Hot off the press – our 5th edition of The Journalist’s Guide to Media Law


I was delighted to receive in today’s mail my first copy of the fifth edition of The Journalist’s Guide to Media Law (co-authored with Mark Polden).

Much has changed since our last edition in 2011, particularly in the fields of news media, communication technologies and practices, tertiary education and the law. We have reshaped and updated this edition of the book to accommodate those developments.

The book is still titled The Journalist’s Guide to Media Law, but its new subtitle—‘A handbook for communicators in a digital world’—encapsulates the seismic shifts that have prompted our considerable revisions. Our target audience has broadened with each edition as technologies like the internet and social media have combined to transform journalism and its allied professional communication careers. Thus our prime audience of Australian journalists working for traditional media outlets has widened to embrace public relations consultants, bloggers, social media editors and new media entrepreneurs,  as they fill new professional occupations dealing with media law, once the domain of mainstream reporters and editors.  Crucial questions which recur through the book include: ‘What is a journalist?’, ‘Who is a publisher?’, ‘How does media law affect this new communication form?’ and ‘Who qualifies for this protection?’ Some of the answers are still evolving, as legislators, the judiciary and the community grapple with the implications of every citizen now having international publishing technology literally at their fingertips on mobile devices.

Such shifts have prompted major new inclusions in the content of the book. So much publishing now transcends Australia’s borders via social media, blogs and other online platforms that we have expanded this edition to contain many more international comparisons and cases. This has been accommodated by reducing some of the forensic examination of precise legislation in various Australian states and territories, found in previous editions. Instead of attempting to document every statutory instrument in all nine Australian jurisdictions, we have directed readers to the resources that contain those details.

All of this has necessitated design and pedagogical changes to the book’s format and contents. While the chapter structure is generally in accord with previous editions, there are new sections within the chapters addressing these issues. Their order varies slightly according to topic, but most chapters now include some key concepts defined at the start, some international background and context to the media law topic, a more detailed account tailored to Australian legislation and case law, a review of the ‘digital dimensions’ of the topic with special focus on internet and social media cases and examples, an account of self-regulatory processes if they apply to that topic, some tips for journalists and other professional communicators for mindful practice in the area, a nutshell summary, some discussion questions, and relevant readings and case references.

The introduction of ‘tips for mindful practice’ encapsulates the authors’ aim that professional communicators need to build into their work practices and routines an informed reflection upon the legal and ethical implications of their reportage, commentary, editing, publishing and social media usage. This approach is explained in greater detail in Chapter 2, but it essentially links safe legal practice and the responsible and strategic use of free expression with the personal moral framework and professional ethical strictures of the digital communicator—whether a journalist, public relations consultant, media relations officer or serious blogger.


Those changing roles are reflected in a new final chapter, Chapter 13, which deals with the law of PR, freelancing and media entrepreneurship. It replaces a chapter on self-regulation in earlier editions. (The role and application of the various industry regulatory, co-regulatory and self-regulatory bodies, such as the Australian Communications and Media Authority (ACMA) and the Australian Press Council (APC), are now introduced in Chapter 3, but they are then referred to in the chapters where their functions and decisions seem most relevant). We saw this area of media law as significant because those who occupy those roles  are now grappling with special dimensions of media law—and several other legal topics relevant to their work—and deserve a new chapter dedicated to their roles and the legal dilemmas that are emerging in relation to them. The chapter also reflects the fact that many former journalists are now working in these allied occupations, and that student journalists need to start their careers with a broad understanding of the legal considerations which govern allied professional communication industries.

The sheer pace of change in all areas of media law is astounding. Many changes were mooted as this edition was going to press—including important developments in the laws of privacy, copyright, hate speech and court reporting. Rather than render the book dated as soon as it is printed, we have opted to use co-author Professor Mark Pearson’s blog (this one!) as the venue for updates to material, and have built several mentions of that resource into the chapters and discussion questions.

