Press Council launches Reconciliation Action Plan and welcomes Koori Mail to fold

By MARK PEARSON

The Australian Press Council has launched its first Reconciliation Action Plan (RAP) and welcomed the first indigenous newspaper, the Koori Mail, to its membership after a symbolic ceremony at the National Centre for Indigenous Excellence in Redfern, Sydney.

Journalist and Reconciliation Australia board member Kirstie Parker launches the Reconciliation Action Plan as APC Chair David Weisbrot looks on.

The Reconciliation Action Plan documents the objectives and strategies the press self-regulator vows to employ over the next two years to promote understanding and reconciliation between Indigenous and non-Indigenous Australians.

Launching the plan was former journalist Kirstie Parker – a Yuwallarai woman from NSW, board member of Reconciliation Australia and former editor of the Koori Mail (@koorimailnews).

She is now CEO of the National Centre of Indigenous Excellence (NCIE).

She congratulated the Press Council on its Reconciliation Action Plan.

“You have grasped that Aboriginal representation in media extends beyond media outlets to representation on the adjudicatory body, the Australian Press Council,” she said.

She noted the Council had recognized “the importance of Aboriginal voices in media; of managers, editors, producers, journalists framing our stories our way.”

“I cannot emphasise enough the importance of Aboriginal representation in media has been high on our agenda since the 1970s when the first community controlled Aboriginal media outlets formed,” Ms Parker said.

“That the Koori Mail – the most respected and successful Aboriginal newspaper in Australia – is now the first black media member of the APC is no accident. Media outlets come and go, I don’t have to tell you it’s a cutthroat and ever-shrinking business.”

“The Koori Mail’s longevity is a result of strong leadership, in strong roots, with a strong sense of purpose and a strong commitment to our stories and our culture.

“The paper has never given up on that and you have a lot to learn from them, your newest member.”

The Press Council’s draft RAP was endorsed after review by Reconciliation Australia.

The Chair of the Press Council, Professor David Weisbrot, explained the challenge was to implement the plans ‘fully and effectively’.

The Press Council’s RAP commits the organisation to:

•   encouraging membership by Indigenous newspapers, magazines and online news and current affairs sites;

•   engaging and consulting with Indigenous groups, individuals and organisations regarding the Press Council’s work;

•   promoting employment and internship opportunities for Indigenous people at the Press Council and among member publications;

•   promoting Indigenous cultural competence among staff;

•   considering the impact on Indigenous peoples of current and proposed Standards of Practice;

•   encouraging the Australian news media to report issues of importance for Indigenous communities in a respectful way; and

•   endeavouring to promote high quality reporting in relation to Indigenous peoples.

The Australian Press Council was established in 1976 and is responsible for promoting good standards of media practice, community access to information of public interest, and freedom of expression through the media. Press Council membership encompasses over 900 mastheads, accounting for approximately 95 per cent of newspaper, magazine and online readership in Australia.

Read the Press Council’s Reconciliation Action Plan here.

[I attended the ceremony as a member of the Griffith Centre for Social and Cultural Research which has a strong record of research into indigenous media.]

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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 2017

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Is an Open Justice Advocate the solution to overly restrictive suppression orders? #MLGriff

By MARK PEARSON

Jason Bosland [@JasonBosland] – Deputy Director of the Centre for Media and Communications Law at Melbourne Law School – has called for the introduction of a state-funded Open Justice Advocate as a measure to alleviate the continuing practice of judges issuing overly restrictive suppression orders.

Bosland’s explanatory article in Pursuit and his research article the Sydney Law Review come just as we are about to examine open justice and court restrictions in our Griffith University Media Law course, so they are essential reading for students.

He is the acknowledged leader in the field of suppression order scholarship in Australia and his work tracked firstly the need for the Open Courts Act 2013 in Victoria and, more recently, its failings to impact effectively on court practices.

Bosland writes in the Pursuit article:

This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene? It is my view that the only solution is for the introduction of a state funded open justice advocate.

His longer Sydney Law Review is an expert combination of insightful policy analysis, meticulous scrutiny of the legislation, and illuminating statistics drawn from his funded research projects on the topic. I commend them to all media law geeks and students.

His concludes that article with this wise counsel:

This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

Insightful indeed.

[See also – my article in The Conversation on how the 2015 edition of our textbook inadvertently breached a Victorian suppression order and had to be reprinted.]

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 2017

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Lessons for us all in $300k Yahoo!7 fine for contempt [updated]

By MARK PEARSON

Most Australian followers of this blog will have seen in the news that Yahoo!7 has been fined $300,000 for sub judice contempt over a publication which triggered the discharge of a jury in a Victorian murder trial.

The relatively inexperienced online journalist who wrote and uploaded the story to the organisation’s news site (without attending the court case on which she was reporting) escaped with a two year good behaviour bond, but Supreme Court Justice John Dixon noted the impact upon her of the media coverage and public shaming.

The main problem with her story was that it included excerpts from the victim’s social media accounts indicating the accused had a history of violence towards her and that she feared for her life – prejudicial evidence of which the jury was unaware.

This was enough for Dixon J. to rule:

“I find that the conduct of the respondents in publishing the article during the trial of an accused on a murder charge was conduct in contempt of court. I am satisfied beyond reasonable doubt that the publication, objectively and as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused.” (2016 judgment, para 3).

As university classes resume for the new academic year, it is timely to consider the lessons of the sorry episode for journalists and journalism students, educators and media organisations.

