Case study shows the legal pros and cons of a media release

By MARK PEARSON

MEDIA releases are meant to enhance brand reputation but they can sometimes have the reverse effect, as we explain in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019).


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We profile the Born Brands case (2013), where two media releases had vastly different consequences for the manufacturers of a device to help better position infants during sleep.

The first was particularly successful, generating a news segment on Brisbane Extra about its Babywedge product and an appearance on national morning television (Born Brands case, para. 8).

But the second media release—this time emanating from the US Consumer Product Safety Commission (CPSC)—caused unexpected damage because it warned consumers against using infant sleep positioners.

Babywedge then featured on a Channel 9 news segment among other such products in a story about the potential dangers of infant sleep positioners (at para. 14).

As part of the fallout from the crisis, Born Brands sued the Nine Network for both defamation and injurious falsehood, claiming the news item damaged its reputation as a small corporation (fewer than 10 employees) and that it contained false statements, published with malice, which had caused it actual financial loss (injurious falsehood).

However, the company found no relief because the television network managed to defend both actions successfully, with the court finding the statements were not false and that no malice had been proven (paras 184–9).

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Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

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Defending truth: case study from our new edition

By MARK PEARSON

DEFENDING a defamation action using the truth or justification defence can have its hurdles, but this case we profile in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) demonstrates how a major publication used it effectively.

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The Vocational Education case

Charan v Nationwide News Pty Ltd [2018] VSC 3

Facts

In late 2015, The Australian newspaper published a print article (‘Watchdog Takes Peak Training College to Court’) and a similar online version (‘ACCC to Take Top Training College Phoenix Institute to Court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up, and stated that the parent company was under investigation by both the federal Department of Education and the Australian Skills Quality Authority (ASQA) and that its shares had been suspended from trading on the stock exchange for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated that he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, ‘whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct’ (para. 2). Mr Charan had in fact left the company about a year earlier and the next day The Australian published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded that eight imputations arose from the article, which the judge grouped into four headings (para. 27):

  1. Mr Charan was head of ACN, a company that engaged in unscrupulous business practices that took advantage of vulnerable consumers.
  2. Mr Charan was head of ACN, a company that engaged in misleading and deceptive conduct.
  3. Mr Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers.
  4. Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards.

The defendant, Nationwide News—publisher of The Australian—argued successfully that imputations 2 and 3 did not arise in the articles and defended the imputations of unscrupulous business practices and significant non-compliance with quality standards using the justification (truth) defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the substantial truth of the unscrupulous conduct allegations, it had to convince the court under the civil burden of proof—the ‘balance of probabilities’—that there was ‘clear and cogent proof’. To do so, it drew upon a host of material obtained after the publication, including:

  • the oral testimony of a number of witnesses who had worked in the Community Training Initiatives (CTI) group
  • the oral testimony of three ‘students’ allegedly enrolled in CTI courses conducted by CTI companies
  • the contents of a series of audit reports, student interviews and file reviews (with associated documentation), carried out in 2015
  • a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies (para. 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider, Telstra.

Justice Forrest found that the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para. 111). He concluded with a concise summary of his 768-paragraph judgment:

(a)   Mr Charan was defamed in both the written and online versions of the article;

(b)  the article defamed him by conveying imputations that:

(1)       Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2)       Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations (paras 762–3).

Lessons for professional communicators

Several lessons arise from this rare successful use of the justification (substantial truth) defence by a publisher:

  • Considerable evidence can be needed to prove the truth of imputations stemming from an article, and sometimes this has to be located after publication and before trial, although as much evidence as possible should be available at the time of publication;
  • A publisher defendant can still win a case on the pleaded imputations even if there is a basic error in the story—in this case, the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided.)
  • Defamation cases can be enormously expensive. In this case, the 35-day trial was reported to have cost both sides more than $3.5 million in legal fees (Houston, Duke and Vedelago, 2018)

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Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

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New edition of media law text available in early 2019

By MARK PEARSON

The sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) which I co-author with Mark Polden is well into production so it will be ready for the 2019 academic year.