Apart from an array of new cases and examples—many from the international arena and many more from social media—some highlights of important new content covered in this edition include the following:

  • There are significant cases on increased statutory powers, allowing courts to make suppression and non-publication orders, and on the relationship between free speech, open justice and the right of parties to settle disputes privately. Recent cases at the borderline between ridicule and defamation, and on the application of freedom of information laws to immigration detention centres are included, as are cases on the application of sub judice contempt to internet content hosts and ‘celebrity’ claims of privacy invasion.
  • Recommendations of the ALRC on copyright reform are included, together with a discussion of the new copyright fair dealing defence that applies to satire. The book presents a wide range of examples, across different legal categories, relating to the use of the internet and social media, which will be of growing importance for current and future professional practise in communication, reportage and media advice.
  • A separate chapter on secrets (Chapter 9) covers the new journalists’ shield laws and their relevance to micro-bloggers and non-traditional publishers.
  • Chapter 10, on anti-terrorism and hate laws, includes the recommendations for reform of anti-terror laws and discusses the high-profile Andrew Bolt case and related proposals for reform of the Commonwealth Racial Discrimination Act 1975.
  • The recommendations of the Leveson Inquiry in the United Kingdom, and the Finkelstein Inquiry and Convergence Review in Australia, are subjected to critical analysis in view of their potential impact upon notions of a free press.

There is also an increased emphasis on real-time reportage, as the traditional print media increase their online presence and depth of click-through coverage in a 24/7 news cycle, with concomitant risks in the areas of defamation and contempt in their own work and that of third-party commentators on their websites and social media pages.

Without going into exhaustive detail on all of these matters, the book remains true to its original aim: to provide professional communicators and students with a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across the media. It tries to do this by introducing basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

In designing this edition, we have tried to pay heed to the needs of both professional communicators and media students. The book is best read from front to back, given the progressive introduction of legal concepts. However, it will also serve as a ready reference for those wanting guidance on an emerging problem in a newsroom or PR consultancy. The cases cited illustrate both the legal and media points at issue; in addition, wherever possible, recent, practical examples have been used instead of archaic cases from the dusty old tomes in the law library. Rather than training reporters, bloggers and PR practitioners to think like lawyers, this book will achieve its purpose if it prompts a professional communicator to pause and reflect mindfully upon their learning here when confronted with a legal dilemma, and decide on the appropriate course of action. Often that will just mean sounding the alarm bells and consulting a supervisor or seeking legal advice.

Of course, the book is not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Booktopia is offering pre-orders on their website:

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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‘Mindful Journalism’ – the topic of our forthcoming book with Routledge


THE term ‘mindful journalism’ is a concept I introduced more than a year ago in the inaugural UNESCO World Press Freedom address at AUT University Auckland.

I fleshed it out further in a paper delivered to the International Association for Media and Communication Research (IAMCR) conference in Dublin in July 2014, which was revised for publication as a forthcoming article in Ethical Space to be published in December.

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Our book preview on the Routledge website

My esteemed colleague, Emeritus Professor Shelton Gunaratne has been working for decades on the intersection between of Buddhism and journalism, and I was honoured to be invited onto a book project he was developing with Sri Lankan colleague Dr Sugath Senarath [pdf file] from the University of Colombo.

We were delighted when Routledge New York accepted our proposal for hard cover publication in March 2015 as part of its Research in Journalism series.

Our book is titled Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach and it features chapters by several scholars from Asia, North America, Australia and Europe.

As outlined in the publisher’s synopsis:

“This book aims to be the first comprehensive exposition of “mindful journalism”—drawn from core Buddhist ethical principles—as a fresh approach to journalism ethics. It suggests that Buddhist mindfulness strategies can be applied purposively in journalism to add clarity, fairness and equity to news decision-making and to offer a moral compass to journalists facing ethical dilemmas in their work. It comes at a time when ethical values in the news media are in crisis from a range of technological, commercial and social factors, and when both Buddhism and mindfulness have gained considerable acceptance in Western societies. Further, it aims to set out foundational principles to assist journalists dealing with vulnerable sources and recovering from traumatic assignments.”

My chapter on ‘The Journalist and Mental Cultivation’ addresses the application to journalism of the final three steps of the Buddha’s Noble Eightfold Path – the mental cultivation (or concentration) dimension of the magga; namely Right Effort (samma vayama), Right Mindfulness (samma sati) and Right Concentration (samma samadhi).

The section on Right Effort calls for journalists to apply a steady, patient and purposeful path to the achievement of ethical practice. It suggests the need for an effort to find and implement sound perspectives and practices that one lacks and to shore up those that one already possesses.

The section on Right Mindfulness explains how journalists might take time out of a stressful situation to focus upon breathing; to pause to meditate upon the rationale for pursuing a story in a certain way, to weigh implications of reportage on stakeholders and to find peace for strategic planning and clarifying context for one’s role and career trajectory.

The section on Right Concentration compares the phenomenon the expression “grace under fire” that is required of consummate professionals in the midst of covering a major news event. It is at this time that top journalists actually enter “the zone” and are able to draw on core ethical values and ingrained professional skills to report within deadline.

