Category Archives: media law

Be wary of the legal risks of a media conference

By MARK PEARSON

Press conferences might seem fairly straightforward opportunities for a source or client to get their side of the story across, but they can have considerable legal risks attached.

We explore these situations in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) and I share some of those here.

Words uttered at media conferences in Adelaide and Perth were at the centre of defamation actions in 2012 and 2017. In the Nightclub case, a Hindley Street nightclub owner called a press conference to announce an initiative to increase public safety and reduce violence in the central Adelaide precinct. Almost two years later, he sued a neighbouring travel agency operator over a statement he alleged she had uttered in the midst of that media conference. He claimed the travel agency owner had announced loudly to the media gathered at the conference that he—the nightclub owner—was responsible for all the violence in Hindley Street. After hearing from several witnesses (including the nightclub’s public relations consultant), the District Court judge found for the defendant. He said it was more likely the interjector had not made such a blatant defamatory allegation against the nightclub owner and, even if she had, he would only have awarded $7500 in damages. There was no evidence of a recording having been made of the words she had spoken.

However, words spoken by a detective in a media conference resulted in Western Australia’s highest award of defamation damages in 2017. Detective Senior Sergeant Jack Lee had described Perth barrister Lloyd Rayney as the ‘prime’ and ‘only’ suspect in widely broadcast press conferences about the investigation into his wife Corryn’s 2007 murder (Barrister’s wife case, 2017). Rayney was acquitted of her murder in 2012 in one of the state’s highest profile cases. He then proceeded to sue the state over the detective’s comments in those media conferences back in 2007 and won $2.623 million in damages. The Western Australian Supreme Court held that the state should not qualify for the qualified privilege defence because Detective Lee had gone far beyond what was appropriate in the circumstances with which he was confronted, and, especially having regards to the seriousness of the offence being investigated and the obvious professional damage that loose language would inflict on Mr Rayney (para. 165). Errors and misstatements meant the detective had not exercised reasonable care in his responses to questions, losing the statutory qualified privilege defence, and went beyond a police officer’s duty to keep the public informed, thus forfeiting the common law qualified privilege defence (para. 173). (The quantum of damages may be subject to appeal.)

This followed the line of reasoning by the South Australian Supreme Court’s Full Court when it rejected the SA Police use of the qualified privilege defence in a defamation case brought by a former newspaper photographer who was a suspect in a murder (Murder suspect case, 2015). The court held that a media release and a press conference hosted by police ‘fell wholly outside the interest or duty of the police to provide information necessary to obtain such assistance from the public as may potentially be available and outside the interest of members of the public to receive such information’. There was no public interest to be served by police going into the details of the crime or the state of their investigation or the fact of their suspicions at that time in relation to the suspect (at paras 437–8).

The NSW Supreme Court held in the Councillor’s case (2017) that giving an interview to a journalist or hosting a press conference renders whoever is speaking responsible for any defamatory material conveyed in that interview or press conference because they ‘both intended its republication and understood it would be republished, either in whole or in part’ (at para. 64). The court ruled that, ‘In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary’ (at para. 65).

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 2018

 

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Social media developments have legal implications and require a new literacy

By MARK PEARSON

Every new development in Internet and social media communication renders countless new people ‘publishers’ –  exposed to risky media law situations they might never have anticipated. 


Advances in communication technology in this new millennium have redefined the ways in which most of us share news and information. Industry upheaval and technological disruption have prompted many journalists to retool as bloggers, public relations consultants, multimedia producers and social media editors.

These roles add exciting new dimensions to journalism and strategic communications—including conversations and engagement with audiences and instant global publishing at the press of a button. But they also present new legal risks that most professional communicators – and even ordinary citizens – did not envisage in the twentieth century.

The changes have been so profound that they have impacted the ways we live and organise our lives and work practices. It is only when we review some of the milestones of the internet and Web 2.0, together with the legal and regulatory changes they have prompted, that we start to appreciate the need for all professional communicators to be knowledgeable about media law.

While the worldwide connection of computers, giving rise to the phenomenon we know as the internet, dates back to the early 1980s, it did not start to impact the lives of ordinary citizens until the mid-1990s. Melbourne’s Age newspaper became one of the first in the world to offer an online edition in 1995 (van Niekerk, 2005). Over the ensuing years, entrepreneurs started to embrace the commercial potential of the World Wide Web, just as consumers began to use it to source products and services, and students began to engage with it as an educational tool—predominantly from their desktop computers.

By the end of 2016, there were approximately 13.5 million internet subscribers in Australia (ABS, 2017). It was not until August 2003 that the first major social networking platform, MySpace, was launched in California. It was the leading social networking site in the world from 2005 until 2008, when it was surpassed in popularity by Facebook, which by 2017 had almost two billion monthly users, including 15 million in Australia (Media Watch, 2017). In the six months to June 2016, 93 per cent of internet users aged 18 to 24 used social networking sites (ACMA, 2016:  58). Streaming of entertainment and news has also become part of daily life.

In June 2016, 39 per cent of Australian adults had watched Netflix in the previous seven days, while 27 per cent had watched professional content on YouTube and 16 per cent had viewed the pay television service Foxtel (ACMA, 2016: 82). In the United States by 2017, six out of ten young adults were primarily using online streaming to watch television (Rainie, 2017). Associated with this was the remarkable uptake of the mobile telephone and other devices. The iPhone was only launched in 2007, but by 2016 more than three-quarters of Australians owned a smartphone (ACMA, 2016: 18). The iPad was born in mid-2010 into a market segment that many experts thought did not exist, but by 2016 more than half of Australians used or owned a tablet device (ACMA, 2016: 55).

Even more technologies are unfolding rapidly, with implications for both the media and the law, with the increasing use of drone devices for news-gathering purposes and the awe-inspiring Internet of Things (IoT), where everyday devices are all interconnected, offering novel news-gathering and delivery systems for the media but also complex legal ramifications—particularly in the realm of privacy and security law.

Governments, courts and other regulators have been forced to decide on the various rights and interests affected by these new media forms, and some of their decisions have taken private enterprise by surprise. It is a far more difficult task, however, to educate the broader community about social media legal risks.

The core message is that we are all publishers in the eyes of the law when we publish a blog or post to a social media platform, and in that role all citizens are subject to the same laws that have affected journalists and publishers for centuries.

Further, the instantaneous and global nature of the media means that we may also be the subject of foreign laws of countries other than Australia—particularly if we work for a multinational corporation, or choose to travel to, or have had material we wrote downloaded in, a place where our posts might have broken the law or infringed upon someone’s rights. These laws include defamation, contempt of court, intellectual property, confidentiality, privacy, discrimination and national security.

All this makes a strong argument for greater social media literacy among professional communicators and the wider community.

[Excerpted from Pearson, M. and Polden, M. (2019, 6th edition, forthcoming). The Journalist’s Guide to Media Law. A Legal Handbook for Digital Communicators. (Allen & Unwin, Sydney).]

References

Australian Associated Press (AAP) 2017, ‘Changes to media ownership laws’, SBS, 14 September, <www.sbs.com.au/news/article/2017/09/14/changes-media-ownership-laws>.

Australian Bureau of Statistics] 2017, Internet Activity, Australia, December 2016, cat. no. 8153, ABS, Canberra, <www.abs.gov.au/ausstats/abs@.nsf/mf/8153.0>.

Australian Communications and Media Authority] 2016, Communications Report 2015–2016. ACMA, Sydney, <www.acma.gov.au/theACMA/Library/researchacma/Research-reports/communications-report-2015-16>.

van Niekerk, M. 2005, ‘Online to the future’, The Age, 28 January, <www.theage.com.au/news/National/Online-to-the-future/2005/01/27/1106415726255.html>.


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 2018

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Filed under blogging, defamation, free expression, journalism, journalism education, media ethics, media law, mindful journalism, online education, reflective practice, social media, terrorism

Our surveillance chapter in the new book ‘In The Name of Security’

By MARK PEARSON

Friend and colleague Joseph Fernandez (Curtin University) and I teamed up to write a chapter on surveillance and the media for a new book published by Anthem Press.

