Category Archives: media ethics

Ten steps for assessing your social media risk

By MARK PEARSON

Colleague Susan Grantham and I have just co-written a new book, Social Media Risk and the Law – A Guide for Global Communicators, published in September 2021 by Routledge.  

Social Media Risk and the Law.inddIt presents a stakeholder-oriented approach to risk minimisation designed to help social media managers and moderators anticipate, identify, address and balance these dangers and opportunities.

As part of its launch we have written a blog on the Routledge site about the importance of understanding how to engage with online and social media conversations. We recommend ten steps to best establish a general social media legal risk assessment that applies to your overall professional social media use and the way it interacts with your organization’s policies and processes. You can find our blog on the ten steps here. Enjoy!


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, fully online) or Media Law (undergraduate, available online or on campus).

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 censorship, communication, defamation, First Amendment, free expression, intellectual property, Internet, journalism, journalism education, libel, media ethics, Media freedom, media law, media literacy, Media regulation, national security, open justice, Press freedom, Privacy, public relations, reflective practice, risk, risk management, social media, sub judice, suppression

How to stay out of court while using social media in business

By MARK PEARSON

Social media offers unlimited opportunities, but professional communicators need effective risk analysis strategies to assess potential legal hazards when posting or hosting content.

Screen Shot 2021-04-09 at 2.15.24 pmA stakeholder-oriented approach to risk minimisation can help social media managers and moderators anticipate, identify, address and balance these dangers and opportunities.

In our new book, colleague Susan Grantham and I have identified ten key questions an organisation might ask in establishing its level of social media legal exposure.

I review these ten questions and a further five specific questions for analysing specific social media legal risks in my latest blog in Griffith University’s Professional Learning Hub’s Thought Leadership series here.


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.

Leave a comment

Filed under censorship, communication, defamation, First Amendment, free expression, intellectual property, Internet, journalism, journalism education, libel, media ethics, Media freedom, media law, media literacy, Media regulation, national security, open justice, Press freedom, Privacy, public relations, reflective practice, risk, risk management, social media, sub judice, suppression

Insights into open justice law reform

By MARK PEARSON

The NSW Law Reform Commission is conducting a review into open justice. 

Congratulations to the NSW Government for commissioning such a review.

Here are some insights I will be presenting to a roundtable convened by the commission. Some are drawn from a joint preliminary submission I prepared with colleagues Jane Johnston, Patrick Keyzer and Anne Wallace. Others are my own views after considering the Commission’s Consultation Paper 22 on the topic.

1. Macro versus micro issues

My first major concern is to do with the nature of most such inquiries – their primary focus is on the reform of the law related to the topic in the particular jurisdiction – in this case NSW. While this inquiry’s terms of reference do direct it to consider the findings of the (Commonwealth) Royal Commission into Institutional Responses to Child Sexual Abuse regarding the public interest in exposing child sexual abuse offending and ‘comparable legal and practical arrangements elsewhere in Australia and overseas’, the latter consideration is mainly used as a reference point to help guide the NSW reforms. There is too little encouraging steps towards uniformity of the laws across jurisdictions, which should be the number one priority in an era where media and social media defy jurisdictional borders. To this end:

a. A key recommendation should be to collaborate with other jurisdictions (perhaps using joint law reform commission inquiries on such matters) to achieve a semblance of uniformity so that journalists and others do not need to know the myriad of publishing restrictions that might apply to a single investigation or post across multiple states and territories (plus the Commonwealth).

b. When reviewing the micro changes to particular rules or laws affecting media research or publication, such inquiries should provide a table of inter-jurisdictional approaches to the topic and then propose the most common/popular approach as the default, only supplanted by compelling arguments to the contrary. This would represent a significant step to uniformity on each facet of the reforms.

c. Reform commissions should seek out national solutions to cross-jurisdictional publishing problems. For example, on the topic of a register of suppression orders, a recommendation should be that the Attorney-General be advised to bring forward to the Meeting of Attorneys-General (MAG) a proposal for a new national register of suppression orders, with all state, territory and Commonwealth jurisdictions feeding into the system. The Commission should be applauded for suggesting a national regime for access to court documents as part of its consultation paper (at p. 155).

