The Bolt case: racial defamation done cheap

I was all set to fulminate against the evils of section 18C of the Racial Discrimination Act in the wake of the Federal Court’s verdict against Bolt and publisher News Ltd in Eatock v Bolt.

And then it turns out the the Bolt case is not, after all, the perfect opportunity to argue bravely for freedom of expression.

Because Eatock v Bolt turns out to be very much like a defamation trial. One of the two things that the Bolt case makes clearest is that if you’re defamed in an issue about race, and you care about redress rather than money (refreshing!), then the Racial Discrimination Act is the best place to go. Someone else pays the costs and the burden of proof is much lower.

That we have essentially a special duty not to racially defame in Australia is a peculiar result of the Act that I had not realised until now. If like me you don’t much like affirmative action, this is not a good result for the country, regardless of what you think about defamation law. But it’s not as bad as result as it might have been if the case had been decided on other grounds.

OK, step back. As Jonathan Holmes has eloquently pointed out, section 18C is awful legislation. It was inserted into the Act in 1995 by the Keating government with the rest of Part IIA of the Act. Part IIA is headed “Prohibition of offensive behaviour based on racial hatred”, but section 18C it doesn’t fight racial hatred at all. Instead it outlaws certain types of speech and writing so long as they are reasonably likely to offend some people, and as long as the utterances in question are said or written because of those people’s race. This is bad and stupid in its own right, because almost anything you might say or write about race is reasonably likely to offend someone. The Act is also apt to make a lot of people feel that their views are being censored. The likely end result is racial disharmony, the opposite of the result this lousy law was supposed to have.

It’s an awful law, but it’s a simple one. Someone in a racial group felt offended. Bolt was referring to their race. It didn’t matter whether Andrew Bolt was the lovechild of Mark Twain and Mother Teresa; on the face of it, he’d breached the Act. (Bromberg J’s judgment takes a long time to get to this point.)

The legal question then was whether Bolt could use one of the Act’s exemptions. The Act exempts speech and writing in various circumstances where it’s “said or done reasonably and in good faith”, fairly and in the public interest. You might think this would cover most of what a newspaper columnist would write. This is where I was all set to write about Bolt being punished for his opinions.

And this is where we get to the second thing that the case makes clear. If Bromberg J’s summary is anything like correct, Bolt really can be monumentally sloppy with the facts. I was all set to excoriate Bromberg for interpreting the exemption too narrowly, and punishing Bolt for his expression of opinion. But it turns out the case is not about Bolt’s opinion. The judgment says (from point 378, if you’re reading it) that Bolt’s work on the facts was so bad that it didn’t get close to meeting the standard for the exemption.  Bolt said a bunch of things about the plaintiffs’ backgrounds which were wrong. He didn’t do basic checks of publicly-available information that he could have found with a minute’s Googling. Bromberg J says that he did not have to make too difficult decisions on the balance between free speech and the Act’s aims, and if his facts about Bolt are right, I can see the judge’s point.

Julian Disney from the Press Council responded to the verdict by suggesting that it showed opinion articles have to be fair and balanced. The essence of opinion writing is that it is unfair and unbalanced, so I am glad that Disney – whom I generally admire – is wrong here. Rather, the verdict seems to show that if you write about racial issues and get a lot of facts badly wrong in a way that offfends people, you may be able to get your case heard as racial discrimination, instead of going to what I suspect is the extra expense of a defamation trial. Oh, and you probably have a better chance of winning.

The judgment itself notes the close parallel with a defamation case:

The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.

As I said, the idea of a special ethnic defamation code is hopelessly unsatisfactory, even if you think defamation itself is a good legal principle. Other people have made worse misrepresentations than Andrew Bolt and got away with it because section 18C of the Racial Discrimination Act didn’t cover their statements. And section 18C is an outrage anyway, outlawing statements on the basis of the “offence” they might create. It really should be repealed.

But if people start telling you Bolt was punished for his opinions, be just a little sceptical. He was punished for much the same reason as anyone on the losing end of a defamation case.

Update: I have removed a line from this article stating that “Bolt should never have had to face a court examination”. If you believe defamation law is good law (I’m ambivalent) then it’s arguable that Bolt deserved to be in court.