Ours is one of eleven chapters in the book In the Name of Security – Secrecy, Surveillance and Journalism (Anthem, 2018), edited by our journalism education colleagues Johan Lidberg (Monash University) and Denis Muller (University of Melbourne).

For full details and ordering information, please go to the Anthem Press site here.

The book description and our chapter abstract are as follows:

The terrorist attacks on the World Trade Center in New York on 11 September 2001 saw the start of the so-called war on terror. The aim of ‘In the Name of Security – Secrecy, Surveillance and Journalism’is to assess the impact of surveillance and other security measures on in-depth public interest journalism. How has the global fear-driven security paradigm sparked by 11 September affected journalism? Moves by governments to expand the powers of intelligence and security organizations and legislate for the retention of personal data for several years have the potential to stall investigative journalism. Such journalism, with its focus on accountability and scrutiny of powerful interests in society, is a pillar of democracy.

Investigative journalism informs society by providing information that enables citizens to have input into democratic processes. But will whistleblowers acting in public interest in future contact reporters if they risk being exposed by state and corporate surveillance? Will journalists provide fearless coverage of security issues when they risk jail for reporting them?

At the core of ‘In the Name of Security – Secrecy, Surveillance and Journalism’ sits what the authors have labeled the ‘trust us dilemma’. Governments justify passing, at times, oppressive and far-reaching anti-terror laws to keep citizens safe from terror. By doing so governments are asking the public to trust their good intentions and the integrity of the security agencies. But how can the public decide to trust the government and its agencies if it does not have access to information on which to base its decision?

‘In the Name of Security – Secrecy, Surveillance and Journalism’ takes an internationally comparative approach using case studies from the powerful intelligence-sharing group known as the Five Eyes consisting of the US, Canada, the UK, Australia and New Zealand. Chapters assessing a selection of EU countries and some of the BRICS countries provide additional and important points of comparison to the English-speaking countries that make up the Five Eyes.

The core questions in the book are investigated and assessed in the disciplines of journalism studies, law and international relations. The topics covered include an overview and assessment of the latest technological developments allowing the mass surveillance of large populations including the use of drones (Unmanned Aerial Vehicles).

Chapter 3. Surveillance and National Security ‘Hyper-Legislation’ – Calibrating Restraints on Rights with a Freedom of Expression Threshold, Mark Pearson and Joseph M Fernandez:

The post-11 September 2001, era has unleashed a plethora of laws invoking national security and antiterrorism justifications that have severely compromised a range of human rights and civil liberties, including freedoms associated with expression and information access. Roach has described such laws as ‘hyper-legislation’ (2011, 310). Such legislation has inflicted often-unjustified constraints upon journalists and journalism. The overly broad antiterrorism laws potentially ensnare reporters covering security matters and have inflicted repeated blows on investigative journalism in recent times (Weisbrot 2016). Insufficient attention, however, is paid to the potential for these constraints to be informed and moderated by the constitutional and human rights frameworks in which such laws are enacted. There has been inadequate resolve to protect the public interest by ensuring that journalists and journalism are able to properly perform their professional duties and obligations. This chapter uses archival research, analysis of statutes and case law to examine how freedom of expression constitutional and human rights provisions in the Five Eyes democracies have, in reality, offered minimal protection to journalists and their sources – particularly in Australia, where a constitutional protection for freedom of expression is lacking. The absence of strong protections or the rampant undermining of existing protections, in the face of what Agamben (2005, 1) describes as an ongoing ‘state of exception’ in the post–9/11 war on terror, presents the need for new mechanisms to provide journalists and their confidential sources adequate protection to enable them to fulfil their professional obligations.

