Forthcoming Pacific Journalism Review covers political journalism in the region

By MARK PEARSON

The May special edition of Pacific Journalism Review will include revised and refereed papers from the PJR2014 conference held in Auckland last November.

I was honoured to collaborate with Associate Professor Joseph Fernandez (@DrJM_Fernandez) from Curtin University on two of the articles in this forthcoming edition –  one on censorship in Australia and the reflection of this in world press freedom indices; and the other on recent developments in shield laws in Australia and on journalists’ attitudes to them and their confidential sources.

Interested? Here are the abstracts and citation details for both articles. Order your PJR copy now.


Pearson, M., and Fernandez, J. M. (2015). Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar. Pacific Journalism Review, 21(1): 40-60.

Australia has ranked among the top 30 nations in recent world press freedom surveys published by Reporters Without Borders (RSF) and Freedom House and is broadly regarded as a substantially free Western liberal democracy. This article considers how the methodologies of those organisations assess the impact upon media freedom of a range of recent decisions and actions by Australian politicians, judges and government agencies. There is considerable evidence of a shift towards official secrecy and suppression of information flow. However, according to this analysis such developments are unlikely to impact significantly on Australia’s international ranking in media freedom indices. This article uses the methodologies of RSF and Freedom House to explore whether the international free expression organisations’ criteria are justifiably weighted towards violence against journalists, their imprisonment and formal anti-press laws and might allow for a nuanced comparison of other evidence of constraints on the news media in developed democracies.


Fernandez, J. M., and Pearson, M. (2015). Shield laws in Australia: Legal and ethical implications for journalists and their confidential sources. Pacific Journalism Review, 21(1): 61-78.

This article examines whether Australia’s current shield law regime meets journalists’ expectations and whistleblower needs in an era of unprecedented official surveillance capabilities. According to the peak journalists’ organisation, the Media, Entertainment and Arts Alliance (MEAA), two recent Australian court cases ‘despite their welcome outcome for our members, clearly demonstrate Australia’s patchy and disparate journalist shields fail to do their job’ (MEAA, 2014a). Journalists’ recent court experiences exposed particular shield law inadequacies, including curious omissions or ambiguities in legislative drafting (Fernandez, 2014c, p. 131); the ‘unusual difficulty’ that a case may present (Hancock Prospecting No 2, 2014, para 7); the absence of definitive statutory protection in three jurisdictions—Queensland, South Australia and the Northern Territory (Fernandez, 2014b, p. 26); and the absence of uniform shield laws where such law is available (Fernandez, 2014b, pp. 26-28). This article examines the following key findings of a national survey of practising journalists: (a) participants’ general profile (b) familiarity with shield laws: (c) perceptions of shield law effectiveness and coverage: (d) perceptions of story outcomes when relying on confidential sources; and (e) concerns about official surveillance and enforcement. The conclusion briefly considers the significance and limitations of this research; future research directions; some reform and training directions; and notes that the considerable efforts to secure shield laws in Australia might be jeopardised without better training of journalists about the laws themselves and how surveillance technologies and powers might compromise source confidentiality.


© Mark Pearson 2015

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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For those who missed it – the @RNMediaReport story on the Bayley suppression order #auslaw

By MARK PEARSON

As most people were heading off for their Easter vacation, Radio National’s Media Report ran a segment on how we discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

My article in  The Conversation (excerpted below) explained what happened, and RN Media Report’s Richard Aedy followed it up with this interview last week:

Screen Shot 2015-04-10 at 5.17.41 PM

 


March 27, 2015 blog:

How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw ]

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation

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 2015

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice

How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw

By MARK PEARSON

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation

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 2015

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice

New edition has a section on contract law for PR and new media entrepreneurs

By MARK PEARSON

Our latest edition of The Journalist’s Guide to Media Law (Mark Pearson & Mark Polden, Allen & Unwin, 2015) has a whole chapter on law for public relations, freelancing and new media entrepreneurs.

the-journalist-s-guide-to-media-lawOne of the key topics arising for such people is the law of contract, which is a complex field requiring expert legal advice.

