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

Man with rainbow flag hand | Shine Lawyers

Peter Coggins | Shine Lawyers Written by:
Peter Coggins
National Manager - Professional Negligence

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.


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 . Last modified: September 14, 2017.

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  • Jean Antill wrote:

    I have been defamed and abused in fb. I was trying to.know what st er os l can take to ensure my tights are known asnd that this cannot be done because you differ to my no word. It has been very nasty and vindictive and many names called Including attacking my past profession. I have not entered in to these name calling activities and sick of getting these comments back l when l post the my opinion. An opinion is not defamation .it is one’s o er Ronald view on a context. I am happy to firw as Rd these comments to you for following up. Thanking you. Jean Antill

    • Shine Lawyers wrote:

      Hi Jean, a member of our New Client Team will be able to talk you through the services we offer and if we can help. Contact details are here:

  • Julie MCCREDDEN wrote:

    Where can we get information on the details fo each side. IT is hard to make an informed choice if all we are getting is emotional arguments. I have not yet seen an explanation how voting YES or NO will change the law and how the changes will effects people in legal and practical terms?

    • Shine Lawyers wrote:

      Thanks for getting in touch Julie. Given the topical nature of the postal survey and peoples’ desire to express opinions in a public forum, our aim was not to add to the debate or provide information in relation to the outcomes of a vote, rather to provide general advice about expressing an opinion without breaking the law (especially given the significant penalties defamation can incur).

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