SHIELD LAWS update – an experiment in collaborative scholarship

By MARK PEARSON

Both of my recent books are relatively up to date but anyone researching media law in traditional and new platforms knows how quickly the landscape is changing.

It’s for that reason I’m launching some collaborative update pages that take in some of the key chapters from both The Journalist’s Guide to Media Law (with Mark Polden, 2011) and Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012).

I’ve removed the copyright symbol © from these posts so these pages can serve as a resource for anyone in the fields of media law and social media law – students, journalists, lawyers, researchers, teachers … and even those writing competing books on the subject! (Remember, however, that we can’t steal the actual words of contributors when we write up the cases or materials they scout for us – we will need to verify the material and links and write them up using our own form of expression.) 

 I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words).

We also have a DEFAMATION update and a CONTEMPT update.

Cheers, Mark Pearson.

—–

[contributed by Virginia Leighton-Jackson]

Australian journalism shield laws put to the test… and upheld –18.07.2012 and 20.07.2012

In the Federal Court, the Commonwealth and attorneys have accepted journalist privilege inherent in Australian evidentiary shield laws for journalists under federal law, enabling the journalist who broke the Slipper diary scandal to keep private documents which would reveal the identity of his source.

However, in an unusual move, hearsay evidence (in this case, text messages downloaded from Slipper staffer James Ashby’s mobile phone) will be used within the upcoming trial, both to substantiate Ashby’s claims of sexual harassment, and potentially prove that the person journalist Steve Lewis was trying to protect is Ashby himself.

Lewis initially tried to use the new shield laws to keep from providing assorted documents including text messages between himself and other parties involved in the scandal, part of a batch he was subpoenaed to provide to the court last week. 

Federal Court Justice Steven Rares initially rejected this first claim, arguing that journalistic privilege did not apply as it was likely that the public already knew the identity of Lewis’ informant:

 “The text messages suggested that Mr Lewis requested Mr Ashby to provide Mr Lewis with copies of extracts from Mr Slipper’s diary for the period between 31 December 2009 and 9 January 2010 and 10 and 11 November 2010 and that Mr Ashby had provided those to Mr Lewis. In effect, Mr Slipper’s argument amounted to asking Mr Lewis to confirm whether or not his source was Mr Ashby.”

The Justice also expressed mixed feelings about the new laws, saying that while they have created a statutory right for journalists to protect their sources, “I am of opinion that it would be unrealistic to construe s 126H(1) in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source…”

Links:

‘James Ashby v Commonwealth of Australia & Peter Slipper’, 18.07.2012, http://glj.com.au.ezproxy.bond.edu.au/1845-article

Ashby’s full affidavit, 08.06.2012, http://glj.com.au.ezproxy.bond.edu.au/files/ashbyaffidavit.pdf

Evidence Act 1995 – Sections 126G and 126H – Journalists Privilege Amendment 2011: http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s126g.html http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s126h.html 

 The Sydney Morning Herald

‘Peter Slipper: Ashby text messages allowed as evidence’, 20.07.2012: http://www.smh.com.au/opinion/political-news/ashby-text-messages-allowed-as-evidence-20120720-22efq.html

SBS.com.au

‘Ashby’s texts can be used in court: judge’, 20.07.2012, http://www.sbs.com.au/news/article/1670846/Ashbys-texts-can-be-used-in-court-judge

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Earlier: Slipper Diary debacle to test journalism Shield Laws – 13.07.2012

Lawyers for journalist Steve Lewis have argued that he should not have to provide documents to the court on the grounds that they may reveal a confidential source, the first real test of the ‘Shield Laws’ introduced by government last year.

Lewis, who was in court today, has been subpoenaed to produce emails, text messages and phone records to and from former Howard government minister Mal Brough; James Ashby’s media advisor, Anthony McClellan; and another staffer, Karen Doane, ie all the communications he had with Peter Slipper’s staffer James Ashby

In April Lewis wrote a newspaper article that revealed Slipper’s media adviser, James Ashby, had filed a sexual harassment case against his employer, prompting Slipper to claim the two had conspired to damage his reputation and publicise the case against him.

Both Slipper and the Federal government are trying to have the case declared an abuse of process.

 

Links:

“Slipper subpoena journalist seeks to protect source”, 13,07.2012: http://www.smh.com.au/opinion/political-news/slipper-subpoena-journalist-seeks-to-protect-source-20120713-22073.html#ixzz20U7QX63D

“Journo shield laws to face their first test”, 13.07.2012: http://www.theaustralian.com.au/media/journo-shield-laws-face-first-test- in-federal-court/story-e6frg996-1226424883301

“Slipper journalist fights to keep documents secret”, 13.07.2012: http://www.radioaustralia.net.au/international/2012-07-13/slipper-journalist-fights-to-keep-documents-secret/979622

“Slipper journalist fights to keep documents secret”, 13.07.2102:http://www.abc.net.au/news/2012-07-13/slipper-journalist-fights-to-keep-documents-secret/4129452

1 Comment

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One response to “SHIELD LAWS update – an experiment in collaborative scholarship

  1. Pingback: DEFAMATION update – an experiment in collaborative scholarship | journlaw

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