Category Archives: contempt of court

Lessons for us all in $300k Yahoo!7 fine for contempt [updated]

By MARK PEARSON

Most Australian followers of this blog will have seen in the news that Yahoo!7 has been fined $300,000 for sub judice contempt over a publication which triggered the discharge of a jury in a Victorian murder trial.

The relatively inexperienced online journalist who wrote and uploaded the story to the organisation’s news site (without attending the court case on which she was reporting) escaped with a two year good behaviour bond, but Supreme Court Justice John Dixon noted the impact upon her of the media coverage and public shaming.

The main problem with her story was that it included excerpts from the victim’s social media accounts indicating the accused had a history of violence towards her and that she feared for her life – prejudicial evidence of which the jury was unaware.

This was enough for Dixon J. to rule:

“I find that the conduct of the respondents in publishing the article during the trial of an accused on a murder charge was conduct in contempt of court. I am satisfied beyond reasonable doubt that the publication, objectively and as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused.” (2016 judgment, para 3).

As university classes resume for the new academic year, it is timely to consider the lessons of the sorry episode for journalists and journalism students, educators and media organisations.

The two judgments – the conviction in 2016 and the sentencing in 2017 – deserve careful examination by all. Here are the take-home messages for us all:

Journalists and Journalism students

According to her LinkedIn page, the journalist was a graduate of a one year broadcast journalism program in 2013 and had since worked at modeling, sales, and internships as a television producer before gaining her position with Yahoo!7 as morning news producer in June 2015, just over a year prior to the offending story.

No doubt some basics of media law would have been covered in that institution’s media law course as they are in tertiary journalism programs throughout Australia. However, just because a student passes a media law subject with a mark of more than 50% does not mean he or she has learned and remembered every key topic covered.

If you are a student about to embark on a media law course you must realize that the consequences for failing to remember and apply the key elements of media law in your workplace can cost you your professional reputation, many times your annual salary in fines or damages awards, and even your liberty in the form of a jail term.

This means media law is way too important to undertake with that common student approach of “passes build degrees”. You need to read your textbooks and assigned readings, review them, view and engage in other recommended learning materials and tools, grapple with learning problems – and set your mind to keep up to date with developments in each of the media law topic areas. In other words, you need to make media law your passion and hobby if you are to have a good chance of staying out of trouble with the law.

That goes for working journalists as well as students. My experience in training working journalists is that most have forgotten the basic principles of defamation and contempt they learned at university or in training courses many years prior.

As for content, the key lesson from this case is that while a criminal trial is pending or in progress you should only report what has been stated in court in the presence of the jury. Dixon J. summed up the basic principles of sub judice contempt particularly well at para 24 of the 2016 trial:

(a) All contempt of court proceedings involve circumstances where there has been an interference with the due administration of justice;

(b) The law is concerned with the tendency of the matter published in the risk created by its publication.[3] It is unnecessary to prove that a juror or potential juror actually read or heard the prejudicial material;[4]

(c) The test for liability for sub judice contempt is whether the published material has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass particular legal proceedings or interfere with the due administration of justice in the particular proceeding;[5]

(d) The tendency is to be ‘determined objectively by reference to the nature of the publication and it is not relevant for this purpose to determine what the actual effect of the publication on the proceedings has been or what it probably will be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimis principle should be applied’;[6]

(e) The tendency is to be determined at the time of the publication;[7]

(f) Publication on the internet occurs when the material is uploaded onto the internet;[8]

(g) Proof of an intention of the contemnor to interfere with or obstruct the administration of justice is not a necessary element to be proved;[9]

(h) It is not relevant to consider the actual effect of the publication. Regard is had to the nature and content of the publication and to the circumstances in which it occurred;[10]

(i) Publishing or broadcasting material that is inadmissible before a jury may have the necessary tendency to prejudice an accused’s right to a fair trial;[11]

(j) It is an elementary principle in the administration of criminal justice that, apart from exceptional cases, usually defined by statute, the bad character or prior convictions of an accused cannot be put before the jury on a trial;[12]

(k) The law sets its face against trial by prejudice and innuendo. The principle that the prosecution may not adduce evidence, tending to show that an accused person has been guilty of other criminal acts or has a propensity to violent behaviour, for the purpose of leading to the conclusion that he is a person likely to have committed the offence with which he is charged is deeply rooted and jealously guarded;[13]

(l) The weight and importance of the various factors that will be material in assessing the circumstances of publication will vary from case to case. Broadly speaking, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience;[14]

He continued:

Para 25: For centuries, a ‘golden rule’ has been observed by journalists and publishers that while proceedings are being tried before the courts, information that is not admitted as evidence before the jury is not reported or published to prevent the possibility that the jury is influenced by prejudicial, extraneous, or irrelevant information. The rationale is well understood. In 1811, Lord Ellenborough stated in R v Fisher:[18]

“If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced’.”

Para 26: More recently, in 1985, Watkins LJ in Peacock v London Weekend Television[19] reaffirmed the balance between a fair trial and media reporting:

“In our land we do not allow trial by television or newspaper. Until the well-recognised institution of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.”

Para 27: The rule is well understood by journalists through their education and is communicated to journalists by the court. The court’s website has a guide ‘Covering the Courts’[20] that stresses the importance of not disclosing material that is kept from a jury:

“Remember the golden rule: do not report anything said in the absence of the jury.

Advice: study, understand and remember these basic principles and you might avoid the fate of this Yahoo!7 reporter.

Journalism Educators

Much as we would like to believe otherwise, we all secretly know that this Yahoo!7 journalist could have been any one of our graduates in the modern news media environment.

24/7 rolling deadlines, staffing shortages, acute competition, minimal on the job training, combined with the rookie’s urge to prove themselves in a tough occupation mean that shortcuts are taken, mistakes are made, and much of the knowledge gained doing highly caffeinated swatting for media law exams has long since exited the memory banks.

This case is a clarion call to us to revisit our curricula and pedagogies and implement the latest learning and teaching techniques to “scaffold” and “deepen” our learning.

My recent experience has been that a combination of problem-based learning, formative quizzes, and end of semester problem scenarios seem to be far superior to the traditional end of semester sit-down exam of yesteryear. Add to the mix student discussion of cases and law reforms as they unfold, along with the embedding of some key media law revision in other subjects, and you gain confidence that the key principles will be learned and remembered in the news room – an exercise in genuine “mindful journalism” or “reflection-in-action”.

Media organisations

The halcyon era for media law training in news organisations was 1990-1994 with the operation of the Keating Government’s training guarantee levy – an obligation on corporations to spend 1.5% of their payroll on structured training courses. Back then regional journalists, for example, received up to five full days of media law training as part of their award and could not be promoted without being certified that they had undertaken it. From memory, it consisted of two days of defamation training, one day on contempt, another on court reporting, and the final on a mixed bag of other media law topics.

If they are lucky, journalists today might get a couple of hours every year or so of a media law briefing from a lawyer, on the strong (and usually false) assumption that they already know most of it from their university degrees.

In his 2017 sentencing judgment, Dixon J. found serious shortcomings in Yahoo!7’s training and workplace protocols justified the $300,000 fine:

“Para 26: I infer that the contemptuous publication likely occurred, at least in part, as a consequence of inadequate resourcing, driven by profit or commercial motivations. Conduct by media organisations that contributes to the risk of sub judice contempt in pursuit of a profit motive must be strongly discouraged.”

He was skeptical about the sustainability of the company’s assurances that it now had new systems in place to train journalists, assign extra editorial staff to manage the workload, and to engage external lawyers to assess court stories.

“Para 27: I can find no feeling of comfort that, should the profit motive rear its head in the future, Yahoo!7 (and other media organisations) will continue to incur expense to maintain systems and procedures that protect the integrity of court processes.”

“Para 30: The arrangements about legal advice before articles are uploaded to the internet appear clumsy, unrealistic in some respects, and may prove more difficult to enforce in practice, given time constraints and their importance in the business model being employed by Yahoo!7”.

One can only hope that all of those stakeholders – students, journalists, educators and media organisations – pay heed to those important lessons the learned judge has so eloquently expressed.

UPDATE: Court copycats caught out. ABC Media Watch exposes how some news organisations lift court reports from their competitors – an unethical practice with major legal pitfalls. View 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 2017

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Filed under contempt of court, free expression, journalism, journalism education, media ethics, media law, Media regulation, mindful journalism, Press freedom, Uncategorized

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

By MARK PEARSON

[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.

© Mark Pearson 2016

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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

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

By MARK PEARSON

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:

Screen Shot 2015-04-10 at 5.17.41 PM

 


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

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

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 2015

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

By MARK PEARSON

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

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

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 2015

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice

New @journlaw updates posted in privacy, anti-terror and confidentiality of sources #MLGriff

By MARK PEARSON

We have just posted numerous updates to the fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) on the journlaw.com blog.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we have been posting fresh material via this blog’s Media Law Updates menu.

You can find updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Order via Booktopia: 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.

© Mark Pearson 2015

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Journlaw running updates to The Journalist’s Guide to Media Law

By MARK PEARSON

OUR fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) is now in bookshops and I will be running updates on each topic area via journlaw.com as we work towards the next edition.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we will be posting fresh material via this blog’s Media Law Updates menu.

There will be updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Order via Booktopia: 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.

© Mark Pearson 2015

Leave a comment

Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice, Uncategorized

Hot off the press – our 5th edition of The Journalist’s Guide to Media Law

By MARK PEARSON

I was delighted to receive from publisher Allen & Unwin my first copy of the fifth edition of The Journalist’s Guide to Media Law (co-authored with Mark Polden).

Much has changed since our last edition in 2011, particularly in the fields of news media, communication technologies and practices, tertiary education and the law. We have reshaped and updated this edition of the book to accommodate those developments.

The book is still titled The Journalist’s Guide to Media Law, but its new subtitle—‘A handbook for communicators in a digital world’—encapsulates the seismic shifts that have prompted our considerable revisions. Our target audience has broadened with each edition as technologies like the internet and social media have combined to transform journalism and its allied professional communication careers. Thus our prime audience of Australian journalists working for traditional media outlets has widened to embrace public relations consultants, bloggers, social media editors and new media entrepreneurs,  as they fill new professional occupations dealing with media law, once the domain of mainstream reporters and editors.  Crucial questions which recur through the book include: ‘What is a journalist?’, ‘Who is a publisher?’, ‘How does media law affect this new communication form?’ and ‘Who qualifies for this protection?’ Some of the answers are still evolving, as legislators, the judiciary and the community grapple with the implications of every citizen now having international publishing technology literally at their fingertips on mobile devices.

Such shifts have prompted major new inclusions in the content of the book. So much publishing now transcends Australia’s borders via social media, blogs and other online platforms that we have expanded this edition to contain many more international comparisons and cases. This has been accommodated by reducing some of the forensic examination of precise legislation in various Australian states and territories, found in previous editions. Instead of attempting to document every statutory instrument in all nine Australian jurisdictions, we have directed readers to the resources that contain those details.

All of this has necessitated design and pedagogical changes to the book’s format and contents. While the chapter structure is generally in accord with previous editions, there are new sections within the chapters addressing these issues. Their order varies slightly according to topic, but most chapters now include some key concepts defined at the start, some international background and context to the media law topic, a more detailed account tailored to Australian legislation and case law, a review of the ‘digital dimensions’ of the topic with special focus on internet and social media cases and examples, an account of self-regulatory processes if they apply to that topic, some tips for journalists and other professional communicators for mindful practice in the area, a nutshell summary, some discussion questions, and relevant readings and case references.

