Category Archives: blogging

March 11, 2016 · 3:22 pm

Identification error leads to a useful case for teaching the basic elements of defamation

**See UPDATE after appeal**

[research assistance from Virginia Leighton-Jackson]

The morphed identification of an innocent octogenarian tailor and his alleged gun-running son produces a useful case study for teachers and trainers trying to explain the basic elements of defamation.

The NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 centred upon an article in Sydney’s Daily Telegraph (22-8-13, p. 9) with the heading “Tailor’s alter ego as a gunrunner”. [The article in question is attached to the judgment as a pdf file.]

The article portrayed an 86-year-old suburban tailor with a distinctive name as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

The case is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

imputations – how they are worded and presented
the misidentification’s impact on the plaintiff’s relationships, business and emotional state
the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first
whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age].
whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff.

On the question of identification, Judge Leonard Levy ruled:

Para 37   …where a plaintiff has actually been named in a defamatory publication it is not necessary for the plaintiff to show that those to whom the material was published knew the plaintiff: Mirror Newspapers Ltd v World Hosts Pty Ltd (1978 – 1979) 141 CLR 632, at 639.

38   Even so, the plaintiff must establish that the defamatory matter should be understood to be referring to him: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91. The determination of that question of identification is not to be decided by a consideration of what the publisher intended: Hutton v Jones [1910] AC 20.

39   In cases where a defamatory publication names one person but another person of the same name has been defamed, this can give rise to more than one claim: Lee v Wilson and Mackinnon (1934) 51 CLR 276, as cited in Australian Defamation Law and Practice, Volume 1, TK Tobin QC, MG Sexton SC, eds, 2003, at [6050].

40   In determining the question of identification, the question is, would a sensible reader reasonably identify the plaintiff as the person defamed: Morgan v Odhams Press Ltd [1971] 1 WLR 1239. …

49   In my view, the combined context … serves to adequately identify the plaintiff….

52   …the article strings together the plaintiff’s name, his profession, the fact that he lives in his home in the Sutherland Shire, and has a business altering the clothes of locals all point strongly to the article mentioning the plaintiff by his name and is sufficient of his personal situation to indicate it was him who was the subject of the article.

53   Those details all follow the sensational headline “Tailor’s alter ego as a gunrunner” thereby making a connection between the plaintiff and the described illegal activity concerning the cache of weapons and ammunition found at the premises.

54   The fact that an unclear undated photograph of Tony Zoef appears in the article (at par 38) is immaterial. The fact the article identifies the age of the person the subject of the article as being a 43 year old does introduce an element of possible confusion (par 30) along with the indistinct photograph (at par 38), but inaccuracy of some details appearing in a newspaper article is not an unknown phenomenon.

55   The salient feature is that the plaintiff was named in the article with sufficient of his personal details to suggest he was thereby identified, although the latter details are not essential to that finding.

56   As the article in question named the plaintiff, in my view thereby identifying him, this forms the basis of his right to bring the proceedings without more being shown by him. The fact that there were two persons at the premises named Tony Zoef is immaterial. Both persons of that name could bring proceedings for defamation in their own names: Lee v Wilson and Mackinnon (1934) 51 CLR 276.

59   …I am nevertheless satisfied that the material complained of should be understood as referring to the plaintiff even though the publisher may not have intended that to be so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91.

60   I consider that … an ordinary sensible reader would identify the plaintiff as the person the subject of the material complained of because of the specific of his name, profession, and locality as already explained. Such a reader… would not read such a sensational article as the one in question with critical and analytical care.

61   The article would be approached by such a reader with the permissible amount of loose thinking, and that reader would be reasonably entitled to draw the conclusion that the article was referring to the plaintiff, even though there were some elements of confusion such as a less than distinct photograph and a different age mentioned to that of the plaintiff. An ordinary reasonable reader would not necessarily know the plaintiff’s age or his level of interest in matters to do with space. The headline of “Tailor’s alter ego as a gunrunner” would catch the attention of such a reader and permit the general impression of the story being a reference to the plaintiff: Mirror Newspapers Limited v World Hosts Proprietary Limited [1978 – 1979] 141 CLR 632, at p 646; Morgan v Odhams Press Ltd [1971] 1 WLR 1239.

The judge also considered the important question of the impact of headlines:

44 In cases involving headlines, it must be borne in mind that the ordinary reasonable reader will draw conclusions from general impressions when reading the matter complained of. Such general impressions are necessarily formed by the technique of using prominent headlines to communicate the principal message of the publication, and it must be recognised that in that process, such material may diminish the reputations of those affected: Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, at p 575.