The two judgments – the conviction in 2016 and the sentencing in 2017 – deserve careful examination by all. Here are the take-home messages for us all:

Journalists and Journalism students

According to her LinkedIn page, the journalist was a graduate of a one year broadcast journalism program in 2013 and had since worked at modeling, sales, and internships as a television producer before gaining her position with Yahoo!7 as morning news producer in June 2015, just over a year prior to the offending story.

No doubt some basics of media law would have been covered in that institution’s media law course as they are in tertiary journalism programs throughout Australia. However, just because a student passes a media law subject with a mark of more than 50% does not mean he or she has learned and remembered every key topic covered.

If you are a student about to embark on a media law course you must realize that the consequences for failing to remember and apply the key elements of media law in your workplace can cost you your professional reputation, many times your annual salary in fines or damages awards, and even your liberty in the form of a jail term.

This means media law is way too important to undertake with that common student approach of “passes build degrees”. You need to read your textbooks and assigned readings, review them, view and engage in other recommended learning materials and tools, grapple with learning problems – and set your mind to keep up to date with developments in each of the media law topic areas. In other words, you need to make media law your passion and hobby if you are to have a good chance of staying out of trouble with the law.

That goes for working journalists as well as students. My experience in training working journalists is that most have forgotten the basic principles of defamation and contempt they learned at university or in training courses many years prior.

As for content, the key lesson from this case is that while a criminal trial is pending or in progress you should only report what has been stated in court in the presence of the jury. Dixon J. summed up the basic principles of sub judice contempt particularly well at para 24 of the 2016 trial:

(a) All contempt of court proceedings involve circumstances where there has been an interference with the due administration of justice;

(b) The law is concerned with the tendency of the matter published in the risk created by its publication.[3] It is unnecessary to prove that a juror or potential juror actually read or heard the prejudicial material;[4]

(c) The test for liability for sub judice contempt is whether the published material has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass particular legal proceedings or interfere with the due administration of justice in the particular proceeding;[5]

(d) The tendency is to be ‘determined objectively by reference to the nature of the publication and it is not relevant for this purpose to determine what the actual effect of the publication on the proceedings has been or what it probably will be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimis principle should be applied’;[6]

(e) The tendency is to be determined at the time of the publication;[7]

(f) Publication on the internet occurs when the material is uploaded onto the internet;[8]

(g) Proof of an intention of the contemnor to interfere with or obstruct the administration of justice is not a necessary element to be proved;[9]

(h) It is not relevant to consider the actual effect of the publication. Regard is had to the nature and content of the publication and to the circumstances in which it occurred;[10]

(i) Publishing or broadcasting material that is inadmissible before a jury may have the necessary tendency to prejudice an accused’s right to a fair trial;[11]

(j) It is an elementary principle in the administration of criminal justice that, apart from exceptional cases, usually defined by statute, the bad character or prior convictions of an accused cannot be put before the jury on a trial;[12]

(k) The law sets its face against trial by prejudice and innuendo. The principle that the prosecution may not adduce evidence, tending to show that an accused person has been guilty of other criminal acts or has a propensity to violent behaviour, for the purpose of leading to the conclusion that he is a person likely to have committed the offence with which he is charged is deeply rooted and jealously guarded;[13]

(l) The weight and importance of the various factors that will be material in assessing the circumstances of publication will vary from case to case. Broadly speaking, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience;[14]

He continued:

Para 25: For centuries, a ‘golden rule’ has been observed by journalists and publishers that while proceedings are being tried before the courts, information that is not admitted as evidence before the jury is not reported or published to prevent the possibility that the jury is influenced by prejudicial, extraneous, or irrelevant information. The rationale is well understood. In 1811, Lord Ellenborough stated in R v Fisher:[18]

“If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced’.”

Para 26: More recently, in 1985, Watkins LJ in Peacock v London Weekend Television[19] reaffirmed the balance between a fair trial and media reporting:

“In our land we do not allow trial by television or newspaper. Until the well-recognised institution of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.”

Para 27: The rule is well understood by journalists through their education and is communicated to journalists by the court. The court’s website has a guide ‘Covering the Courts’[20] that stresses the importance of not disclosing material that is kept from a jury:

“Remember the golden rule: do not report anything said in the absence of the jury.

Advice: study, understand and remember these basic principles and you might avoid the fate of this Yahoo!7 reporter.

Journalism Educators

Much as we would like to believe otherwise, we all secretly know that this Yahoo!7 journalist could have been any one of our graduates in the modern news media environment.

24/7 rolling deadlines, staffing shortages, acute competition, minimal on the job training, combined with the rookie’s urge to prove themselves in a tough occupation mean that shortcuts are taken, mistakes are made, and much of the knowledge gained doing highly caffeinated swatting for media law exams has long since exited the memory banks.

This case is a clarion call to us to revisit our curricula and pedagogies and implement the latest learning and teaching techniques to “scaffold” and “deepen” our learning.

My recent experience has been that a combination of problem-based learning, formative quizzes, and end of semester problem scenarios seem to be far superior to the traditional end of semester sit-down exam of yesteryear. Add to the mix student discussion of cases and law reforms as they unfold, along with the embedding of some key media law revision in other subjects, and you gain confidence that the key principles will be learned and remembered in the news room – an exercise in genuine “mindful journalism” or “reflection-in-action”.

