Hi Amanda,

No, I wouldn't have published Bolt's articles. The major reason would have been that we don't have the resources to check the facts from a defamation point of view. And that if someone took offence we wouldn't have the resources to defend the action.

We have a policy position of not doing investigative journalism, and that is essentially why. You might recall http://www.onlineopinion.com.au/view.asp?article=9238&page=0.

I'd also have a moderation problem if I published something like those articles as commenters would take the tone of the article as their own cue.

I would probably have Googled one or two of the defendants as well (as I have done Behrendt) to check that things squared-up, and as an additional argument to the author as to why I wouldn't publish.

In terms of Bolt's influence vis-a-vis the influence of other venues such as OLO I suspect it won't play a big part in future judgements. The act includes any comments not made in private and doesn't lay down a size of audience test.

In terms of who could sue - anyone of the race or colour who is offended. I've already had to deal with comments on a thread that upset a Jewish reader. They were not party to the discussion, or the target of it, just a member of a class of person who was offended. We went to the early stages of conciliation with HREOC in that case.

Hi Graham and everyone else. Who could sue and who are likely to sue are two different matters. Eatock and the others were sorely provoked and surely it's not surprising that they reacted. What is surprising thing is that they did so under the Racial Discrimination Act rather than defamation laws and this means publishers have another thing to worry about - in law but possibly not much in practice.

I just don't see that this Bolt judgment actually closes down free speech. It's not all fair skinned Aboriginal people who are up in arms and likely to sue. There are a wide variety of opinions amongst indigenous and non-indigenous people; the debate is vigorous and it's open. But Bolt named a handful of people and at least some of them were informed enough and had enough resources to sue, the facts were wrong and the tone seeemed designed to inflame.

With defamation publishers are very, very careful about what they publish about anyone who has sued for defamation previously but are more cavalier about those who are perceived as being unable or unlikley to sue. You have one Jewish reader who is very touchy, maybe understandably so, and having been threatened or warned you need to careful about anything you publish about Jews. This case has set a precedent but I don't think anyone is threatening or warning OLO to be careful about publishing anything about indigenous identity. Bolt and his comments are extreme.

Maybe if you avoid articles It's easy for me to say that because I won't be called on to defend anything you publish

Damn I posted before I meant to. What I meant to say is that I reckon you can trust your judgement, like you do with possibly defamatory material.

Hi Amanda,

I don't think you understand the potential for people to make mischief. We also had the gay problem last year which caused us financial damage. This demonstrates that there are a range of activists who are motivated enough to cause you trouble.

BTW, suing isn't the threshold in the act - lodging a complaint with HREOC is and that doesn't cost anything. People with limited resources but limitless time can be a real problem.

And all this without any demonstrated need for it. The various complainants were already catered for under defamation legislation.

This judgement just lowers the barriers to entry and lowers the standard of proof. Believe me, it will get used and it will have an effect on small to medium serious publications.

You are right Graham. I didn't think of the potential for people to make mischief because I don't think that way myself. Personally I think Bolt was making mischief so I'm glad he was found guilty. If someone in a more resaonable, less attacking way had questioned if fair-skinned Aboriginal people are really Aboriginal I would have been horrified if raising the question was regarded as contravening the RDA.

For you as a publisher - publishing opinion not just by professional writers who may have some understanding of the law, but by anyone who wants to express an opinion, and some of those people are quite intemperate (to put it mildly) - yes, it's worrying. I hope you don't suppress all discussion and would be happy to see you delete flaming posts. Would it help if you had a disclaimer saying opinions expressed are not those of OLO?

GrahamY::"This demonstrates that there are a range of activists who are motivated enough to cause you trouble."

Sadly, the SLAPP has become a standard device among some groups who seem to feel themselves unable to argue their case affectively in a public situation. The case you mention was a pretty good example of that, as I recall.

The Bolt case was a little different, because he didn't offer the right of rebuttal, as far as I can tell. His column was published and it stood and there was no equivalent platform available for those who disagreed, although I'm sure the HWT would have happily published a piece by one of the plaintiffs if they'd asked. Controversy sells papers after all.

I think that's a qualitative difference between this site and the mainstream press. Anybody who feels they disagree is free to argue their case for no cost other than time and the availability of a computer of some kind. It seems to me an important aspect of the situation. There is no right to express a particular view without being challenged. This makes the Law's intervention unnecessary, I would have said.

The soap-box orator is only effective if he can answer the hecklers. If he fails to do so, he fails to make his case. It seems to me that columnists such as Bolt must make it possible for dissenters to comment. Once the letters section did this effectively, but in today's world a proper comments section attached to each column would do it.

Sadly, at least in the Fairfax press, such comments sections are becoming few and far between, perhaps because they tend to publish a lot of press releases masquerading as journalism. Can't have the Attorney-General's tame PR flack being challenged...