We’ve mapped out the very basics though for the benefit of such professional communicators. Here’s a short excerpt:

A breach of an important contract can be devastating to the financial viability of a public relations consultancy or freelance writer, and it can ruin the prospects of a start-up media venture getting off the ground. While the law of contract can get very complex, the basic concept of a contract is fairly simple: a contract is a legally enforceable promise. It is something crucial to the effective operation of a business, because our financial system operates on the principle of promises being kept rather than broken, so that there is an element of trust and predictability in our dealings. Contracts play a role in a variety of situations in the PR and news business. They can cover the terms of employment for a freelance journalist or other staff, the agreed price and timelines for professional services being offered, and the division of royalties that might flow to investors from a creative news product you are bringing to market. Gibson and Fraser (2011: 305–6) list the essential elements of a contract:

  • an intention to contract
  • an agreement between the parties (including an offer and acceptance)
  • ‘consideration’—what Gibson and Fraser (2011: 305–6) describe as ‘something of value passing from one party to another in return for a promise to do something’.

Contract law can be a specialised area, and constitutes a subject in law degrees—partly because there is a body of case law over the circumstances in which a contract might be deemed valid by a court. In determining a contract’s validity, a court will consider the legal capacity of the parties who have entered into the contract, evidence of their consent, the legality of the purpose of the contract and the form the contract takes (Gibson and Fraser, 2011: 307). The action for ‘breach of contract’ arises when one or more terms of the contract have not been met—which might include work not being completed within an agreed timeline. This is usually where lawyers enter the fray, and a contract dispute can involve long and expensive court action, although alternative forms of dispute resolution are becoming more common. Griggs, Clark and Iredale (2009: 85) recommend that managers follow these steps when they are drawing up a business contract:

  • reducing the agreement to writing and ensuring it contains all the agreed terms
  • drafting it in plain English that does not require interpretation
  • ensuring it contemplates obvious problems and presents a process for a solution
  • ensuring compliance with any relevant legislation
  • limiting exposure to liability
  • identifying the law that should apply, particularly in international contracts.

A complex sub-branch of the law of contract is the law of agency—the term used to describe the authority you might assign to someone to enter into contracts on behalf of your business. An example of a contract dispute over public relations services was a West Australian District Court case involving a consultant to a South African mining company considering buyouts or mergers with other mining companies (Mining PR case, 2004). The dispute surrounded a ‘partly written, partly oral and partly implied’ agreement to provide ‘public relations, lobbying, consulting, networking, facilitating and co-ordinating’ services. The problem was that very little was detailed in the agreement, forcing the judge to look at previous work done by the consultant and to come to an estimate of the number of hours he had worked and their value on this occasion. He awarded him $830 per day for eight weeks, totalling $33 200 plus expenses.

References

Gibson, A. and Fraser, I. 2011, Business Law, 6th edn, Pearson Education, Sydney.

Griggs, L., Clark, E. and Iredale, I. 2009, Managers and the Law: A Guide for Business Decision Makers, 3rd edn, Thomson Reuters, Sydney.

Cases

Mining PR case: Newshore Nominees Pty Ltd as trustee for the Commercial and Equities Trust v Durvan Roodepoort Deep, Limited [2004] WADC 57, <www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WADC/2004/57.html>.

© Mark Pearson 2015

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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New @journlaw updates posted in privacy, anti-terror and confidentiality of sources #MLGriff

By MARK PEARSON

We have just posted numerous updates to the fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) on the journlaw.com blog.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we have been posting fresh material via this blog’s Media Law Updates menu.

You can find updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are 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.

Order via Booktopia: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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 2015

Leave a comment

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Stakeholder theory as a way of viewing social media policies and risk

By MARK PEARSON

My Skype guest of the week for our Social Media Law and Risk Management course this week is Professor Andrew Crane from York University in Toronto, Canada, the author of one of our key readings for the week on stakeholder theory.

The article is co-authored with Trish Ruebottom and is titled ‘Stakeholder Theory and Social Identity: Rethinking Stakeholder Identification’, Journal of Business Ethics, Vol. 102, Supplement 1: Ethics, Corporations, and Governance (2011), pp. 77-87

We discussed the application of stakeholder theory to social media risk management and policy development. Professor Crane starts by explaining the basics of stakeholder theory (video and transcript below). Enjoy!