The authors argue that the long-held importance of freedom of expression in democracies moots for workable and explicit public interest defences to allow for the reporting of national security matters without endangering journalists or the sanctity of their obligations to confidential sources. The chapter undertakes a case study of Australia which, unlike the other Five Eyes intelligence alliance members – New Zealand, Canada, the United Kingdom and the United States – has no explicit constitutional or human rights framework to compel the courts or the Parliament to recognize the adverse implications of legislation upon free expression or a free media. The Australian courts and the Parliament have, however, acknowledged free expression rights, drawing upon free expression jurisprudence through the common law; an implied freedom to communicate on matters of politics and government; and the protocols for a non-binding review of the implications of proposed legislation upon human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). This chapter considers these processes against the backdrop of the First Amendment obligations in the US Constitution, the UK’s free expression protection under Article 10 of its Human Rights Act 1998, guarantees on free expression, free media and free expression under the Canadian Charter of Rights and Freedoms, and the free expression protection in New Zealand’s Bill of Rights Act 1990. The authors argue that, while each of these jurisdictions has national security laws that impact upon the media, each enshrines stringent checks upon the impacts of proposed legislation on free expression. The ongoing onslaught against freedom of expression under the banner of the continued state of exception, however, shows that the free expression protections offered by such rights instruments provide minimal protection to journalists and their confidential sources.

The chapter also reviews the use of specific devices to deny journalists and their work appropriate protections in fulfilling their professional duties and responsibilities, and weighs their efficacy in a national security and counterterrorism context. It identifies relevant terminology from case law and legislative instruments including defamation law, consumer law and privacy and shield laws, and assesses their potential value as exemptions or devices to better protect journalists in a national security context. In doing so, it draws upon some examples and cases from those jurisdictions.

Finally, the chapter reviews the extent of journalist and source protections in recent Australian national security laws and draws upon survey research to indicate their impact upon journalists. It recommends a key aspirational threshold that should underpin an objective public interest test to apply to journalism in a counterterrorism legislative context so as to better safeguard free expression, transparency in governance and protection for journalists’ confidential sources.

 

© 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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The long copyright battle over a monkey’s selfie

By MARK PEARSON

The booklet Understanding Copyright and Related Rights (WIPO, 2016) is an excellent entry-point for learning about the basic copyright principles applying globally. Any monkey would understand it.

Monkey selfie taken by Indonesian macaque named Naruto on equipment set up by photographer David Slater. Sourced from Wikimedia Commons. © disputed.

It explains that ‘copyright’ translates into ‘author’s rights’ in many other languages because it is the creator of the work—the ‘author’ of written works—who holds the right to reproduce their outputs.

The word ‘copyright’ in English refers to that act itself—the ‘right’ to ‘copy’ something you have created. As the holder of that right, you have the legal power to license others to do so as well.

A fascinating international example of the principle that copyright rests with the creator of a work is the Monkey case (2018). In 2011 an Indonesian monkey named Naruto – a crested black macaque – took a ‘selfie’ with camera equipment set up by wildlife photographer David Slater. Monkey see, monkey do.

Slater complained to Wikimedia Commons after the images were posted there, but they refused his demand that he take them down, arguing he did not hold copyright in the images because he did not actually take them – the monkey did (Wikimedia Foundation, 2014).

The basic principle stood: copyright rests with the human creator of a work (Monkey case, 2018).

However, the monkey did not get to claim damages for the photographer’s use of the work. The US Ninth Circuit Court of Appeals denied an application by an animal rights group to have the monkey’s copyright in the images formally acknowledged, stating that animals did not have standing. The photographer and the monkey (represented by animal rights group PETA) negotiated a settlement (Toliver, 2017).

Monkey case: Naruto Monkey PETA v Slater CA9 No. 16-15469 D.C. No. 3:15-cv-04324-WHO Opinion 04 23 18 < https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html >

Toliver, Z. 2017. ‘Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights’, PETA (People for the Ethical Treatment of Animals) website. [11 September.] < https://www.peta.org/blog/settlement-reached-monkey-selfie-case-broke-new-ground-animal-rights/ >.

Wikimedia Foundation (2014). ‘Monkey Selfie’, Wikimedia Foundation Transparency Report. https://transparency.wikimedia.org/stories.html

© 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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Defamation research and social media mean it’s time to consider reform

By MARK PEARSON

The Sydney Morning Herald recently published my commentary welcoming the NSW Government’s rethink of defamation law in the light of recent research showing a large number of cases involve ordinary citizens (rather than celebrities) and social media posts (as distinct from media publications).

