Category Archives: journalism

See The Conversation for my piece: ‘5 ways to spot misinformation and stop sharing it online’ #MLGriff

By MARK PEARSON

Mark Pearson, Griffith UniversityThe blame for the recent assault on the US Capitol and President Donald Trump’s broader dismantling of democratic institutions and norms can be laid at least partly on misinformation and conspiracy theories.

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Those who spread misinformation, like Trump himself, are exploiting people’s lack of media literacy — it’s easy to spread lies to people who are prone to believe what they read online without questioning it.

We are living in a dangerous age where the internet makes it possible to spread misinformation far and wide and most people lack the basic fact-checking abilities to discern fact from fiction — or, worse, the desire to develop a healthy skepticism at all.




Read more:
Stopping the spread of COVID-19 misinformation is the best 2021 New Year’s resolution


Journalists are trained in this sort of thing — that is, the responsible ones who are trying to counter misinformation with truth.

Here are five fundamental lessons from Journalism 101 that all citizens can learn to improve their media literacy and fact-checking skills:

1. Distinguishing verified facts from myths, rumours and opinions

Cold, hard facts are the building blocks for considered and reasonable opinions in politics, media and law.

And there are no such things as “alternative facts” — facts are facts. Just because a falsity has been repeated many times by important people and their affiliates does not make it true.

We cannot expect the average citizen to have the skills of an academic researcher, journalist or judge in determining the veracity of an asserted statement. However, we can teach people some basic strategies before they mistake mere assertions for actual facts.

Does a basic internet search show these assertions have been confirmed by usually reliable sources – such as non-partisan mainstream news organisations, government websites and expert academics?

Students are taught to look to the URL of more authoritative sites — such as .gov or .edu — as a good hint at the factual basis of an assertion.

Searches and hashtags in social media are much less reliable as verification tools because you could be fishing within the “bubble” (or “echo chamber”) of those who share common interests, fears and prejudices – and are more likely to be perpetuating myths and rumours.

2. Mixing up your media and social media diet

We need to be break out of our own “echo chambers” and our tendencies to access only the news and views of those who agree with us, on the topics that interest us and where we feel most comfortable.

For example, over much of the past five years, I have deliberately switched between various conservative and liberal media outlets when something important has happened in the US.

By looking at the coverage of the left- and right-wing media, I can hope to find a common set of facts both sides agree on — beyond the partisan rhetoric and spin. And if only one side is reporting something, I know to question this assertion and not just take it at face value.

3. Being skeptical and assessing the factual premise of an opinion

Journalism students learn to approach the claims of their sources with a “healthy skepticism”. For instance, if you are interviewing someone and they make what seems to be a bold or questionable claim, it’s good practice to pause and ask what facts the claim is based on.

Students are taught in media law this is the key to the fair comment defence to a defamation action. This permits us to publish defamatory opinions on matters of public interest as long as they are reasonably based on provable facts put forth by the publication.

The ABC’s Media Watch used this defence successfully (at trial and on appeal) when it criticised a Sydney Sun-Herald journalist’s reporting that claimed toxic materials had been found near a children’s playground.

This assessment of the factual basis of an opinion is not reserved for defamation lawyers – it is an exercise we can all undertake as we decide whether someone’s opinion deserves our serious attention and republication.




Read more:
Teaching children digital literacy skills helps them navigate and respond to misinformation


4. Exploring the background and motives of media and sources

A key skill in media literacy is the ability to look behind the veil of those who want our attention — media outlets, social media influencers and bloggers — to investigate their allegiances, sponsorships and business models.

For instance, these are some key questions to ask:

  • who is behind that think tank whose views you are retweeting?
  • who owns the online newspaper you read and what other commercial interests do they hold?
  • is your media diet dominated by news produced from the same corporate entity?
  • why does someone need to be so loud or insulting in their commentary; is this indicative of their neglect of important facts that might counter their view?
  • what might an individual or company have to gain or lose by taking a position on an issue, and how might that influence their opinion?