INTERVIEW TRANSCRIPT

Mark Pearson (@Journlaw): I am delighted to be joined here today by Professor Andrew Crane who is the George R Gardiner Professor of Business Ethics and Director of the Centre of Excellence in Responsible Business at the Schulich School of Business in the York University in Toronto, Canada. Welcome Andy.

Professor Andrew Crane: Thank you Mark, it’s a pleasure to meet you.

MP: Well you’ve done a lot of research and writing in Stakeholder Theory, and my students have actually been reading one of your co-authored articles on the topic. And for postgrad students who are relatively new to this theory, would you mind just giving a nutshell summary for them?

AC: Sure. Stakeholder Theory is a pretty simple idea in many respects, you know. It’s really about the idea that corporations in particular are not just there to serve the interests of shareholders. So Stakeholder Theory was designed to give us a way of thinking about other ways of understanding both the ownership of corporations, but in particular how decisions should be made. So, who should be involved in decision making, and how should the benefits that are, driven by corporations, the value that is created by them; who should it go to? So Stakeholder Theory is really about those sorts of questions, so who can affect organisations, but also who is affected by them, and what sort of rights do they have in respect to that stake they have, how should they be consulted, how should they be involved in the decision making, and those sorts of things. So it’s a very broad theory, and I saw that in one of your other readings you had the paper What Stakeholder Theory is Not, because there is a whole sort of set of different ways of understanding what it is – you know, it’s a very simple idea: there are multiple constituencies in any organisation, but then when it comes to [the question] of well, who is actually included and what are the implications of that, then it becomes a much broader discussion of the purpose of corporations.

MP: Yes, and we see that at its simplest level, I guess it’s just simply a matter of stakeholders being there to serve the interests of a company, and the main stakeholders being the shareholders and the customers and the corporate directors. But really your article and the other one you mentioned certainly extends that a lot further and it enters that corporate ethics field, where a company and its decisions have so many more stakeholders interests at play.

AC: Exactly

MP: So, coming to your article which starts to talk about social identity and basically presenting a grid which shows some intersection of what might be seen as a traditional role in relation to a corporation, and other social roles someone might play. Would you mind just talking us through the basic principles there and your spin on that?

AC: The basic way we understand stakeholders is the kinds of interactions that they have with the firm; so we think about them as either customers or employees and suppliers, regulators or NGOs or whatever else they might be. That’s typical kind of transactional view of who those different constituencies are. But the reason why different groups may actually mobilise or try and gain legitimacy in relation to firm, how they might press their claims, the kind of stake that they think they have, is not always about those simple transactions that they are engaged with. The reasons that people do things, the reasons people collect together to collaborate and press their claims upon firms are also about who people believe they are, about their social identity. So what are the bonds that connect me to other people that means these are the things that bring people together and make them mobilise in a social movement or some sort of pressure towards companies. So it may well be that I’m a customer of a firm, but I’m might simultaneously also be an employee, I might also hold shares in that firm; and I’ve got all kinds of different relationships with that firm at any one time. What we are trying to do with (Stakeholder) Theory with our paper is to say well, when people actually do try and press their claims, it is often about who we feel connected to that’s important. So the fact that I’m a white, British male for example who lives in Canada, that is very important for why I may be involved, why I might connect with certain firms. For example, it might be very different if I was a woman or a person of colour, or any other kind of quality which might impact on how I connect with companies.

MP: Well it seems, because of that very reason, to lend itself to an examination of social media in relation to a corporation; and particularly in the case of an emerging crisis because people with different social identities might fluctuate more towards social media for different reasons and in different places. Have you thought yourself about the interaction of Stakeholder Theory and social media in the corporation?

