By MARK PEARSON Follow @Journlaw
[This blog was first published on the citizen journalism election site No Fibs, edited by Margo Kingston.]
Countless laws might apply to the serious blogger and citizen journalist because Web 2.0 communications transcend borders into places where expression is far from free.
Even in Australia there are nine jurisdictions with a complex array of laws affecting writers and online publishers, including defamation, contempt, confidentiality, discrimination, privacy, intellectual property and national security.
If you plan on taking the ‘publish and be damned’ approach coined by the Duke of Wellington in 1824, then you might also take the advice of Tex Perkins from The Cruel Sea in 1995: “Better get a lawyer, son. Better get a real good one.”
(A quick disclaimer: My words here do not constitute legal advice. I’m not a lawyer.)
The problem is that most bloggers can’t afford legal advice and certainly don’t have the luxury of in-house counsel afforded to journalists still working for legacy media.
So if you’re going to pack a punch in your writing you at least need a basic grasp of the main areas of the law, including the risks involved and the defences available to you.
Defamation remains the most common concern of serious writers and commentators because blog posts so often risk damage to someone’s reputation – but it does have some useful defences.
Political commentary has been much livelier over the past two decades since the High Court handed down a series of decisions conveying upon all citizens a freedom to communicate on matters of politics and government.
However, it is still refining its own decisions on the way this affects political defamation, and most of us aren’t as fortunate as Darryl Kerrigan in The Castle – we don’t all befriend a QC willing to run our High Court appeal pro bono.
That leaves us trying to work within the core defamation defences of truth and ‘honest opinion’ (also known as ‘fair comment’). (Of course there is also the defence protecting a fair and accurate report of court, parliament and other public occasions if you are engaging in straight reporting of such a major case or debate and a range of other less common defences).
Truth as a defence has its challenges because you need admissible evidence to prove the truth of defamatory facts you are stating – and you also need evidence of defamatory meanings that might be read into your words (known as ‘imputations’).
That can be difficult. You might have the photograph of a shonky developer handing a politician some cash – but you’d need more evidence than that to prove she is corrupt.
Serious allegations like these need to be legalled.
Harsh criticism of public figures can usually be protected by the defence of honest opinion or fair comment if you review the criteria carefully each time you blog.
This defence is based on the idea that anyone who has a public role or who puts their work out into a public forum should expect it to be criticised and even lampooned by others.
To earn it you will normally need to ensure that the target of your critique is indeed in the public domain. This covers criticism of such things as the quality and service of hotels and restaurants; reviews of creative works like music, books and artworks; critiques of sports and entertainment performances; and reflections on the role and statements of politicians and other public officials.
Your defamatory material needs to be your honest opinion, based upon provable facts stated in the material.
While facts might be provable, you obviously can’t prove the truth or falsity of opinions themselves, which are much more subjective in their nature.
As I explain in Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012) the law will not allow you to parade a fact as an opinion. For example, you could not write “In my opinion, Jones is a rapist and the judge must be demented”. In such a case, the court would view both allegations as statements of fact, and you would need to prove the truth of each. However, if you had drawn on provable facts to prove Jones had indeed committed serious sexual offences and had just been convicted of rape, you might write your honest opinion.
You might write something like: “The one year jail sentence Jones received for this rape is grossly inadequate. It is hard to imagine how someone who has caused such damage to this woman will walk free in just 12 months. Judge Brown’s sentencing decision is mind-boggling and out of all proportion to sentences by other judges for similar crimes. His appointment is up for renewal in February and, if this sentence is any indication, it is high time he retired.” This way you can express a very strong opinion within the bounds of this defence as long as you are basing your comments on a foundation of provable facts.
That is not to say that you can just say what you like and just add the clause ‘This is just my opinion’. The defence will succeed only where the opinion clearly is an opinion, rather than a statement of fact.
It must be based on true (provable with evidence) facts or absolutely privileged material (for example, parliamentary debate) stated or adequately referred to in the publication.
It must be an honestly held opinion, the subject to which it relates matter must be in the public domain or a matter of public interest, and the comment must be fair (not necessarily balanced, but an opinion which could be held, based on the stated facts).
Matters like the private conduct of a public official do not earn the defence unless the conduct affects the official’s fitness for office.
If the facts on which the opinion is based are not provable as true or not protected in some other way, you stand to lose the case. The facts or privileged material on which the opinion is based should normally appear in our piece, so the audience can see clearly where the opinion has originated and judge for themselves whether they agree or disagree with it. They can also be based on matters of ‘notoriety’, not expressed in the publication, although it is safer to include them.
The defence is defeated by malice or a lack of good faith, so forget it if you’re a disgruntled former staffer trying to take revenge on your old boss.
Do all that and you can give that pollie the serve they deserve.
Fail to do it and you could lose your house and savings.
On a brighter note, the Media, Entertainment and Arts Alliance offers its freelance members professional indemnity and public liability insurance. See the details here.
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 2013