Category Archives: Media freedom

Danish expert explains European media law #MLGriff

By MARK PEARSON

Danish School of Media and Journalism media law associate professor Thomas Pallesen visited us at Griffith University this month and delivered guest lectures to my media law classes.

We recorded this interview where he explained the European approach to media law, particularly how courts strike a balance between the rights to free expression and privacy.

View the interview here [10 mins 05 secs, produced by Shenil Ranpura, Griffith University].

 

© Mark Pearson 2018

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

By MARK PEARSON

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

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

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

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

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

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

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

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

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

 

© Mark Pearson 2018 and John Stuart Mill 1859

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Article 10 expert discusses free expression as a human right #MLGriff

By MARK PEARSON

It was a pleasure hosting two esteemed European media and law colleagues over summer.

Recently retired colleagues Emeritus Professor Dirk Voorhoof (University of Ghent) and Dr Inger Høedt-Rasmussen (University of Copenhagen) toured Australia and New Zealand, visiting law schools and media law colleagues along the way.

They recently formed the Legal Human Academy, an organisation based online from Denmark critiquing media law, human rights and legal education issues.

Professor Voorhoof is an acknowledged expert in Article 10 (free expression) rights and cases in Europe, so I took the opportunity to interview him about this for the benefit of media law students.

View the interview here [14 mins 41 secs, produced by Bevan Bache, Griffith University].

 

© Mark Pearson 2018

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

By MARK PEARSON

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

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

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

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

Australia: Whither media reform under Abbott? – Mark Pearson

25 11 2013

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

Read the rest of this entry »

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

13 10 2013

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

 

Privacy On Parade – Mark Pearson

12 05 2012

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

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

 

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

10 03 2012

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

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

 

Consumer law holds solution to grossly irresponsible journalism – Mark Pearson

9 11 2011

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

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


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

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

11 04 2012

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

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


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

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

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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DEFAMATION CASE UPDATE: Zoef v Nationwide News Pty Ltd – identification and offer of amends appealed #MLGriff

By MARK PEARSON

CASE UPDATE: Zoef v Nationwide News Pty Ltd – 2015, 2016 and 2017

I blogged in 2016 about a case where the mistaken identification of an innocent octogenarian tailor in place of his alleged gun-running son produced a useful case study for media law educators trying to explain the basic elements of defamation.

Indeed, the NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 remains an excellent introduction to defamation, although in October 2016 the NSW Court of Appeal overturned the publisher’s defence of “offer of amends” which was originally granted by the lower court, in the appeal case of Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, and awarded the plaintiff $150,000 in damages. The appellant, Mr Tony Zoef, also had a partial victory in a more recent appeal over the backdating of the damages award, costs and interest owing in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2.

The first appeal is useful for educators explaining identification issues in defamation and the “offer of amends” defence requirements under s 18 of the Defamation Act 2005 (NSW) (Defamation Act) – and its equivalent in other Australian jurisdictions – while the 2017 appeal holds little value for media law teachers.

The case centred upon an article published in The Daily Telegraph on 22 August 2013.

It appeared a relatively straightforward case of confused identity, where the reporter mistakenly attributed to the older Mr Zoef – a suburban Sydney tailor – the alleged crimes of his son who lived at the same address. At trial, the sole basis on which Mr Zoef’s claim was dismissed was the newspaper’s defence that Mr Zoef had failed unreasonably to accept its offer of amends.

The article in the Telegraph (22-8-13, p. 9) carried the heading “Tailor’s alter ego as a gunrunner”, which might also make an interesting topic of discussion for students around the issue of sub judice contempt: Does such a heading carry a presumption of the accused’s guilt when accompanying a report of a preliminary court appearance? [The article in question is attached to the judgment as a pdf file.]

The article portrayed a then 81-year-old suburban tailor (with a distinctive surname ‘Zoef’) as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

As I blogged in 2016, the trial judgment by District Court Judge Leonard Levy is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first [*** considered on appeal].
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age]. [*** considered on appeal].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff [***the trial judge’s decision which was subsequently overturned on appeal].

The trial judge had held that, despite the serious errors in the reporting of the story and a dispute over whether the publisher’s offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

In the leading appeal judgment, Justice Fabian Gleeson stated:

Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent’s defence under s 18 of the Defamation Act. (at para 78).

His reasons for that decision involved a step-by-step appraisal of the offer of amends defence and thus make useful instructional material for educators wanting to explain this defence to students. It should also serve to remind journalists that the offer of amends is very much a ‘lawyers’ defence’ – not something that should be handled by journalists or editors independent of legal advice – and given its time constraints it means that counsel from lawyers on the efficacy and wording of any such offer should be sought promptly.

