By MARK PEARSON Follow @Journlaw
Media law is much more than a set of edicts in the form of cases and legislation as presented in many texts and as taught in many courses.
Professional communicators and students can gain insights into the law as it stands – and into how it might be reformed – by tracing it to its origins, revisiting it in its modern context, and by applying fresh perspectives to its analysis. It can also inform their newsroom decision-making on legal and ethical matters.
Defamation is a good example. Historically, people’s reputations were seen as part of their spiritual beings. As such, defamation proceedings were often brought in the ecclesiastical courts of the Church of England before the Reformation (Rolph, 2008, pp. 39-48.
A stab at someone’s reputation was viewed as an attack on their soul – to be judged only by God’s earthly adjudicators, the clergy. From the 16th century, defamation actions were increasingly brought in the common law courts, with the courts developing a list of allegations with which they would deal, without needing proof of actual damage being caused by the defamation (Morison & Sappideen 1989, p. 173). Yet even today the Catechism of the Catholic Church lists ‘detraction’ (essentially gossip – or disclosing ‘another’s faults and failings to persons who did not know them’) as a sin – or an ‘offense against truth’.
Modern defences to defamation – like truth and qualified privilege – have been shaped by changing cultural, philosophical and political values, with truth as a defence heavily influenced by libertarians like Locke, Mill and Jefferson.
My recent work has involved the investigation of the ways Buddhist ethics might offer a useful framework for both journalism and media law. You can find an excerpt on my paper on ‘mindful journalism’ I presented to last year’s IAMCR convention in Dublin here.
I am not a Buddhist but I have seen the value of its application to modern phenomena and clinical situations like ‘Mindfulness Based Cognitive Therapy’ where meditation techniques have assisted with the treatment of anxiety and depression (Segal et. al, 2013).
Back in 2005 I attempted to use the Tibetan Buddhist mandala as a device to explain the complex competing interests involved when weighing up an issue involving privacy in the newsroom. (Pearson, 2005, see here.)
I have recently attempted to apply a Buddhist framework to the contexts of political blogging and election reportage. Colleague Tom Morton from UTS and I are using mindful journalism as a framework for examining a case study of an individual who wants a ban on his identity overturned by the Mental Health Review Tribunal in NSW.
My interest has come to the attention of a pioneer in the application of Buddhist systems theories to journalism – Professor Shelton Gunaratne – who wrote the seminal work in the field – The Dao of the Press – A Humanocentric Theory – in 2005.
He has compared his designated goals of Buddhist journalism with many of the traits of modern Western journalism in his insightful article in Javnost – The Public in 2009: ‘Buddhist goals of journalism and the news paradigm’.
Prof. Gunaratne has generously asked me to collaborate in a new project on mindful journalism also involving Dr Sugath Senarath from the University of Colombo.
Meanwhile, I will be attempting to articulate some of these principles – particularly the relationship between Buddhist notions of ‘right speech’ to defamation and celebrity journalism – in a paper I’ll be delivering to the Media Talk Symposium to be hosted by Associate Professor Jacqui Ewart in Brisbane on April 23-24 (schedule TBA).
That paper will be titled “Mindful media talk: exploring a Buddhist ‘right speech’ ethic in journalism and social media”. Its abstract reads:
Defamation and privacy laws – and journalism ethics codes – are problematic as guidance tools for news communication in the globalised, multi-cultural and multi-jurisdictional Web 2.0 era. This paper draws upon systems methodology (Gunaratne, 2005) to foreshadow an application of the Buddhist ethic of ‘right speech’ to journalistic and social media communication. The path of ‘right speech’ (samma vaca) was one step in Buddha’s Eightfold Path to enlightenment. However, taken at a secular level, it offers a useful theoretical framework by which to analyse media talk and guidance for those engaging in reportage and citizen journalism. Right speech invokes the avoidance of falsehood, divisive and abusive speech and gossip mongering. This paper explains its elements, distinguishes them from media laws and professional ethical codes, and uses examples to examine the extent to which it might accommodate ‘public interest’ / Fourth Estate journalism and celebrity news.
Watch this space for more posts on ‘mindful journalism’ as we explore its value as an analytical device and – perhaps more importantly – as a newsroom tool for ethical decision-making.
Gunaratne, S. A. (2005). The Dao of the Press: A humanocentric theory. Cresskill, NJ: Hampton Press.
Gunaratne, S. A. (2007). A Buddhist view of Journalism: Emphasis on mutual causality. Communication for Development and Social Change 1 (3): 17-38. (Paper originally presented at the University of Queensland on March 8, 2006.)
Gunaratne, S. A. (Feb. 15, 2009). Buddhist principles can revolutionize news and journalism. The Buddhist Channel. Available at <http://www.buddhistchannel.tv/index.php?id=70,7781,0,0,1,0#.UuMttWTnb-k>
Morison, W.L. & Sappideen, C. (1989) Torts: Commentary and Materials, 7th edn.
Sydney: Law Book Company.
Pearson, M. (2005) The privacy mandala: Towards a newsroom checklist for ethical decisions. Refereed paper presented to the Journalism Education Conference, Griffith University, Tuesday 29th November – Friday 2nd December, 2005, Gold Coast International Hotel, Surfers Paradise, QLD Australia. Available: http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1263&context=hss_pubs
Rolph, D. (2008). Reputation, Celebrity and Defamation Law. Ashgate: Aldershot. Available: http://books.google.com.au/books?id=d7YO44MvD8QC&source=gbs_navlinks_s
Segal, Z., Williams, M., Teasdale, J. and Kabat-Zinn, J. (2013). Mindfulness-Based Cognitive Therapy for Depression, Second Edition. Guilford Publications: NY.
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 2014