Just because someone has an agenda does not mean their facts are wrong — but it is a good reason to be even more skeptical in your verification processes.




Read more:
Why is it so hard to stop COVID-19 misinformation spreading on social media?


5. Reflecting and verifying before sharing

We live in an era of instant republication. We immediately retweet and share content we see on social media, often without even having read it thoroughly, let alone having fact-checked it.

Mindful reflection before pressing that sharing button would allow you to ask yourself, “Why am I even choosing to share this material?”

You could also help shore up democracy by engaging in the fact-checking processes mentioned above to avoid being part of the problem by spreading misinformation.The Conversation

Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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 2021 – the moral right of the author has been asserted.

 

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Legal risks of Facebook comments

By MARK PEARSON

Social media offers countless benefits to organisations, but an emerging legal risk is prompting many communication professionals to reassess their exposure.

Several superior court cases in Australia and internationally have decided that hosts of Facebook pages must bear responsibility for defamatory comments posted to their sites by other people.

The latest – involving Australian indigenous activist and former juvenile detainee Dylan Voller – has left major news organisations potentially liable in his defamation action over comments posted in response to articles about him on their corporate Facebook sites.

For the full article on this topic, please go to the Griffith University Thought Leadership series of articles.

If you are a communication professional wanting to study in this area, please consider enrolling in our online courses Social Media Law and Risk Management (postgraduate) or Media Law (undergraduate).

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 2021 – the moral right of the author has been asserted.

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Filed under free expression, journalism, journalism education, libel, Media freedom, media law, Media regulation, Press freedom, Privacy, reflective practice, social media

A formula for success in study and in life

By MARK PEARSON

My media law students are in their final week of studies for the year so I took the opportunity to offer them my observations on some crucial ingredients for their success in this course and beyond into their lives and careers.

It is encapsulated in this formula:

Ability

We all have talents for some things and but are not so good at others. I know that if I decided suddenly at my age that I wanted to be a concert pianist, never having learned a musical instrument, I guess I might learn to play a basic tune on the piano but my abilities would prevent me actually achieving that dream. On the other hand, if I paid for piano lessons for one of my young grandchildren they would have a much better chance, yet they would still need some inherent ability. I guess the lesson here is that we each need to acknowledge our abilities – and pursue those from that set that really interest us as well.

+ Passion

I’ve found most things I’ve done in my life have been a success if they have had a passion element to them. I’ve really needed the heart for it before I’ve been able to make something a success. And there have been things I’ve done along the way that have not been so successful because they lacked such enthusiasm. I remember my father took me along to join a swim school and I only attended twice because I didn’t have the passion for swimming. My granddaughter, however, has that passion, and she’s in the state championships. She has the ability and the enthusiasm. If you’re going to do well at something – including media law – you need some ability and a good dose of passion.

+ Learning

Then of course you need the learning. No matter how talented you are at something you really need to commit yourself to learning more about it and that comes into play in all walks of our life. I did work at a previous university and I really love the motto of that place – “Forever Learning”. I’ve come to believe we all really are forever learning, and even when we’re really good at something we can always learn more. I think part of my joy in media law is in always learning something new. Only last week a student told me about a new case involving emojis and how they can leave you vulnerable to a defamation action – and that was something new I’d learned so I was really excited to share that on Twitter. Even though you might be a so-called ‘expert’, if you see yourself as forever learning more about something you maintain the passion and you do actually improve in the process.

+ Opportunities

There is no denying we also need opportunities. Those of us attending Griffith University have a certain level of advantage over many of our peers. Others might be deprived of such an opportunity for a host of reasons. We really owe it to ourselves, to our parents, to each other, and to the rest of society to maximise the chances we have been given. That can help drive the passion for what we are doing if we understand it and take advantage of every chance we can to pay it back along the way by creating opportunities for others.

