduled to begin in January, is currently on hold after his attorneys argued they need time to review Mr Rushdie’s forthcoming memoir, which may be used as evidence.

In a section of his memoir, Mr Rushdie addresses his assaillant with powerful words: “Our lives touched each other for an instant and then separated. Mine has improved since that day, by yours has deteriorated. You made a bad gamble. I was the one with the luck.”

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