2. Micro issues

I bring to the roundtable some views on the specific topic at hand – ‘Enforcing restrictions on publication or disclosure and other digital technology issues’.

a. The Commission is considering two options to help increase awareness of the existence of suppression and non-publication orders – to either to improve the notification system by establishing a new public body to notify likely parties that a suppression order exists, or to create a searchable register of NSW suppression orders available to the public and/or the media. To my mind, these options should not be mutually exclusive. Both could be proposed, and the proposal for a register should suggest a collaboration for a new national system. Any notification body should also be briefed to monitor social media actively for breaches and notifications/warnings, because the mainstream media is strongly disadvantaged by the current situation that allows for rampant social media discussion in breach of suppression orders while the media, who are aware of such orders, have their hands tied and continue to lose audience to social media in the process.

b. The issue of the extraterritorial application of offences for the breach of NSW publishing restrictions also has strong social media vs mainstream media dimensions. A breach by traditional media becomes much more obvious and enforceable, even though its audience might only number in the thousands while social media users might be committing the same breach in their millions. This happened in the Pell case in Victoria. So too did the international breach of orders by major media entities beyond the reach of prosecutors. It can become futile to issue and attempt to enforce restrictions when there is no international reach. Nevertheless, a social media active approach by the proposed new public body could make some inroads.

c. International online intermediaries need to be held account for not acting within a reasonable time to remove flagrant breaches of publishing restrictions once they have been brought to their attention. Given the size of such operations, a 24 hour notice period should be negotiable starting point as a time limit after notification. Again, a new public body established in this space could be responsible for monitoring and initiating such demands on a routine basis.

d. The myriad of offences, penalties, elements and exceptions certainly require standardisation to a recklessness standard. Strict liability is too high a hurdle given the widespread level of court and justice illiteracy among the broader social media population. Financially stricken mainstream media organisation have also reduced training in this space. A new public body with judicial powers could institute a warning system once a breach has been identified, and breaches could then be dealt with as disobedience contempt or at an “intent” level if the breach recurs after the warning.

e. This approach would feed into the question of support standardising penalties across the different offences. Defiance of an order could be dealt with harshly under the disobedience contempt powers of the new public body. However, in a democratic society jail penalties should only be used in the most extreme cases of disobedience, and certainly not at first instance. Financial penalties – perhaps accompanied by other innovative orders related to suspension of social media use – should be preferred. The scale of financial penalties can increase for the most serious cases once imprisonment is removed from the equation.

f. Two years is too long a period to bring a prosecution for a publishing offence. A one year limitation period applies effectively to defamation, so there is no reason why it should not also apply to such publishing offences.

g. The suggestion to establish a Court Information Commissioner should be applauded, with the functions as described in the report.

h. Proposals for helping avoid juror to exposure to prejudicial information are reasonable, particularly having them swear or affirm they will not make inquiries, repeating jury directions and allowing judge-alone trials when pre-trial publicity has stood to prejudice proceedings. However, missing here is the mention of juror training in the area. A simple juror course on the issue can be administered and tested online and would add to their understanding of the issue. Again, this is a topic that should be reformed nationally.

i. The extent to which the use of social media in court by journalists should be examined as part of national reform. Journalists attend court in different jurisdictions and there needs to be uniformity. A 15 minute delay before posting is a reasonable approach.

j. As virtual courts become more necessary and common, they should be as open to the public and media as other proceedings given the importance of open justice as a principle. New rules might need development and reinforcement, such as a ban on the screen capturing of images or broadcasting footage from proceedings, as with recent BBC contempt fine – https://www.lawgazette.co.uk/law/bbc-fined-28000-for-broadcasting-footage-of-remote-hearing/5107273.article


© Mark Pearson 2021

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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Filed under contempt of court, courts, media ethics, Media freedom, media law, Media regulation, open justice, sub judice

Social media law resources for professional communicators

By MARK PEARSON

Colleague Susan Grantham and I have written a new book – Social Media Risk and the Law: A Guide for Global Communicators – now in production for publication by Routledge later this year.

We offer professional communicators strategies for taking advantage of social media while also navigating the ethical, legal, and organisational risks that can lead to audience outrage, brand damage, expensive litigation and communication crises.

We take a global approach to risk and social media law, drawing on case studies from key international jurisdictions to explain and illustrate the basic principles.

Of course, an international approach means we need to direct readers to more detailed information about social media laws in their own jurisdictions. We encountered many resources for this purpose along the way, and offer this compilation as a starting point for social media managers wanting to learn more …

Social media law resources for professional communicators – a starting point

Here are some starting points for further information about the main social media law topics covered in our book – Grantham, S. and Pearson, M. (2021, forthcoming). Social Media Risk and the Law: A Guide for Global Communicators. Routledge: Oxon and NY. Topics covered include general information, news, human rights and free expression, cases, business and corporate laws, crime and justice, defamation, intellectual property and privacy/confidentiality. [Thanks to inforrm.org for some useful suggestions. Many more media law blogs and UK resources are listed there.]

