Category Archives: free expression

Australian metadata laws put confidential interviews at risk, with no protections for research

By MARK PEARSON

Interviews from a range of sensitive research topics may be at risk. These include immigration, crime and corruption.
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EACH year, academics and students make countless applications for research ethics approval, based on the promise of confidentiality to their interview subjects. Interviewees sometimes offer academic researchers information that might be self-incriminating or might jeopardise the rights and liberties of others they’re discussing.

But Australia’s metadata retention laws can lead to the identification and even incrimination of the very people whose identities academic researchers have promised to keep secret for their work.

Imagine, for instance, a criminologist conducting a project examining white collar crime in banking and financial services. The academic’s confidential interviews with former company directors and executives might elicit specific and revealing answers. It could lead to potential redundancy or even jail time, depending on their vulnerability and culpability.

Under the metadata laws, government agencies make hundreds of thousands of requests to Australian telcos each year for their customers’ phone and internet communications metadata.

For the criminologist, this means relevant agencies can ask telcos to access his or her metadata in the form of call records and computer IP addresses. This means they can identify whether a person of interest has been in communication with the researcher and is the possible source of incriminating material. Other investigations and legal steps might then follow.

Interviews about a range of sensitive research topics may be at risk. These include immigration, crime and corruption, national security, policing, politics, international relations and policy.

The impact of metadata laws on journalists and their sources have been well documented. But we can only wonder how many people will agree to participate in academic research if they are made fully aware of the real potential of being identified by investigators.

Interested?

READ my full article 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 2019 – the moral right of the author has been asserted.

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Filed under free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, national security, open justice, Press freedom, sub judice, suppression, terrorism

Submission to inquiry shows journalism educators and students lack metadata source protection

By MARK PEARSON

Australian journalists have a narrow and inadequate protection under national security laws from government agencies accessing their metadata to discover the identity of their confidential sources.

I helped the Journalism Education and Research Association of Australia (JERAA) prepare a parliamentary committee submission that explains journalism educators and journalism students do not even qualify for that low level of protection, leaving their confidential sources open to revelation.

Our submission now sits with several others on the Parliamentary Joint Committee on Intelligence and Security site here.

We have asked that legislators focus on the public interest journalism involved when awarding such defences and protections rather than focussing simply on whether someone is a ‘journalist‘ – an occupation and term difficult to define in the modern era – and used as the default for the rare privileges given.

We have proposed that

existing and proposed protections for ‘journalists and media organisations’ be extended to apply to the research and outputs of journalism educators and their students when they are engaged in ‘public interest journalism’, whether or not they are paid to work as journalists and whether or not their work is published by a ‘media organisation’ in its traditional sense.

We have also asked that the Commonwealth lead a reform initiative to unify all state, territory an Commonwealth media laws across a range of publication restrictions to do away with anachronistic inconsistencies and introduce a public interest journalism defence or exemption so that courts are prompted to balance the various interests at stake before issuing a warrant against a journalist or taking criminal action.

The Committee is now entering the phase of public hearings. See their site 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 2019 – the moral right of the author has been asserted.

 

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Rare criminal defamation charge in Queensland – #MLGriff

By MARK PEARSON

QUEENSLAND police have charged a Sunshine Coast man with criminal defamation under a rarely used provision of the Criminal Code 1899.

They will allege he distributed pamphlets to neighbourhood homes claiming a former associate was a paedophile.

As Lord Denning, in the 1977 Goldsmith case, said, ‘A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself’ (at 485).

As we explain in the sixth edition of The Journalist’s Guide to Media Law (Pearson and Polden, Allen & Unwin, 2019, pp 298-299), instances of criminal defamation usually arise between ordinary citizens rather than in the media.

Examples include the Wineries case (1998), where a disgruntled businessman penned a letter, purportedly from his business partner’s wife, in which she described her husband as someone who ‘engages in adultery, deception, taxation fraud and is a confidence trickster’ who could be ‘compared to the worst, most infectious, bacterial parasite which can only be found at the bottom of the most unhygienic sewage scum swamp’.

The man sent the letter to at least one South Australian winery and pleaded guilty to criminal defamation.

In 2001, a quadriplegic woman and her mother were charged with six counts of criminal defamation after they allegedly posted notices accusing townsfolk of perjuring themselves in her compensation claim against the local council and its swimming pool operators (Quadriplegic case, 2001). Police later dropped the charges.

Horse racing identities Robert and William Waterhouse prosecuted the producer and reporter of an ABC Four Corners program. The NSW Director of Public Prosecutions eventually stepped in to prevent the defamation prosecutions from proceeding because the defence of qualified privilege was going to be available (Waterhouse case, 1988).