We are making corrections and last minute updates to the first proofs of pages which were delivered for our scrutiny last week.

JGML6eCOVERorangeIn it we try to offer a mindful approach to assessing media law risks so practitioners can navigate legal and ethical barriers to publishing in mainstream and social media.

The sixth edition has been substantially revised to reflect recent developments in litigation, and the impact of national security laws and the rising gig economy where graduates might work in the news media, PR, new media start-ups, or as freelancers. It covers defamation, contempt, confidentiality, privacy, trespass, intellectual property, and ethical regulation, as well as the special challenges of commenting on criminal allegations and trials. Recent cases and examples from social media, journalism and public relations are used to illustrate key points and new developments.

One of the most exciting aspects of media law is its dynamic and ever-evolving nature. It is shaped by the changing face of communication careers, rapid developments in technologies and the social dynamics of politics, economics and culture.

In no period of human history have such changes come about as quickly as in these first two decades of the twenty-first century. We have updated this book to reflect the many changes that have occurred in media law and its interpretation since our last edition in 2015.

Our target audience has broadened with each edition as technologies such as the internet and social media have combined to transform journalism and its allied professional communication careers, including public relations, strategic communication, social media management, professional blogging and their many hybrids.

While the book is Australian in its orientation, media law is now international in its application as the internet and its resultant communication platforms leave Australian communicators and their employers subject to publishing laws across hundreds of jurisdictions internationally. The book tries to offer a taste of such risks faced by those working internationally, while still detailing the most important restrictions and defences in Australia’s nine jurisdictions at the national, state and territory levels.

Professional communicators are now working in the so-called ‘gig economy’. Their contract work might see them working as a freelance journalist on one assignment, as a media adviser in the next stage of their career, or perhaps as a new media entrepreneur hosting public comments on some innovative news platform. At a secondary level, they are also in a ‘gig economy’ because their outputs can involve many gigabytes of communication in an instant—presenting dangers for those ignorant of the laws and regulations that might apply.

The new edition retains the basic chapter structure of its predecessor, but the content within those chapters has been revised to include fresh and ground-breaking new cases, legislative amendments and important new laws and interpretations of some issues. Recent research has shown that media law is no longer a contest between large media organisations and the rich and famous of society. There is a much larger proportion of litigation between ordinary citizens over what they have said about each other on social media or on private websites. This is also reflected in the kinds of cases we profile.

Some highlights of important new content covered in the sixth edition include:

  • consideration of several recent High Court decisions impacting on free expression, publication and media law defences

  • legal implications of ‘fake’ or false news

  • a new table summarising the mindful approach to media law practice, mapping situations against approaches

  • major criminal cases challenging the boundaries of open justice, including those involving high profile church figures and celebrities

  • new case studies in navigating crime reporting with a focus on the Yahoo!7 story that prompted the discharge of a jury in a murder trial

  • significant developments in defamation law, including record damages awards to actor Rebel Wilson (reduced after appeal) and barrister Lloyd Rayney, and litigation involving actor Geoffrey Rush

  • important new research showing that many more defamation actions are being brought by private individuals over internet and social media publications, as distinct from celebrities suing the media

  • examination of publisher liability for the comments of third parties in the wake of several new cases, with some holding publishers responsible

  • an update on confidentiality of sources, including some new breach of confidence actions and some cases testing the limits of new shield laws for journalists

  • a review of the suite of new anti-terrorism laws impacting the media’s reporting of crime and national security and jeopardising the confidentiality of their sources

  • key new intellectual property cases that have shed light on the media’s use of material sourced from the internet and social media

  • significant cases showing the rapidly developing body of privacy law in the digital era

  • new material in the law of freelancing, public relations and new media entrepreneurship showing the growing legal risks and responsibilities at the business end of communication practice.

There is also an increased emphasis on the higher pressure and pace of the 24/7 news cycle across a range of media, exacerbating the risks to communicators and publishers through their own work and the contributions of third-party commenters on their social media feeds and sites.