The chapter offers several examples from journalism to illustrate the approach and suggests techniques that can be implemented in a secular way by journalists from a range of cultural and religious backgrounds to enhance their ethical practice and the public significance of their reportage.

We are excited at the potential for the project – particularly in a period when journalists and bloggers are accused of having lost their ‘moral compass’ – and we are on track to submit all chapters within the publisher’s October 1 deadline.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Media freedom concerns over federal demands for ABC interview tapes


[Research assistance kindly provided by media freedom intern Mardi Reason]

JUST as the Australian Government proposes tougher national security powers for its agencies and penalties for whistleblowing we have learned this week that the Australian Federal Police has asked the ABC for unedited current affairs interview footage in its pursuit of a former spy and a lawyer.

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Senator Nick Xenophon’s questions of Attorney-General George Brandis about AFP investigation.

Attorney-General George Brandis confirmed in the Senate on Monday (see inset) that Australian Federal Police started an investigation into the sources of leaks of classified information after it was revealed Australia spied on East Timor during sensitive oil and gas treaty negotiations.

The targets of the investigation are reported to be lawyer Bernard Collaery (a former ACT Attorney-General now in London about to represent East Timor in The Hague) and a former Australian Secret Intelligence Service (ASIS) agent who was allegedly the whistleblower.

The Australian Security Intelligence Organisation (ASIO) raided Collaery’s Canberra office last December and seized documents.

Tom Allard reported in the Sydney Morning Herald on Monday that the latest investigation had prompted requests from the AFP for the raw footage of Mr Collaery’s interviews with programs including 7.30, Lateline and Four Corners.

A report by Conor Duffy on 7.30 last December also featured actors’ voices reading an affidavit from the former ASIS agent which the Herald has speculated could be important evidence the AFP needs for its investigation into the identity of the whistleblower.

However, in the Hansard record of Senator Brandis’ comments on Monday (inset), the Attorney-General claims there are some inaccuracies in the Herald report. In particular, he claims it is inaccurate that he ordered the AFP investigation. Rather, it was ASIO-driven, he told the Senate.

As reported earlier at, the Australian government introduced the National Security Legislation Amendment Bill (No. 1) 2014 on July 14 which would extend security agencies’ powers to search and use surveillance devices in the new communication environment, introduce a new ‘multiple warrants’ regime, offer immunity to intelligence personnel who break all but the most serious laws, while increasing penalties for whistleblowing and criminalising the reporting of leaked intelligence-related information.

Importantly, it would introduce a new offence carrying a five year jail term for anyone disclosing information relating to special intelligence operations.

This latest episode demonstrates how easily journalists and media organisations can get caught up in such investigations. It threatens to expose them to contempt penalties if they refuse to co-operate and will inevitably make sources reluctant to talk to reporters covering the important round of national security, particularly as it coincides with a push for even greater surveillance powers for federal agencies.


Allard, T. 2014, ‘Government wants East Timor spy charged’, The Sydney Morning Herald, 31 August 2014,

Safi, M. 2014 , ‘Timor-Leste spy case: Brandis denies referring lawyer to police’, The Guardian, 1 September 2014

Fernandes, C. 2014, ‘Our land is girt by oil-rich sea … that we steal from East Timor’, Crikey, 2 September 2014

Commonwealth of Australia, 2014, September 1 (14:32). Hansard. Parliamentary Debates – Senate. Questions Without Notice – East Timor. (Senators Xenophon and Brandis).;fileType=application%2Fpdf

© Mark Pearson 2014

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Memo #RSF Paris: Australian media freedom at risk from anti-terror laws


[Research assistance from media freedom intern Jasmine Lincoln]

Memo to: Benjamin Ismail, Bureau Asie-Pacifique, Reporters sans frontiers (RSF – Reporters Without Borders), Paris.

From: Mark Pearson, RSF correspondent, Australia

RSFlogo-enI regret to advise that several events and policy proposals have impacted negatively on the state of media freedom in Australia.

They are highly likely to threaten Australia’s ranking on your forthcoming RSF World Press Freedom Index.

A raft of new laws and policies proposed by the conservative Abbott Government has placed its stamp on media law and free and open public commentary.

The initiatives follow in the steps of the prior Labor Government that had proposed a new media regulatory regime with potentially crippling obligations under the Privacy Act.