The introduction of ‘tips for mindful practice’ encapsulates the authors’ aim that professional communicators need to build into their work practices and routines an informed reflection upon the legal and ethical implications of their reportage, commentary, editing, publishing and social media usage. This approach is explained in greater detail in Chapter 2, but it essentially links safe legal practice and the responsible and strategic use of free expression with the personal moral framework and professional ethical strictures of the digital communicator—whether a journalist, public relations consultant, media relations officer or serious blogger.

 

Those changing roles are reflected in a new final chapter, Chapter 13, which deals with the law of PR, freelancing and media entrepreneurship. It replaces a chapter on self-regulation in earlier editions. (The role and application of the various industry regulatory, co-regulatory and self-regulatory bodies, such as the Australian Communications and Media Authority (ACMA) and the Australian Press Council (APC), are now introduced in Chapter 3, but they are then referred to in the chapters where their functions and decisions seem most relevant). We saw this area of media law as significant because those who occupy those roles  are now grappling with special dimensions of media law—and several other legal topics relevant to their work—and deserve a new chapter dedicated to their roles and the legal dilemmas that are emerging in relation to them. The chapter also reflects the fact that many former journalists are now working in these allied occupations, and that student journalists need to start their careers with a broad understanding of the legal considerations which govern allied professional communication industries.

The sheer pace of change in all areas of media law is astounding. Many changes were mooted as this edition was going to press—including important developments in the laws of privacy, copyright, hate speech and court reporting. Rather than render the book dated as soon as it is printed, we have opted to use co-author Professor Mark Pearson’s journlaw.com blog (this one!) as the venue for updates to material, and have built several mentions of that resource into the chapters and discussion questions.

Apart from an array of new cases and examples—many from the international arena and many more from social media—some highlights of important new content covered in this edition include the following:

  • There are significant cases on increased statutory powers, allowing courts to make suppression and non-publication orders, and on the relationship between free speech, open justice and the right of parties to settle disputes privately. Recent cases at the borderline between ridicule and defamation, and on the application of freedom of information laws to immigration detention centres are included, as are cases on the application of sub judice contempt to internet content hosts and ‘celebrity’ claims of privacy invasion.
  • Recommendations of the ALRC on copyright reform are included, together with a discussion of the new copyright fair dealing defence that applies to satire. The book presents a wide range of examples, across different legal categories, relating to the use of the internet and social media, which will be of growing importance for current and future professional practise in communication, reportage and media advice.
  • A separate chapter on secrets (Chapter 9) covers the new journalists’ shield laws and their relevance to micro-bloggers and non-traditional publishers.
  • Chapter 10, on anti-terrorism and hate laws, includes the recommendations for reform of anti-terror laws and discusses the high-profile Andrew Bolt case and related proposals for reform of the Commonwealth Racial Discrimination Act 1975.
  • The recommendations of the Leveson Inquiry in the United Kingdom, and the Finkelstein Inquiry and Convergence Review in Australia, are subjected to critical analysis in view of their potential impact upon notions of a free press.

There is also an increased emphasis on real-time reportage, as the traditional print media increase their online presence and depth of click-through coverage in a 24/7 news cycle, with concomitant risks in the areas of defamation and contempt in their own work and that of third-party commentators on their websites and social media pages.

Without going into exhaustive detail on all of these matters, the book remains true to its original aim: to provide professional communicators and students with 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 the media. It tries to do this by introducing basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

In designing this edition, we have tried to pay heed to the needs of both professional communicators and media students. The book is best read from front to back, given the progressive introduction of legal concepts. However, it will also serve as a ready reference for those wanting guidance on an emerging problem in a newsroom or PR consultancy. The cases cited illustrate both the legal and media points at issue; in addition, wherever possible, recent, practical examples have been used instead of archaic cases from the dusty old tomes in the law library. Rather than training reporters, bloggers and PR practitioners to think like lawyers, this book will achieve its purpose if it prompts a professional communicator to pause and reflect mindfully upon their learning here when confronted with a legal dilemma, and decide on the appropriate course of action. Often that will just mean sounding the alarm bells and consulting a supervisor or seeking legal advice.

Of course, the book is not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Booktopia is offering pre-orders on their website: 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.

© Mark Pearson 2014

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