Like earlier editions, the book aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

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Be wary of the legal risks of a media conference

By MARK PEARSON

Press conferences might seem fairly straightforward opportunities for a source or client to get their side of the story across, but they can have considerable legal risks attached.

We explore these situations in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) and I share some of those here.

Words uttered at media conferences in Adelaide and Perth were at the centre of defamation actions in 2012 and 2017. In the Nightclub case, a Hindley Street nightclub owner called a press conference to announce an initiative to increase public safety and reduce violence in the central Adelaide precinct. Almost two years later, he sued a neighbouring travel agency operator over a statement he alleged she had uttered in the midst of that media conference. He claimed the travel agency owner had announced loudly to the media gathered at the conference that he—the nightclub owner—was responsible for all the violence in Hindley Street. After hearing from several witnesses (including the nightclub’s public relations consultant), the District Court judge found for the defendant. He said it was more likely the interjector had not made such a blatant defamatory allegation against the nightclub owner and, even if she had, he would only have awarded $7500 in damages. There was no evidence of a recording having been made of the words she had spoken.

However, words spoken by a detective in a media conference resulted in Western Australia’s highest award of defamation damages in 2017. Detective Senior Sergeant Jack Lee had described Perth barrister Lloyd Rayney as the ‘prime’ and ‘only’ suspect in widely broadcast press conferences about the investigation into his wife Corryn’s 2007 murder (Barrister’s wife case, 2017). Rayney was acquitted of her murder in 2012 in one of the state’s highest profile cases. He then proceeded to sue the state over the detective’s comments in those media conferences back in 2007 and won $2.623 million in damages. The Western Australian Supreme Court held that the state should not qualify for the qualified privilege defence because Detective Lee had gone far beyond what was appropriate in the circumstances with which he was confronted, and, especially having regards to the seriousness of the offence being investigated and the obvious professional damage that loose language would inflict on Mr Rayney (para. 165). Errors and misstatements meant the detective had not exercised reasonable care in his responses to questions, losing the statutory qualified privilege defence, and went beyond a police officer’s duty to keep the public informed, thus forfeiting the common law qualified privilege defence (para. 173). (The quantum of damages may be subject to appeal.)

This followed the line of reasoning by the South Australian Supreme Court’s Full Court when it rejected the SA Police use of the qualified privilege defence in a defamation case brought by a former newspaper photographer who was a suspect in a murder (Murder suspect case, 2015). The court held that a media release and a press conference hosted by police ‘fell wholly outside the interest or duty of the police to provide information necessary to obtain such assistance from the public as may potentially be available and outside the interest of members of the public to receive such information’. There was no public interest to be served by police going into the details of the crime or the state of their investigation or the fact of their suspicions at that time in relation to the suspect (at paras 437–8).

The NSW Supreme Court held in the Councillor’s case (2017) that giving an interview to a journalist or hosting a press conference renders whoever is speaking responsible for any defamatory material conveyed in that interview or press conference because they ‘both intended its republication and understood it would be republished, either in whole or in part’ (at para. 64). The court ruled that, ‘In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary’ (at para. 65).

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 2018

 

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Social media developments have legal implications and require a new literacy

By MARK PEARSON

Every new development in Internet and social media communication renders countless new people ‘publishers’ –  exposed to risky media law situations they might never have anticipated. 


Advances in communication technology in this new millennium have redefined the ways in which most of us share news and information. Industry upheaval and technological disruption have prompted many journalists to retool as bloggers, public relations consultants, multimedia producers and social media editors.

These roles add exciting new dimensions to journalism and strategic communications—including conversations and engagement with audiences and instant global publishing at the press of a button. But they also present new legal risks that most professional communicators – and even ordinary citizens – did not envisage in the twentieth century.

The changes have been so profound that they have impacted the ways we live and organise our lives and work practices. It is only when we review some of the milestones of the internet and Web 2.0, together with the legal and regulatory changes they have prompted, that we start to appreciate the need for all professional communicators to be knowledgeable about media law.