A large portion of the judgment centred upon whether a defence of ‘offer of amends’ should be upheld under s 18(1)(c) of the Defamation Act. The judge held that, despite the serious errors in the reporting of the story and a dispute over whether the offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

———–

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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Tagged as contempt of court, court reporting, courts, defamation, juries, law, legal education, media law, press freedom, social media, social media law, sub judice

February 27, 2016 · 12:07 pm

‘Right Speech’ and media law – mindful journalism as an analytical tool

By MARK PEARSON Follow @Journlaw

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) explored the possibilities of applying mindfulness techniques to journalism practice.

I recently wrote an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

The article backgrounds important critiques of the Western approach to communication studies, and considers how globalized communication and media studies has become, before exemplifying how a secular Buddhist perspective might offer 2,500 year-old analytical tools that can assist with media analysis, law and ethics.

The article proposes the Buddha’s Four Noble Truths and their associated Noble Eightfold Path (magga) can be fruitful tools for informing communication theory and analysis, and media law and ethics.

In media analysis, it suggests the Buddha’s teachings on Right Speech (samma vaca) offer key understandings to assist with the deconstruction of media texts. In media law and ethics, it extends the application of Right Speech principles to comparing defences to libel (defamation) as they have developed in four Western jurisdictions.

Here is a brief extract showing the potential for exploring media law using a Buddhist/mindful journalism framework:

The ultimate contest over media talk and Right Speech happens in the courts when media texts face charges for their criminality or are the subject of civil suits over their alleged infringement on citizens’ rights like copyright, confidentiality and defamation. There is also value in applying a mindful, Buddhist approach to the study of communication and media law. We can hardly reject the teachings of the founder of one of the world’s greatest religions as inappropriate in a communication law context on exclusively secular grounds because that would imply our so-called secular approaches to communication and media theory and ethics have no religious roots. No Western academic could deny deep-seated Abrahamic influences upon the cultural origins of media law and its scholarship. A whole body of literature on the philosophy of science and religion attests to it. In media law and ethics, libertarian approaches to press freedom espoused by the likes of Milton, Mill and Jefferson arose in an era when political, cultural and religious notions of rights were intertwined. For example, the most famous treatise against licensing of the press – Milton’s Areopagitica – was prefaced with an explanation that Moses, David and Paul the Apostle were all learned because they were able to read widely. Milton wrote:

…as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God, as it were in the eye (Milton, 1644).

The U.S. Supreme Court cited Areopagitica in the landmark defamation case of New York Times v. Sullivan (1964) 376 US 254, when explaining why it would be counter-productive to move the burden of proving truth to the defendant (NY Times v. Sullivan, Footnote 19). Thus, by only two degrees of separation, we find Judeo-Christian teachings informing a key decision on news media talk in one of the most purportedly secular of institutions – the U.S. Supreme Court. Related to this, as Rolph (2008: 38-43) notes, defamation as the tort used to contest objectionable speech, first arose in England in 1222 in the ecclesiastical (church) courts where it remained a spiritual offence for about four centuries. Damage to a reputation was seen to be an offence to the target’s soul – a right that only God should possess – to be judged only by God’s earthly adjudicators, the clergy. There was even recourse for appeals from English ecclesiastical court judgments to the Pope (Rolph, 2008: 45). From the 16^th 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: 173). 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’ (Catechism of the Catholic Church, para 2477). Thus, defamation action – the legal action available to those subjected to damaging media talk – has a traceable Christian genealogy.

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

Analysis of the development of defamation defences in Canada, the UK, Australia and the U.S. benefit from a Buddhist reading. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada developed a ‘responsible communication’ defence to defamation for matters which might not have been able to be proven absolutely as true, but were still diligently reported and were clearly in the public interest to be aired within the spirit of the Canadian Charter of Rights and Freedoms protection of free expression. Chief Justice McLachlin summed up the relevant factors of the ‘responsible communication’ defence on a demonstrable matter of public interest in these terms:

seriousness of the allegation

public importance of the matter

urgency of the matter

status and reliability of the source

whether the plaintiff’s side of the story was sought and accurately reported

whether the inclusion of the defamatory material was justifiable

whether a defamatory statement’s public interest lay in the fact that it had been made rather than whether it was truthful

other relevant circumstances

The court drew upon similar criteria to those developed earlier in the UK case of Reynolds v. Times Newspapers Ltd [2001] 2 AC 127 as part of the common law qualified privilege defence and elements of the statutory qualified privilege defence in Australia’s uniform Defamation Acts 2005.

