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Same-sex marriage: How to express your opinion without breaking the law


Shine Lawyers | Peter Coggins | Shine Lawyers

Written by:
Peter Coggins
National Special Counsel,
Defamation Law, Professional Negligence Claims

After the Australian High Court recently handed down its blessing for the Australian Marriage Law Postal survey to proceed, it is expected that both sides of the debate will intensify their campaigning to garner public support.

With the survey being voluntary, both sides will be competing for publicity and media attention for their cause, aiming to convince those fence-sitters to participate. Polling has identified a possible participation rate of around two-thirds of the voting public, with the 'yes' and 'no' camps finely balanced. Campaigning and messaging to the apathetic one-third will be key to the success of either side.

As with most major national campaigns, social media platforms will be heavily relied upon by both sides to gain the support of the public. This is a serious topic, which at its core, poses fundamental questions about human rights and equality. So if you choose to participate in the debate on social media, how do you ensure your views are expressed in a responsible way? How can you participate without exposing yourself to possible breaches of civil and criminal law?

Here are five legal pointers to keep in mind before speaking out through your smartphone:

1. Don't defame anyone

In Australia, we have a robust set of defamation laws, and posting online is a form of publication under those laws. Should you identify someone in your post and make comments about them or their views that are disparaging, or subject them to ridicule and contempt, you may be sued for defamation.

2. Don't troll or stalk anyone

Be mindful that it is a Commonwealth offence to use a carriage service to menace, harass or offend someone. The offence has been successfully prosecuted, and carries a maximum penalty of three years imprisonment or a fine of more than $30,000.

In each state, strong anti-stalking laws are also in place, which can be extended to online conduct.

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3. Be mindful who you are speaking for

It is perfectly acceptable to post your own dignified and respectful views on same-sex marriage in a personal capacity. However, exercise caution if your views may be construed as having been endorsed by your employer or an organisation you are associated with. These cases can give rise to potential breaches of your employment contract, or you may be held liable for misrepresenting the views of others.

4. Report abuse

If you are the subject of online abuse during this campaign, or you observe this occurring to someone else, it is important to take action. You can report the abuse to the relevant social media provider and law enforcement agency, both of which are now extremely proactive in responding to instances of online abuse.

5. Respect the views and privacy others

If you happen to learn how someone will or has voted in the survey, you should tread carefully before revealing this information without authorisation. There are strong anti-discrimination laws in all states, which protect everyone from unlawful and serious vilification in cases where the actions of others are regarded as being capable of inciting hatred, contempt or severe ridicule of another.

During these times of fervent political campaigning, each and every member of the public plays a role in ensuring debate is respectful, fair and responsible. We all have a right to hold an opinion, but no one should be the subject of ridicule, harassment or abuse because of their views.

Click here for more information on Shine Lawyers' National Defamation practice, and how we can help prevent defamatory publications.

At the time of writing, the Federal Government is proposing to introduce laws into Parliament that seek to ensure the 'yes' and 'no' campaigns prevent vilification, intimidation, or threats to cause harm on the basis of sexual orientation, gender identity, intersex status or the religious convictions of someone during the survey period. Fines in order of $12,000 - $25,000 can apply for breaches of these proposed laws.

Written by Peter Coggins on September 14, 2017. Last modified: August 31, 2018.

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