Media organisations

The halcyon era for media law training in news organisations was 1990-1994 with the operation of the Keating Government’s training guarantee levy – an obligation on corporations to spend 1.5% of their payroll on structured training courses. Back then regional journalists, for example, received up to five full days of media law training as part of their award and could not be promoted without being certified that they had undertaken it. From memory, it consisted of two days of defamation training, one day on contempt, another on court reporting, and the final on a mixed bag of other media law topics.

If they are lucky, journalists today might get a couple of hours every year or so of a media law briefing from a lawyer, on the strong (and usually false) assumption that they already know most of it from their university degrees.

In his 2017 sentencing judgment, Dixon J. found serious shortcomings in Yahoo!7’s training and workplace protocols justified the $300,000 fine:

“Para 26: I infer that the contemptuous publication likely occurred, at least in part, as a consequence of inadequate resourcing, driven by profit or commercial motivations. Conduct by media organisations that contributes to the risk of sub judice contempt in pursuit of a profit motive must be strongly discouraged.”

He was skeptical about the sustainability of the company’s assurances that it now had new systems in place to train journalists, assign extra editorial staff to manage the workload, and to engage external lawyers to assess court stories.

“Para 27: I can find no feeling of comfort that, should the profit motive rear its head in the future, Yahoo!7 (and other media organisations) will continue to incur expense to maintain systems and procedures that protect the integrity of court processes.”

“Para 30: The arrangements about legal advice before articles are uploaded to the internet appear clumsy, unrealistic in some respects, and may prove more difficult to enforce in practice, given time constraints and their importance in the business model being employed by Yahoo!7”.

One can only hope that all of those stakeholders – students, journalists, educators and media organisations – pay heed to those important lessons the learned judge has so eloquently expressed.

UPDATE: Court copycats caught out. ABC Media Watch exposes how some news organisations lift court reports from their competitors – an unethical practice with major legal pitfalls. View here.

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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 2017

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Reporting Islam panel and workshop at #newnewsau

By MARK PEARSON

We were honoured to have our Reporting Islam project showcased at this year’s New News forum hosted by the University of Melbourne’s Centre for Advancing Journalism (October 29).

Our project manager Dr Abdi Hersi and I conducted a workshop centred around the reporting of a mosque proposal in a regional community and later joined lawyer and South Sudanese community leader Kot Monoah on a panel chaired by Denise Ryan-Costello, journalism lecturer at Swinburne University.

The discussion has been ably reported here on The Citizen by Master of Journalism student Emily Porello.

Here is the Twitter coverage of the session:

Our Griffith University project (co-led by colleague Associate Professor Jacqui Ewart) recently won the 2016 Queensland Multicultural Award for our ground-breaking Reporting Islam Project.

Since its inception in 2014, our team has created a suite of research-based multi-media training and education resources for Australian media practitioners and tertiary institutions.

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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 2016

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Book review: Hong Kong Media Law

By MARK PEARSON

[First published in Media and Arts Law Review (LexisNexis) in (2016) 21 MALR 119].

Book review

Hong Kong Media Law: A Guide for Journalists and Media Professionals

By Doreen Weisenhaus, with contributions by Rick Glofcheski and Yan Mei Ning (Hong Kong University Press, 2nd ed, 2014) 480 pp. ISBN 9789888208098.

Mark Pearson

hkmedialawcoverMost authors of media law texts would not expect their books to become important historical reference works for centuries to come.
But that is exactly what I predict will eventuate for the University of Hong Kong’s Doreen Weisenhaus with her Hong Kong Media Law: A Guide for Journalists and Media Professionals, now in its expanded second edition.
Unlike most of our texts explaining the media law in English language jurisdictions, based predominantly on the inevitable evolution of the common law and legislation in countries like the United Kingdom, Canada, Australia and New Zealand, the two editions of this book have captured communication law at that crucial historical juncture two decades after the People’s Republic of China resumed control of Hong Kong.
The compendium is an articulate explanation of media law still largely entrenched in the free expression of a former British colony, with a growing series of riders and consequences both within Hong Kong and for journalists who venture onto the mainland in their reporting and publishing.
For all those reasons, it is as fascinating as it is complex, making sense of a body of diverse laws spanning contrasting legal frameworks, press systems and languages in a unique historical moment.
Weisenhaus (and her contributing authors) have explained this clearly to journalists and students without falling for the temptation of over-simplifying what is undeniably a sophisticated and organic jurisprudence.
She does this by featuring chapters on the usual suspects in a media law text — the legal system, defamation, court reporting and contempt, privacy, access to information, copyright, and obscenity and indecency. Of course, all of those standard chapters also feature key cases and points of difference reflecting Hong Kong’s history, Chinese control, and the region’s cosmopolitan role as the financial hub of Asia.
However, important other chapters have a stronger Chinese influence on reporting the mainland, obscenity and indecency and media regulation in the age of convergence.
Appendices on key statutes and regulations, judicial practice directions, Access to Information, and useful links also feature an appendix by accomplished investigative journalists Chan Pui-king and Vivian Kwok on searching for public records of courts.
The instructional design of the text is also admirable. Each chapter starts with some frequently asked questions on the topic and directions to the section of the chapter where the answer might be found. The key chapters also feature a useful checklist for journalists on the subject at hand, clearly accessible as a quick refresher for a reporter on the run.
All this is enhanced by the author’s accomplished writing style — clear, concise and engaging — reflecting her earlier career as city editor of The New York Times, the first legal editor of The New York Times Magazine and later its law and politics editor, and her earlier stint as editor-in-chief of The National Law Journal.
Weisenhaus is now associate professor and director of the Media Law Project at the University of Hong Kong’s Journalism and Media Studies Centre, a regular panellist on international free expression and media law forums, and contributor to comparative works.
In this book she impresses upon the reader the strong independence of the Hong Kong courts and the entrenched values of media freedom, each under pressure from the same kinds of national security measures confronting journalism in Western democracies combined with special new tensions as Hong Kong continues its adaption to its role as a Special Administrative Region of the People’s Republic of China.
As the author explains in her overview, ‘those winds from the mainland have grown stronger, despite the “one country, two systems” principle that is supposed to govern relations between the mainland and Hong Kong’.
‘Thus, concern persists both within and beyond Hong Kong over the degree of its press freedom and the eventual contour of its media-law landscape, partly because of uncertainty about how much of a role the mainland will have in shaping (if not controlling) it’, she continues.
While the China question dominates thinking about the future of media law in Hong Kong, the problems of government surveillance, interference and downright censorship also worry journalists in Western democracies where press freedom was once valued much more highly.
A reflective reading of this important work by Weisenhaus and her colleagues brings this into sharp focus as we learn to appreciate that we all stand to lose many of our inherited media freedoms unless we find ways to apply a brake to government regulation and intrusion.
In that way, it is not just an important work for Hong Kong students and journalists and Sinophiles, but for all citizens and scholars with an interest in media law as the fine balance between free expression, other rights and the self-interest of states the world over.