The publisher also challenged the trial judge’s findings on whether the plaintiff had been identified in the article when it carried a photograph of his son and stated his age as 43 years old.

The Court of Appeal affirmed the trial judge’s decision that Mr Zoef Sr had been identified in the article despite those countering factors. Justice Gleeson ruled:

The article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a “43 year old” which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person’s name, profession and locality in the foregoing paragraph.

In respect of the photograph, his Honour’s finding that it was “immaterial” is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, “less than distinct”. Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant’s customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant. (paras 159-160).

So there you have it. The Zoef case – both at trial and on appeal – holds valuable lessons for media law students and educators are encouraged to use it as a case study. I have done so successfully with both journalists and tertiary students.

———–

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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Book review: Hong Kong Media Law

By MARK PEARSON

[First published in Media and Arts Law Review (LexisNexis) in (2016) 21 MALR 119].

Book review

Hong Kong Media Law: A Guide for Journalists and Media Professionals

By Doreen Weisenhaus, with contributions by Rick Glofcheski and Yan Mei Ning (Hong Kong University Press, 2nd ed, 2014) 480 pp. ISBN 9789888208098.

Mark Pearson

hkmedialawcoverMost authors of media law texts would not expect their books to become important historical reference works for centuries to come.
But that is exactly what I predict will eventuate for the University of Hong Kong’s Doreen Weisenhaus with her Hong Kong Media Law: A Guide for Journalists and Media Professionals, now in its expanded second edition.
Unlike most of our texts explaining the media law in English language jurisdictions, based predominantly on the inevitable evolution of the common law and legislation in countries like the United Kingdom, Canada, Australia and New Zealand, the two editions of this book have captured communication law at that crucial historical juncture two decades after the People’s Republic of China resumed control of Hong Kong.
The compendium is an articulate explanation of media law still largely entrenched in the free expression of a former British colony, with a growing series of riders and consequences both within Hong Kong and for journalists who venture onto the mainland in their reporting and publishing.
For all those reasons, it is as fascinating as it is complex, making sense of a body of diverse laws spanning contrasting legal frameworks, press systems and languages in a unique historical moment.
Weisenhaus (and her contributing authors) have explained this clearly to journalists and students without falling for the temptation of over-simplifying what is undeniably a sophisticated and organic jurisprudence.
She does this by featuring chapters on the usual suspects in a media law text — the legal system, defamation, court reporting and contempt, privacy, access to information, copyright, and obscenity and indecency. Of course, all of those standard chapters also feature key cases and points of difference reflecting Hong Kong’s history, Chinese control, and the region’s cosmopolitan role as the financial hub of Asia.
However, important other chapters have a stronger Chinese influence on reporting the mainland, obscenity and indecency and media regulation in the age of convergence.
Appendices on key statutes and regulations, judicial practice directions, Access to Information, and useful links also feature an appendix by accomplished investigative journalists Chan Pui-king and Vivian Kwok on searching for public records of courts.
The instructional design of the text is also admirable. Each chapter starts with some frequently asked questions on the topic and directions to the section of the chapter where the answer might be found. The key chapters also feature a useful checklist for journalists on the subject at hand, clearly accessible as a quick refresher for a reporter on the run.
All this is enhanced by the author’s accomplished writing style — clear, concise and engaging — reflecting her earlier career as city editor of The New York Times, the first legal editor of The New York Times Magazine and later its law and politics editor, and her earlier stint as editor-in-chief of The National Law Journal.
Weisenhaus is now associate professor and director of the Media Law Project at the University of Hong Kong’s Journalism and Media Studies Centre, a regular panellist on international free expression and media law forums, and contributor to comparative works.
In this book she impresses upon the reader the strong independence of the Hong Kong courts and the entrenched values of media freedom, each under pressure from the same kinds of national security measures confronting journalism in Western democracies combined with special new tensions as Hong Kong continues its adaption to its role as a Special Administrative Region of the People’s Republic of China.
As the author explains in her overview, ‘those winds from the mainland have grown stronger, despite the “one country, two systems” principle that is supposed to govern relations between the mainland and Hong Kong’.
‘Thus, concern persists both within and beyond Hong Kong over the degree of its press freedom and the eventual contour of its media-law landscape, partly because of uncertainty about how much of a role the mainland will have in shaping (if not controlling) it’, she continues.
While the China question dominates thinking about the future of media law in Hong Kong, the problems of government surveillance, interference and downright censorship also worry journalists in Western democracies where press freedom was once valued much more highly.
A reflective reading of this important work by Weisenhaus and her colleagues brings this into sharp focus as we learn to appreciate that we all stand to lose many of our inherited media freedoms unless we find ways to apply a brake to government regulation and intrusion.
In that way, it is not just an important work for Hong Kong students and journalists and Sinophiles, but for all citizens and scholars with an interest in media law as the fine balance between free expression, other rights and the self-interest of states the world over.