International

General, miscellaneous and news

Guardian media law blog – https://www.theguardian.com/media/medialaw

International Forum for Responsible Media blog – https://inforrm.org/

Shear on Social Media Law – https://www.shearsocialmedia.com/media_opportunities

Human rights and free expression

Universal Declaration of Human Rights – https://www.un.org/en/universal-declaration-human-rights/

Article 19 – article19.org

Reporters Without Borders – https://rsf.org/en

IFEX – International Free Expression – https://ifex.org/

Index on Censorship – https://www.indexoncensorship.org/

Transparency International – https://www.transparency.org/en

Media Defence – https://www.mediadefence.org/about/

Cases and news

World Legal Information Institute – http://www.worldlii.org/countries.html

Business laws and regulators

International Consumer Protection and Enforcement Network (ICPEN) https://icpen.org/

Consumers International – https://www.consumersinternational.org/

International consumer protection agencies – https://www.ftc.gov/policy/international/competition-consumer-protection-authorities-worldwide

List of securities regulators internationally – https://www.iosco.org/about/?subsection=membership&memid=1

Crime and justice

UN Global Programme on Cybercrime – https://www.unodc.org/unodc/en/cybercrime/global-programme-cybercrime.html

Defamation

International Press Institute – International Standards on Criminal and Civil Defamation Laws – http://legaldb.freemedia.at/international-standards/

Intellectual property

World Intellectual Property Organisation – https://www.wipo.int/portal/en/index.html

Directory of intellectual property offices – https://www.wipo.int/directory/en/urls.jsp

 Privacy and confidentiality

Global Privacy Enforcement Network – https://www.privacyenforcement.net/

International Association of Privacy Professionals (IAPP) – https://iapp.org/

Africa

General and miscellaneous

Collaboration on International ICT Policy in East and Southern Africa (CIPESA) – https://cipesa.org/

Human rights and free expression

African Freedom of Expression Exchange (AFEX) – https://www.africafex.org/

African Union – Democracy, Law and Human Rights – https://au.int/en/democracy-law-human-rights

Freedom of Expression Institute – http://www.fxi.org.za/component/option,com_frontpage/Itemid,36/

Case law databases

African case law databases – http://www.worldlii.org/cgi-bin/gen_region.pl?region=250

African Legal Information Institute – https://africanlii.org/

Veritas Zimbabwe – http://www.veritaszim.net/

Business laws and regulators

National Consumer Commission (South Africa) – https://www.thencc.gov.za/

Financial Sector Conduct Authority – https://www.fsca.co.za/

Crime and justice

Institute for Security Studies – https://issafrica.org/

International Justice Resource Centre – Africa – https://ijrcenter.org/regional/african/

Defamation

INFORRM – South Africa – https://inforrm.org/category/south-africa/

Intellectual property

Department of Deeds Companies and Intellectual Property (Zimbabwe) – http://www.dcip.gov.zw/

Privacy and confidentiality

Data Protection Africa – https://dataprotection.africa/

Asia-Pacific

General and miscellaneous

Asian Media Information and Communication Centre (AMIC) – https://amic.asia/

Pacific Media Watch – https://pmc.aut.ac.nz/profile/pacific-media-watch

Asian Law Network Blog – https://learn.asialawnetwork.com/

Law and Other Things blog (India) – https://lawandotherthings.com/

Human rights and free expression

Free Speech in China – http://blog.feichangdao.com/

Case law databases

Asian case law (WorldLII) – http://www.worldlii.org/cgi-bin/gen_region.pl?region=2647

Pacific Islands Legal Information Institute – http://www.paclii.org/index.shtml

Business laws and regulators

The ASEAN Committee on Consumer Protection (ACCP) – https://aseanconsumer.org/

Singapore Competition and Consumer Commission – https://www.cccs.gov.sg/

Asia Law Network Blog – Consumer Law – https://learn.asialawnetwork.com/cat/personal/consumer-law/

Crime and justice

International Justice Resource Centre – Asia – https://ijrcenter.org/regional/asia/

Asia Law Network Blog – Criminal and Litigation – https://learn.asialawnetwork.com/cat/personal/criminal-and-litigation/