© Mark Pearson 2016

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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Addressing the Sri Lankan Press Council on media law and mindful journalism

By MARK PEARSON

For the past two weeks I have been in Sri Lanka, where my speaking and interview schedule has been arranged by Dr Sugath Senarath, my co-author of our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015).

srilankawithsugath

Professor Mark Pearson (@journlaw) at the Sri Lanka Press Council event. Photo: Julie Pearson

The highlight was my address to the Sri Lankan Press Council last Wednesday (August 31) on the topic “Designing free expression models in communication with special reference to Commonwealth countries – a mindful Australian perspective”.

I offer the full text of the address to you here. [Please note that sections are excerpted from earlier work, including The Journalist’s Guide to Media Law (co-authored with Mark Polden, Allen & Unwin, 2015), Mindful Journalism (reference above) and my unpublished 2013 address to the Timor Leste National Congress for Journalists.]


Press Commissioner, Press Council Chair and board members, co-author and host Dr Sugath Senarath, academic and media colleagues, journalism and media students and young reporters and other honored guests…

Thank you sincerely for having me here today to talk about the important topic of free expression – a fundamental feature in a working democracy.

It is important that all citizens – particularly journalists and politicians – have a grasp of the principles of free expression, media freedom and their historical context.

Origins of free expression

The free expression of certain facts and views has always been a dangerous practice, with countless people put to death for expressing religious or political views throughout history. Many more have been imprisoned, tortured or punished for such expression. Socrates in 399 BCE elected to drink a poison—hemlock—rather than recant his philosophical questioning (Brasch and Ulloth, 1986, p. 9). The history of freedom of expression is as much a history of censorship, because when free expression has been threatened, intellectuals have been called upon to defend it. It was Johann Gutenberg’s invention of movable type in about 1450 and the massive growth in the publishing industry over the sixteenth and seventeenth centuries in the form of newsbooks and the activities of ‘pamphleteers’ that first triggered repressive laws, and then the movement for press freedom (Feather, 1988: 46). (It is interesting that these individuals were the forerunners of the citizen journalists and bloggers we know today—often highly opinionated and quick to publish speculation and rumour.)

srilankapcaddress

Delivering the Sri Lankan Press Council address in Colombo. Photo: Julie Pearson

The pamphleteers took umbrage at government attempts to impose a licensing system for printers from the mid-sixteenth century (Overbeck, 2001: 34). Political philosopher and poet John Milton took aim at this in 1644 with Areopagitica, a speech to the parliament appealing for freedom of the presses. He went on to utter the famous free speech principle: ‘Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.’ (Patrides, 1985: 241). Milton inscribed his name on the title page of his unlicensed work, in defiance of the law he was criticising. The notion of free expression had spawned its offspring: press freedom.

Part of Milton’s argument centred on the ‘marketplace of ideas’—the belief that truth will win over falsehood when the two compete. This proposition of a contest between truth and falsehood was often used during the seventeenth and eighteenth centuries to justify freedom of expression (Smith, 1988: 31). It continues in public discourse today.

srilankawithbanner

Two of the co-authors of ‘Mindful Journalism’, Professor Mark Pearson (left) and Dr Sugath Senarath from the University of Colombo.

Philosopher and political theorist John Locke took up the fight after Milton’s death. Under his social contract theory, governments are there to serve the people, and central to this is freedom of expression (Overbeck, 2001: 36).

Like Milton, Locke campaigned for the end of the English printing licence system, which expired in 1694 (Overbeck, 2001: 36). Those to speak out against restrictions on press freedom at the turn of the eighteenth century included novelist and journalist Daniel Defoe, who wrote ‘An Essay Upon the Regulation of the Press’ around 1704 (Brasch and Ulloth, 1986: 62), and John Trenchard and Thomas Gordon who, under the pen name ‘Cato’, wrote a series of letters about freedom in the 1720s (Brasch and Ulloth, 1986: 64–8).