 + Effort

Sometimes it really does take considerable effort, even if you have some natural ability, passion, and you are willing to learn and are presented with the opportunities. There’s a point at which you really have to lift yourself to put in the effort. Some of you are already doing well in media law, but with that extra effort you’ll do even better. It could be you’ve decided by this stage of the course that your ability and passion is not really in media law, but that extra effort can get you over the pass line and perhaps an even higher result.

+ Reflection

Reflection is important in this formula. We need to reflect as we go – as we address a particular problem – but we also need reflection upon our own progress in our career and life. We need time out – whether it is a dedicated meditation period – or something less formal like a mind-mapping or journaling session, or perhaps a brainstorm or heart to-heart chat with a mentor. We need to assess and reassess where we are in our pursuit of our goals and in resetting them along the way, perhaps as we adjust them to ethical or moral frameworks or in response to other priorities that have emerged. We all make our New Year’s resolutions, but how seriously do we take them and how well do they truly map our foreseeable futures? Perhaps we need to engage in that process more frequently than annually. I think we all can benefit from a timetable of serious reflection upon where we have been, where we are headed, what the realistic goals are, whether this is what we really should be doing, and how to perform even better on each of the above criteria.

= Satisfaction (and Success)

These six factors I believe add up to constitute your satisfaction with what you are pursuing – the level of satisfaction in your life, your career and even in a particular course like media law if you apply yourself to each of them in a considered way. You’ll notice I placed in brackets after the word Satisfaction “(and Success)” because success can be measured in so many different ways. Some people finish their careers with others seeing them as extremely successful in terms of wealth, position and other social acknowledgements. But do they actually have satisfaction? Some do – they are indeed satisfied with their lives and what they have achieved in their careers and the opportunities they have created for others. But really I think the success element is linked strongly to satisfaction. We can get substantial satisfaction without those monetary and other tokenistic rewards but through intangible rewards by having pursued and achieved considered goals with passion, to the best of our abilities, making the most of each opportunity – and learning from our studies and our mistakes along the way.

May you be safe. May you be well. May you be content.

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 2020 – the moral right of the author has been asserted.

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Our chapter in Comparative Privacy and Defamation

By MARK PEARSON

Colleague Virginia Leighton-Jackson and I teamed up to write a chapter on Australian defamation and privacy law in the newly released book Comparative Privacy and Defamation from Edward Elgar Publishing. 

Comparative Privacy and DefamationThe book [ ISBN: 978 1 78897 058 7; 480pp ] forms part of the Research Handbooks in Comparative Law series and is edited by András Koltay (Professor of Law, National University of Public Service and Pázmány Péter Catholic University, Hungary) and Paul Wragg (Associate Professor of Law, University of Leeds).
It provides comparative analysis that examines both Western and non-Western legal systems, and offers commentary on issues of theory and doctrine, including the impacts of privacy restrictions, defamation reforms and new technologies on the law.
Our chapter (pp 381-398) is titled ‘Privacy and defamation in Australia – a post-colonial tango’.
It considers defamation and privacy law in its uniquely Australian context, where statutory and case law have evolved without explicit protections of free expression in its Constitution.
After offering an Australian constitutional, legislative and common law context, our chapter surveys the laws of defamation and privacy since English colonial settlement in the late eighteenth century.
Emphasis in the discussion of defamation is upon its relationship with privacy through various statutory iterations of the truth/justification defence which has at times featured privacy protections.
The focus of the survey of privacy law is the story of reform momentum over four decades towards an actionable tort for the serious invasion of privacy, which remains unfulfilled.
The chapter explains how this has impacted on celebrity plaintiffs’ preference for defamation when the media has scrutinised their private lives.
The case law and statutory and regulatory dimensions of both defamation and privacy are covered, with the chapter comparing and contrasting Australian defamation and privacy law with some key aspects of that jurisprudence in the United States (US) and the United Kingdom (UK).

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 2020 – the moral right of the author has been asserted.