Update 2: Predictably, the idea that Bolt was found guilty because he got his facts wrong is now being ignored by Bolt sympathisers and opponents alike, and not just at News Ltd. Listen to Neil Mitchell interview Geoff Clark here. Note how Geoff Clark unfairly represents the judgment as declaring Bolt a racist. (Note also how Mitchell’s intelligence and civility contrasts with that of one or two Sydney commercial talkback hosts. Some Melburnians don’t understand how lucky they are.)

About David Walker

David Walker runs editorial consultancy Shorewalker DMS (shorewalker.net), editing and advising business and government on reports and other editorial content. David has previously edited Acuity magazine and the award-winning INTHEBLACK business magazine, been chief operating officer of online publisher WorkDay Media, held policy and communications roles at the Committee for Economic Development of Australia and the Business Council of Australia and run the website for online finance start-up eChoice. He has qualifications in law and corporate finance. He has written on economics, business and public policy from Melbourne, Adelaide and the Canberra Press Gallery.
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Pedro
Pedro
10 years ago

The big jump from defamation to 18C is that the first protects the reputation of the person and the second the feelings. I think that makes is qualitively something very different. True defamation is a remedy for damage suffered (however nebulous that might sometimes seem in individual cases) and proof of the damage is an element of the claim.

whyisitso
whyisitso
10 years ago

“(Bromberg J’s judgment takes a long time to get to this point.)”

Taking a long time seems to be a characteristic of Blomberg J. He took five a nd a half months to deliver his verdict measured from the last hearing date to yesterday.

whyisitso
whyisitso
10 years ago

Thank you David for your thread. I came to this site because I thought i’d check out some left-wing opinions (I’ve already been to Larartus Prodeo, and also read David Marr’s rant in this morning’s SMH, and half expected to see a thread by Ken Parish, who does from time to time comment on legal issues from a left ish direction. I’d place your position as somewhat right of centre.

Fran Barlow
Fran Barlow
10 years ago

While I share your objections to the formulation of s18C (I imagine I could write a more easily testable standard) I don’t agree that Bolt could have been monumentally sloppy and enjoyed relief under s18D. His sloppiness subverted his good faith relief claims, and Bromberg specifically noted the probability that others would rely on his facts as having been vetted. The News Ltd Code of Conduct runs in part as follows:

1. Accuracy

1.1 Facts must be reported impartially, accurately and with integrity.

1.2 Clear distinction must be made between fact, conjecture and comment.

1.3 Try always to tell all sides of the story in any kind of dispute.

1.4 Do not knowingly withhold or suppress essential facts.

1.5 Journalists should be reluctant to rely on only one source. Be careful not to recycle an error from one reference source to another. Check and check again.

So readers had a form of warranty about the professional practice of Bolt (laughable since it is not known to have been enforced but there you have it)

He can’t claim 18D with that in the baggage he took to court.

Bolt might have made his trolling claims of misuse of identity for personal profit at the expense of authentic recipients (i.e those having the requisite amount of melanin in their faces to satisfy him) of a program to which he objects in toto (again one coughs at the hypocrisy) if he hadn’t actually referred to any specific living person and avoided the terrible and crushing sanction of having a correction and apology published on his behalf of course.

Niall
10 years ago

All the legal mumbo-jumbo, pseudo-political posturing and outraged cries of censorship because a minority had been picked on entirely misses the point. The law as written stands, regardless of what anyone thinks or doesn’t think about it. Bolt knew this and if he claims he didn’t he doesn’t deserve the oxygen news Limited afford him. He did wrong and was duly found wanting. End-Of-Story.

jtfsoon
jtfsoon
10 years ago

He did wrong and was duly found wanting. End-Of-Story.

Fair enough Niall. Are you going to turn yourself in?

Gehard Giedrojc
Gehard Giedrojc
10 years ago

Looks like the apologists are starting to come out in force. Expect to see a lot more in the Murdoch press.

Andrew Norton
Andrew Norton
10 years ago

It’s a little technical in its legal analysis, but this article by Darryn Jensen highlights a contrast between Victorian and Commonwealth racial vilification law. The Commonwealth law deals with hurt feelings while the Victorian test deals with how the speech might affect the views other people (would it affect their opinions in a seriously negative way).