England’s foremost philosopher of the late nineteenth century, John Stuart Mill, articulated the need for free speech in a liberal democratic society in On Liberty, first published in 1859 (Mill, 1991). He wrote:

The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. (1991: 20)

Mill’s On Liberty built on Milton’s ‘marketplace of ideas’ to define the boundaries of freedom of expression in the modern nation-state. One of the great legal minds of the eighteenth century, Sir William Blackstone, in his Commentaries on the Laws of England, had a great impact on the evolution of press freedom by defining it as the absence of ‘previous restraints upon publications’ (Blackstone, 1765–69: 151–2).

Blackstone’s notion of ‘prior restraint’ has underscored the development of media law in the United States. The idea was that freedom of the press could tolerate no restrictions before publication, such as licensing and taxes that had been imposed in Britain, but that the law should take its course after publication to punish those who abused this freedom. Publications should be tax and licence free, but subject to laws like defamation and contempt once published. In both Britain and its colonies, a common weapon for silencing the press had been the crime of ‘seditious libel’—any serious criticism of government or the Crown, whether or not the criticism was truthful. William Murray, Lord Chief Justice and Earl of Mansfield (1704–93), had coined the expression ‘the greater the truth, the greater the libel’ (Whitton, 1998), ensuring that truth would not stand up as a defence to seditious libel.

Despite these restrictions, basic press freedom had taken hold in Britain. Some thought the press had gone too far. In this context, the expression ‘the Fourth Estate’ was coined. At that time, there were said to be three ‘estates of the realm’—the Lords Spiritual, the Lords Temporal and the Lords Common. In 1790, English statesman Edmund Burke is said to have pointed to the press gallery in parliament and said: ‘There are three estates in Parliament but in the reporters’ gallery yonder sits a fourth estate more important far than they all.’ (Inglebart, 1987: 143).

The libertarian ideals on which press freedom is based were not confined to Britain. The movement for civil rights and individual liberties spread throughout Western Europe during the seventeenth to nineteenth centuries, epitomised by the French Revolution in 1789, leaving a legacy of press freedom throughout that region and its colonial outposts.

In Western democratic societies, journalists often take their liberties for granted. But there has never been utterly unshackled free speech or a completely free media: we operate on an international and historical continuum of free expression through to censorship. It is only over the past half-century that the notion of free expression and a free media has gained traction on a broader international scale.

Free expression internationally

There is no enforceable worldwide agreement on free expression as a fundamental human right, although some nations and regions have entrenched free expression in their constitutions. The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

At face value, this statement seems to give all the world’s citizens a right to free expression. While a declaration of a lofty goal, it has many limitations, as we will see.

Stronger protections came internationally in 1966 when the United Nations (UN) adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduces a right to free expression for the world’s citizens, again at Article 19.

However, the right is limited because the covenant also recognises duties, responsibilities and restrictions covering respect for the rights and reputations of others, and the protection of national security, public order, public health or morals. Add to this the fact that many countries either have not ratified the covenant, or have not incorporated its provisions to make them part of their domestic law—as in the case of Australia.

At least three major democratic English-speaking nations in addition to the United States have bills of rights enshrining free speech. British and European liberal ideals found their way into the wording of the American Declaration of Independence in 1776, the US Constitution in 1789 and its Bill of Rights in 1791. Central to the Bill of Rights was the First Amendment to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

US government attempts to restrain publications in the national interest have usually failed on First Amendment grounds.

The Canadian Charter of Rights and Freedoms (1982), like the US First Amendment, recognises freedom of the press as part of section 2(b), which confers upon every citizen the following freedoms: ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. The United Kingdom and New Zealand legislation does not mention media freedom, opting instead for the broader term ‘freedom of expression’.

New Zealand’s Bill of Rights, enacted in 1990, states at section 14:Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. In 2011, the New Zealand Supreme Court found that the right protected Valerie Morse, an anti-war protester who burned her country’s flag during a dawn memorial service in Wellington. Her conviction for offensive behaviour was set aside.

Despite this, there are many nations with such a free expression clauses in their constitutions where their governments have chosen to ignore them to advance their own interests or to prevent scrutiny of their actions. This has sometimes led to the harassment, assault, imprisonment and even murder of journalists. I note that the Sri Lankan Constitution also enshrines “freedom of speech and expression including publication” and it is encouraging that your new government has taken some first steps towards honouring that right which appears to have been neglected in recent decades. The recent passage of a Right to Information Act is one such encouraging step. Of course, such freedom of information instruments in many countries are ineffective because of the large numbers of exemptions to the release of documents available to governments, the cost of making applications, and the glacial speed with which bureaucracies approve requests for government information – using refusals and appeals to wear down the journalists rightfully seeking facts and information on behalf of the citizenry.

For many truth-seekers and truth-tellers, the commitment to free expression has taken the form of physical injury or danger—even death. The Committee to Protect Journalists (CPJ) lists more than 1200 journalists confirmed as killed in the course of their work since 1992, including 27 in 2016 to date. As a former correspondent for Reporters Without Borders, I must highlight the fact that the world is watching the new Sri Lankan government to see how enthusiastically it pursues and prosecutes those responsible for the murder of 19 journalists in this country since 1992 – criminals who it seems have been able to conduct their assassination of this democracy’s messengers with complete impunity. I suggest the Press Council might consider keeping this issue on the agenda in the interests of media freedom and as a tribute to those who have paid the ultimate price for exercising their Constitutional right to free expression.

Throughout the Asia-Pacific region, many others have died, suffered violence or have been imprisoned for what they report. Some have suffered in other ways, as the victims of lawsuits by those who set out to gag them.