© Mark Pearson 2016

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

**See UPDATE after appeal**

By MARK PEARSON

[research assistance from Virginia Leighton-Jackson]

The morphed identification of an innocent octogenarian tailor and his alleged gun-running son produces a useful case study for teachers and trainers trying to explain the basic elements of defamation.

The NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 centred upon an article in Sydney’s Daily Telegraph (22-8-13, p. 9) with the heading “Tailor’s alter ego as a gunrunner”. [The article in question is attached to the judgment as a pdf file.]

The article portrayed an 86-year-old suburban tailor with a distinctive name as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

The case is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff.

On the question of identification, Judge Leonard Levy ruled:

Para 37   …where a plaintiff has actually been named in a defamatory publication it is not necessary for the plaintiff to show that those to whom the material was published knew the plaintiff: Mirror Newspapers Ltd v World Hosts Pty Ltd (1978 – 1979) 141 CLR 632, at 639.

38   Even so, the plaintiff must establish that the defamatory matter should be understood to be referring to him: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91. The determination of that question of identification is not to be decided by a consideration of what the publisher intended: Hutton v Jones [1910] AC 20.

39   In cases where a defamatory publication names one person but another person of the same name has been defamed, this can give rise to more than one claim: Lee v Wilson and Mackinnon (1934) 51 CLR 276, as cited in Australian Defamation Law and Practice, Volume 1, TK Tobin QC, MG Sexton SC, eds, 2003, at [6050].

40   In determining the question of identification, the question is, would a sensible reader reasonably identify the plaintiff as the person defamed: Morgan v Odhams Press Ltd [1971] 1 WLR 1239. …

49   In my view, the combined context … serves to adequately identify the plaintiff….

52   …the article strings together the plaintiff’s name, his profession, the fact that he lives in his home in the Sutherland Shire, and has a business altering the clothes of locals all point strongly to the article mentioning the plaintiff by his name and is sufficient of his personal situation to indicate it was him who was the subject of the article.

53   Those details all follow the sensational headline “Tailor’s alter ego as a gunrunner” thereby making a connection between the plaintiff and the described illegal activity concerning the cache of weapons and ammunition found at the premises.

54   The fact that an unclear undated photograph of Tony Zoef appears in the article (at par 38) is immaterial. The fact the article identifies the age of the person the subject of the article as being a 43 year old does introduce an element of possible confusion (par 30) along with the indistinct photograph (at par 38), but inaccuracy of some details appearing in a newspaper article is not an unknown phenomenon.

55   The salient feature is that the plaintiff was named in the article with sufficient of his personal details to suggest he was thereby identified, although the latter details are not essential to that finding.

56   As the article in question named the plaintiff, in my view thereby identifying him, this forms the basis of his right to bring the proceedings without more being shown by him. The fact that there were two persons at the premises named Tony Zoef is immaterial. Both persons of that name could bring proceedings for defamation in their own names: Lee v Wilson and Mackinnon (1934) 51 CLR 276.

59   …I am nevertheless satisfied that the material complained of should be understood as referring to the plaintiff even though the publisher may not have intended that to be so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91.

60   I consider that … an ordinary sensible reader would identify the plaintiff as the person the subject of the material complained of because of the specific of his name, profession, and locality as already explained. Such a reader… would not read such a sensational article as the one in question with critical and analytical care.

61   The article would be approached by such a reader with the permissible amount of loose thinking, and that reader would be reasonably entitled to draw the conclusion that the article was referring to the plaintiff, even though there were some elements of confusion such as a less than distinct photograph and a different age mentioned to that of the plaintiff. An ordinary reasonable reader would not necessarily know the plaintiff’s age or his level of interest in matters to do with space. The headline of “Tailor’s alter ego as a gunrunner” would catch the attention of such a reader and permit the general impression of the story being a reference to the plaintiff: Mirror Newspapers Limited v World Hosts Proprietary Limited [1978 – 1979] 141 CLR 632, at p 646; Morgan v Odhams Press Ltd [1971] 1 WLR 1239.

The judge also considered the important question of the impact of headlines:

44   In cases involving headlines, it must be borne in mind that the ordinary reasonable reader will draw conclusions from general impressions when reading the matter complained of. Such general impressions are necessarily formed by the technique of using prominent headlines to communicate the principal message of the publication, and it must be recognised that in that process, such material may diminish the reputations of those affected: Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, at p 575.

A large portion of the judgment centred upon whether a defence of ‘offer of amends’ should be upheld under s 18(1)(c) of the Defamation Act. The judge held that, despite the serious errors in the reporting of the story and a dispute over whether the offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

———–

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2016

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