The most significant First Amendment case in recent decades was New York Times v. Sullivan (1964) 376 US 254 where it was ruled that public officials had to meet tough new tests before they could succeed in a defamation action even if the allegations in the article were proven false. It established that plaintiffs who were ‘public officials’ had to prove a media defendant had acted with ‘actual malice’ if they were to win a defamation action, even if the defamatory allegation was untrue. The test has since been expanded to apply to any ‘public figure’— essentially anyone who is well known to the public, has taken on some public role or who has participated voluntarily in some controversy. While the principle has some difficulties in definition and application, it has meant the media in the United States have been free to publish criticism of virtually anyone in the public domain, even if the criticism proves to be unfounded, just so long as they have not acted maliciously or in ‘reckless disregard’ of the truth.

It is possible to implement a Buddhist approach using the Right Speech teachings from the Noble Eightfold Path to conduct an analysis in this area of communication law. The author proposes to do this more thoroughly in future work. However, for the purposes of this argument we might return to the Abhaya Sutta … and contrast these defences as they have been developed in these jurisdictions (Thanissaro, 1997). Crucial to the Canadian ‘responsible communication’ defence and its qualified privilege cousins in the UK and Australia is the extent to which reporters and publishers honestly believe in the truth of the defamatory material published, even though they might not have the firm evidence to prove this in court. They would pass the Buddhist (mindful journalism) test if they had an honest belief the material was “factual, true, beneficial” while perhaps being “unendearing and disagreeable to others”, as long as they had chosen the “proper time” for reporting it (Thanissaro, 1997). However, the U.S. defences driven by the First Amendment takes this liberty a step too far under this schema, because it allows unbeneficial, unendearing and disagreeable material to be published about public figures as long as it has not been done with malice. It also allows for untruthful gossip-mongering, as identified earlier in the Saleyyaka Sutta (Nanamoli, 1994) as ethically problematic. Such analysis shows promise in the field of media law analysis, reform and policy development because it provides a working ethical framework to apply to legislation and the fact scenarios of particular cases.

I’ve also written a shorter account of the basic principles of mindful journalism in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

———–

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Tagged as Buddhism, Buddhist journalism, communication ethics, communication law, Communication theory, Dao of the Press, defamation, Eightfold Path, ethics, First Amendment journalism, law, libel, mark pearson, media, media law, Media Report, mindful journalism, mindfulness, Right Speech, Shelton Gunaratne

November 19, 2015 · 8:41 am

How to challenge a ban on naming a mental health patient

By MARK PEARSON Follow @Journlaw

UTS colleague Associate Professor Tom Morton, ABC lawyer Hugh Bennett and I will deliver a paper in Melbourne next week on our experiences applying to the Mental Health Tribunal of NSW for permission to name a forensic mental health patient in an ABC documentary and in our academic works.

The occasion is the 2015 IP and Media Law Conference, hosted by the Centre for Media and Communications Law at the University of Melbourne Law School, November 23-24. The full program is here. I plan to blog a few of the highlights of the sessions I attend.

Our paper is titled ‘Mental health and the media: a case study in open justice’ and we present on the first morning of the conference. Here is its abstract:

News and current affairs reportage about forensic mental health cases raises a host of competing interests, including the public’s right to know about mental health tribunal processes; a patient’s right to privacy, treatment, and recovery; and victims’ and the broader community’s interest in learning the longer term consequences of a publicised serious criminal act. This article details a case study of the legal processes involved in applications for permissions to identify a forensic mental health patient in NSW in an Australian Broadcasting Corporation Radio National Background Briefing documentary ‘The Man Without a Name’ and in subsequent research blogs and scholarly works including this article. It begins by backgrounding the restrictions on publicising mental health tribunal cases in Australia, summarising the case study, examining the specific restrictions applying to the Mental Health Review Tribunal in NSW, detailing the processes followed in the successful application by the authors to name the patient, comparing the case with Australian and British cases, and making some recommendations for further research and reform.

Tom and I recently co-authored an article on the ethics of that same experience in Pacific Journalism Review, titled ‘Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics’. Here is our abstract. Full contents of the edition and subscription details can be seen here. Reference: Morton, T. and Pearson, M. (2015). Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics. Pacific Journalism Review, 21(2), 11-32.