Australia

Australia’s early history was marked by considerable censorship of its media, although an early battle between Governor Darling and the Chief Justice in 1827 prevented the licensing of newspapers.

Australia has no equivalent to the US First Amendment enshrining freedom of the press. However, in recent decades the High Court of Australia has recognised an implied freedom to communicate on matters of politics and government.

Press systems and ethical frameworks are on the agenda in all societies, and we are challenged to accommodate free expression and its close relative, press freedom, within new regulatory, technological and cultural contexts.

Recent inquiries into media regulation in the United Kingdom (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have recommended major changes to the regulation of media corporations and the ethical practices of journalists. Their motivation stems, at least ostensibly, from public angst—and subsequent political pressure—over a litany of unethical breaches of citizens’ privacy over several years in the United Kingdom, culminating in the News of the World scandal and the subsequent revelations at the Leveson Inquiry (2012), all of which had an undoubted ripple effect in Australia.

Two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms might require statutory regulation at a national level. Four regulatory models emerged—a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; a strengthened Australian Press Council policing both print and online media; and a government-appointed Public Interest Media Advocate.

All proposals for any such government intervention with media freedom by such a controlling body by a Press Council or News Council were rejected after considerable pressure from media organisations as anathema to free expression.

Both inquiries acknowledged—and rejected—the notion of a revamped Australian Press Council, proposed in various submissions and in appearances by its then chair. The Australian Press Council was established in 1976 as a newspaper industry ‘self-regulatory’ body—a purely voluntary entity with no powers under law.) Nevertheless, both during and after these two reports, and with new support from most of its members, the Press Council moved quickly to ramp up its purview and powers to address many of its documented shortcomings, such as the refusal of some member newspapers to publish its findings and the threat of withdrawal of funding from others (Simpson, 2012). It locked its members into four-year commitments and established an independent panel to advise on a review of content standards.

At the same time as these changes to media regulation were being proposed, several reformulations of existing media laws were being considered by state, territory and federal governments and their respective law-reform bodies. They covered such topics as privacy law, media classification, intellectual property, cyber-bullying, shield laws and national security laws. Of these, new shield laws have subsequently been introduced in most Australian jurisdictions. Media law and regulation constitute a field subject to continual scrutiny and change, which makes it all the more important for students and professional communicators to keep pace with developments.

It is noteworthy that the self-regulatory institution journal­ists fear most – more than the Press Council and other self-regulation tribunals, is the ABC’s weekly program Media Watch, which was first screened in 1989. Its website promotes it as follows: ‘Everyone loves it until they’re on it’ (www.abc.net.au/mediawatch/). Criticised for being sometimes trite, and often bitchy, Media Watch has exposed some of the nation’s most spectacular ethical breaches over the past two decades. These include blatant instances of plagiarism and privacy invasion and, most famously, an exposé of secret payments being made to talkback radio stars for their endorsement of products and services without the knowledge of their listeners. While Media Watch itself has no sanctions available, the power of the program lies in the fact that ethical breaches and glaring errors are screened on national television, when journalists know their colleagues are watching. The ultimate tool of media self-regulation can indeed be the media itself!

There are several ways journalists in other countries considering regulatory models can learn from this recent experience in Australia.

  1. Comparisons can be dangerous. Even in a democracy with a long history of relatively free expression politicians and governments will seek out and seize any opportunity to regulate the media. International comparisons can be dangerous because we operate within different political and cultural frameworks. When they were arguing for their media reforms, Ministers cited RSF’s World Press Freedom Index, using the argument that Finland remained in number one position there despite having a statutory mechanism for its press regulation. They failed to mention that Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws that impact on free expression in other countries like Australia.
  2. Beware of regulation creep. Existing laws such as defamation and contempt that apply to all citizens go a long way towards controlling media behavior. I have seen few serious ethical breaches that could not be handled by the existing laws. Once media laws have been introduced it is hard to wind those laws back to re-establish eroded freedoms. Australia passed more than 60 new anti-terror laws after the September 2001 attacks on the US – many impacting on the media – and few of those have been wound back. Media regulation is hard to undo because governments like to have that power.
  3. Don’t trade press freedom. Well meaning journalists and academics are sometimes willing to sacrifice media freedom because of the misbehavior of some media personnel. When you offer governments new powers to control the misbehaviour of some elements in the media you need to accept that those same powers might be used against you at some later stage.
  4. Beware de facto licensing. There is the temptation to issue journalists with accreditation and registration in actual or de facto licensing schemes. While journalists might like the idea of carrying an official card with privileged access, the narrow defining of journalists and journalism by governments presents a real danger to free expression because it privileges some citizens over others as communicators. This gives those issuing and revoking such licenses influence over the message itself. It is even less appropriate in a new era of blogging and social media because the nature of news and journalism is even harder to define. Citizens might become reporters temporarily because of the scale of an event or issue or on an ongoing basis in a narrow field of interest that might momentarily become of broader public interest. It is inappropriate that they should have to seek registration or licensing as a journalist or that they should be punished for reporting without such official licence. Rather, their words or actions should be subject only to the communication limitations placed on all citizens, and in a working democracy they should be limited to only extreme breaches.
  5. Judge a proposed law by its ultimate possible sanction. The best test when trying to gauge the potential impact of new media regulations is not the assurances of their proponents that they will be used only rarely and only in extreme cases, or perhaps not used against journalists. The real test is to look at the ultimate maximum sanctions available and if these involve the potential jailing or fining of journalists then they are anathema to press freedom in a democracy.
  6. Media freedom is above politics. Media regulation was certainly a long overdue debate in Australia, but it was politicised from the outset which undermined the likelihood of the implementation of any of the proposals. Some political parties supported tougher regulation of the media because they had been the target of adverse coverage. A basic human right like free expression should be above politics in a democracy, yet most governments will strive to limit it.
  7. Media freedom is above commercial interest. Opponents of media regulation need to be careful they are not being seen as simply protecting their own commercial enterprises. Criticism of the recommendations by the larger Australian media groups on free expression grounds – particularly by Murdoch executives – were dismissed as a defence of their vested interests (Meade and Canning, 2012). It helps to recruit other senior intellectuals in defence of media freedom – including academics, business leaders and other public intellectuals.
  8. Be wary of ethics codes imposed by governments. Too often governments use ethics codes as a Trojan Horse to push through tougher restrictions on journalists. Ethical codes should be SELF regulatory systems, not legally enforceable instruments carrying potential fines and jail terms.
  9. Training and education in law and ethics is crucial. Media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their understanding of the important role of the media in a democracy.
  10. Educate the community about free expression and a free media. The constitutional right to press freedom and free expression need to be part of every school’s civics curriculum and media organisations need to remind their audiences of this constitutional right and its important history at every opportunity.