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Filed under free expression, journalism, journalism education, libel, Media freedom, media law, Media regulation, Press freedom, Privacy, reflective practice, social media

Using cognitive reflections in teaching and learning media law

By MARK PEARSON

Cognitive reflection can be a useful technique for introducing and revising media law topics.

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Our research on the use of mindfulness based meditation techniques pointed to the possibility of short focussed reflections upon media law and ethics topics as a device to encourage a “pause and reflect” approach in the workplace and to deepen learning.

Please  see:

Pearson, M., McMahon, C., O’Donovan, A. and O’Shannessy, D. (2019), ‘Building journalists’ resilience through mindfulness strategies’. Journalism. https://journals.sagepub.com/doi/abs/10.1177/1464884919833253

Pearson, M., McMahon, C., and O’Donovan, A. (2018) ‘Potential benefits of teaching mindfulness to journalism students’. Asia Pacific Media Educator (December). 28:2: https://doi.org/10.1177/1326365X18800080

This year I have recorded nine such media law cognitive reflections for the use of media law students – all of 7-11 minutes’ duration.

Anecdotal feedback from students to date has been that some love them as another means of accessing the topic at hand, while others found them to be of little value.

I recommend a basic introduction to meditation/reflection prior to the subject-based reflections, such as this “Invitation to Focus” from the Griffith University Counselling and Well Being team.

So, here are the nine cognitive reflections on media law topics. I’d appreciate any feedback.

Reflection 1 – Open Justice

Reflection 2 – Contempt

Reflection 3 – Defamation introduction

Reflection 4 – Defending defamation

Reflection 5 – Secrets and confidentiality

Reflection 6 – Hate speech

Reflection 7 – Intellectual property

Reflection 8 – Privacy

Reflection 9 – Media law in practice / revision

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 2020 – the moral right of the author has been asserted.

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Ten steps to wisdom and compassion in times of crisis

By MARK PEARSON

The world’s great religions and philosophies offer us solace and strategies during crises and chaos. In recent years I have worked with colleagues to apply some of the foundational principles of Buddhism at a secular level to journalism, ethics, communication and teaching.

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That research might have benefits for others as we face threats to our health and finances.

This 10-step approach can offer a blueprint for leadership in life, work and education for those who might not already possess a guiding religious, moral or ethical compass.

  1. The getting of wisdom: There’s much more to wisdom than just being smart. It is much closer to ‘emotional intelligence’ with a key factor being compassion for the welfare and feelings of other beings. A key to wisdom is routine reflection on each of the elements here.
  2. Perspective: The starting point is to acknowledge that suffering and stress are inevitable in our lives, and that it pays to reflect on their source – attachment to the people and things we love (including our own egos), ignorance of the information we need, and aversion to situations we fear. Things cause us pain each day, and life is punctuated by major moments of suffering interspersed with periods of joy. Knowing and accepting this might help ease suffering when it arises.
  3. Key understandings: The psychological literature supports this perspective on life’s ups and downs, and further demonstrates even small acts of kindness can improve the mental health of both the giver and receiver.
  4. Considering intent: Our big decisions – and even many of the smaller ones – can benefit from us exploring our real motivations. Why am I thinking of doing this? What’s really driving it? Is it self-advancement or self-gratification or am I trying to enhance the welfare of others?
  5. Wise livelihood: Many of us are reconsidering our jobs, careers and routines. How does this recalibration sit with our moral compass and our work ethics? Can our practices be better tailored to ease the suffering of others, or at least not add to it?
  6. Thoughtful communication: Our speech, social media use and even our body language are crucial to our relationships to others and the wider world. A short reflection before any communication shows wisdom and can contribute to the well-being of others, especially when we know so many others are anxious and troubled right now. If some leaders had paused to reflect, they might not have spoken certain words in recent weeks.
  7. Acting carefully: Speech is just one of our actions. What we do also has impacts on others, as we have learned in recent times as hoarding and distancing have suddenly appeared on our social radars. If we think before we act we can ease suffering and contribute to the happiness of others. For example, we might act to turn off the news if it is causing anxiety in our household.
  8. Maintaining effort: As we already know, all of this can take considerable effort on a range of fronts. We are being called upon to pause to reflect before we do many things we would have done without a thought just weeks ago – a handshake, a hug, touching our faces and going to the shops.
  9. Being mindful: If we can build into our daily routine just a few moments of reflection – perhaps a formal period of meditation or note-taking or a thoughtful walk, we can train ourselves to be mindful of our own thoughts and actions and their ripple effect on those close by and far away. The spread of this pandemic has involved the ripple effect of the acts of others globally, and our acts of kindness can have a similar ripple effect.
  10. Finding your ‘flow’: Just like the classical pianist or the Olympic champion, we can get ‘in the zone’ or ‘in the flow’ by combining the above strategies in our work and our lives. Practised repeatedly and effectively, we can all become maestros of wisdom and compassion even in the midst of crises – by doing what we do best to the limit of our abilities, by assessing our core talents and perhaps applying them in new ways, and by becoming kindness ambassadors by easing the burden of others.