While I do not personally support either law, the Victorian approach seems better if the underlying purpose is to avoid stirring up racial hatreds.

Pedro
Pedro
10 years ago

At 241:
“It is thus the risk of a person or one or more people within a particular group of people being offended, rather than the actuality of offence that is being assessed. Proof of actual offence for a particular person or group is neither required nor determinative, although evidence of subjective reaction is relevant to whether offence was reasonably likely”

and 253:
“For the reasons I have just outlined, that contention must be rejected. It is the values, standards and other circumstances of the person or group of people to whom s 18C(1)(a) refers that will bear upon the likely reaction of those persons to the act in question. It is the reaction from their perspective which is to be assessed:”

Yes, it is about freedom of speech (at 255):
“But of course there are limits. Tolerance cuts both ways. Members of a tolerant society are as much entitled to expect tolerance as they are bound to extend it to each other. And, in the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said.”
and at 263:
“It seems to me that s 18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society.”

“There is good reason to try and restrict continued access to, and dissemination of, the Newspaper Articles by the public.”
LOL, the damn things are attached to the judgement!

KB Keynes
KB Keynes
10 years ago

Bolt was sloppy with the facts as David has shown in the Judgement.

If he had not been so lazy and catallaxian with the facts it seems this may never have happened.

Bolt’s free speech is only restricted because if he is incapable of finding and then stating facts.

jtfsoon
jtfsoon
10 years ago

Bolt’s free speech is only restricted because if he is incapable of finding and then stating facts.

Homer, is your self-awareness really that limited?

If ‘finding and then stating facts’ is an offence you’d be clapped up in irons forever

KB Keynes
KB Keynes
10 years ago

It happens every day at Catallaxy as I have shown.

nice egg all over your face though.

JC
JC
10 years ago

Lol Homer, are you self aware?

Dude, if accuracy was any measure of guilt, you would be on death row without the possibility of appeal.

TimT
10 years ago

The judgement is well known now and it’s already had a great deal of discussion – but it would be nice to look again at what Bolt actually wrote to be able to judge for ourselves. I presume the articles are all off line now.

I did read at least some of the offensive articles before this all went to court and can’t recall now any examples of egregious errors.

There was the customary exaggeration and rhetorical positioning, true, and Bolt’s views stated with his customary, er, forcefulness, but surely nothing that should have seen it end up in court.

Every time a MSM blogger or columnist writes a contentious article will editors busy themselves with referring to the particulars of the Bolt court judgment? I doubt it. This case may not have killed free speech – but it’s certainly weakened it.

The appropriate way to contest Bolt’s columns/blog posts would surely have been through argument.

TimT
10 years ago

Sorry, shouldn’t have sent so early –

The appropriate way to contest Bolt’s columns/blog posts would surely have been through argument through media sources – newspapers, blogs, radio, and television – NOT the courts.

KB Keynes
KB Keynes
10 years ago

JC you and Soony have bloody noses from all the times you have attempted to show I am wrong but ended up showing the opposite.

KB Keynes
KB Keynes
10 years ago

Tim T he said one plaintiff got a cushy job because of her skin only problem was it was a voluntary job i.e she didn’t get paid.

Memory not to good

jtfsoon
jtfsoon
10 years ago

that’s very violent imagery, Homey. I’m very offended on behalf of the Catallaxian eastern suburbs salon tribe.

TJW
TJW
10 years ago

The original articles are at the end of the HTML version of the judgement at Austlii. The resolution is pretty low so they’re a bit hard to read.

Ken Parish
Ken Parish
10 years ago

Jason

Homer may not have intended violent imagery. He’s probably imagining giving you and Joe a figuratively but accidental bloody nose while riding his Pymble Pony Club steed into the Catallaxian eastern suburbs salon.

KB Keynes
KB Keynes
10 years ago

ken.

I believe you are thiking of this.
to cause to bleed, as by a blow or accident: to bloody someone’s nose.

whyisitso
whyisitso
10 years ago

it’s interesting to contemplate what would be the legal and broader civil effects of putting the Bolt articles up on the Internet – at Troppo, even

Surely after this verdict this would be a very game, even reckless thing to do.

derida derider
derida derider
10 years ago

Yes, whyisitso, you might then face the draconian sanction, as Bolt is, of having to issue a correction and apology.

