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Freedom of Speech?

The American right to free speech is much celebrated, and is protected in the first amendment to the constitution of the United States of America (the first ten of these being known as the Bill of Rights). Our right to free speech is much less clearly defined, and arguably less absolute.

There is the obvious recent example of the Abbott government’s attempt to repeal section 18C of the Racial Discrimination Act which makes it unlawful to do an act which that act is reasonably likely to “offend, insult, humiliate or intimidate another person or a group of people” because of their race. The attempts failed, no doubt in no small part because of Senator Brandis’s justification that “People do have a right to be bigots you know”. This is only one example.

The recent, and very interesting case, of Kidu and Fifer & Ors gives another example where freedom to publish will be restrained.

The case involves a documentary featuring Dame Carol Kidu. Dame Carol is a very interesting woman, having been born in Australia, then marrying the former Chief Justice of the National Supreme Court of Papua New Guinea the late Sir Buri Kidu. Dame Carol went on to be a member of the PNG Parliament in 1997 until 2012 for much of that time being the only woman in Parliament. Prior to her retirement from politics Dame Kidu was for a short time the leader of the Opposition.

The defendants shot and produced a documentary about a controversial development in Port Moresby in an area known as Paga Hill. The first defendant, Ms Hollie Fifer was introduced to Dame Carol by her mother, who knew the Dame from charity work she had done in PNG.

Ms Fifer was studying at the Australian Film Television and Radio School and approached Dame Carol to be involved in work she was doing as part of her course. The parties disagree about what precisely was to be the subject of the work, and indeed whether it was to become a full blown documentary, or to remain solely for Ms Fifer’s school work.

In any event Ms Fifer went to stay with Dame Carol in PNG, on the first occasion whilst she was still a member of the Parliament. It was during that first stay that Dame Carol received a phone call about a settlement being demolished on Paga Hill to make way for a development. Ms Fifer accompanied Dame Carol to the site and filmed the subsequent events, including “Dame Carol vehemently protesting the destruction of the Paga Hill Settlement”.

Through time the documentary came to focus on Paga Hill, and opposition to the development there, rather than Dame Carol’s career. It also became a commercial enterprise, and was admitted to the prestigious “Hot Docs” festival in Toronto. It was described by Justice Slattery as “a fine example of the documentary maker’s craft”.

In October 2014 Dame Carol formally retracted her consent for the documentary to use any footage featuring herself. In March 2016 proceedings were filed alleging breach of contract, promissory estoppel and unconscionable conduct. The contract alleged is that “in consideration for Dame Carol allowing Ms Fifer to accompany her in her personal and public life that Ms Fifer would be permitted to have the benefit of the visual and audio recording thereby taken to make a documentary for Ms Fifer’s film school work and for no other purpose”.

The cases of promissory estoppel (rights arising from representations or promises made which the party relied on, and would suffer detriment if broken) and unconscionable conduct relied on much the representations in the breach of contract case.

When it became clear that the defendants would air the documentary in Toronto Dame Kidu applied the Supreme Court of NSW for an interlocutory (a fancy legal word meaning not final) injunction preventing any of the footage of Dame Carol being used.

In considering whether or not to grant the injunction Justice Slattery considered the issue of freedom of speech, stating that it is a “matter of immense importance to the operation of an open society”. The injunction was granted solely in relation to the footage showing Dame Carol (as the footage that Dame Carol was claiming damages in relation to). Justice Slattery said that “any injunction in this case will be limited so that there can be no suppression of discussion of the subject of public interest represented in this documentary”.

Another condition (and not an insignificant one at that!) of the injunction being granted was that Dame Carol pay $250,000 as security (an estimate of the cost to the defendants of missing the “Hot Docs” screening).

This case can be seen as limiting the right to free speech, or as showing a person’s ability to protect their rights, depending on who’s side you are on. Stay tuned for the outcome of the final hearing.

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