My top five media law topics for country newspaper editors

By MARK PEARSON Follow @Journlaw

Address to the annual conference of the Queensland Country Press Association at Palm Meadows Radisson, Gold Coast, October 15, 2011.

Big city newspaper editors might perceive their provincial peers as ‘oh so last century’, but their country cousins have the basic ingredients to outlast most other print media in the Web 2.0 era.

The 21^st century publishing environment is all about niche markets with a strong sense of community – real and virtual. And country newspapers already have that in spades.

But the Internet and social media present legal traps a 1980s provincial newspaper journalist could never have imagined.

These are my top five.

1. You’re liable wherever you’re downloaded. It’s old news now that Australia’s High Court was the first to decide that you could be sued wherever your material is downloaded in the 2002 case of Dow Jones v. Gutnick. But the message has still not gotten through to many editors and journalists who continue to think locally when their defamation and contempt is actually sailing through the ether to litigants and prosecutors in other jurisdictions. It moots for small country newspapers keeping their news in their print edition – at least you can contain your circulation to just one or two jurisdictions that way and your parent company won’t be sued or charged somewhere else over your online oversight. That goes for contempt, defamation, breach of suppression orders and other reporting restrictions in other states and territories. (It might also add value to your print edition if readers know they can read all that saucy material about over-the-border happenings in your small local newspaper.)
2. Your website keeps you liable – take it down and boost the value of your print archives. There are, of course, all sorts of reasons why you want a Web or social media presence for your printed provincial newspaper. But you might think twice about leaving your news publicly available for too long after publication. That’s because if you leave the material on your servers it might be considered ‘republished’ each time it is downloaded, as Kiwi lawyer Steven Price has advised. Australia’s limitation period for defamation law suits is one year – but the clock starts ticking again every time someone downloads the story so you finish up having permanent liability if you leave it searchable within your site. This new permanence of stored material also creates problems for digital archives – as lawyers Minter Ellison have pointed out. Be especially careful not to link current matters – particularly court stories – to previous coverage. The best approach is to take all steps to withdraw any dubious material as soon as possible. If others choose to forward or republish your defamatory material, it has hopefully become their problem rather than yours.
3. In Australia, you’re liable for the comments of your ‘friends’ and correspondents. Some countries like the US offer publishers and bloggers complete immunity from the comments of others on their sites, and Internet Service Providers get some protection in most Western democracies. But you will normally be required to take offensive or illegal material down once it has been brought to your attention. That’s certainly the case in Australia. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its account in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. For country newspaper editors, this is a good argument for treating your website forums just like your good old fashioned letters pages – and vetting comments very carefully for legal issues before you post them. Moderate before publishing. Facebook makes this harder, but at the very least you should be deleting risky comments the instant they are posted. Queensland Police learned that lesson earlier this year when there was a spate of prejudicial comments from citizens about suspects on their Facebook wall. And just last week the Queensland Supreme Court ordered Google to reveal the identity of those behind a website defaming a Gold Coast entrepreneur and motivational speaker.
4. ‘Pssst … off the record … source confidentiality is dead’. Much has been made of Australia’s new federal shield laws allowing journalists and bloggers to protect their confidential sources. For a start, it only applies to Commonwealth and NSW cases, and even there the courts still have a discretion to force journalists to reveal their sources if there is a greater public interest in the question being answered. But really, who can hope for any real level of confidentiality or secrecy in their dealing with sources in the modern era? The new surveillance regime means both the journalist and the whistleblower are traceable via a combination of technologies – phone calls, emails, location tracking, social media tagging and check-ins, and CCTV cameras to name just a few. It doesn’t take much for an organization or a government agency to be able to put two and two together to work out who was in communication with a reporter at a certain point in time. Even Bernstein and Woodward would have a hard time keeping Deep Throat confidential in 2011 with the phones in their pockets betraying their movements and the security cameras in the public park recording their secret rendezvous. Your top investigative reporters for national and international media outlets may have techniques to navigate all this, but I’d suggest your average provincial reporter deal with their sources on a strictly ‘on the record’ basis.
5. Your copyright … get over it! Intellectual property law can get seriously nasty and complex, so I certainly wouldn’t recommend country newspaper editors ramping up their plagiarism of the work of others or cut-and-pasting web-based material into your own stories. While there are generous defences available in fair dealing for the purposes of news, commentary and parody, you’d need an IP lawyer to tell you whether you are working within them. But in this rampant international free exchange of information you’re sending all the wrong messages when if you try litigation to pursue your own organisation’s copyright in your news material. US newspaper group the Denver Post has ended up with egg on its face after outsourcing its IP litigation to a so-called ‘copyright troll’ called Righthaven. Their pursuit of small players for thousands of dollars in damages has backfired and looks like costing them dearly in reimbursements, lawyers’ fees and bad PR. Unless you are part of a large group taking on the blatant commercial pirating of your IP by another major operator, I think you’d be best focusing your attention on building your print and online markets by being first with the local news that matters. If someone steals your material afterwards, send them a letter politely asking for acknowledgment. Better to be a caring and sharing corporate citizen in your town than the ogre that takes the locals to court.

© Mark Pearson 2011

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.