Category Archives: Freedom of Information

INFORRM a highly recommended resource for journalists and media law students #MLGriff

By MARK PEARSON

Congratulations to UK-based media law blog INFORRM (INternational Forum for Responsible Media) on reaching an impressive 4 million hits since it started seven years ago.

The site – international but with an understandable UK orientation – boasts more than 5,500 followers including  3,500 on Twitter @inforrm.

INFORRM has just listed its Top Twenty Posts of all time (in descending order of popularity):

From time to time over recent years they have been kind enough to repost my blogs or commentary pieces, including these:

Australia: Whither media reform under Abbott? – Mark Pearson

25 11 2013

Where will the new Liberal-National Coalition government led by Prime Minister Tony Abbott head with the reform of media regulation? Communications Minister Malcolm Turnbull and Attorney-General George Brandis were vocal opponents of the former Gillard Government’s proposals to merge press self-regulation with broadcast co-regulation into a new framework.

Read the rest of this entry »

Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones – Mark Pearson

13 10 2013

Australia MapThe interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension. Read the rest of this entry »

 

Privacy On Parade – Mark Pearson

12 05 2012

The right to privacy is a relatively modern international legal concept. Until the late 19th century gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright in some steamy images of Dumas with the ‘Paris Hilton’ of the day – 32-year-old actress Adah Isaacs Menken. Read the rest of this entry »

 

Australia: News Media Council proposal: be careful what you wish for – Mark Pearson

10 03 2012

The Finkelstein (and Ricketson) Independent Media Inquiry report released on 28 February 2012 is a substantial and well researched document with a dangerously flawed core recommendation.

An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least Aus$2 million of government funding annually. Read the rest of this entry »

 

Consumer law holds solution to grossly irresponsible journalism – Mark Pearson

9 11 2011

This post originally appeared on the Australian Journlaw blog.  It suggests an interesting new approach to media regulation which, as far as we know, has not been suggested in debates in this country.  We are reproducing it with permission and thanks to provide a further perspective on those debates.

Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.  It already has one – in the form of the Australian Competition and Consumer Commission (“ACCC”). Read the rest of this entry »


… as well as occasional snippets in their useful Law and Media Roundup section and this review of my book Blogging and Tweeting Without Getting Sued by media lawyer Leanne O’Donnell:

Book Review: Mark Pearson “Blogging and Tweeting Without Getting Sued” – Leanne O’Donnell

11 04 2012

Professor Mark Pearson’s Blogging & Tweeting Without Getting Sued will be welcomed by anyone writing online … Melbourne media lawyer Leanne O’Donnell reviews this timely legal guide to a rapidly evolving media landscape

Mark Pearson’s new book Blogging & Tweeting Without Getting Sued: A global guide to the law for anyone writing online – is very accessible guide to laws relevant to the all those writing online. Read the rest of this entry »


I find the INFORRM “Blogroll” is a particularly useful resource – regularly updated and featuring these media law blogs from throughout the world. Together they provide a wonderful resource for media law students, journalists and researchers. (Thanks for including journlaw.com,  INFORRM!)

Surely sufficient bedtime reading for even the most avid media law geek!

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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Abbott’s attack on ABC proves politicians are free press chameleons

By MARK PEARSON

Politicians are free expression chameleons. Regardless of their political colours, they are inevitably staunch advocates of a free media and the free flow of information while in opposition.

When they win government they tend to shut down criticism and negative press by implementing policies and passing laws to limit scrutiny.

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Australian Prime Minister Tony Abbott … called the ABC ‘unpatriotic’. [Image: Google free usage]

We saw this happen in Australia this week Prime Minister Tony Abbott’s criticisms of the Australian Broadcasting Corporation on the eve of his government’s announcement of an ‘efficiency study’ on the independent national broadcaster.

Less than a year ago, the former Gillard Labor government’s proposed media regulations which risked journalists and media organisations being shackled by a new privacy bureaucracy.

Less than two years ago the Finkelstein Report had journalists potentially being jailed or fined for disobedience of its proposed regulatory regime.

At the time I blogged about the potential implications of the Finkelstein recommendations (The Drum: ‘Media Inquiry: Be Careful What You Wish For’) and then communications minister Stephen Conroy’s poorly named News Media (Self-Regulation) Bill. [Also see my commentary in The Conversation putting all this in an international media freedom context.]

Those proposals arose in a highly politicised context where the then government believed some media outlets were biased against them.

The new Abbott conservative government – despite having opposed those reforms under the banner of press freedom – now seems to have adopted the public soap box and budgetary strategies with the ABC directly in its sights.

Prime Minister Abbott used a populist radio program to label the ABC ‘unpatriotic’ following the broadcaster’s publication of claims by asylum seekers that they had suffered burns during an Australian navy operation. [Well detailed by former ABC Media Watch host Jonathan Holmes here in The Age.]

In the same radio interview Mr Abbott criticised the ABC’s reportage of the Edward Snowden NSA leaks, including the revelation that Australia’s spy agency had secretly tapped the phones of Indonesian president Susilo Bambang Yudohoyono and his wife in 2009. He questioned the funding of the ABC’s FactCheck Unit which a few days earlier disproved his claim asylum seekers who alleged mistreatment by the Navy were breaking the law.

His criticisms came only hours prior to the Minister for Communications Malcolm Turnbull announcing an “efficiency review” of the ABC and its sister national broadcaster SBS (Special Broadcasting Service). The review will be looking for cost-saving measures in the lead-up to the May budget.