It was titled ‘Social media gives people a wider audience for their bile – and defamation laws must reflect that’.

Here is the extended unedited version for those with a special interest:

The decision to review NSW defamation laws announced yesterday is overdue, and changes need to address several aspects of the legislation as well as the very human flaws of vindictive remarks, fragile egos and ignorance of the law.

NSW District Court defamation expert Judge Judith Gibson called for reform this week, pointing to the rise of Internet-related defamation cases, a phenomenon unanticipated when uniform defamation laws were introduced throughout Australia in a landmark 2005 reform.

Her argument was underscored by research released last week by the UTS Centre for Media Transition which found that more than half of defamation cases over the past five years involved reputational damage in a digital medium, up from 17 per cent in 2007 when social media was in its infancy.

The common perception that defamation cases typically involve celebrities suing the media for millions of dollars – like recent litigants Rebel Wilson and Geoffrey Rush – is a myth. The study showed that among the 189 decided cases from 2013-2017, only one third of defendants were media companies, and only about one fifth of those bringing the action were celebrities or public figures.

When you read the detail on the cases, it becomes clear that most defamation cases are contests between ordinary citizens over negative remarks they have made about each other on social media, websites, emails and other means of digital communication.

With the advent of social media, everyone is a publisher in the eyes of defamation law – and many more people in far-flung places can see or hear the nasty things we say about each other.

Broken friendships, business disagreements and political or moral debates escalate and get vindictive and personal.

There was the first Twitter case where a misguided former student posted a social media character assassination against a school teacher because he mistakenly thought she had cost his father his job.

And the disgruntled businessman who used the social media platform WeChat and targeted emails to tell the world a meat trader was a conman, corrupt and a criminal, with no factual basis.

And the Victorian junior football umpire with Asperger’s Syndrome who was taunted on a US autism website with falsities that he was a pedophile and was faking his condition.

For centuries there have been some people inclined to write poison pen letters, spread nasty rumours and to post sick messages on public noticeboards and toilet walls. The Internet and social media has given them a wide audience for their bile and some of these now result in defamation trials.

Prior to the 2005 reforms, defamation law in Australia was a complicated mess. Major variations existed across the states and territories on a host of issues, including the limitation periods in which people could bring an action and the defences available. ‘Forum shopping’ was rife, with plaintiffs selecting the jurisdiction where the law best suited their case.

The reforms were remarkable in that attorneys-general in eight states and territories reached agreement and forged the changes through their parliaments.

But those laws are desperately in need of reform if they are to catch up with the social and technological changes of the past decade.

The ‘offer of amends’ system introduced with the last reforms was a novel initiative to keep actions out of court with encouragement for an early offer of damages and an apology. But it is complex, often appealed, and other mediation incentives should be put in place to educate parties about settling their differences earlier to avoid the public and personal expense and distress of litigation. Alternative remedies to damages and injunctions would be a bonus.

The triviality defence is flawed and needs to include something of the flavor of the UK’s “serious harm” test – requiring serious reputational harm as a prerequisite to an action.

Changes also need to encourage public interest journalism rather than punish it.

Journalists deserve a stronger public interest (qualified privilege) defence which does not fail when they refuse to reveal their confidential sources and allows for minor errors in important exposés.

And the truth defence should be narrowed to focus on the single most obvious defamatory meaning to give certainty to the reportage so that lawyers do not generate more obscure meanings a journalist might never have anticipated when researching a story.

The implied freedom to communicate on matters of government – a welcome but technical initiative of the High Court – should be enshrined as a formal statutory defence and satirists should get their own defence to better protect robust political critique via parody and satire.

But in tandem with defamation reforms we need government investment in digital legal literacy. School and adult learning curricula must include the basic legalities of social media and Internet use – stressing the key risks posed by defamatory and contemptuous posts.

Teachers might use some of those moral aphorisms our mothers used to tell us.

They would scold us over our nasty comments with “Do not say to others what you would not want said to you”.

And they would soothe our fragile egos:  and “Sticks and stones may break my bones, but names will never hurt me.”

