Australia Balancing the Scales Between Free Speech and the Right to a Good Name

rect terminology to use, and that the general public are well informed about the struggles of trans people. It is my sincere hope that we can one day reach an all-inclusive Ireland, free from trans stigmatisation and discrimination.

and the Right to a Good Name Matthew O’Shea JS Law and Business

Where should the line be drawn between protecting one’s right to a good name against another’s right to speak freely? Te Australian state of New South Wales may have closed in on the answer.

Te state has recently passed a suite of reforms on its defamation laws, modernising an area of law previously untouched since the early 2000s. Defamation represents the area of civil law historically thought of as slander or libel, involving the utterance or publication of a false or damaging statement by one party about another. In Ireland, slander and libel are considered together under the Defamation Act 2009. Unique to this area of civil law is that trials for defamation may still be witnessed and decided on by a jury – both in Australia and Ireland – whereas the majority position in civil law tends not to include a jury.

Te inclusion of a jury in defamation cases is one aspect which ofen makes for unusually high pay-outs of damages in cases of successful judicial actions. Tis can be seen in the relatively recent Australian case in which actor Geofrey Rush was awarded a historic A$2.9 million in his case against the Daily Telegraph. New South Wales’ reforms cover three core areas: i) the introduction of a “serious harm test” to weed out minor claims; ii) a “public interest defence,” emulating that of common law, as evidenced in Ireland; and iii) a clear aim to reduce the size of pay-outs made in defamation cases.

Te frst two elements above may not seem alien to the Irish version of the Act, given that there are already similar provisions in place in this jurisdiction to consider the level of harm caused by a defamatory comment, as well as respect given to the public interest of a certain publication allowing for otherwise defamatory comments to be made.

Te third element above proposes a clarifcation on the ceiling on the level of damages that may be awarded for non-economic loss in a defamation case, which currently stands at A$421,000. Tis ceiling is by no means absolute, and as the Sydney Morning Herald reports, there are many cases in which the total damages awarded may indeed exceed it. Te proposed reforms lean more towards clarifying how the ceiling works for non-economic loss, i.e., the damage done to one’s reputation as opposed to one’s loss of earnings.

Tese reforms were prompted by New South Wales Attorney General Mark Speakman, who described them as “a generational change in the way Australia’s legal system will protect reputations from serious harm while encouraging responsible free speech.” While there is currently no commencement date set for the reforms, it is reported that the other Australian states would have to introduce similar reforms in order to maximise its efectiveness. Irish defamation law may beneft from taking inspiration from New South Wales’ reforms, particularly regarding the methods proposed for limiting the sizes of defamation pay-outs. Tis could be particularly noteworthy in light of the 2019 case, Kinsella v Kenmare Resources plc, in which an award of €9 million was initially proposed by the jury, only to be reduced by the Court to €250,000.

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Te introduction of a legislative cap on damages sufered to one’s reputation, rather than one’s earnings, may be an inventive way of combating Ireland’s reportedly growing “compensation culture”, where litigation is seen to be quite proftable for many civil litigants. Such a cap would efectively erase the need for judicial intervention in circumstances where a jury’s recommendation is unfeasible or inaccurate in proportion to the damage sufered. Notwithstanding the merits of a cap, however, a fundamental aspect of our judicial system still remains: those who have sufered wrongs must see justice in the law. Tus, the balancing act continues, between afording citizens a strengthened right simultaneously pro- Thus, the balancing act to free speech, whilst tecting the rights of those same citizens reputation before continues, between affording citizens a to a good name and the law. Tis would be Wales’ frst proposed strengthened right to free speech, whilst aided by New South reform of screening defamation cases, claims and focus simultaneously protecting the rights of to weed out minor largely on the more egregious cases. It is a screening system those same citizens to a good name and contended that such would ensure the right to a good name enjoy, whilst simul- reputation before the law. that Irish citizens taneously protecting the right of those same citizens to speak freely.

Te line between these two conficting rights is one which may spark great debate, and perhaps there is no perfect solution. However, it must be said that New South Wales, thanks to Attorney General Speakman, is rightly evolving with the times. Afer more than a decade since the enactment of the Irish Defamation Act, it may be time for Ireland to follow suit.