The most famous instance in Australia was the politically motivated prosecution of leftist author Frank Hardy for criminal libel over his volcanic first novel Power Without Glory in August 1950, which he successfully defended.

Sadly, criminal defamation and seditious libel have often been used as political weapons against opposition groups and the media in many small Commonwealth countries.

For media law geeks, the Queensland legislation reads as follows:

—–

CRIMINAL CODE 1899 – SECT 365

Criminal defamation

365 Criminal defamation

(1) Any person who, without lawful excuse, publishes matter defamatory of another living person (the
“relevant person” )—

(a) knowing the matter to be false or without having regard to whether the matter is true or false; and

(b) intending to cause serious harm to the relevant person or any other person or without having regard to whether serious harm to the relevant person or any other person is caused;

commits a misdemeanour.

Penalty—

Maximum penalty—3 years imprisonment.

(2) In a proceeding for an offence defined in this section, the accused person has a lawful excuse for the publication of defamatory matter about the relevant person if, and only if, subsection (3) applies.

(3) This subsection applies if the accused person would, having regard only to the circumstances happening before or at the time of the publication, have had a relevant defencefor the publication if the relevant person had brought civil proceedings for defamation against the accused person.

(4) The prosecution has the burden of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused person.

(5) Whether the matter complained of is capable of bearing a defamatory meaning is a question of law.

(6) Whether the matter complained of does bear a defamatory meaning is a question of fact.

(7) A person can not be prosecuted for an offence defined in this section without the consent of the director of public prosecutions.

(8) In this section—
“defamatory” has the meaning that it has in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.
“modified statutory defence of justification” means the defence stated in the Defamation Act 2005 section 25 as if that section provided that it is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defamatory imputations carried by the matter of which the relevant person complains are substantially true; and

(b) it was for the public benefit that the publication should be made.

“publish” has the meaning that it has in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.
“relevant defence” means—

(a) a defence available under the Defamation Act 2005 other than—

(i) the statutory defence of justification; or

(ii) the statutory defence of failure to accept reasonable offer; or

(b) the modified statutory defence of justification; or

(c) a defence available other than under the Defamation Act 2005 , including under the general law.

“statutory defence of failure to accept reasonable offer” means the defence stated in the Defamation Act 2005 section 18 (1) .
“statutory defence of justification” means the defence stated in the Defamation Act 2005 section 25 .

JGML6eCOVERorange

 

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 2019

 

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Building mindfulness into the online media law curriculum

By MARK PEARSON

Our Arts Education and Law group at Griffith University held a learning and teaching symposium on the Gold Coast this week.

I was invited to speak on my incorporation of mindfulness into the curriculum and pedagogy, and to explain how I have been using a single course site to service on-campus and online students in a single cohort.

Here is a PDF file of my presentation for educators and students who might be interested in the approach.

 

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 2019 – the moral right of the author has been asserted.

 

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Filed under free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, mindful journalism, online education, reflective practice, social media

Introducing a mindful approach to media law education

By MARK PEARSON

I spoke last week at the Professional Futures Conference at the Queensland Conservatorium, Griffith University, on my approach to using mindfulness in media law classes.

The abstract for the presentation explained the topic:

Mindfulness can be defined and adopted in many ways in the teaching of media law. This paper outlines the basic principles and explains the likely benefits for participants in learning, teaching and research, detailing some of the key research underpinning the field and offering some examples of its application in media law. The author explains his applications of mindful reflective practice in both his leading media law textbook and in his media law course, which offers the potential to strengthen graduates’ resilience, deepen their learning, and shore up their moral compasses as they enter occupations where their work can expose them to trauma and the industry disruption can subject them to stress, burnout and other mental health challenges.

For those interested, I reproduce the slides from the presentation 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 2019 – the moral right of the author has been asserted.

 

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Filed under free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, mindful journalism, online education, reflective practice, social media

It’s here – our sixth edition ready for the 2019 academic year

By MARK PEARSON

An advance copy of the sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) which I co-author with Mark Polden just arrived in my letter box, ready for the 2019 academic year.