Education and mediation encouraging mindful communication might resolve some defamation actions before they even start.

 


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 2018

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Why the public isn’t allowed to know specifics about the George Pell case #MLGriff

By MARK PEARSON

This article was originally published on The Conversation. Read the original article.

File 20180320 31614 7icnee.jpg?ixlib=rb 1.1
George Pell emerges from court during his committal hearing on historical sexual offences.
AAP/Stefan Postles

Mark Pearson, Griffith University

Many Australians are left perplexed when media coverage of high-profile criminal cases is suddenly suspended or abbreviated “for legal reasons”. The current committal hearing of Catholic Cardinal George Pell on historical sexual offences engages the principle of “open justice” and some of its most important exceptions.

Coverage of such matters is restricted at various stages of criminal trials. This is because of the relative priority the courts and lawmakers have assigned to the principles of open justice and the administration of justice, and the competing rights of free expression, privacy and a fair trial.

What is ‘open justice’?

The principle of open justice dates back to at least the 12th century; it involves people’s access to observe the goings-on in a courtroom. It was later extended to the media as “the eyes and ears of the public” in court.

Australia’s High Court has ruled that open justice is of constitutional significance, and nothing should be done to discourage the media from publishing fair and accurate reports of what occurs in the courtroom. But, it added, the principle is not absolute.

An open court involving fair and accurate media coverage is thus the default position for Australian courts. The common law recognises only a limited number of well-defined exceptions. Lawmakers have developed hundreds more.

One important common law limitation is in the area of sub judice contempt. This puts a halt to prejudicial coverage of a criminal matter from the moment an accused is arrested or charged right through until the appeal period has expired.

Important restrictions here are upon any suggestion an accused might be guilty (or innocent), coverage of contested evidence that may or may not be put to a jury, coverage of earlier proceedings (such as preliminary hearings and royal commissions), interviews with key witnesses, details of any confessions, the criminal history or character evidence about the accused, and visual identification of the accused if that might be at issue in a trial.

Specific restrictions on court cases

Legislation in all Australian jurisdictions has placed a litany of further restrictions on attendance at – and reporting on – a host of situations. These include family law cases, juvenile cases, mental health proceedings and – most relevant here – sexual matters.

The statutory gags forcing closure of courts, banning of coverage, and de-identifying of parties vary in important ways. This is because lawmakers have placed a differing emphasis on the competing rights and interests.

For example, if Pell was facing his committal hearing in South Australia or Queensland, he could not even be identified until after he is committed to trial – if that eventuates.

Lawmakers in those states have decided the reputational damage attached to an allegation of a serious sexual offence is so damaging that an accused person should not be identifiable until it is proven there is at least a prima facie case to answer at trial.

In Victoria, where Pell’s committal hearing is taking place, the accused can usually be identified. However, other restrictions apply either under legislation or in suppression orders issued by a presiding judge or magistrate.

In no Australian jurisdiction can the victim (known as the “complainant”) be identified – directly or indirectly – in sexual matters. But the laws vary on whether they might be identified after proceedings with their permission or the court’s permission.

This means complainants who might have been identified in earlier coverage or proceedings are suddenly rendered anonymous from the moment the matter is “pending” – after the arrest or charging of a suspect.

Special protections apply to complainants during committal hearings involving sexual offences. This includes closing the court while victims give evidence.

A complex array of policy issues inform these kinds of restrictions. These include the perceived vulnerability of victims, their privacy, and the important likelihood that victims might not come forward to bring charges of this nature if they sense they might be in the media spotlight.

Do we need a rethink in the digital age?

Victoria has had more than its share of journalists and others falling foul of court restrictions through defiance or ignorance of the law.

Former journalist and blogger (now senator) Derryn Hinch has twice been jailed as a result of contemptuous coverage – once in 1987 for broadcasting prejudicial talkback radio programs about a former priest facing child molestation charges, and again in 2013 after refusing to pay a A$100,000 fine for blogging the prior convictions of Jill Meagher’s accused killer in breach of a suppression order.


Read more:
You wouldn’t read about it: Adrian Bayley rape trials expose flaw in suppression orders


Two ABC journalists were convicted of identifying a rape victim in radio broadcasts in 2007. They and their employer were later ordered to pay her $234,190 in damages in a civil suit for the invasion of her privacy among other injuries.

In 2017, Yahoo!7 was fined $300,000 for contempt after it published social media material about a victim and the accused. The publication forced the jury in a murder trial to be discharged.

Many of the restrictions on coverage are problematic in the digital era. Mainstream media are more likely to be charged with sub judice contempt than social media users because the large audiences of mainstream media mean their prejudicial coverage is more likely to reach potential jurors.

The cross-jurisdictional nature of digital publishing also renders journalists and social media users subject to the tangled web of restrictions on criminal justice reporting when covering a criminal matter from another state.

Court orders to take down earlier reportage on websites are typically futile, because online dissemination is so widespread. So, the bizarre situation exists where the prior character evidence and coverage of earlier proceedings still sits online for anyone to access with a simple search of an accused’s name.

This is problematic if a rogue juror decides to become a cyber Sherlock Holmes. It means we require better training of jurors.


Read more:
Trial by social media: why we need to properly educate juries


Suppression orders are also a problem because these are typically circulated only to mainstream media in the trial’s immediate vicinity. This leaves others blissfully unaware of the orders. Some orders – known as “super injunctions” – are so secret that even publication of the fact they have been issued is prohibited.

Victoria’s Open Courts Act was meant to reduce the number of suppression orders and inject an element of consistency to the issuing of these. However, it has been problematic.

The ConversationAt least the media are better assisted in the modern era. Court information officers help explain the various restrictions and keep the media well briefed in high-profile trials – as they have done in Victoria during Pell’s committal hearing.

Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, 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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Contempt in the face of the court is no laughing matter – usually #MLGriff

By MARK PEARSON

The ancient charge of ‘contempt in the face of the court’ is alive and well, as I have found in the research for the next edition of our text The Journalist’s Guide to Media Law (with Mark Polden).

Almost any behaviour that disrupts the courtroom can be considered a ‘contempt in the face of the court’ – a charge directed at behaviour in the actual courtroom that interferes with the administration of justice. The Australian Law Reform Commission (1987: 3) defined ‘contempt in the face of the court’ as:

Improper behaviour in court. Anything done to interrupt significantly the smooth and appropriately dignified hearing of a case in a courtroom risks being treated as contempt and punished accordingly.

Examples have included outright physical assaults in the courtroom, verbal abuse, inappropriate dress, sleeping and even attempting to release laughing gas into the court building.

Two recent examples have included:

  • The Indigenous laughing case (2017). An Aboriginal land rights activist was jailed for two hours after defying a Gympie magistrate by laughing at him in the courtroom. Gary Tomlinson (also known as “Wit-boooka”) had challenged the authority of the court to hear public nuisance and trespass offences related to a protest at Gympie Regional Council.
  • NT homeless ‘genius’ case (2017). A homeless man, self-described genius and would-be mayoral candidate who continuously insulted court officers interrupted the judge, and disrobed in court was twice jailed for contempt in the face of the court in 2016 and 2017. His appeals failed against his total of five months’ contempt sentence and alleged bias by the judge.

Given that both cases involved citizens who appeared outside of the mainstream of society, it is worth monitoring future cases to assess whether the charge is being disproportionately used against vulnerable, alienated, outspoken or disenfranchised individuals.

Journalists and bloggers are warned to show respect in the courtroom. This extends beyond paying attention to the proceedings, remaining clothed and avoiding throwing projectiles at the magistrate.

Indigenous laughing case, 2017. Gorrie, A. (18 December 2017). UPDATE: Gympie activist serves two hours for contempt. Gympie Times <https://www.gympietimes.com.au/news/update-gympie-activist-serves-two-hours-for-contem/3293365/>

NT homeless ‘genius’ case (2017). Jenkins v Whittington [2017] NTSC 65. < https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nt/NTSC/2017/65.html>

 

© 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.

Leave a comment

Filed under contempt of court, media law, national security, open justice, terrorism