For some of my related research, please see:

Pearson, M., McMahon, C., O’Donovan, A. and O’Shannessy, D. (2019), ‘Building journalists’ resilience through mindfulness strategies’. Journalism. https://journals.sagepub.com/doi/abs/10.1177/1464884919833253

Pearson, M., McMahon, C., and O’Donovan, A. (2018) ‘Potential benefits of teaching mindfulness to journalism students’. Asia Pacific Media Educator (December). 28:2: https://doi.org/10.1177/1326365X18800080

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 2020 – the moral right of the author has been asserted.

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Griffith Review publishes podcast on ‘Trust and Press Freedom’ #MLGriff

By MARK PEARSON

Journalist in residence colleague at Griffith University, Walkley Award-winner Nance Haxton, has produced a quality podcast on Trust and Press Freedom as a special instalment of Griffith Review‘s The Backstory.
Matters of TrustIt includes interviews with yours truly (Mark Pearson @journlaw), along with prominent journalists and academics Damien Cave, Matthew Condon, Trent Dalton, Peter Greste, Kate McClymont, Hugh Riminton, Gerard Ryle, Leigh Sales, Julianne Schultz, Sandra Sully and Mark Willacy.
As explained by Griffith Review, Haxton explores ‘Matters of Trust’ through the prism of the media – access to information, the processes of injunction and defamation that limit media freedom, the absence of a constitutionally enshrined right to freedom of expression, the shrinking of news sources with the closure of AAP and many regional newspapers, and the need for journalists to strive harder to earn more respect.
The episode of The Backstory complements Griffith Review 67: Matters of Trust.

 

Read the episode transcript here.

More articles about trust, freedom, transparency and threat can be found in Griffith Review 67Matters of Trust  – the current edition.

Print, PDF, ePub and Kindle versions, as well as subscriptions can be accessed 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 2020 – the moral right of the author has been asserted.

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Filed under censorship, contempt of court, First Amendment, free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, national security, Press freedom, sub judice, suppression, terrorism

See The Conversation for my piece: ‘Coronavirus: 5 ways to manage your news consumption in times of crisis’ #MLGriff

By MARK PEARSON

Thousands of employees internationally are already working from home in COVID-19 self-isolation because of their recent travel, related symptoms or immune system vulnerability.

But to do so while habitually checking the news on devices – and allowing 24/7 news channels to play non-stop in the background – might erode your productivity and increase stress and anxiety.

A foundational element of media literacy in the digital era is striking an appropriate balance between news consumption and other activities. Even before the current crises, Australian research demonstrated news avoidance had risen among news consumers from 57% in 2017 to 62% in 2019, driven by a sense of news fatigue.

Self-help expert Rolf Dobelli implores us to stop reading the news. While he advocates going cold turkey and abandoning all packaged news consumption, Dobelli makes exceptions for long-form journalism and documentaries.