Netmission.asia – https://netmission.asia/

Defamation

Asia Law Network Blog – Defamation – https://learn.asialawnetwork.com/cat/personal/defamation/

Slater and Gordon – Destination Defamation, South-East Asia – https://www.slatergordon.com.au/blog/business-law/destination-defamation-south-east-asia

Intellectual property

Intellectual Property Office of Singapore – http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home

Privacy and confidentiality

Asia Pacific Data Protection and Cyber Security Guide 2020 – https://iapp.org/resources/article/311636/

Australia

General and miscellaneous

Communications and Media Law Association – https://www.camla.org.au/

Gazette of Law and Journalism – https://glj.com.au/

Professor Mark Pearson’s blog – www.journlaw.com

Human rights and free expression

Australian Human Rights Commission – Social Media – https://humanrights.gov.au/quick-guide/12098

MEAA media freedom reports – https://www.meaa.org/category/mediaroom/reports/

Case law databases

Australasian Legal Information Institute (AustLII) – http://www.austlii.edu.au/

Federal Register of Legislation – https://www.legislation.gov.au/

Business laws and regulators

Australian Competition and Consumer Commission – Social Media – https://www.accc.gov.au/business/advertising-promoting-your-business/social-media

Australian Communications and Media Authority – https://www.acma.gov.au/

Australian Securities and Investments Commission – https://asic.gov.au/

Law Society of NSW – Guidelines on Social Media Policies – https://www.lawsociety.com.au/resources/resources/my-practice-area/legal-technology/guidelines-social-media

Fair Work Commission – https://www.fwc.gov.au/

 Crime and justice

High Court of Australia – www.hcourt.gov.au

Australian Attorney-General’s Department – Courts – https://www.ag.gov.au/legal-system/courts

The Australian Constitution – https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/

Defamation

Defamation Watch (Justin Castelan) – http://defamationwatch.com.au/about/

Intellectual property

Copyright Office – https://www.communications.gov.au/what-we-do/copyright

Copyright Agency – https://www.copyright.com.au/

Australian Copyright Council – https://www.copyright.org.au/

IP Australia – https://www.ipaustralia.gov.au/

Privacy and confidentiality

Office of the Australian Information Commissioner – Social Media Privacy – https://www.oaic.gov.au/privacy/your-privacy-rights/social-media-and-online-privacy/

Australian Privacy Foundation – https://privacy.org.au/

Canada

General and miscellaneous

Department of Justice – Canada’s System of Justice – https://www.justice.gc.ca/eng/csj-sjc/index.html

Canadian Bar Association – https://www.cba.org/Home

Legal Line Canada – https://www.legalline.ca/

Human rights and free expression

Canadian Charter of Rights and Freedoms – https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/index.html

Canadian Journalists for Free Expression – https://www.cjfe.org/

Case law databases

Canadian case law (WorldLII) – http://www.worldlii.org/catalog/51528.html

Supreme Court of Canada – https://www.scc-csc.ca/case-dossier/index-eng.aspx

Canadian Media Lawyers Association – https://canadianmedialawyers.com/

Business laws and regulators

Canadian Advertising and Marketing Law – http://www.canadianadvertisinglaw.com/

Office of Consumer Affairs – http://consumer.ic.gc.ca/eic/site/oca-bc.nsf/eng/home

Canadian Bar Association – Social Media Policies in the Workplace – https://www.cba.org/Publications-Resources/CBA-Practice-Link/2015/2014/Social-media-policies-in-the-workplace-What-works

Canadian Securities Administrators – https://www.securities-administrators.ca/

Crime and justice

Supreme Court of Canada – https://www.scc-csc.ca/home-accueil/index-eng.aspx

Media Smarts – Online Hate and Canadian Law – https://mediasmarts.ca/digital-media-literacy/digital-issues/online-hate/online-hate-canadian-law

The Court.ca – blog on Canadian Supreme Court – http://www.thecourt.ca/

Defamation

Mondaq Canada – A Primer on Defamation – https://www.mondaq.com/canada/libel-defamation/725558/a-primer-on-defamation

Intellectual property

Canadian Intellectual Property Office – http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home

Privacy and confidentiality

Office of the Privacy Commissioner of Canada – https://www.priv.gc.ca/en/

Privacy Canada – https://privacycanada.net/

David T.S. Fraser’s Privacy Law Resources – http://privacylawyer.ca/

Europe (see below for UK)