Te summer of 2019 sparked progress in the continued fght for equality for the LGBTQ+ community in the workplace in the United States of America. An amicus brief was signed by over 200 companies, through which they declare their dedication and support to all members of their given corporations. Tis landmark brief was inspired by three specifc cases, all of which resulted in outcry and scrutiny afer employees experienced workplace discrimination based on their sexuality. Firstly, in Altitude Express v. Zarda (2020), a skydiving instructor named Donald Zarda was fred afer he disclosed his sexuality to a female customer. According to Zarda, he had entrusted this customer with his personal information to reduce any awkwardness she may feel by being strapped so closely together for the dive. Te woman subsequently told her boyfriend of Zarda’s sexual orientation who then issued a complaint to Altitude Express, resulting in Donald Zarda’s termination. In his complaint, he also accused Zarda of inappropriately touching his girlfriend, a notion which Zarda’s former partner William Moore completely discredited. Following this event, in September 2010 Donald Zarda fled a lawsuit claiming that Altitude Express “violated Title VII of the Civil Rights Act of 1964 by discriminating against him because of his sexual orientation.” Unfortunately, Zarda passed away in 2014. However, he posthumously helped achieve awareness and further equality for the LGBTQ+ community in the workplace as his case was decided in 2020 in his favor. In R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens (2020), a transgender woman was let go from

her position at a Detroit funeral home in 2018 afer disclosing that she was about to begin her gender transition. Te 6th U.S. Circuit Court of Appeals ruled in favor of Stephens and the Equal Employment Opportunity Commission (EEOC), relying on Title VII of the Civil Rights Act of 1964. Title VII protects transgender workers and states that religious beliefs cannot be used to justify discrimination in the workplace. However, afer the decision, the funeral home fled an appeal, which garnered support from groups who oppose transgenderism.

Te third named case is Bostock v. Clayton County (2020). Here, Gerald Bostock was fred from his job as a county child welfare services coordinator afer participating in a gay recreational sofball league, through which his employer learned of Bostock’s sexuality. Te Second and Sixth Circuit courts relied on Title VII in providing that “[a]n employer who fres an individual merely for being gay or transgender violates Title VII. Title VII makes it ‘unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin,’” However, the Eleventh Circuit held that Title VII does not prohibit employers from fring employees based on sexual orientation, and decided that Bostock’s case be dismissed. In the U.S., the High Court rules on whether discrimination in the workplace is based upon sexual orientation or gender identity by relying on Title VII of the Civil Rights Act of 1964. It relies upon the clause outlining the “[prohibition of] employment discrimination based on race, color, religion, sex, and national origin.” However, on the opposite side of the aisle, conservative Christian groups such as Alliance Defending Freedom advocate against LGBTQ+ rights and instead argue for courts to reverse the “expanding defnition of sex discrimination.” It must be noted that there is no explicit federal law in place which outrightly bans discrimination in the workplace based on sexual orientation. As a result, many states have taken it upon themselves to compose this legislation. Conversely, in twenty-six states, ployer to fre an in- It must be noted that there is no explicit it is legal for an emdividual due to sexual orientation. federal law in place which outrightly bans Tat last sta- tistic, as well as the three listed cases, discrimination in the workplace based on act as the impetus for the amicus brief, which was signed by over 200 companies sexual orientation. As a result, many states and submitted to the Supreme Court in brief, also known as have taken it upon themselves to compose June 2019. An amicus amicus curiae, translates to “friend of the this legislation. court.” Essentially, a party who is not di- rectly involved with a case may petition the court to fle a brief on behalf of one of the named parties. Ofen, they serve to provide rationale to a greater public need and are used in cases of major public interest, such as a civil rights case. Tese briefs may also be used to raise awareness that may be integral to a court’s eventual decision. However, an amicus brief is solely a petition, and courts are in no way required to abide by what is entailed.

Tus, this amicus brief signed in 2019 by U.S. and international corporations contends that excluding sexual orientation and gender identity from federal civil rights law undermines the U.S.’s dominant business interests. Te brief itself states:

“Te 206 businesses that join this brief as amici collectively employ over 7 million employees, and comprise over $5 trillion in revenue. Tese businesses — which range across a wide variety of industries (and some of which are even competitors) — share a common interest in equality because they know that ending discrimination in the workplace is good for business, employees, and the U.S. economy as a whole.”

Signatures came from companies including Amazon, Apple, Facebook, Google, Nike, Bank of America, and JP Morgan, among many others. Tese big-name companies joining together to sign this amicus brief is a monumental moment for the LGBTQ+ community. As the Human Rights Campaign states, this brief “has more corporate signers than any previous business brief in an LGBTQ+ nondiscrimination case.”