Reporters Without Borders has a long history of dealing with governments that demand national broadcasters be more patriotic in their coverage under threats to withdraw funding. But these cases rarely occur in Western democracies with a relatively high media freedom ranking. (Australia’s was 26/179 in 2013).

A free news media and a truly independent national broadcaster should be neither patriotic nor unpatriotic – such calls to nationalism are anathema to genuine truth-seeking and truth-telling in society.

An independent national broadcaster is not the equivalent of the marketing arm of a large corporation.

The ABC’s reportage of both the asylum seeker allegations and the spying scandal is understandable given the Australian Government’s policy of withholding information about the fate of asylum seekers who have attempted to reach Australian shores by boat.

The Australian Government’s policy of refusing to provide the media with details of such operations and in limiting media access to detention centres deprives Australian citizens and the international community of important information on a key human rights issue.

When journalists are deprived of basic information they are within their rights to publish serious allegations like those of the asylum seekers who claimed to have been injured at the hands of Australian defence forces, particularly if government sources are refusing to offer information about the circumstances.

They are simply reporting the truth that the allegations have been made. Authorities and other media or citizen journalists can set the record straight with evidence if the allegations are unfounded.

It is quite different from false allegations about an individual citizen – where that person could sue for defamation.

There is a policy reason large corporates and government entities like the Navy cannot sue for defamation over such allegations: in a democratic society such assertions deserve circulation so citizens can weigh their credibility.

Even if ultimately proven false, the allegations of mistreatment of asylum seekers had an element of plausibility when made because the Australian authorities – including the Navy, national security agencies and the border protection regime – had ‘form’.

It may be unpatriotic to say this, but documented incidents suggest it would be naïve to give Australian governments (of whatever persuasion) and agencies the benefit of the doubt in such situations.

They include (at the very least):

  • The ‘Children Overboard’ Affair in 2001 where Howard Government and defence claims about events concerning the Norwegian freighter MV Tampa proved to be politicised and misleading.
  • The recent revelations that Australian agents eavesdropped on the Indonesian President and spied on East Timor during oil and gas negotiations.
  • The Howard Government’s dogged determination to pursue Gold Coast doctor Mohamed Haneef, damage his reputation and cancel his visa as its terrorism allegations against him evaporated in 2007.
  • A litany of examples of unpublicized incidents at immigration detention centres, evident only months after the event through Freedom of Information requests and appeals by determined citizen journalists.
  • Recent allegations of ritual sexual abuse by Australian Navy personnel on board ships used for border protection duties.

The free flow of information is crucial to the democratic standing of a country like Australia. Such attacks by political leaders and calls for patriotism are what we expect from nations ranking much lower on RSF’s World Press Freedom Index.

The Australian Government should direct its energies to improving the free flow of information in society and granting better access and information to journalists and other citizens instead of name-calling, threats of fund cuts, and bizarre calls for media patriotism.

Hear my ABC 91.7 local radio interview on the issue:

Screen Shot 2014-02-04 at 1.24.20 PM

 

© Mark Pearson 2014

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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Immigration case shows process can take the news out of FOI requests

By MARK PEARSON

A recent decision by the Australian Information Commissioner has demonstrated that persistence with a Freedom of Information application can pay off – if you are willing to wait the year or more for the appeal process to take its course. 

Farrell and Department of Immigration and Border Protection [2013] AICmr 81  (21 November 2013) was decided recently and may well be subject to further appeal.

GlobalMailDetention

FOI data used in The Global Mail multimedia coverage

On November 15, 2012, he applied to the Department of Immigration and Border Protection for access to a series of incident reports about five self-harming events logged on the department’s FI disclosure log.

On January 14, 2013, the Department provided Mr Farrell with edited copies of five documents totalling 23 pages related to his request, citing its ‘operations of agency’ and ‘personal privacy’ exemptions under sections 47E and 47F of the Commonwealth FOI Act as its reasons for the deletion of material. On February 14, 2013, Mr Farrell applied to the Information Commissioner for review of the information exempted by the Department under s 47E.

The Privacy Commissioner ruled on November 21, 2013 that the Department’s decision should be set aside and the exempted information should be released to Mr Farrell. The exemption under  Section 47E(d) provides: ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

The Department had argued its operations would have been adversely affected if details had been released about an incident of self-harm while an individual was about to be deported from Australia on a scheduled commercial flight. It argued the information might help others avoid deportation by adopting the same behaviours. The Privacy Commissioner ruled (at paras 12 and 13):

“Much of the information exempted by the Department in document 1 is already in the public domain in the form of media articles relating to similar instances where disruptive behaviour had led to individuals being unable to be deported on commercial flights and charter flights having to be subsequently arranged. I have examined an unedited copy of document 1. Given that information of this nature is already publicly available, I do not consider that its disclosure would, or could reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of the Department’s operations or would result in the Department being required to alter its processes for deporting individuals.”

Lessons for journalists

The case holds important lessons about the workings of FOI and the exemptions that are available.

On the one hand, Farrell and his colleagues were able to publish a substantial body of material on their detentionlogs.com.au site as a result of numerous FOI requests – information later published as stories, searchable databases and graphics on other news sites including The Guardian, The Global Mail and New Matilda.

However, the case also provides an insight into the bureaucratic, technical and time-consuming side of the FOI application process. A request had taken a full year to be filed, rejected and reviewed, and the Department still had 28 days to appeal to have the Privacy Commissioner’s decision reviewed by the Administrative Appeals Tribunal. That would then open the way to a series of court appeals over the decision if either party chose to pursue them.

Theoretically, it could take years before the release of the information which might then be only of historical value rather than of news value.

© Mark Pearson 2013

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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