General and miscellaneous

Droit de technologies (France) – https://cours-de-droit.net/droit-des-ntic-droit-des-nouvelles-technologies-de-l-information-et-de-a121602690/

Human rights and free expression

ECHR blog – https://www.echrblog.com/

The Irish for Rights – http://www.cearta.ie/

Case law databases

Eastern Europe case law (WorldLII) – http://www.worldlii.org/cgi-bin/gen_region.pl?region=2210

Western Europe case law (WorldLII) – http://www.worldlii.org/cgi-bin/gen_region.pl?region=251

Business laws and regulators

European Consumer Centre Network (ECC-Net) – https://ec.europa.eu/info/live-work-travel-eu/consumer-rights-and-complaints/resolve-your-consumer-complaint/european-consumer-centres-network-ecc-net_en

Citizens Advice – https://www.citizensadvice.org.uk/

Crime and justice

European Justice – Courts – https://e-justice.europa.eu/content_eu_courts-15-en.do

Court of Justice of the European Union – https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en

Defamation

Council of Europe – Defamation – https://www.coe.int/en/web/freedom-expression/defamation

Czech Defamation Law – https://czechdefamationlaw.wordpress.com/

Intellectual property

European Commission – Intellectual Property Rights – https://ec.europa.eu/info/business-economy-euro/doing-business-eu/intellectual-property-rights_en

Manual on European Defamation Law – Media Defence – https://www.mediadefence.org/resources/manual-on-european-defamation-law/

Privacy and confidentiality

General Data Protection Regulation – EU – https://gdpr.eu/

Europe Data Protection Digest – https://iapp.org/news/europe-data-protection-digest/

New Zealand

General and miscellaneous

Ministry of Justice – Harmful digital communications – https://www.justice.govt.nz/courts/civil/harmful-digital-communications/

NZ Law Society – Social media’s legal criteria – https://www.lawsociety.org.nz/news/lawtalk/issue-812/social-medias-legal-criteria/

Human rights and free expression

NZ Government – Human rights in NZ – https://www.govt.nz/browse/law-crime-and-justice/human-rights-in-nz/

Human Rights Commission – https://www.hrc.co.nz/

New Zealand Bill of Rights Act 1990 – https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html

Case law databases

New Zealand Legislation – https://www.legislation.govt.nz/

New Zealand Legal Information Institute Databases – http://www.nzlii.org/databases.html

Courts of NZ Judgments – https://www.courtsofnz.govt.nz/judgments

Business laws and regulators

Commerce Commission – https://comcom.govt.nz/

Consumer Protection – Online safety laws and rules – https://www.consumerprotection.govt.nz/general-help/consumer-laws/online-safety-laws-and-rules/

Crime and justice

Ministry of Justice – Courts – https://www.justice.govt.nz/courts/

Courts of NZ – https://www.courtsofnz.govt.nz/

Defamation

Defamation Update NZ – https://defamationupdate.co.nz/

Intellectual property

NZ Intellectual Property Office – https://www.iponz.govt.nz/

Privacy and confidentiality

Office of the Privacy Commissioner – https://www.privacy.org.nz/

Ministry of Justice – Key Initiatives – Privacy – https://www.justice.govt.nz/justice-sector-policy/key-initiatives/privacy/

Privacy Foundation NZ – https://www.privacyfoundation.nz/

South America

General and miscellaneous

Marco Civil Law of the Internet in Brazil – https://www.cgi.br/pagina/marco-civil-law-of-the-internet-in-brazil/180

Human rights and free expression

American Convention on Human Rights – Article 13 – http://www.oas.org/en/iachr/expression/showarticle.asp?artID=25&lID=1

Article 19 – Brazil and South America regional office – https://www.article19.org/regional-office/brazil-and-south-america/

Case law databases

Legal Information Institute – World legal materials from South America – https://www.law.cornell.edu/world/samerica

Business laws and regulators

OECD – Corporate Governance in Latin America – https://www.oecd.org/daf/ca/corporategovernanceinlatinamerica.htm

Crime and justice

Legal Information Institute – World legal materials from South America – https://www.law.cornell.edu/world/samerica

Wilson Center – The Brazilian Judicial System – https://www.wilsoncenter.org/publication/the-brazilian-judicial-system

Defamation

Committee to Protect Journalists – Criminal Defamation Laws in South America – https://cpj.org/reports/2016/03/south-america/

Intellectual property

BizLatin Hub – Overview – Intellectual Property Regulations in Latin America – https://www.bizlatinhub.com/overview-intellectual-property-regulations-latin-america/