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Tagged as ABC, Background Briefing, Buddhism, Buddhist journalism, communication ethics, Eightfold Path, ethics, forensic patients, journalism ethics, law, mark pearson, media, media law, mental health, mindful journalism, mindfulness, NSW Mental Health Act, radio documentary, Right Speech, Shelton Gunaratne, The Man Without A Name, Tom Morton

October 28, 2015 · 2:10 am

Mindful Journalism – thanks for the reviews

By MARK PEARSON Follow @Journlaw

Thanks to colleagues Lisa Waller and Franz-Josef Eilers SVD for their recent reviews of our book Mindful Journalism in academic journals.

“This volume […] makes a significant international contribution to the discipline by demonstrating how a Buddhist approach can build understanding of journalism’s place in the world and its power, and be used to improve journalism practice.” —Lisa Waller, Australian Journalism Review 37(1)

“All in all, the book is an important contribution to the value of religions – here Buddhism – for journalism ethics though one might also argue that this is not only for journalists in the strict sense but for anybody involved in communication which is in a digital world almost everybody.” — Franz-Josef, svd, Journal of the Asian Research Center for Religion and Social Communication

Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY) was published in February 2015.

Review copies are available from Routledge by filling out this request form. Please see the publisher’s synopsis.

The term ‘mindful journalism’ is a concept I introduced more than a year ago in the inaugural UNESCO World Press Freedom address at AUT University Auckland, drawing upon the earlier substantive work by my esteemed colleague (and lead editor of our book), Emeritus Professor Shelton Gunaratne, who has been working for decades on the intersection between Buddhism and journalism.

I developed my application of this in a paper to the International Association for Media and Communication Research (IAMCR) conference in Dublin in July 2014, which was revised for publication as an article in Ethical Space published in December 2014.

It has been published as part of the Routledge New York Research in Journalism series. My key point was that one does not have to be a Buddhist to incorporate the key principles of mindful journalism into one’s work. In fact, most of these very moral principles are evident in the teachings of all the world’s great religions. However, for those who lack a moral framework for their ethical decision-making, a secular application of these non-theistic principles can offer a moral compass. They offer a series of normative or aspirational goals we can strive for, but rarely reach. They also provide a schema for the analysis of ethical decision-making by journalists.

Interested? You can read extracts from the book using the “Look Inside” interface at Amazon. Enjoy.

———–

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October 6, 2015 · 2:03 pm

Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics

By MARK PEARSON Follow @Journlaw

Congratulations to Pacific Journalism Review editors David Robie, Annie Goldson and Barry King on their newly released special edition ‘Documentary Practice in the Asia-Pacific’.

I was honoured to be invited by research colleague Associate Professor Tom Morton from UTS to co-write an article centred upon the law and ethics behind his ABC Background Briefing documentary ‘The Man Without A Name’, broadcast in 2014. In the article we detail the story behind the documentary and the legal and ethical challenges we faced in navigating the publishing restrictions of the NSW Mental Health Act and some related legislation.

PJR Special Edition vol21(2) OP FINAL CORRECTED 685wide_0

Cover of the special Pacific Journalism Review edition Volume 21 (2)

Here is our abstract:

This article explains a collaborative and critically reflective journalism research project stemming from the wish of an incarcerated forensic mental health patient to be named in public communication about his case. The authors are academics and journalists who embarked upon a combination of journalism, legal processes and academic research to win the right to name Patient A in a radio documentary and in academic works—including this journal article and research blogs. As a case study, it explains the theoretical and ethical considerations informing the journalism and the academic research, drawing upon traditions of documentary production, the principle of open justice and the ethical framework of ‘mindful journalism’. It concludes by drawing lessons from the project that might inform future practitioners and researchers embarking upon works of journalism and research involving vulnerable people and a competing set of rights and public interests.

Full contents of the edition and subscription details can be seen here.

———–

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September 4, 2015 · 10:11 am

Mindful journalism in focus on @RNmediareport

By MARK PEARSON Follow @Journlaw

Mindful journalism was the focus of a segment on Radio National’s Media Report (@RNmediareport) this week (September 3, 2015) when I was interviewed by host Richard Aedy (@richardaedy) on the application of Buddhist ethics to reporting.

Interested? You can listen to the 10 minute segment here.

I’ve also written a shorter account of the basic principles in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

I’ve also written an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

The article begins by assessing the extent to which communication and media studies in Asia and the Pacific has shifted to accommodate non-Western approaches.