While the worldwide connection of computers, giving rise to the phenomenon we know as the internet, dates back to the early 1980s, it did not start to impact the lives of ordinary citizens until the mid-1990s. Melbourne’s Age newspaper became one of the first in the world to offer an online edition in 1995 (van Niekerk, 2005). Over the ensuing years, entrepreneurs started to embrace the commercial potential of the World Wide Web, just as consumers began to use it to source products and services, and students began to engage with it as an educational tool—predominantly from their desktop computers.

By the end of 2016, there were approximately 13.5 million internet subscribers in Australia (ABS, 2017). It was not until August 2003 that the first major social networking platform, MySpace, was launched in California. It was the leading social networking site in the world from 2005 until 2008, when it was surpassed in popularity by Facebook, which by 2017 had almost two billion monthly users, including 15 million in Australia (Media Watch, 2017). In the six months to June 2016, 93 per cent of internet users aged 18 to 24 used social networking sites (ACMA, 2016:  58). Streaming of entertainment and news has also become part of daily life.

In June 2016, 39 per cent of Australian adults had watched Netflix in the previous seven days, while 27 per cent had watched professional content on YouTube and 16 per cent had viewed the pay television service Foxtel (ACMA, 2016: 82). In the United States by 2017, six out of ten young adults were primarily using online streaming to watch television (Rainie, 2017). Associated with this was the remarkable uptake of the mobile telephone and other devices. The iPhone was only launched in 2007, but by 2016 more than three-quarters of Australians owned a smartphone (ACMA, 2016: 18). The iPad was born in mid-2010 into a market segment that many experts thought did not exist, but by 2016 more than half of Australians used or owned a tablet device (ACMA, 2016: 55).

Even more technologies are unfolding rapidly, with implications for both the media and the law, with the increasing use of drone devices for news-gathering purposes and the awe-inspiring Internet of Things (IoT), where everyday devices are all interconnected, offering novel news-gathering and delivery systems for the media but also complex legal ramifications—particularly in the realm of privacy and security law.

Governments, courts and other regulators have been forced to decide on the various rights and interests affected by these new media forms, and some of their decisions have taken private enterprise by surprise. It is a far more difficult task, however, to educate the broader community about social media legal risks.

The core message is that we are all publishers in the eyes of the law when we publish a blog or post to a social media platform, and in that role all citizens are subject to the same laws that have affected journalists and publishers for centuries.

Further, the instantaneous and global nature of the media means that we may also be the subject of foreign laws of countries other than Australia—particularly if we work for a multinational corporation, or choose to travel to, or have had material we wrote downloaded in, a place where our posts might have broken the law or infringed upon someone’s rights. These laws include defamation, contempt of court, intellectual property, confidentiality, privacy, discrimination and national security.

All this makes a strong argument for greater social media literacy among professional communicators and the wider community.

[Excerpted from Pearson, M. and Polden, M. (2019, 6th edition, forthcoming). The Journalist’s Guide to Media Law. A Legal Handbook for Digital Communicators. (Allen & Unwin, Sydney).]

References

Australian Associated Press (AAP) 2017, ‘Changes to media ownership laws’, SBS, 14 September, <www.sbs.com.au/news/article/2017/09/14/changes-media-ownership-laws>.

Australian Bureau of Statistics] 2017, Internet Activity, Australia, December 2016, cat. no. 8153, ABS, Canberra, <www.abs.gov.au/ausstats/abs@.nsf/mf/8153.0>.

Australian Communications and Media Authority] 2016, Communications Report 2015–2016. ACMA, Sydney, <www.acma.gov.au/theACMA/Library/researchacma/Research-reports/communications-report-2015-16>.

van Niekerk, M. 2005, ‘Online to the future’, The Age, 28 January, <www.theage.com.au/news/National/Online-to-the-future/2005/01/27/1106415726255.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 2018

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Our surveillance chapter in the new book ‘In The Name of Security’

By MARK PEARSON

Friend and colleague Joseph Fernandez (Curtin University) and I teamed up to write a chapter on surveillance and the media for a new book published by Anthem Press.