Intellectual Property Magazine – South America – https://www.intellectualpropertymagazine.com/world/south_america/

Privacy and confidentiality

Bloomberg BNA – Privacy Law in Latin America and the Caribbean (Cynthia Rich) – https://iapp.org/media/pdf/resource_center/Privacy_Laws_Latin_America.pdf

United Kingdom

General and miscellaneous

International Forum for Responsible Media blog – https://inforrm.org/

Brett Wilson Media Law blog – http://www.brettwilson.co.uk/blog/category/media-law/

Information Law and Policy Centre – https://infolawcentre.blogs.sas.ac.uk/

Human rights and free expression

Transparency Project – http://www.transparencyproject.org.uk/blog/

Case law databases

British and Irish Legal Information Institute (BAILII) – https://www.bailii.org/

Business laws and regulators

Competition and Markets Authority – https://www.gov.uk/government/organisations/competition-and-markets-authority

ACAS – Unfair Dismissal – https://www.acas.org.uk/dismissals/unfair-dismissal

Financial Conduct Authority – https://www.fca.org.uk/

Crime and justice

Courts and Tribunals Judiciary – Structure of the courts and tribunal system – https://www.judiciary.uk/about-the-judiciary/the-justice-system/court-structure/

The Supreme Court – https://www.supremecourt.uk/

Defamation

BBC News – Defamation cases – https://www.bbc.co.uk/news/topics/cxwke9d43kkt/defamation-cases

Scandalous blog – https://www.fieldfisher.com/en/services/dispute-resolution/defamation-and-privacy/defamation-blog

Carruthers Law – Defamation definitions – https://www.carruthers-law.co.uk/our-services/defamation/defamation-definitions/

Intellectual property

UK Intellectual Property Office – http://www.ipo.gov.uk/

UK Copyright Service – https://copyrightservice.co.uk/

Privacy and confidentiality

Gov.UK – Data Protection – https://www.gov.uk/data-protection

Information Commissioner’s Office – https://ico.org.uk/

United States

General and miscellaneous

Social Media Law Bulletin – https://www.socialmedialawbulletin.com/

HG.org Law and Social Media – https://www.hg.org/legal-articles/the-law-and-social-media-31695

Technology and Marketing Law Blog – Eric Goldman – https://blog.ericgoldman.org/

Human rights and free expression

Center for Internet and Society (Stanford University) – http://cyberlaw.stanford.edu/

Committee to Protect Journalists – cpj.org

US Courts – What does free speech mean? – https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does

Freedom Forum Institute, First Amendment Center – https://www.freedomforuminstitute.org/first-amendment-center/

Case law databases

US case law (WorldLII) – http://www.worldlii.org/us/

Justia US law – https://law.justia.com/

Legal Information Institute – Cornell University – https://www.law.cornell.edu/

Internet cases – Evan Law blog – http://evan.law/blog/

Business laws and regulators

Federal Trade Commission – https://www.ftc.gov/

US Department of Health and Human Services – Social media policies – https://www.hhs.gov/web/social-media/policies/index.html

US State Consumer Protection Offices – https://www.usa.gov/state-consumer

Crime and justice

Supreme Court of the United States – https://www.supremecourt.gov/

United States Courts – https://www.uscourts.gov/

Cybersecurity and Infrastructure Security Agency – https://www.cisa.gov/cybersecurity

Homeland Security – Cybersecurity – https://www.dhs.gov/topic/cybersecurity

Defamation

Legal Information Institute – Defamation – https://www.law.cornell.edu/wex/defamation

Freedom Forum Institute – Quick guide to libel law – https://www.freedomforuminstitute.org/first-amendment-center/primers/libellaw/

Intellectual property

US Copyright Office – https://www.copyright.gov/

US Patent and Trademark Office – https://www.uspto.gov/

Privacy and confidentiality

Data protection law – HG.org – https://www.hg.org/data-protection.html

US Department of State – Privacy Office – https://www.state.gov/bureaus-offices/under-secretary-for-management/bureau-of-administration/privacy-office/


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 and Susan Grantham 2021 – the moral right of the author has been asserted.

Leave a comment

Filed under censorship, communication, defamation, First Amendment, free expression, intellectual property, Internet, journalism, journalism education, libel, media ethics, Media freedom, media law, media literacy, Media regulation, national security, open justice, Press freedom, Privacy, public relations, reflective practice, risk, risk management, social media, sub judice, suppression

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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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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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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