Here is a brief extract on that aspect:

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

Analysis of the development of defamation defences in Canada, the UK, Australia and the U.S. benefit from a Buddhist reading. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada developed a ‘responsible communication’ defence to defamation for matters which might not have been able to be proven absolutely as true, but were still diligently reported and were clearly in the public interest to be aired within the spirit of the Canadian Charter of Rights and Freedoms protection of free expression. ..

It is possible to implement a Buddhist approach using the Right Speech teachings from the Noble Eightfold Path to conduct an analysis in this area of communication law. The author proposes to do this more thoroughly in future work. However, for the purposes of this argument we might return to the Abhaya Sutta cited earlier and contrast these defences as they have been developed in these jurisdictions (Thanissaro, 1997). Crucial to the Canadian ‘responsible communication’ defence and its qualified privilege cousins in the UK and Australia is the extent to which reporters and publishers honestly believe in the truth of the defamatory material published, even though they might not have the firm evidence to prove this in court. They would pass the Buddhist (mindful journalism) test if they had an honest belief the material was “factual, true, beneficial” while perhaps being “unendearing and disagreeable to others”, as long as they had chosen the “proper time” for reporting it (Thanissaro, 1997). However, the U.S. defences driven by the First Amendment takes this liberty a step too far under this schema, because it allows unbeneficial, unendearing and disagreeable material to be published about public figures as long as it has not been done with malice. It also allows for untruthful gossip-mongering, as identified earlier in the Saleyyaka Sutta (Nanamoli, 1994) as ethically problematic. Such analysis shows promise in the field of media law analysis, reform and policy development because it provides a working ethical framework to apply to legislation and the fact scenarios of particular cases.

The article applies the ‘Right Speech’ principles of Buddhist ethics to analysis of the Royal family prank call episode which resulted in a High Court appeal in Australia and to a racial discrimination case heard in Australia’s Federal Court over comments on a West Australian news website.

———–

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May 29, 2015 · 3:26 pm

Towards a mindful approach to media law and ethics

By MARK PEARSON Follow @Journlaw

How might we begin to apply Buddhist ethical systems to the analysis of media law and ethics?

I explore this question in an article just published online and to appear in a forthcoming print edition of the International Communication Gazette.

It is titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

The article begins by assessing the extent to which communication and media studies in Asia and the Pacific has shifted to accommodate non-Western approaches.

Here is a brief extract on that aspect:

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

Analysis of the development of defamation defences in Canada, the UK, Australia and the U.S. benefit from a Buddhist reading. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada developed a ‘responsible communication’ defence to defamation for matters which might not have been able to be proven absolutely as true, but were still diligently reported and were clearly in the public interest to be aired within the spirit of the Canadian Charter of Rights and Freedoms protection of free expression. ..

It is possible to implement a Buddhist approach using the Right Speech teachings from the Noble Eightfold Path to conduct an analysis in this area of communication law. The author proposes to do this more thoroughly in future work. However, for the purposes of this argument we might return to the Abhaya Sutta cited earlier and contrast these defences as they have been developed in these jurisdictions (Thanissaro, 1997). Crucial to the Canadian ‘responsible communication’ defence and its qualified privilege cousins in the UK and Australia is the extent to which reporters and publishers honestly believe in the truth of the defamatory material published, even though they might not have the firm evidence to prove this in court. They would pass the Buddhist (mindful journalism) test if they had an honest belief the material was “factual, true, beneficial” while perhaps being “unendearing and disagreeable to others”, as long as they had chosen the “proper time” for reporting it (Thanissaro, 1997). However, the U.S. defences driven by the First Amendment takes this liberty a step too far under this schema, because it allows unbeneficial, unendearing and disagreeable material to be published about public figures as long as it has not been done with malice. It also allows for untruthful gossip-mongering, as identified earlier in the Saleyyaka Sutta (Nanamoli, 1994) as ethically problematic. Such analysis shows promise in the field of media law analysis, reform and policy development because it provides a working ethical framework to apply to legislation and the fact scenarios of particular cases.

———–

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Tagged as Buddhism, Buddhist journalism, communication ethics, communication law, Communication theory, Dao of the Press, defamation, Eightfold Path, ethics, First Amendment journalism, law, libel, mark pearson, media, media law, mindful journalism, mindfulness, Right Speech, Shelton Gunaratne

May 8, 2015 · 12:12 pm

Mindful Journalism in action – in dialogue with University of Canterbury students

By MARK PEARSON Follow @Journlaw

Graduate students in journalism from the University of Canterbury studying under Associate Professor Donald Matheson interviewed me via Skype on the principles of mindful journalism.

