In rushing doxxing laws, Albanese breaks his own promise

I can make a case for why it’s okay to unmask a neo-Nazi, but not okay to publish a list of names of individuals on a Jewish WhatsApp group. Both are examples of the modern practice of “doxxing”. The difference is in the purpose, and effect, of the exercise.

Where it gets difficult is when the people doing the doxxing claim the same right that would justify the publication of a neo-Nazi’s name: self-defence.

That’s what lies at the heart of the very heated debate triggered by the doxxing of 600 members of the “J.E.W.I.S.H. Australian creatives & academics” WhatsApp group last week. Pro-Palestinian activists published links to a spreadsheet with names, occupations and social media accounts of individual members, as well as transcripts of their group chat, following a leak.

“They are telling those who chant ‘Where’s the Jews?’ exactly who and where the Jews are,” said Executive Council of Australian Jewry co-CEO Alex Ryvchin, who has called for a new law specifically criminalising doxxing. That has attracted support from federal politicians including Liberal MP Julian Leeser, Labor MP Josh Burns and independent MP Allegra Spender. Prime Minister Anthony Albanese has responded, promising to “bring forward … laws that deal with doxxing … which is basically the malicious publication of private information online”.

Lawyer Josh Bornstein tweeted that “doxxing invites threats, violence and blacklisting. It’s unacceptable and harmful. A form of hate speech”.

Against this, author Clementine Ford, who published a link to the group chat, argued that “people whose livelihoods and professional reputations are mendaciously — and successfully — targeted by others invested in silencing their criticism of a genocide are entitled to defend themselves”.

That’s a reference to the earlier revealed fact that members of the WhatsApp group had been involved in a campaign of mass targeting the ABC to call for the sacking of journalist Antoinette Lattouf, which succeeded, as well as discussions around potential campaigns targeting Ford’s publisher.

Lee Kofman, who administered the group, said that it was not involved in lobbying but some members had “exercised their democratic right to complain to government, media and institutions”.

From an objective perspective, what’s going on here is just another manifestation of the scramble to claim the moral high ground in the ever-widening fallout from the Israel-Palestine conflict. When both sides insist that they are the ones under attack, the last dispute-resolution mechanism for which we should be reaching is criminal law.

Why do I say that? Put aside the specific dispute for a moment and consider what is being demanded from the position of principle. Doxxing is not new, but it, like many other phenomena, has been turbocharged in the digital age.

Historically, societies that have an attachment to free speech approach the practice by reference to this principle: that freedom comes with responsibility. Transparency underpins civil society, so feel free to express yourself but be aware that you may be held publicly to account for what you’ve said.

The principle has limits, which is where laws dealing with defamation, hate speech and incitement to violence come in. Where exactly these limits should lie is a contentious matter in every jurisdiction.

One specific law in Australia has come into increasing prominence: the criminal offence of using a carriage service to menace, harass or cause offence (there are analogous laws at Commonwealth and state levels). This can be used to prosecute online stalking, targeted phone/text/social media harassment and similar malicious acts.

And yes, it could be applied to doxxing. If the intention and effect elements of the offence could be proven in a specific case, then doxxers could be prosecuted under these existing laws. Albanese himself identified the essential element of malice in his drop of the government’s knee-jerk plans to 2GB yesterday.

So, what’s the case for implementing something on top of what’s already there? Based on some of the current arguments, the point seems to be that the practice of doxxing is inherently harmful, so much so that it needs to be outlawed altogether.

That is deeply problematic, as the present case easily demonstrates. There are two differences between Lattouf and the individuals who targeted her employment through a coordinated campaign. First, they are Jews and she is of Lebanese heritage. Second, her identity was public and theirs were not. Objectively, the more dangerous way of being at present is to be a publicly known person speaking out against Israel, given the ferocity of the silencing tactics being directed at people like Lattouf.

The first difference — race — should be irrelevant, right? While anti-Semitism is intolerable, it isn’t more so than any other species of discrimination.

The second difference raises this question: why should the law, and specifically criminal law, be employed to provide protection to private citizens who choose to engage in public acts?

One answer to that may be that not all of the 600 doxxed individuals had done anything public; many had only been participating in a private chat group. That’s true, and I’m not defending their doxxing or doxxing generally; I think it’s usually a shabby and divisive act.

However, if you join a chat group with strangers, surely you can’t reasonably expect either the fact that you’re a member, or what you say, to be kept private and confidential? That’s a bit naïve.

Which doesn’t mean you deserve to be outed publicly either, but should it be a crime? Bearing in mind that, if it were done for a harmful purpose — under the Commonwealth Criminal Code (section 474.17, if you’re interested) and analogous state laws — it may be illegal already anyway. 

I think we’re in “needles in strawberries” territory here. As with every rush to legislate in the wake of a moral panic, if Albanese’s government does what he’s promised, it will be failing one of the tests it set for itself by comparison with its predecessor.