Mindful Journalism

Just as important as external regulatory and legal systems are the internal processes of journalists’ decision-making – their internal ‘moral compasses’. I have explored this phenomenon in developing the concept of ‘mindful journalism’ with colleagues Shelton Gunaratne and Sugath Senarath in a recent book – Mindful Journalism – published by Routledge in New York last year.

We explore the possibilities of applying some of Buddhism’s core principles to the secular phenomenon of journalism. It must be accepted that Buddhist practices such as ‘mindfulness’ and meditation have been adopted broadly in Western society in recent decades and have been embraced by the cognitive sciences in adapted therapeutic ways (Segal et al 2012).

Each of the constituent steps of the Noble Eightfold Path – understanding free of superstition, kindly and truthful speech, right conduct, doing no harm, perseverance, mindfulness and contemplation – has an application to the modern-day practice of truth-seeking and truth-telling – whether that be by a journalist working in a traditional media context, a citizen journalist or a serious blogger reporting and commenting upon news and current affairs.

We do not propose a definitive fix-all solution to the shortcomings in journalism ethics or their regulation. Rather, ‘mindful journalism’ is an acknowledgment that the basic teachings of one of the world’s major religions can offer guidance in identifying a common – and secular – moral compass that might inform our journalism practice as technology and globalization place our old ethical models under stress. Media coverage can be vastly improved with the application of such principles – working towards a journalism of wisdom and compassion.

One of the problems with emerging citizen journalism and news websites is that their proponents do not necessarily ascribe to traditional journalists’ ethical codes. In a global and multicultural publishing environment the challenge is to develop models that might be embraced more broadly than a particular country’s repackaging of a journalists’ code. However, codes of ethics have often failed to work effectively in guiding the ethics of the traditional journalists for whom they were designed, let alone the litany of new hybrids including citizen journalists, bloggers, and the avid users of other emerging news platforms. Core human moral principles from key classical teachings like the Noble Eightfold Path could form the basis of a more relevant and broadly applicable model for the practice of ‘mindful journalism’.

The recent international inquiries triggered by poor journalism ethical practices have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to explore new ways to recapture this. We should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary accommodating a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process. They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.

Journalists must tell uncomfortable truths for the benefit of society and for the proper functioning of democracies. Politicians particularly need to have thick skins in recognition of the transparency and accountability of the public positions they hold. Before they attack the media they need to reflect upon whether they are acting through craving, attachment or ego.

Even the Buddha allowed for such uncomfortable truths to be spoken. In the Abhaya Sutta, the Buddha addressed Prince Abhaya on the qualities of Right Speech. He related to the prince six criteria for deciding what is worth saying. The third represents how the mindful journalist might approach such criticism of public figures:

[3] “In the case of words that the Tathagata knows to be factual, true, beneficial, but unendearing and disagreeable to others, he has a sense of the proper time for saying them.

Mindful journalists should strive to get their timing correct, but there is no doubt that painful truths sometimes must be spoken. This requires reflection, meditation and insight in the planning and execution of a story to help alleviate suffering. A functioning democracy requires that such unendearing and disagreeable statements sometimes be made about our fellow citizens – particularly those entrusted with the public purse and special powers. It is no less than the role of the Fourth Estate to fulfil this function, and it is heartening to see that Sri Lanka is again investing in the fundamental freedoms that allow journalists to do so. I am sure the Sri Lankan Press Council can play an important role in advocating for press freedom and encouraging a robust journalism of truth, wisdom and compassion.

Thank you.

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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 2016

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Reporting Islam project wins Queensland Multicultural Award

By MARK PEARSON

Our Reporting Islam project team won the Communication and Media Achievement Award category of the Queensland Multicultural Awards on Saturday (August 20, 2016).

My co-investigator Associate Professor Jacqui Ewart and project manager Abdi Hersi accepted the award on behalf of our team.

Here are the award details, as outlined in media statements from Griffith University and the Minister for Multicultural Affairs, Grace Grace.

For more information about the project and its resources, please see www.reportingislam.org.