So too does philosopher Alain de Botton in The News – A User’s Manual, while proposing more positive news and journalism’s examination of life’s deeper issues, emotions and aesthetics.

In journalism education there has been a move towards “peace journalism”, “mindful journalism”, “constructive journalism” and “solutions journalism”, where the news should not merely report what is wrong but suggest ways to fix it.

Please read the full article – including my five tips on how you can stay in the loop at home while you get your work done (and help maintain your mental health)  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 2020 – the moral right of the author has been asserted.

 

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Review: Truthteller – An Investigative Reporter’s Journey through the World of Truth Prevention, Fake News and Conspiracy Theories

By MARK PEARSON

Truthteller: An Investigative Reporter’s Journey through the World of Truth Prevention, Fake News and Conspiracy Theories, Stephen Davis (2019)

Dunedin and Chatswood: Exisle Publishing, 264 pp.,

ISBN 978-1-92533-589-7, p/bk, USD 29.99

[This review was first published in Australian Journalism Review, Volume 41, Issue 2, 2019]

Timing of the publication of the page-turning paperback Truthteller could not have been better, with the subsequent Australian Federal Police raids on the ABC offices and News Corporation journalist Annika Smethurst’s home offering a haunting currency to many of its themes.

Former journalism educator at Macleay College, Stephen Davis, has seen the craft from all angles over an impressive career as investigative reporter on the Sunday Times’ Insight team, producer for 60 Minutes, and editor of the New Zealand Herald.

Three decades of reporting international wars, espionage, crime and intrigue make for a riveting read as Davis reveals the lengths to which governments and agencies and their functionaries will go to mislead and deceive the media when they have something to hide.

Davis structures Truthteller into an introduction and conclusion plus 10 chapters taken from the ‘toolbox for lies and deception’ – each centred on a case study from his reporting career where the authorities have used a different technique of spin or outright censorship.

Highlights include:

  • The UK Government’s cover up of the truth behind British Airways flight BA149 which was given permission to land in Kuwait with 367 passengers in 1990 despite the Iraqi invasion of that nation having already commenced. The passengers were subsequently used as human shields by the Iraqis but the British government denied them compensation despite evidence the flight had been landed to deploy a troop of undercover special forces operatives;

  • The world exclusive that oil giant BP was using a Brazilian subsidiary to rape huge swathes of Amazonian rainforest and the subsequent attacks by authorities on Davis’s prime NGO source in a classic case of shooting the messenger rather than addressing the problem; and

  • The multi-government conspiracy to cover up the real reasons for the 1994 sinking of the ferry Estonia in the Baltic Sea with the loss of 852 passengers and crew amidst allegations that the captain had been whisked away and that the ship had been carrying Russian arms.

Davis’s ‘toolbox’ of techniques used by governments and big corporates include character assassination, targeting sources, generating alternative theories, delay, distance, cover-ups, legal suppression, secret deals and media manipulation.

His stated aim is “to inspire truth seekers of the future, because the battle between those seeking to expose the truth and those seeking to prevent it is an unequal struggle”. Sadly, I could not find much inspiration in the dark picture Davis paints in his case studies, most of which remain clouded in the confusing mystery of spin despite the best efforts of some of the world’s best investigative teams.

The book’s subtitle ‘An investigative reporter’s journey through the world of truth prevention, fake news and conspiracy theories’ promises to shed light on false news in the modern ‘post truth’ era. However, while Davis offers some insights into bots and trolling and a short chapter on the 2017 fake news conspiracy theory about a secret anti-Trump society in the FBI, the bulk of the book is centred on analogue media manipulation from the 1990s and early 2000s when Davis was doing most of his international reporting.

There is a paucity of references and a gimmicky technique of listing random other news items from the particular case study’s news day at the start of each chapter which contribute to the impression it is a popular read rather than a worthy set text or reference work.

Nevertheless, it is a fascinating memoir and a useful vehicle for the media literacy of the masses, whose eyes will be opened to the methods governments and multinational companies have used to keep truth from their citizenry.