Ours is one of eleven chapters in the book In the Name of Security – Secrecy, Surveillance and Journalism (Anthem, 2018), edited by our journalism education colleagues Johan Lidberg (Monash University) and Denis Muller (University of Melbourne).

For full details and ordering information, please go to the Anthem Press site here.

The book description and our chapter abstract are as follows:

The terrorist attacks on the World Trade Center in New York on 11 September 2001 saw the start of the so-called war on terror. The aim of ‘In the Name of Security – Secrecy, Surveillance and Journalism’is to assess the impact of surveillance and other security measures on in-depth public interest journalism. How has the global fear-driven security paradigm sparked by 11 September affected journalism? Moves by governments to expand the powers of intelligence and security organizations and legislate for the retention of personal data for several years have the potential to stall investigative journalism. Such journalism, with its focus on accountability and scrutiny of powerful interests in society, is a pillar of democracy.

Investigative journalism informs society by providing information that enables citizens to have input into democratic processes. But will whistleblowers acting in public interest in future contact reporters if they risk being exposed by state and corporate surveillance? Will journalists provide fearless coverage of security issues when they risk jail for reporting them?

At the core of ‘In the Name of Security – Secrecy, Surveillance and Journalism’ sits what the authors have labeled the ‘trust us dilemma’. Governments justify passing, at times, oppressive and far-reaching anti-terror laws to keep citizens safe from terror. By doing so governments are asking the public to trust their good intentions and the integrity of the security agencies. But how can the public decide to trust the government and its agencies if it does not have access to information on which to base its decision?

‘In the Name of Security – Secrecy, Surveillance and Journalism’ takes an internationally comparative approach using case studies from the powerful intelligence-sharing group known as the Five Eyes consisting of the US, Canada, the UK, Australia and New Zealand. Chapters assessing a selection of EU countries and some of the BRICS countries provide additional and important points of comparison to the English-speaking countries that make up the Five Eyes.

The core questions in the book are investigated and assessed in the disciplines of journalism studies, law and international relations. The topics covered include an overview and assessment of the latest technological developments allowing the mass surveillance of large populations including the use of drones (Unmanned Aerial Vehicles).

Chapter 3. Surveillance and National Security ‘Hyper-Legislation’ – Calibrating Restraints on Rights with a Freedom of Expression Threshold, Mark Pearson and Joseph M Fernandez:

The post-11 September 2001, era has unleashed a plethora of laws invoking national security and antiterrorism justifications that have severely compromised a range of human rights and civil liberties, including freedoms associated with expression and information access. Roach has described such laws as ‘hyper-legislation’ (2011, 310). Such legislation has inflicted often-unjustified constraints upon journalists and journalism. The overly broad antiterrorism laws potentially ensnare reporters covering security matters and have inflicted repeated blows on investigative journalism in recent times (Weisbrot 2016). Insufficient attention, however, is paid to the potential for these constraints to be informed and moderated by the constitutional and human rights frameworks in which such laws are enacted. There has been inadequate resolve to protect the public interest by ensuring that journalists and journalism are able to properly perform their professional duties and obligations. This chapter uses archival research, analysis of statutes and case law to examine how freedom of expression constitutional and human rights provisions in the Five Eyes democracies have, in reality, offered minimal protection to journalists and their sources – particularly in Australia, where a constitutional protection for freedom of expression is lacking. The absence of strong protections or the rampant undermining of existing protections, in the face of what Agamben (2005, 1) describes as an ongoing ‘state of exception’ in the post–9/11 war on terror, presents the need for new mechanisms to provide journalists and their confidential sources adequate protection to enable them to fulfil their professional obligations.