Personally I think they should have sued him for libel. The monetary penalty mught make the man a little more careful next time to to pay some regard to fact.

Niall
10 years ago

Droll Jason and entirely out of context. Apart from the fact that my statements were never cast as being “in the public interest”. If that’s the best you can do it’s little wonder the blogosphere sees so little of you.

KB Keynes
KB Keynes
10 years ago

Whyisitso,
It wouldn’t happen at Troppo as people here get the facts right on the other hand it is a regular occurrence at Catallaxy so you may warn them.

Ken Parish
Admin
10 years ago

While “whyisitso” is lurking, I should point out re his comment #3, that I’ve consistently expressed the view, over many years and at least 5 separate posts at Troppo and its predecessors, that racial and religious vilification laws are fundamentally objectionable on democratic/freedom of speech grounds e.g. this post from 2004 and this much more recent one which is actually in part about the Bolt case.

However I also agree with David Walker that this isn’t the case to be using as a vehicle for fulmination because Bolt just got his facts so egregiously wrong. In fact it would appear that the complainants almost certainly could have sued Bolt and/or News successfully for defamation. Moreover you have to wonder why they didn’t. As far as I can see there is nothing in the RDA or the Australian Human Rights Commission Act that displaces the usual litigation rule that costs follow the event. David says that “Someone else pays the costs and the burden of proof is much lower.” The first part of that statement is certainly true of the initial proceedings before the Racial Discrimination Commissioner and the the Human Rights Commission. But AFAIK it isn’t true of litigation before the Federal Court (which is constitutionally necessary to enforce any decision for separation of powers reasons).

As for the “burden of proof is much lower”, I guess that’s true to the extent that, as Pedro notes at #1, the complainants only need to prove that they were offended, not that their reputations were damaged (as in the tort of defamation). However, in other respects the elements necessary to make out a defence/exemption under s18D seem fairly similar to the elements of fair comment and/or qualified privilege in defamation law. As I say, it appears that the complainants would have had little difficulty proving reputational damage in the requisite way under defamation law, and Bolt is unlikely to have been successful in establishing any of the recognised defamation defences. Maybe the complainants really WERE just concerned about the issue of principle rather than making a fast buck by suing for defamation. IMO that is very much to their credit. But that doesn’t render racial vilification laws including the RDA any more defensible as far as I’m concerned.

trackback

[…] The Bolt case is not the perfect opportunity to argue bravely for freedom of expression. The judgement by Bromberg J, with summary, is here. […]

Yobbo
10 years ago

Moreover you have to wonder why they didn’t.

I think more than anything, they didn’t sue him for defamation because suing him under this law means they get to play the racist card with Bolt forever and ever. Andrew Bolt, the convicted racial abuser.

KB Keynes
KB Keynes
10 years ago

No Yobbo ,

For one time It would be nice if you took off your one eyed glasses.

I am told this action allowed them to take a class action. They could not do this under libel laws.

They merely wanted to make a point. They made it.

Bolt was ‘egregiously wrong’ in his facts as Ken says.
Of course he couldn’t apologise for this.
All he had to do was get his facts right. That is a hill too far away for Bolt.

Catallaxy types still cannot come to terms with this.

JC
JC
10 years ago

Was he Homes? He didn’t appear to be wrong with the most pertinent facts. Most Australians have a deep concern over Aboriginal welfare and how they are getting on. As someone who 90% sides with libertarian views I’m willing to tolerate affirmative action programs for aboriginals(at least, I don’t support them but tolerate them,)… any freaking thing to get them out of the mess of the lives for most Aboriginals…

What do we see?

We see a bunch of pics of white looking people that culturally belong to the a Australian (western) way of life knocking off the loot that was meant for (who we thought to be) visually apparent Aboriginals. That was the basic thrust of Bolt’s concerns.

If you say what he wrote about this had mistakes… I’m sure there may have, but it sounds to me that it would most likely be about someone’s birthday or the mother’s maiden name… like you’re asked to verify passwords.