In the course of its first year in office the Abbott Government has:

- imposed a media blackout on vital information on the important human rights issue of the fate of asylum seekers;

- initiated major budget cuts on the publicly funded ABC;

- used anti-terror laws to win a ‘super injunction’ on court proceedings that might damage its international relations (see your earlier RSF release on this, which I cannot legally reproduce here for fear of a contempt charge);

- moved to stop not-for-profits advocating against government policy in their service agreements, meaning they lose funding if they criticise the government;

- slated the Office of the Information Commissioner for abolition, promising tardy FOI appeals;

- proposed the taxing of telcos to pay for its new surveillance measures, potentially a modern version of licensing the press;

- proposed ramped up surveillance powers of national security agencies and banning reporting of security operations (See Prime Minister’s August 5 release here);

- proposed increased jail terms for leaks about security matters (you issued a release on July 22 the impact for whistleblowers);

- mooted a new gag on ‘incitement to terrorism’;

- proposed new laws reversing the onus of proof about the purpose of their journey for anyone, including journalists, travelling to Syria or Iraq.

Major media groups have expressed their alarm at the national security proposals in a joint submission stating that the new surveillance powers and measures against whistleblowers would represent an affront to a free press.

Over the same period the judiciary has presided over the jailing of a journalist for breaching a suppression order, the conviction of a blogger for another breach, and several instances of journalists facing contempt charges over refusal to reveal their sources. There have also been numerous suppression orders issued, including this one over a Victorian gangland trial.

Other disturbing signs have been actions by police and departmental chiefs to intimidate journalists and media outlets.

  • The Australian Federal Police raided the Seven Network headquarters in Sydney in February, purportedly in search of evidence of chequebook journalism, triggering an official apology this week.
  • Defence Chief General David Hurley wrote to newly elected Palmer United Party Senator Jacqui Lambie in March, warning her not to use the media to criticise the military.
  • Freelance journalist Asher Wolf received a threatening letter from the secretary for the Department of Immigration and Border Protection (DIBP) Martin Bowles following her co-written article for the Guardian Australia on February  19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details.’ The public service mandarin’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’ and demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices. See the letter here: WolfDIBP to The Guardian – A Wolf. The Sydney Morning Herald later reported that the DIBP was hiring private contractors to trawl social media and order pro-asylum seeker activists to remove their protesting posts.

I am sure you will agree that these developments are not what we would expect to be unfolding in a Western democracy like Australia where media freedom has previously been at a level respected by the international community.

Kind regards,

Mark Pearson (@journlaw)


Sources for further detail on the national security reforms:

(6 August, 2014). Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014 Submission. Retrieved from: file:///C:/Users/jasmine/Downloads/17.%20Joint%20media%20organisations%20(1).pdf.

Criminal Code Act 1995 (Qld) s. 5.4 (Austl.).

Grubb, B. (19 August, 2014). Anti-leak spy laws will only target ‘reckless’ journalists: Attorney-General’s office. Retrieved from:

Grubb, B. (30 July, 2014). Edward Snowden’s lawyer blasts Australian law that would jail journalists reporting on spy leaks. Retrieved from:

Hopewell, L. (17 July, 2014). New Aussie Security Laws Would Jail Journalists for Reporting on Snowden Style-Leaks. Retrieved from:

Murphy, K. (17 August, 2014). David Leyonhjelm believes security changes restrict ordinary Australians. Retrieved from:

Parliament of Australia (15 August, 2014). Parliamentary Joint Committee on Intelligence and Security, 15/08/2014, National Security Legislation Amendment Bill (No. 1) 2014. Retrieved from:;adv=yes;db=COMMITTEES;id=committees%2Fcommjnt%2F2066f963-ee87-4000-9816-ebc418b47eb4%2F0002;orderBy=priority,doc_date-rev;query=Dataset%3AcomJoint;rec=0;resCount=Default.

The Greens (1 August, 2014). Brandis presumption of terror guilt could trap journalists, aid workers. Retrieved from:


© Mark Pearson 2014

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.


Filed under free expression, national security, Press freedom, terrorism, Uncategorized

MsLods’ news round-up: law + technology


Another great curation of media law and technology law cases and articles here from @mslods . It starts with a particularly useful Storify from @mslods debating whether it is reasonable to use the term ‘copyright theft’ when talking about copyright infringement. Any media law geek should subscribe to this blog.