The authors argue that the long-held importance of freedom of expression in democracies moots for workable and explicit public interest defences to allow for the reporting of national security matters without endangering journalists or the sanctity of their obligations to confidential sources. The chapter undertakes a case study of Australia which, unlike the other Five Eyes intelligence alliance members – New Zealand, Canada, the United Kingdom and the United States – has no explicit constitutional or human rights framework to compel the courts or the Parliament to recognize the adverse implications of legislation upon free expression or a free media. The Australian courts and the Parliament have, however, acknowledged free expression rights, drawing upon free expression jurisprudence through the common law; an implied freedom to communicate on matters of politics and government; and the protocols for a non-binding review of the implications of proposed legislation upon human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). This chapter considers these processes against the backdrop of the First Amendment obligations in the US Constitution, the UK’s free expression protection under Article 10 of its Human Rights Act 1998, guarantees on free expression, free media and free expression under the Canadian Charter of Rights and Freedoms, and the free expression protection in New Zealand’s Bill of Rights Act 1990. The authors argue that, while each of these jurisdictions has national security laws that impact upon the media, each enshrines stringent checks upon the impacts of proposed legislation on free expression. The ongoing onslaught against freedom of expression under the banner of the continued state of exception, however, shows that the free expression protections offered by such rights instruments provide minimal protection to journalists and their confidential sources.

The chapter also reviews the use of specific devices to deny journalists and their work appropriate protections in fulfilling their professional duties and responsibilities, and weighs their efficacy in a national security and counterterrorism context. It identifies relevant terminology from case law and legislative instruments including defamation law, consumer law and privacy and shield laws, and assesses their potential value as exemptions or devices to better protect journalists in a national security context. In doing so, it draws upon some examples and cases from those jurisdictions.

Finally, the chapter reviews the extent of journalist and source protections in recent Australian national security laws and draws upon survey research to indicate their impact upon journalists. It recommends a key aspirational threshold that should underpin an objective public interest test to apply to journalism in a counterterrorism legislative context so as to better safeguard free expression, transparency in governance and protection for journalists’ confidential sources.

 

© Mark Pearson 2018

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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The long copyright battle over a monkey’s selfie

By MARK PEARSON

The booklet Understanding Copyright and Related Rights (WIPO, 2016) is an excellent entry-point for learning about the basic copyright principles applying globally. Any monkey would understand it.

Monkey selfie taken by Indonesian macaque named Naruto on equipment set up by photographer David Slater. Sourced from Wikimedia Commons. © disputed.

It explains that ‘copyright’ translates into ‘author’s rights’ in many other languages because it is the creator of the work—the ‘author’ of written works—who holds the right to reproduce their outputs.

The word ‘copyright’ in English refers to that act itself—the ‘right’ to ‘copy’ something you have created. As the holder of that right, you have the legal power to license others to do so as well.

A fascinating international example of the principle that copyright rests with the creator of a work is the Monkey case (2018). In 2011 an Indonesian monkey named Naruto – a crested black macaque – took a ‘selfie’ with camera equipment set up by wildlife photographer David Slater. Monkey see, monkey do.

Slater complained to Wikimedia Commons after the images were posted there, but they refused his demand that he take them down, arguing he did not hold copyright in the images because he did not actually take them – the monkey did (Wikimedia Foundation, 2014).

The basic principle stood: copyright rests with the human creator of a work (Monkey case, 2018).

However, the monkey did not get to claim damages for the photographer’s use of the work. The US Ninth Circuit Court of Appeals denied an application by an animal rights group to have the monkey’s copyright in the images formally acknowledged, stating that animals did not have standing. The photographer and the monkey (represented by animal rights group PETA) negotiated a settlement (Toliver, 2017).

Monkey case: Naruto Monkey PETA v Slater CA9 No. 16-15469 D.C. No. 3:15-cv-04324-WHO Opinion 04 23 18 < https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html >

Toliver, Z. 2017. ‘Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights’, PETA (People for the Ethical Treatment of Animals) website. [11 September.] < https://www.peta.org/blog/settlement-reached-monkey-selfie-case-broke-new-ground-animal-rights/ >.

Wikimedia Foundation (2014). ‘Monkey Selfie’, Wikimedia Foundation Transparency Report. https://transparency.wikimedia.org/stories.html

© Mark Pearson 2018

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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