Reporting Islam Project wins Qld Multicultural Award

[Griffith University media statement]

Griffith University has won a 2016 Queensland Multicultural Award for its ground-breaking Reporting Islam Project.

Led by Associate Professor Jacqui Ewart and Professor Mark Pearson from the School of Humanities, Languages and Social Science, the world-first project aims to combat the negative stereotyping of Islam and Muslims in the media.

Since its inception in 2014, the project team has created a suite of research-based multi-media training and education resources for Australian media practitioners and tertiary institutions.

“The Queensland Multicultural Awards are a great initiative and we are honoured to be this year’s winners in the communication and media achievement category,” Associate Professor Jacqui Ewart said.

“Our project is about improving the quality of mainstream news media relating to Islam through the development of research-based best practice resources for journalists to encourage more mindful and accurate reporting of Muslims and the Islamic faith.”

“Our team has developed an app, a website, a reporting handbook, audio visual materials and two training packages.”

Find out more: Multicultural Awards finalists

Muslims negatively stereotyped

Associate Professor Ewart said the idea for the project was sparked by research showing that Islam and Muslims were routinely and negatively stereotyped in Australian news media.

“There is ample evidence of the negative impact of this news media coverage on Australian Muslims.

“We believe that fair, ethical and accurate reporting on matters involving Islam and Muslims will help promote social cohesion and feelings of inclusiveness for Muslim people and help build community confidence and resilience.”

Developed in consultation with south east Queensland Muslim community leaders and Australian news media organisations, the project team is delivering targeted training courses nationally.Strong partnerships have also been formed with Australian Muslim community members, international academic experts, educators and media industry personnel. The project team’s innovative and proactive approach promotes acceptance and understanding of Islam across diverse cultural groups and the wider community.

The 2016 Queensland Multicultural Awards were announced at the Logan Entertainment Centre on Saturday, August 20 as part of Queensland’s Multicultural Month celebrations.


 

Media statement from Minister for Employment and Industrial Relations, Minister for Racing and Minister for Multicultural Affairs, The Honourable Grace Grace:

Saturday, August 20, 2016

Awards recognise Queensland’s brightest multicultural achievers

Queensland’s brightest multicultural achievers have been recognised at today’s Queensland Multicultural Awards, held in Logan.

Multicultural Affairs Minister Grace Grace announced the eight winners and congratulated all 27 finalists during a gala luncheon that was also attended by Health Minister and Member for Woodridge Cameron Dick.

“These awards recognise some of the outstanding organisations and individuals who are such a vital part of Queensland’s multicultural success story,” she said.

“Community groups, volunteers, businesses and sporting organisations are just some of those recognised by these prestigious awards.

“I want to congratulate all finalists for their efforts to create a harmonious and inclusive Queensland.

“It really is the icing on the cake to be having these awards during Queensland Multicultural Month, Queensland’s largest multicultural celebration.”

Ms Grace said all finalists were setting a great example and providing inspiration to all Queenslanders.

“They remind us that Queensland always has, and always will, depend on the skill and talent of people drawn from all parts of the globe,” she said.

Communication and Media Achievement Award – Reporting Islam Project Team (Nathan). They aimed to combat the negative stereotyping of Islam and Muslims in the media through the development of a research-based, best practice guide for journalists reporting on stories about Islam and Muslims

Queensland Multicultural Award winners:

  • Minister’s Multicultural Award – Multicultural Community Centre (Newmarket). The centre assists migrants, refugees and disadvantaged members of the community through settlement services, training and employment support
  • Outstanding Volunteer – Naseema Mustapha (Highgate Hill). She was involved in causes such as blanket and clothing drives to assist asylum seekers, English tutoring, fundraising for orphanages in Africa and the Griffith University Refugee Students’ Association Refugee Day Festival.
  • Business Excellence Award – Townsville Hospital and Health Service (Townsville). The hospital partnered with TAFE North Queensland to provide work experience to 18 refugee and migrant job seekers. The program also gave participants their first experience in gardening, painting, food preparation, cleaning and plumbing at Townsville Hospital.
  • Communication and Media Achievement Award – Reporting Islam Project Team (Nathan). They aimed to combat the negative stereotyping of Islam and Muslims in the media through the development of a research-based, best practice guide for journalists reporting on stories about Islam and Muslims
  • Employment, Education and Training Innovation Award – Private Enterprise – The Multicultural Sports Club (Logan) is an initiative of Multicultural Youth Queensland, a youth-led innovative, not-for-profit organisation which provides targeted services, programs and projects to improve life outcomes for young people aged 12 to 30 years old.
  • Employment, Education and Training Innovation Award – Public Sector – Queensland Police Service Academy – ROLE program (Oxley). The program pairs police with students from a Brisbane high school where they work with mentors and encourage Year 9 students to participate in team building activities
  • Services and Communities Award – Individual – Regina Samykanu-Vuthapanich (Gatton). She set up the first Youth Council in the Lockyer Valley, established the Gatton Multicultural Festival and the Overseas Students Association Support Group. She also founded the Lockyer Valley Multicultural Association and the Somerset Migrant Resource Centre.
  • Services and Communities Award – Organisation – The Friends of HEAL Foundation (Yeronga). The organisation provides creative arts therapy to young people from refugee backgrounds and also helps refugee children settle into their new community

For more details on Queensland Multicultural Month head to www.qld.gov.au/multiculturalmonth

———–

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 2016

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Filed under free expression, Islam, journalism, journalism education, media ethics, Muslim, Reporting Islm