The grants that have been glommed were never intended for this lot, as far as most Australians think…at least how I read it.

Sam
Sam
10 years ago
Reply to  JC

Your the perfect example of the intollerance/racial profiling bolt was sued for, his factual efforts in this story has had his desired effect, to you it doesnt matter if he was proven wrong by Australian law or if you have any knowledge of Aboriginality yourself as bolts reinforcments are enough for you, its easy being lazy and letting people tell you, do your own research you lazy buggers

KB Keynes
KB Keynes
10 years ago

A perfect example.

whyisitso
whyisitso
10 years ago

the complainants only need to prove that they were offended

I thought they weren’t actually required to even do that.

Anthony
Anthony
10 years ago

I don’t get what’s going on in this thread (and a few earlier ones). Someone called KB Keynes keeps getting referred to as “Homer” or “Homes”. That person in turn seems the most belligerent and offensive commentator around, in that they hurl personal abuse at other commentators. Once, I recall, the Club Troppo threads were a site for intelligent discussion and exchange of views – or was I dreaming?

whyisitso
whyisitso
10 years ago

Unquestionably Bolt got some facts wrong. But the Professor elegantly (as ever) demolishes Marr’s pretensions .

Getting facts wrong is a perennial quality of SMH and ABC journos, which Media Watch nearly always ignores.

whyisitso
whyisitso
10 years ago

Anthony, it pays to know a little history. His name is Homer Paxton, aka the Eastwood troll. He changes his pseudo fairly often in a fairly transparent way, but the more experienced commenters know who he is. I don’t think you can blame this blog as to its credit it isn’t moderated (at least these days, although it went through such a phase some years ago when I was disqualified for using a pseudonym.

rog
rog
10 years ago

The idiot known as JC out bolts Bolt in discrimination.

Ken Parish
Ken Parish
10 years ago

I didn’t know the Bunyip was blogging again. Why wasn’t I told?

JC
JC
10 years ago

The idiot known as JC out bolts Bolt in discrimination.

Rog.. your sentences are getting smaller and smaller again. Perhaps you would be so kind as to explain exactly what is bigoted.

While there I would suggest you do two things,

1. Go look in the mirror and debate with yourself if you’re indeed the real bigot.

How many times have you referred to me as a “dago” at Catallaxy. Would it be less than 30?

Don’t get me wrong, as I found your inferred racial superiority amusing.

2. Explain exactly what you consider is bigoted in thinking that money and resources should be doled out to people that seem to have not much of a racial tie and even less culturally to what and who they claim they are.

Would you like to explain that to a “dago”, Rog?

Lastly, keep your personal grudges at the blogs where they started and please if I annoy you ignore my comments like I have done with yours up to now as they aren’t any better than the past.

Oh that’s right, you don’t go to that “other” website because people laugh at most of the things you say. Remind me the one qualifier they use in responding to you… “shut up Rog”. Is that it? That’s it isn’t it.

Ken Parish
Ken Parish
10 years ago

On reflection I want to retract or at least heavily qualify my statement at #28 that:

the elements necessary to make out a defence/exemption under s18D seem fairly similar to the elements of fair comment and/or qualified privilege in defamation law.

In fact, as the ABC’s Jonathan Holmes argues, the s18D defence/exemption is radically different from and much harder to make out than the defamation defence of fair comment:

Defamation law doesn’t require fair comment to be reasonable, as we’ve seen. It doesn’t require it to be ‘in good faith’. But the exemptions listed in section 18D of the Racial Discrimination Act, including fair comment, only apply to “anything said or done reasonably and in good faith”.

And Justice Bromberg makes it clear that if you write something that has a tendency to offend on the grounds of race, but you want it to be considered reasonable and in good faith, you won’t necessarily get away with opinions that would in defamation law be covered by the fair comment defence – opinions that are extreme, or illogical, or which “reasonable people might find abhorrent”.

On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because “insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice.”

And he specifically mentions, not just the wrong facts, but “the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides.”

I strongly recommend Holmes’ article. It’s the most sensible, non-partisan analysis I’ve so far read on the case. Bolt might well have lost a defamation case, had one been launched, by failing to make out a defence of fair comment due to his numerous factual errors, but this case is nonetheless a good example of why s18C of the RDA is so fundamentally objectionable in the sense and for the reasons Holmes argues.

whyisitso
whyisitso
10 years ago

I didn’t know the Bunyip was blogging again. Why wasn’t I told?