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 2020 – the moral right of the author has been asserted.

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Five media law essentials for journalists, publishers and students #MLGriff #auspol #medialaw #auslaw

By MARK PEARSON

Much has happened in the field of media and social media law, even since the sixth edition of our Journalist’s Guide to Media Law (Pearson & Polden) was published in 2019.

As media law students start their academic year at Australian institutions, this calls for a quick update of the five most important risks facing journalists in the digital era.

  1. Defamation: Reforms to Australian defamation laws appear imminent, but the basic principles will remain the same. Pause before publishing anything criticising or ridiculing anyone and consider your language, evidence base, intended meaning, motivation and working knowledge of the defences available to you. If in doubt, seek legal advice. If you can’t afford that advice, then modify the material or leave it out – unless you have considerable defamation insurance. Society needs robust journalism, but remember it can also need deep pockets to defend it. The 2019 case of Voller v. Nationwide News underscores the decision in Allergy Pathway almost a decade ago: publishers may be responsible for the comments of others on their social media sites, particularly when posting articles on inflammatory topics or people. Ashurst law firm has produced a useful flow-chart to explain the steps a publisher should take to minimise the risks of liability for comments by third parties on their social media sites.
  2. High profile trials: Regardless of the fate of the 30 journalists and news organisations still facing contempt action over their reporting of last year’s trial of Cardinal George Pell, the episode reinforces the dangers facing those reporting and commenting upon major court matters. As we show in our crime reporting time zones flowchart in our text, a criminal case involves an interplay of risks including defamation, contempt and other restrictions. Courts and prosecutors take suppression orders seriously, so it is wise to pause to reflect and to take legal advice when navigating this territory.
  3. National security risks: Many of the 70-plus anti-terror laws passed in Australia since 2001 impact on journalists, with jail terms a real risk for those reporting on special intelligence operations, ASIO, suppressed trials, and any matter using insider government sources, along with a host of other risks as identified by Australia’s Right To Know’s submission to the Parliamentary Joint Committee on Intelligence and Security in 2019. The laws present a minefield for journalists covering national security, defence, immigration and related topics. It is a specialist field requiring a close familiarity with the numerous laws.
  4. Breach of confidence: Journalists are reluctant to reveal their own confidential sources, but they are keen to tell the secrets of others – particularly if matters of public interest are being covered up. Actions for breach of confidence allow individuals and corporations to seek injunctions to prevent their dirty linen being aired. Further, the Australian Law Reform Commission has recommended a new action of serious invasion of privacy and the future development of the action for breach of confidence with compensation for emotional distress. The Parliament has not yet embraced the proposal but judge-made law on privacy and confidentiality remains a possibility.
  5. Compromising sources: The journalist-source relationship is one where the journalist’s ethical obligation to preserve confidentiality is threatened by a number of laws. Most Australian jurisdictions now have shield laws giving judges a discretion to excuse a journalist from revealing a source after weighing up various public interest factors. This is far from a watertight protection and journalists face potential jail terms for ‘disobedience contempt’ for refusing a court order to reveal a source or hand over materials. Further, as two ABC journalists and News Corporation’s Annika Smethurst discovered last year, journalists can also face criminal charges for just handling or publishing confidential or classified materials given to them by whistleblowers, even if the matter relates to an important matter of public interest. The validity of the warrants to raid them over ‘dishonestly receiving stolen property’ (Commonwealth documents) was upheld by a Federal Court earlier this year, despite a range of arguments including shield laws and the constitutional implied freedom to communicate on political matters. Such action, combined with the far-reaching powers of authorities to access communications metadata and the proliferation of public CCTV footage presents huge challenges to journalists trying to keep their whistleblower sources secret. It is one thing to promise confidentiality to a source, but quite another to be able to honour that promise given modern surveillance technologies and the legal reach of agencies.

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 2020 – the moral right of the author has been asserted.

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