JGML6eCOVERorangeThe new edition has had major revisions. Some highlights of important new content covered in the sixth edition include:

  • consideration of several recent High Court decisions impacting on free expression, publication and media law defences
  • legal implications of ‘fake’ or false news
  • a new table summarising the mindful approach to media law practice, mapping situations against approaches
  • major criminal cases challenging the boundaries of open justice, including those involving high profile church figures and celebrities
  • new case studies in navigating crime reporting with a focus on the Yahoo!7 story that prompted the discharge of a jury in a murder trial
  • significant developments in defamation law, including record damages awards to actor Rebel Wilson (reduced after appeal) and barrister Lloyd Rayney
  • important new research showing that many more defamation actions are being brought by private individuals over internet and social media publications, as distinct from celebrities suing the media
  • examination of publisher liability for the comments of third parties in the wake of several new cases, with some holding publishers responsible
  • an update on confidentiality of sources, including some new breach of confidence actions and some cases testing the limits of new shield laws for journalists
  • a review of the suite of new anti-terrorism laws impacting the media’s reporting of crime and national security and jeopardising the confidentiality of their sources
  • key new intellectual property cases that have shed light on the media’s use of material sourced from the internet and social media
  • significant cases showing the rapidly developing body of privacy law in the digital era
  • new material in the law of freelancing, public relations and new media entrepreneurship showing the growing legal risks and responsibilities at the business end of communication practice.

There is also an increased emphasis on the higher pressure and pace of the 24/7 news cycle across a range of media, exacerbating the risks to communicators and publishers through their own work and the contributions of third-party commenters on their social media feeds and sites.

Like earlier editions, the book aims to give professional communicators and students 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 media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

As the publisher’s promo states:

A practical guide for journalists, public relations and marketing professionals, bloggers and social media experts to staying on the right side of the law.

We are all journalists and publishers now: at the touch of a button we can send our words, sounds and images out to the world. No matter whether you’re a traditional journalist, a blogger, a public relations practitioner or a social media editor, everything you publish or broadcast is subject to the law. But which law?

This widely used practical guide to communication law is essential reading for anyone who writes or broadcasts professionally, whether in journalism or strategic communication. It offers a mindful approach to assessing media law risks so practitioners can navigate legal and ethical barriers to publishing in mainstream and social media.

This sixth edition has been substantially revised to reflect recent developments in litigation, and the impact of national security laws and the rising gig economy where graduates might work in the news media, PR, new media start-ups, or as freelancers. It covers defamation, contempt, confidentiality, privacy, trespass, intellectual property, and ethical regulation, as well as the special challenges of commenting on criminal allegations and trials. Recent cases and examples from social media, journalism and public relations are used to illustrate key points and new developments. 

Whether you work in a news room, in public relations or marketing, or blog from home, make sure you have The Journalist’s Guide to Media Law at your side.

‘Whether you’re an MSM editor or reporter, a blogger, a tweeter or a personal brand, this book might save your bacon.’ – Jonathan Holmes, former ABC Media Watch host

‘The leading text book from which most journos learned their law’ – Margaret Simons, associate professor in journalism, Monash University

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who should soon have printed copies available.

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 2018 – the moral right of the author has been asserted.

 

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John Stuart Mill predicted the likes of Trump and the echo chamber #MLGriff

By MARK PEARSON

A passage by the great philosopher John Stuart Mill in his seminal work ‘On Liberty’ seems prescient almost 160 years after it was published. It offers insights into ‘false news’ in a ‘post-truth era’.

Much has been written about the sycophants who surround some leaders of politics and business, too fearful to suggest that their views might just be wrong or misguided.

In modern times some have suggested that nobody in the White House would dare question or debate the assertions US President Donald Trump emits daily via Twitter and at rallies of supporters. They have called it the “Emperor with no Clothes” phenomenon.

Related to this is the suggestion that social media and modern means of communication adds to the “echo chamber” where we accept as truth the rumours and assertions of those we “follow” or of commentators on the media channels that best suit our world view.

Again, it is said that the echo chamber for Trump and his supporters centres upon information and commentary in Fox News, which he has excluded from his rants against what he labels ‘fake news’ in other media.

While the communication media might have changed since 1859, there is nothing new about this, because Mill warned us of both phenomena in his landmark text.

I stumbled upon the passage this week when researching an address for a conference session and thought it was timely to share it with you here.

It offers important insights into our conceptions of “truth” and adds credence to better education in fact checking and source assessment, not just for journalists but also for the broader citizenry:

Absolute princes, or others who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects. People more happily situated … place the same unbounded reliance only on such of their opinions as are shared by all who surround them, or to whom they habitually defer: for in proportion to a man’s want of confidence in his own solitary judgment, does he usually repose, with implicit trust, on the infallibility of “the world” in general. And the world, to each individual, means the part of it with which he comes in contact; his party, his sect, his church, his class of society … Nor is his faith in this collective authority at all shaken by his being aware that other ages, countries, sects, churches, classes, and parties have thought, and even now think, the exact reverse. He devolves upon his own world the responsibility of being in the right against the dissentient worlds of other people; … Yet it is as evident in itself as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.” – John Stuart Mill (1859). On Liberty. London: John W. Parker and Son. [underscore added by author]

 

© Mark Pearson 2018 and John Stuart Mill 1859

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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