He’s more RWDB than ever, Ken. Much more to my taste than yours!!

Ken Parish
Ken Parish
10 years ago

“Much more to my taste than yours!!”

Not at all. Even if it’s very splenetic (maybe even especially so), I really enjoy intelligent right wing polemic. It’s just that there’s so little that merits the first adjective.

skepticlawyer
10 years ago

Ken, you may find Legal Eagle’s post on this issue worth a look:

http://skepticlawyer.com.au/2011/09/29/a-more-detailed-analysis-of-the-bolt-case/

I am actually very surprised that the plaintiffs did not make use of defamation, because that would have had the salutary effect of emphasizing Bolt’s inaccuracies. As it is (apart from blogs like this one, and ours), Bolt is getting the opportunity to run the ‘free speech’ argument for all it’s worth, simply because — as you say — the relevant provisions of the RDA are such bad law, based on nebulous notions like ‘offence’ and ‘insult’.

Obviously, group proceedings are easier to bring in the Federal Court, and a defamation case may require the plaintiffs to bring their claims as single plaintiffs (which may well exclude the weaker claims), but that seems minor when one considers how the ‘free speech’ angle is being played.

Crank
Crank
10 years ago

Rest In Peace, my good friend Common Sense.
Anybody who thinks the Bolt case outcome is a good thing is blind. The potential escalation of this precedent will quell anybody wanting to voice an opinion about anything, and ultimately it will cost lives. Some may judge that as a harsh or over-the-top statement, but sadly it is not. History tells us it is true.
Wake up Australia, not that the country needs you anyway.

rog
rog
10 years ago

I am thinking that the RDA is an imperfect law (are laws ever “perfect”?) which was well applied.

LE’s post is comprehensive. Taking one of the earlier points re skin colour in families – light skin kids can be treated just as badly as their darker siblings once it is established that they come from an Aboriginal family. It can start in school or earlier.

Much of the discussion of the RDA is of the defendants position without much attention being given to the plaintiffs. Even Bolt did not dispute that he was untruthful and racist. The argument seems to be centered around his right to be untruthful and racist.

rog
rog
10 years ago

As to the use of RDA over existing laws of defamation, perhaps because defamation apply to the individual whereas the RDA allies to a general discrimination?

Pedro
Pedro
10 years ago

David and Ken, clearly the errors of fact are relevant to the case, but only to the exclusion of the defence. Bromberg J makes it clear that 18C is easy to trigger. With the discussion on tolerence I think we might have the start of a general rule as to the application of 18D; that being said, I have not had time to carefully read the whole thing. The fact that a comment has to be both reasonable and in good faith allows a judge to set the bar high.

If you look at the discussion in 340 through 350, Bromberg seems to be doing just that. The emphasis is on minimising the harms attached by 18C and the explanation of 18D indicates that a lot of care is required to ensure that the minimisation requirement is observed. Having set the bar, his Honour then demonstrates that Bolt, through the factual errors and other issues of tone, has travelled under it with no risk of a bump to the head.

The discussion in 410 through 415 shows that there was more than just an issue of errors of fact. The clear effect of the judgement is that any article that may be offensive on racial grounds has to be written very carefully indeed.

I agree with who ever said that making the racist point is the likely reason for the case being under 18C and not defamation.

The Holmes article was excellent.

whyisitso
whyisitso
10 years ago

Even Bolt did not dispute that he was untruthful and racist.

I must have missed Bolt’s admission that he was racist, Rog. Can you give me a link or some other reference to that. I’ve read elsewhere that Bolt has strenuously denied he’s racist.

whyisitso
whyisitso
10 years ago

The Bolt case is already affecting other cases. In this case, for example, the magistrate felt constrained to say (see last sentence in report) “However, he said he was not criticising any culture that engaged in arranged marriages.”

You must never, even in a judicial setting, criticise any aspect of a minority culture. The fact that the whole case involved overturning the effect of a cultural matter makes that last caveat “legal speak” at its most bizarre.