Freedom of speech

Despite the fact that the Australian Constitution contains no specific right for a freedom of speech, we imply a democratic right to voice opinions and promote expression. The Internet, by its nature, facilitates and encourages such activity.

Critics argue that by regulating Internet content, we are somehow dissolving the right to use the medium to voice creative thought thereby stifling creativity. Balkin observed “[A]t the very moment when ordinary people are empowered to use digital technologies to speak, to create, to participate in the creation of culture, and to distribute their ideas and innovations around the world, businesses are working as hard as possible to limit and shut down forms of participation and innovation that are inconsistent with their economic interests.”[1]

In Australia, the Australian High Court decision of Dow Jones v Gutnick[2] questioned where a publication took place in terms of defamatory material. The case was the first time the issue of Internet publishing had been adjudicated by a court of final appeal and “spawned a bevy of scare-tales about the implications for net publishing.”[3] Aside from the issue of defamatory publication, Dow Jones v Gutnick also raised the questions of jurisdiction and enforcement in an Internet context, and it was feared that the decision would stifle Internet publishing by subjecting publishers to a multitude of national speech laws.[4] The implications of the decision for Internet copyright law are uncertain, as the Court adopted a nationalistic approach, which is both undesirable and ineffective in terms of a global dilemma. What we may discern is that the Australian Courts will recognise a publication as occurring in each and every location where it can be downloaded, rather than only where the material is uploaded.[5]

In view of this case, freedom of expression on the Internet appears to be curbed by attempts to restrict what might be published where the publisher is left open to the mercy of a collective of differing copyright laws.

Shaffer Van Houweling finds that this development “upsets copyright’s distributive logic and changes copyright from a system that seems, on balance, to benefit poorly financed creators, to one that endangers their ability to express themselves using powerful cultural artefacts”.[6] It is certain that the uptake of technological developments such as “digital rights management” (DRM) where copyright owners are beginning to use technology to reclaim control of their works[7] will do nothing to reverse this proposition.

Here a couple of examples of extreme digital rights management.

There is a scene in the movie Blade Runner[8] in which the police officer, Rick Deckard, who hunts genetically made criminal replicants, wants some information about an animal scale. He thinks it is a fish scale. He takes it to the marketplace and asks a vendor to examine it. She puts it under the microscope, identifies it as a snake scale, and tells him the maker’s mark – a serial number found at the stem of one of the cellular structures. The mark identifies the license of the manufacturer. This is really not science fiction.

In the U.S. Intel Corporation awarded a high school student, Viviana Risca, a college scholarship award of US$100,000 for her computer science project in molecular computing. Her project uses data encryption techniques to insert messages into the DNA of organisms. She encrypted the message “JUNE6-INVASION:NORMANDY” and inserted it into the gene sequence of a DNA-strand, and flanked it with two secret “primer” DNA sequences. This was then combined with many other similar molecules. The message or DNA signature would not be apparent to anyone who studied the DNA or retrievable unless they knew the two secret “primer” DNA sequences.[9]  It did not effect the function of the DNA. Viviana thinks the technology will be useful for inserting proprietary information into DNA. It will assist in enforcing intellectual property rights for example, where a corporation thinks a competitor has used the DNA of “their perfect tomato” without permission or license.[10]

[1] Shaffer Van Houweling, M. “Distributive Values”, (2005) 83(6) Texas law Review p. 1564 citing Balkin, J. Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society”, 2004, 79 N.Y.U. L. REV. 1, 6–13 at 15

[2] [2002] HCA 56

[3] Australian Digital Alliance, “Dow Jones v Gutnick: defamation crosses borders”, 2002, Intellectual Property Wrap-Up, December, at [2], available at accessed 25 March 2006

[4] ibid

[5] ibid

[6] Shaffer Van Houweling, M. “Distributive Values”(2005)83(6) Texas Law Review,  p.1564

[7] Lessig, L. “The People Own Ideas”, 2005, June Issue, Technology Review, available at accessed 25 March  2006

[8] (1982) Director: Ridley Scott.

[9] “Intel Science Talent Search” Press Release at accessed on 2 May 2006

[10] Dan Fallon, “Scrambling DNAe-mag, Sydney Morning Herald May 2000 42.


Filed under Intellectual Property Law

2 responses to “Freedom of speech

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