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Opinion: Australian gagging order has major implications for press freedom

A censorship order sought and secured by the Australian government sets a precedent for all common law countries – including Ireland.

Niall McGlynn

LAST WEEK A new set of revelations from Wikileaks was unveiled. The leak concerned the existence of a “superinjunction”, a form of court order made famous by its use in Britain to restrict press coverage of certain legal cases. The injunction not only restricts news outlets from reporting the details of the case, it restricts the press from reporting on the existence of the injunction itself, hence “superinjunction”.

In the Australian case, the injunction covers a legal case involving corruption among politicians in several east Asian nations. Some of these politicians allegedly are now heads of their respective countries’ governments. The injunction, which was issued by the Supreme Court of Victoria, makes it an offence to report on the case, the people involved or the existence of the injunction. It cites “national security” and the “damage to Australia’s international relations” as its justification.

Like many superinjunctions, it has backfired

According to a lawyer for the Australian government, Australian citizens who tweet any links to the leaked injunction could be legally culpable, along with any Australian news outlets which report on it or the case, or the politicians involved. The injunction does not apply to non-Australian news outlets and individuals, so inevitably the leaked injunction has gone viral is being reported on by a wide variety of news outlets. Like all superinjunctions, it has backfired and actually drawn attention to a case which might otherwise have slipped beneath the radar of the internet and society at large.

It was the Australian government which requested the superinjunction, citing the national security concerns; this kind of court order represents a frightening extension of government power, into the realm of free speech and freedom of the press. Bad enough that the order sought to muzzle the media, but the thought that the Australian government might prosecute its own citizens for attempting to draw attention to information it is trying to hide is horrifying. When government seeks to make the truth a crime, it seeks to silence all of its citizens forever.

‘National security’

What makes all of this so Orwellian are the undefined “national security” issues that are being used to justify the order. National security used to be used in the context of an immediate risk of direct attack against a nation. Now it seems to have mushroomed to cover everything up to the immediate risk of embarrassment to the nation or its allies. It has become a magic spell, useful to make problems and awkward questions disappear. Unlike Harry Potter, the government is unlikely to use this to any good end. Governments inevitably use and exploit any power they are given to its maximum extent.

In the case of superinjunctions, the possibilities are endless. Reporter trys to cover a modern day Watergate scandal? National security and superinjunction. Blogger uncovers evidence of secret prisons and government sponsored torture? Lock her up for even mentioning she is not allowed to talk about it. Private individual retweets a link to a leaked report on expense scandals? Straight to jail, do not pass go, do not even mention freedom of speech.

The road away from democracy

This is all simply a logical extension of the argument that government can forbid people from even talking about not being able to talk about something if the term “national security” is invoked. If embarrassment to the state is sufficient grounds to censor the media and private citizens so totally, then concepts like freedom of speech and freedom of the press lose any meaning.

The media is not known as the fourth estate for nothing. Both new and old media are meant to act as checks upon the state, bringing its activities under the spotlight and keeping the public informed about their government’s activities. Curtailing them through superinjunctions and other suppressions of free speech is a very large step on the road away from democracy.

In the absence of a free press, it falls to each individual citizen to hold the state to account, but the Australian superinjunction and other government court orders bring even a single individual repeating something as mundane as a website link into the firing line. For the simple crime of reposting someone else’s content, an Australian citizen can notionally be arrested as a threat to their country’s national security.

If a regular individual can be arrested for sending a single Tweet, in what other imaginative ways could superinjunctions restrictions be used?

This sets a precedent for all common law countries 

Ireland and Australia both use the common law system as the basis for their laws and legal systems. If superinjunctions of this scope can be introduced in Australia, it sets a precedent for other countries using common law.

It is the responsibility of every citizen to stay vigilant against the introduction of such rulings in Ireland. We are rightly proud of our traditions of a free press and freedom of expression, and we remember with horror all attempts to interfere with either. We must protect them from the growing incursions of government under the cover of “national security”. We should resist all attempts to introduce these practices in Ireland. Freedom must be protected against all restrictions, “super” or otherwise.

Niall McGlynn is a graduate in history and science from Trinity College Dublin. He has written articles on Irish and global affairs for Trinity News, and blogs on both with his brothers at http://lazyhermes.blogspot.ie/ and tweets at @NiallMcGlynn1.

Read: Here’s Wikileaks’ latest revelation – about an “unprecedented” gagging order

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Niall McGlynn

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