AC: I think one of the important ways of connecting up Stakeholder Theory and social media as well if a firm is trying to work out who it should be communicating with through social media; who the constituencies who are important; Stakeholder Theory provides a framework for that, because it gives us a way of thinking through who are the legitimate constituencies that we should be connecting with, how can we distinguish between legitimate and illegitimate, and also between who are the more powerful or less powerful that we should be connecting with. Stakeholder Theory is often seen in very instrumental terms in that sense; it is a strong instrumental approach there which says firms will care about stakeholders that matter – those that have power, those that have legitimacy, those whose stakes are very urgent. So social media is all about power in many respects; it’s about who you can influence, who you can connect to, how many people in your list of Twitter followers and what have you. So for firms it provides a framework for them to establish who matters in terms of their different constituencies. If we take it in an ethical dimension, take it in a more normative perspective, we say well ‘what rights do those people then have’? What sort of rights do you have as an employee, as a consumer, as a broader stakeholder of an organisation in relation to how it is going to communicate to you – in terms of protection of privacy, protection of various rights in terms of bullying and other things through social media?

MP: Yes – and also I think it can catch some corporations by surprise if they haven’t thought through particular social media stakeholders, or people who are using social media who may be stakeholders. And we see this with these grassroots campaigns against major corporations where they’ve underestimated the power of public momentum and social conscious using social media – which fits with your social identity perspective on that, doesn’t it?

AC: Absolutely. I think one of the interesting things here is that we tend to think of stakeholders in terms of a hub with spokes, right? Here’s the firm, here’s the decision making unit, and here’s the employees, here’s the consumers, here’s the suppliers, here’s the others; but social media is all about interconnections between different stakeholders and between different groups. You can’t think in those terms anymore if you’re trying to understand social media. Stakeholder Theory has limits in its traditional view and understanding it, unless you take it to a much more networked, much more nuanced kind of understanding of the types of environments that firms are interacting with.

MP: Well, while Stakeholder Theory might be very useful in research and the academic and looking at corporations and their interaction with various stakeholders, how useful is it as a practical tool in an organisation? So if you were a marketing manager or a public relations manager and you wished to avert some crisis in your company by trying to ascertain who the various stakeholders are and their respective interests.

AC: It can be very useful. It depends how you use it. It can be very effective at helping firms become prepared for identifying the various constituencies they need to be concerned about. If you take it seriously you need to be creative about trying to imagine who those constituencies are, because it is not just who is going to affect you now, when you think about a particular decision, who is going to be affected further down the line. So it can help you to identify these constituencies, but it can also help you to start thinking about, well, how can we predict what the type of response will be from those constituencies, depending upon how much power they have, how much influence, leverage, whether they are connected to other stakeholders in ways that mean they can leverage even greater influence and those sorts of things. So you can start to predict the kind of responses that may happen based on simple stakeholder framework that then gets into the idea of who has power, who can influence what is going to happen in the firm.

MP: And could you see it fitting in any way into the planning and drafting of a social media policy within an organisation?

AC: Certainly, yes. Both in terms of identifying who should be included in that policy, but perhaps more importantly, who should actually be involved in even devising the policy. Stakeholder Theory is all about who should be involved in decision making, so the question will be can we just set up a policy and then kind of send it out and everyone is going to abide by it. Well, realistically, that is not how social media works is it? It is a very unruly phenomenon. So it’s also thinking about who should be involved in the decision making. Who are the parties who are affected by this, and with our social identity card on it. So it’s not just ‘okay we need to involve our employees, or we need to involve our consumers’, but what particular subgroups of those employees or consumers might we need to be concerned with? So Facebook had its big issues with lesbian, gay, bisexual and trans community a couple of years ago by making sure that everyone had their real name as part of their Facebook profiles. This community was saying that they wanted also to express other identities as part of their names. So if you don’t have those groups involved when you’re setting up that policy in the first place, you’ve got all sorts of problems down the line when you realise you’ve upset core constituencies without thinking what it is that bind us all together in terms of our identity.

MP: Well that’s terrific, thanks Professor Crane. It’s great to have one of the authors of our readings talking to us about the subject matter at hand, and I would really thank you for your time today.

AC: It’s been a pleasure, thank you very much.

© Mark Pearson 2015

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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Journlaw running updates to The Journalist’s Guide to Media Law

By MARK PEARSON

OUR fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) is now in bookshops and I will be running updates on each topic area via journlaw.com as we work towards the next edition.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we will be posting fresh material via this blog’s Media Law Updates menu.

There will be updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are 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.

Order via Booktopia: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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 2015

Leave a comment

Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice, Uncategorized