Originally posted on MsLods:


Is copyright infringement theft?  | MsLods storify |

You’ve got 1 week! Input sought on online copyright infringement proposals.  | Australian Digital Alliance | & my collection of #copdis resources:

How many jobs does IP actually create? A US analysis. | Mercatus Center |

Anti-piracy firm wants to fine Canadian and Aussie file-sharers. | TorrentFreak |

New Zealand: Another alleged music pirate pinged under ‘Skynet’. | Stuff |

Village Roadshow no-show for online piracy forum. | ZDNet |

Defamation & media law

North Coast Children’s Home Inc. v Keith Martin, the perils of digital defamation, by Yvonne Kux. | INFORRM | 

Careful with your coverage of the Redfern murder case – especially pics. | Journlaw |

Financial services group WCS serves online forum Whirlpool over negative post. | The Age |

Privacy & information security

iiNet on mass data retention: is…

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Court restrictions on identifying children in Australia – a guide for journalists


We have removed the comparative reporting restrictions tables from the  fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) which will be published later this year.

Co-author Mark Polden and I have decided to move these comparative tables on reporting restrictions throughout Australia across to this blog – – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

As I upload them over coming weeks I would appreciate any students or colleagues using the comments section below to advise of any updates in your jurisdictions and I will act to update the tables accordingly.

Looking forward to your collaborative input!


Restrictions on reports of proceedings involving children

Note: NO identification of parties or witnesses in any way under the Commonwealth Family Law Act s. 121.

Jurisdiction Law  Exceptions  Legislation 
ACT  Reports of proceedings: Media allowed to report. ID: Cannot be identified. Cannot publish account of family group conference— None mentioned.  Criminal Code 2002, s. 712A. Children and Young People Act 2008, s. 77. 
NSW Reports of proceedings: Media allowed to stay and report. ID: No ID of child mentioned or otherwise involved (including victims and witnesses) living or dead, during or after proceedings, or their siblings.— Court may close proceedings. Court may allow ID or children aged 16 or over can authorise.(Seek legal advice on this.) Or senior next of kin or court (if deceased).


Children (Criminal Proceedings)Act 1987, s. 15A; Children and Young Persons (Care and Protection) Act 1998, ss. 104 and 105; Young Offenders Act 1997, s. 65. 
NT  Reports of proceedings: Open court and reports allowed. ID: No restriction.— Magistrate may close court or order suppression.  Youth Justice Act 2005, ss. 49, 50. 
Qld  Reports of proceedings: No. ID: No ID of child accused without court’s permission. No ID of child witness in sexual matter. ID of child witness okay in other matters unless ordered otherwise. Cannot ID authorised officer or police officer in matters with child witnesses. No ID info about child victims. No ID of children subject to allegations of harm or risk of harm or in state custody or guardianship.— Judge may order publication of identifying information for heinous crimes. Court can permit reporting when otherwise prohibited.Child victim can consent after becoming adult if fully informed of publication matter, audience and reason. Youth Justice Act 1992, ss. 234, 301. Child Protection Act 1999, ss. 189, 192, 193. 
SA  Reports of proceedings: Court open to ‘genuine representatives of news media’. No family care proceedings reports. ID: No ID of child parties, witnesses or victims,or other persons other than in official capacity without their permission, including name, address or school. Documentaries may be approved under strict conditions.— Courts can authorise some reports and ID.  Youth Court Act 1993, s. 24; Young Offenders Children’s   Protection Act 1993, s. 59, Children’s Protection Act 1993, s. 13; 59A. 
Jurisdiction  Law  Exceptions  Legislation 
Tas Reports of proceedings: No provision for media to be present without permission of court. ID: No ID of youths or youth witnesses.— Permission of court.  Youth Justice Act 1997, ss. 30, 31; Magistrates Court (Children’s Division) Act 1998, ss. 11, 12. 
Vic Reports of proceedings: Open court and media allowed to report. ID: No identification of child accused or any witnesses to case. No mention of court venue. Long list of banned ID particulars for children and witnesses including: name, title, pseudonym, alias of the person, home or work address or localit0, school or locality; physical description or style of dress; occupation or calling; relationship to identified others; interests or beliefs; real or personal property. No photos.— Permission of court.  Children, Youth and Families Act   2005, ss. 523, 534. 
WA  Reports of proceedings: Yes ID: No ID on child involved in proceedings in any way. No ID of child subject of a protection application or order.— Court can exclude persons. Supreme Court can authorise ID of child.  Children’s Court of Western Australia Act 1988, ss. 31, 35, 36, 36A. Children and Community Services Act 2004, s. 234 


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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