With their permission, I provide the recording of that interview here for the interest of those exploring the application of Buddhist ethical systems to their journalism work.

Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY) was published in February 2015.

Review copies are available from Routledge by filling out this request form. Please see the publisher’s synopsis.

It is being published as part of the Routledge New York Research in Journalism series. My key point was that one does not have to be a Buddhist to incorporate the key principles of mindful journalism into one’s work. In fact, most of these very moral principles are evident in the teachings of all the world’s great religions. However, for those who lack a moral framework for their ethical decision-making, a secular application of these non-theistic principles can offer a moral compass. They offer a series of normative or aspirational goals we can strive for, but rarely reach. They also provide a schema for the analysis of ethical decision-making by journalists.

Interested? You can read further extracts from the book using the “Look Inside” interface at Amazon. Enjoy.

———–

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April 27, 2015 · 2:40 pm

Lessons in ‘Right Speech’ and mindful communication in Queensland defamation case

By MARK PEARSON Follow @Journlaw

THE comedians on the Ten network’s ‘The Project’ had some fun with defamation last Friday when they used a fairly sobering Queensland case as the reason to interview me on the basics of that law.

First up, a clarification. Near the end of the segment they seemed to imply quite incorrectly that I am a lawyer which, of course, I am not!

Mark Pearson (@journlaw) interviewed on The Project about defamation 24.4.15 [At 33 mins 15 secs]

There is a serious side to this. The Queensland case they used as the segue to my very rudimentary explanation of defamation law was Sierocki & Anor v Klerck & Ors (No 2) [2015] QSC 092 where Justice Flanagan had ordered a total of $260,000 in damages be awarded to the plaintiff and his company over various Internet slurs against them by his former business partner and others.

The defendants had earlier failed in their attempt to prove the truth of the imputations that the plaintiff was fraudulent; was a conman; had committed adultery; had used illegal drugs; was evil; was a thief; was a liar; and preyed on the innocent and that his company’s services were disreputable; unprofessional and encouraged threatening behaviour. Quite a slur indeed.

The Courier Mail reported earlier that the plaintiff was also suing Google for $2.6 million over its search results linking him to the sites containing those imputations.

The case is interesting for media law students for a range of reasons – the large award of damages, the fact that they were Internet publications, and for the proposed action against Google.

But I find the most instructive lesson is the extent to which a dispute between business partners can escalate so far out of control that one should take to the Internet to cast these kinds of aspersions against the other.

Justice Flanagan noted in the judgment that the cause of the original dispute was unknown, but the result has been enormous financial and emotional cost to all parties.

Our new book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY) examined some of the causes of such disputes and the damage that language can cause to reputations and relationships.

I take this further in a forthcoming article in a special issue of the academic journal International Communication Gazette, edited by my Mindful Journalism lead editor Shelton Gunaratne.

In that article I examine the religious origins of defamation law and proceed to link it to the Buddhist concept of “Right Speech”, writing:

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

The basic premise of Right Speech in Buddhism is that words should not be spoken (or written or published) if they are not factual or true, or if they are unbeneficial, unendearing or disagreeable to others. All of these elements seemed to apply in this case, or at least that was the tenor of the judgment. Of course, sometimes hard truths do need to be told, but we need to ensure they are provable as true or that we can operate under some other defence excusing their publication.

The Internet offers inordinate opportunities to those seeking to defame others. This is the latest in a series of judgments demonstrating that even when one side wins a record damages payout for defamation, nobody is really a winner when reputations are damaged for no defensible reason.

We need to look to our moral compass when speaking or writing ill of others and ask whether we have an ethical foundation for doing so.

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Tagged as Buddhist journalism, Dao of the Press, defamation, Eightfold Path, ethics, journalism, law, libel, mark pearson, media, media law, mindful journalism, mindfulness, Right Speech, Shelton Gunaratne, the project

April 10, 2015 · 5:22 pm

For those who missed it – the @RNMediaReport story on the Bayley suppression order #auslaw

By MARK PEARSON Follow @Journlaw

As most people were heading off for their Easter vacation, Radio National’s Media Report ran a segment on how we discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

My article in The Conversation (excerpted below) explained what happened, and RN Media Report’s Richard Aedy followed it up with this interview last week:

March 27, 2015 blog:

How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw ]

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation …

Order through Booktopia at http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.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.

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Tagged as Adrian Bayley, Australian media, free expression, Jill Meagher, journalism, Journalist's guide to media law, law, mark pearson, mark polden, media, media law, mindfulness, open justice, press freedom