Category Archives: Media freedom

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hkmedialawcoverMost authors of media law texts would not expect their books to become important historical reference works for centuries to come.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

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.

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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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New Australian Press Council standards start August 1

Guest report from JASMINE LINCOLN, Griffith University media freedom intern

THE Australian Press Council (APC) has released its new Statement of General Principles as part of its Standards Project where it is reviewing its Standards of Practice and creating new ones.

It applies to all print and online news material from August 1, 2014.

Mark Pearson ( ) recently had the chance to interview Australian Press Council chair Professor Julian Disney on the role and direction of the Council.

In this interview he discussed the recent reforms to the Council, the move to improve its editorial standards, and the future for media ‘self-regulation’ as broadcast, print, online and social media formats continue to converge.

(12 mins, recorded 17 March 2014). Apologies for some audio sync issues!

The Council states on its site:

The revised Statement of General Principles does not seek to change substantially the general approach which has been taken previously by the Council. The main purposes are to ensure that the Principles accurately reflect that approach, are as clear as possible and are succinct.

Amongst other things, the new Statement of General Principles clarifies

• the principle that reasonable steps must be taken to ensure that factual material is accurate and not misleading applies to material of that kind in all types of article;

• the principle of reasonable fairness and balance applies to presentation of facts (including presentation of other people’s opinions) but not to writers’ expressions of their own opinion.

The Principles focus on four sets of key values:

• accuracy and clarity;

• fairness and balance;

• privacy and avoidance of harm;

• integrity and transparency.

The first phase of the Council’s ongoing changes has involved a review of the General Principles and the development of Specific Standards.

The next phase of the project includes a number of developments, including reviews of Privacy Principles and new Specific Standards on technological media outlets.

Also amongst these developments is a “systemic monitoring of compliance” (Australian Press Council, 2014) regarding the practice of the new standards.

This will directly affect the work of journalists because they will have their articles examined by the APC.

According to Press Council chair Professor Julian Disney, there are two main reasons for this Standards Project: so that the Standards of Practice are clearer and so they appropriately reflect the modern media context.

As a result of this project, the APC hopes that the new standards “will deal more effectively” with numerous complaints that they receive each year.

Sources:

Australian Press Council (2014). The Standards Project. Retrieved from: http://www.presscouncil.org.au/the-standards-project/

Robin, M (July 2014). Higher standards for opinion writing as Press Council refocuses for digital age. Retrieved from: http://www.crikey.com.au/2014/07/22/higher-standards-for-opinion-writing-as-press-council-refocuses-for-digital-age/

© Jasmine Lincoln 2014

Disclaimer: While this blog is 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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Maintain the rage: support for Greste heartening, but needs to be escalated. Sign up. #FreeAJStaff

By MARK PEARSON

Additional research by journalism student MELANIE WHITING

AS Australian journalist Peter Greste languishes in an Egyptian jail just three weeks into his seven year sentence for simply doing his job reporting for Al Jazeera, it was heartening to see friends and colleagues rally in his support in Melbourne yesterday (July 14).

Clearly, the problem faced by all such political prisoners is that pressure for their release can diminish after their initial sentence disappears from the news agenda.

Almost 11,000 people have now signed the Canadian Journalists for Free Expression (CJFE) petition for the release of Greste and his colleagues, which will be sent tomorrow (July 16). Please go to http://www.thepetitionsite.com/583/945/591/fr/ and sign it.

In the days following the verdict political leaders including US Secretary of State John Kerry and Australian Prime Minister Tony Abbott expressed shock and condemnation over the Egyptian court’s decision on June 23.

Labor foreign affairs spokesperson Tanya Plibersek has been supportive and Greens leader Christine Milne has called upon the Abbott Government to escalate its diplomatic efforts on Greste’s behalf.

Media companies, unions and free expression groups have been united in their push for the release of Greste and his Al Jazeera colleagues.

Representatives of News Corp Australia and Fairfax Media told AdNews they saw the  sentence as a threat to press freedom.

The Media Entertainment and Arts Alliance (MEAA) issued a statement on their website condemning the verdict and maintained that Greste had acted as an ethical and responsible journalist.

A group of top international journalists united to send a letter to the Egyptian President asking for Greste and his colleagues to be released.

Petitions are important, so please sign any or all of these:

Go ahead – please sign them all NOW!

[The MEAA petition at http://www.alliance.org.au/peter-greste-petition has now closed.]

© Mark Pearson 2014

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

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Australian Press Council Chair Julian Disney with @journlaw

By MARK PEARSON

I recently had the chance to interview Australian Press Council chair Professor Julian Disney on the role and direction of the Council.

In this interview he discusses the recent reforms to the Council, the move to improve its editorial standards, and the future for media ‘self-regulation’ as broadcast, print, online and social media formats continue to converge.

(12 mins, recorded 17 March 2014). Apologies for some audio sync issues!

© Mark Pearson 2014

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

Leave a comment

Filed under free expression, journalism, media ethics, Media freedom, Media regulation, Press freedom, Uncategorized

Barrister and co-author Mark Polden chats with @journlaw on #defamation defences: #MLGriff

By MARK PEARSON

Defamation laws can be intimidating for journalists, bloggers and other professional communicators. The key, according to barrister Mark Polden, is in researching and writing to the basic defences.

Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

In this 11 minute interview with @journlaw, he outlines in simple terms the three ‘bread and butter’ defences used by writers and publishers – truth, fair report and honest opinion (fair comment).

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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 2014

Leave a comment

Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized