Category Archives: Media regulation

Submission to Public Interest Journalism Committee calls for new defence to gag laws

By MARK PEARSON

My submission to an Australian parliamentary committee examining the future of journalism proposes a new defence to give genuine public interest journalism a market advantage over fake news, celebrity gossip and other unethical infotainment products.

The Australian Senate established the Select Committee on the Future of Public Interest Journalism – known as the ‘Public Interest Journalism Committee’- on May 10, 2017. The committee is  inquiring into the future of public interest journalism.

The closing date for submissions is June 15, although the committee’s site explains that late submissions will be considered.

Here is my submission.


I hereby offer my personal submission to your committee’s important inquiry into the future of public interest journalism.

My research and expertise includes media and social media law, ethics and regulation. I am lead author of The Journalist’s Guide to Media Law[i], now in its fifth edition, and have been author or editor of numerous other books and scholarly articles and research projects intersecting with your broad terms of reference. My current position is as Professor of Journalism and Social Media at Griffith University as a member of both the Law Futures Centre and the Griffith Centre for Social and Cultural Research. However, this submission represents my own opinions and does not purport to represent the views of my university or of those research centres.

While I have views on several aspects of your inquiry I will restrict this submission to a proposal to amend the media laws and regulations within the direct or indirect control of the Commonwealth Parliament which serve to shackle the enterprise of ‘public interest journalism’ in Australia and ineffectively distinguish it from ‘fake news’[ii] and other misleading, deceptive and sometimes harmful communication products. In summary, I propose that in light of the lack of constitutional protections for public interest journalism in Australia, the Commonwealth should build into every identified restriction on media freedom a “public interest journalism” defence, which would excuse a “legitimate and demonstrated public interest in freedom to communicate on this occasion”, where the court would take evidence on the importance of the matter of public concern, the publisher’s genuine track record of adherence to professional ethical standards, its resolve to remedy past breaches (if any), and its commitment to train their staff in legal and ethical issues. It should encourage other Australian jurisdictions to take a uniform approach.

Legal impediments to public interest journalism

Free expression and a free media should be foundational principles in any democratic society, and the principle of open justice should be equally foundational to any country with respect for the rule of law. Each is enshrined in its own way in international human rights instruments.[iii] Almost all democratic nations other than Australia include a right to free expression or a free media in their Constitutions or ancillary documents. However, the closest Australia has to any such constitutional recognition is the High Court’s so-called implied freedom to communicate on matters of politics and government, which has evolved in a qualified fashion through a series of cases since the 1990s.[iv] The proof of the inadequacy of the principles of media freedom and open justice in Australia can be found in the exceptions to those liberties in a litany of laws across Australia’s nine jurisdictions which serve to impede attempts at public interest journalism. They are evident in both the common law and in legislation in areas including (but not limited to) defamation (despite purported uniformity), contempt, trespass, surveillance, confidentiality, privacy, source protection, court and tribunal suppressions and identification restrictions, along with a host of national security and anti-terror laws.

Even measures designed to allow greater freedoms to those engaged in public interest journalism suffer from jurisdictional inconsistency, with significant differences apparent in whistleblower protections, journalists’ shield laws and the courts’ tolerance of journalists’ use of new communication technologies. Some, like freedom of information laws, have been abused and eroded by your colleagues across the political spectrum as they have exploited the numerous exemptions to their own protection and advantage, prompting cynics to call them ‘freedom from information’ laws. As former foreign minister Alexander Downer once told newspaper publishers: ‘Freedom of information always seems a great idea when you are in Opposition but less so when you are in Government’.[v]

This leaves public interest journalism battling this array of laws at State, Territory and Commonwealth levels limiting free expression and a free media because of competing rights and interests – often without free expression or a free media being acknowledged in the wording of certain statutes or in their interpretation in cases. The Senate must bear the responsibility for passing some of these laws and the various attorneys-general across jurisdictions and political affiliations must accept culpability for failing to work to ensure their uniformity.

Exceptions and journalist/news media privileges

There a few privileges, exemptions or defences available to journalists and news organisations, which vary markedly in their wording, including:

  1. The Privacy Act, which at s7B(4) which exempts ‘media organisations’ which are ‘publicly committed’ to privacy standards published by themselves or their representative organization;
  2. The Australian Consumer Law (detailed at Schedule 2 to the Competition and Consumer Act 2010), which offers a broad ‘media safe harbour’ (Section 19) to ‘information providers’ under the ‘misleading and deceptive conduct’ provisions (Section 18).
  3. Shield laws, which at Commonwealth level offer a discretion to the courts to excuse a journalist from revealing a source, in consideration of “the public interest in the communication of facts and opinion to the public by the news media”[vi];
  4. Metadata retention laws, which offer a limited and opaque protection to professional journalists under protocols detailed at Telecommunications (Interception and Access) Act 1979 at Division 4C. The protocols were famously breached in 2017 when the AFP admitted a journalist’s call records had been accessed without following the procedures.[vii]
  5. A fair dealing defence for the purpose of news under the Copyright Act, itself subject to a judicially determined reasonableness test.[viii]
  6. Uniform state and territory defamation laws, which make available a qualified privilege ‘public interest’ defence;[ix]
  7. A common law ‘public interest’ defence to sub judice contempt (known as the ‘Bread Manufacturers’ defence);[x]
  8. A range of other limited exemptions available in journalistic or public interest grounds (sometimes at the discretion of the court) in various jurisdictions including the use of recording devices in court, contacting jurors, publishing secretly recorded conversations, reporting upon closed court cases, interviewing prisoners or parolees, identifying sexual assault victims with their permission, etc.[xi]

While such limited exemptions offer some acknowledgement of the importance of public interest journalism, free expression and open justice, their wording is ad hoc and their application across jurisdictions is unpredictable. This is farcical in an era of global publication to 24/7 deadlines by a large variety of organisations and individuals engaged in public interest journalism in its multiple forms – many of whom might not even call themselves ‘journalists’ in a traditional sense of the term, but who might nevertheless be engaging in the practice[xii].

Some statutes offer blanket exemptions which in some ways encourage the creation and republication of fake news, celebrity gossip and click bait misinformation. The Australian Consumer Law is a prime example, where the ‘media safe harbour’ (Section 19) offered to ‘information providers’ under the ‘misleading and deceptive conduct’ provisions (Section 18) allows news organisations have a blanket, almost unchallengeable protection for misleading and deceptive conduct. I proposed to the Independent Media Inquiry in 2011 that there should be a rebuttable presumption that corporations publish responsible news and current affairs material of legitimate public interest in accordance with a journalism code of practice to earn this exemption[xiii].

A ‘public interest journalism’ exemption or defence

A simple and effective measure to reduce this imposition on public interest journalism would be for the Senate to require all Commonwealth legislation imposing a demonstrable limitation upon the enterprise of public interest journalism to include a ‘public interest journalism’ exemption or defence. This would confer a discretion to a court to make an exception to the operation of the particular measure in instances where there may be a public interest in the communication of a matter of genuine public concern which at least balances, or perhaps outweighs, other rights and interests in the particular circumstances.

The current exemptions within the control of the Commonwealth (privacy law, consumer law, shield laws, etc) would be simplified where possible to meet such a test. In some cases this would require those exempted under current legislation to do more to demonstrate they are worthy of such an exemption (under the Privacy Act s7B(4), for example, ‘media organisations’ are automatically exempted if they are ‘publicly committed’ to privacy standards published by themselves or their representative organization.) In other cases the existing laws should be broadened to the advantage of others who demonstrably engage in public interest journalism. (For example, academics, non-government organisations, journalism students and serious bloggers might then qualify for shield laws which at Commonwealth level are currently restricted to “journalists” being people “engaged and active in the publication of news”.[xiv] This would attach the exemptions to those engaging in the enterprise of ‘public interest journalism’ instead of trying to define who might qualify as a ‘journalist’ in the modern era).

I have deliberately not ventured into the wording of any such defence or exemption because that is not my area of expertise and the particularities of the restrictions will inevitably require slightly different wording in each situation. While its definition of ‘journalist’ at s 126K should be broadened, the Evidence Act 1995 s. 126K (2) is a useful starting point where it states:

(2)  The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

(a)  any likely adverse effect of the disclosure on the informant or any other person; and

(b)  the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3)  An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

The uniform Defamation Act[xv] offers guidance within its qualified privilege defence to the kinds of factors a judicial decision maker might take into account when deciding whether or not to allow such a public journalism exemption:

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c) the seriousness of any defamatory imputation carried by the matter published, and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant operates, and

(g) the sources of the information in the matter published and the integrity of those sources, and

(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and

(j) any other circumstances that the court considers relevant.

Such other circumstances could include the legal and ethical track records of the individuals and organizations seeking the exemption and their demonstrable commitment to legal and ethical standards and training.

If the Commonwealth takes the leadership in such a simplification of the approach to a ‘public interest journalism’ exemption, then I am confident it can impose its considerable weight upon the states and territories via the Law, Crime and Community Safety Council and the Council of Australian Governments to mirror this approach in their myriad of publishing restrictions. Such a measure would help foster a real backbone of encouragement of genuine public interest journalism – whether created by large traditional media, freelancers, activists or new media entrepreneurs – in the absence of a constitutional right to free expression and a free media enshrined in a Bill of Rights, which appears to be an unrealistic aspiration at this stage. It would also offer genuine public interest journalism a market advantage over fake news, celebrity gossip and other unethical infotainment products.

I sincerely hope your committee is able to improve the standing of public interest journalism and wish you well in your deliberations.

Notes:

[i] Pearson, Mark and Mark Polden (2015). The Journalist’s Guide to Media Law. Allen & Unwin, Sydney.

[ii] Please note that some parts of this submission are explained further in my recent article in the journal Asia Pacific Media Educator’. Pearson, Mark (2017) ‘Teaching media law in a post-truth context – strategies for enhancing learning about the legal risks of fake news and alternative facts’ Asia Pacific Media Educator, 27(1) 1–10.

[iii] See, for example, Articles 11 and 19 of the Universal Declaration of Human Rights.

[iv] See: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520; Wotton v Qld [2012] HCA 2.

 

[v] McNicoll, D. D. (2006, 31 August). The diary. The Australian [Media section]. p. 18.

[vi] Evidence Act 1995, s. 126K.

[vii] Royes, Luke (2017) AFP officer accessed journalist’s call records in metadata breach. ABC News online. Available: http://www.abc.net.au/news/2017-04-28/afp-officer-accessed-journalists-call-records-in-metadata-breach/8480804

[viii] Copyright Act 1968 ss40 and 103B.

[ix] See Defamation Act NSW 2005 s. 30.

[x] Pearson & Polden, op. cit., p. 147.

[xi] See Pearson & Polden, op. cit., Chapter 6, ‘Covering Court’

[xii] See Slater v Blomfield [2014] NZHC 2221, at paras 47-55.

[xiii] Pearson, Mark. (2011). ‘Consumer law holds solution to grossly irresponsible journalism’. Journlaw blog. Available: https://journlaw.com/2011/11/07/consumer-law-holds-solution-to-grossly-irresponsible-journalism/

 

[xiv] Evidence Act 1995 ss. 126J and 126K

[xv] See Defamation Act NSW 2005 s. 30.

 

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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 2017

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Alternative media values offer hope in a ‘post-truth’ media world, says journalism academic

By MARK PEARSON

Alternative and community media offer a vehicle to combat the forces of ‘fake news’ in the so-called ‘post-truth’ era, Griffith University’s Associate Professor Susan Forde suggested in the 2017 Arts Education Law Professorial Lecture in Brisbane tonight (May 16).

Associate Professor Susan Forde delivers the 2017 AEL Professorial Lecture

The director of the Griffith Centre for Social and Cultural Research told her South Bank audience it was a tall order to expect the “somewhat diminished media sector” to shoulder the burden in a “neo-liberal era that has fairly successfully marginalized social democratic views of the world”.

She pointed to independent media operating on alternative funding models such as the Guardian, the New Daily, Crikey, the Monthly and New Matilda as a foundation for a “healthy and diverse media landscape”.

“In an advanced democracy, we do have structures which can support financial contributions to media organisations without threatening their independence and autonomy,” Dr Forde said.

“When we can deliver this – a much larger public and community-based media sector that is well supported – we will find it much easier to marginalise lound and deceitful voices.”

She was addressing the topic “The Media in Dangerous Times”, suggesting the traditional role of the Fourth Estate as an effective watchdog on power had been significantly challenged by a range of forces over the past decade.

“We’ve witnessed the rise of far-right political movements based on racism and identity politics and not much else,” she said.

“The media has been complicit in their rise. These two issues are tied together by a third factor and that is the successful marginalizing of thoughtful, informed and progressive views as political correctness and propaganda from a media elite.”

The decline in traditional media revenue streams at the expense of international new media platforms like Google and Facebook had prompted the removal of more than a quarter of Australia’s journalism workforce over the past six years – and the price that has been paid has been quality journalism.

But the answer for journalism was not to place faith in cost cutting and new technologies, but rather in content reflecting “a particular set of professional commitments and traits”.

Alternative media journalists were driven by such values, Dr Forde contended.

“They are driven to provide information to their audiences which will overtly encourage them to take part in democracy – to participate, to do something,”she said.

“They provide what we call mobilizing information.”

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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 2017

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Press Council launches Reconciliation Action Plan and welcomes Koori Mail to fold

By MARK PEARSON

The Australian Press Council has launched its first Reconciliation Action Plan (RAP) and welcomed the first indigenous newspaper, the Koori Mail, to its membership after a symbolic ceremony at the National Centre for Indigenous Excellence in Redfern, Sydney.

Journalist and Reconciliation Australia board member Kirstie Parker launches the Reconciliation Action Plan as APC Chair David Weisbrot looks on.

The Reconciliation Action Plan documents the objectives and strategies the press self-regulator vows to employ over the next two years to promote understanding and reconciliation between Indigenous and non-Indigenous Australians.

Launching the plan was former journalist Kirstie Parker – a Yuwallarai woman from NSW, board member of Reconciliation Australia and former editor of the Koori Mail (@koorimailnews).

She is now CEO of the National Centre of Indigenous Excellence (NCIE).

She congratulated the Press Council on its Reconciliation Action Plan.

“You have grasped that Aboriginal representation in media extends beyond media outlets to representation on the adjudicatory body, the Australian Press Council,” she said.

She noted the Council had recognized “the importance of Aboriginal voices in media; of managers, editors, producers, journalists framing our stories our way.”

“I cannot emphasise enough the importance of Aboriginal representation in media has been high on our agenda since the 1970s when the first community controlled Aboriginal media outlets formed,” Ms Parker said.

“That the Koori Mail – the most respected and successful Aboriginal newspaper in Australia – is now the first black media member of the APC is no accident. Media outlets come and go, I don’t have to tell you it’s a cutthroat and ever-shrinking business.”

“The Koori Mail’s longevity is a result of strong leadership, in strong roots, with a strong sense of purpose and a strong commitment to our stories and our culture.

“The paper has never given up on that and you have a lot to learn from them, your newest member.”

The Press Council’s draft RAP was endorsed after review by Reconciliation Australia.

The Chair of the Press Council, Professor David Weisbrot, explained the challenge was to implement the plans ‘fully and effectively’.

The Press Council’s RAP commits the organisation to:

•   encouraging membership by Indigenous newspapers, magazines and online news and current affairs sites;

•   engaging and consulting with Indigenous groups, individuals and organisations regarding the Press Council’s work;

•   promoting employment and internship opportunities for Indigenous people at the Press Council and among member publications;

•   promoting Indigenous cultural competence among staff;

•   considering the impact on Indigenous peoples of current and proposed Standards of Practice;

•   encouraging the Australian news media to report issues of importance for Indigenous communities in a respectful way; and

•   endeavouring to promote high quality reporting in relation to Indigenous peoples.

The Australian Press Council was established in 1976 and is responsible for promoting good standards of media practice, community access to information of public interest, and freedom of expression through the media. Press Council membership encompasses over 900 mastheads, accounting for approximately 95 per cent of newspaper, magazine and online readership in Australia.

Read the Press Council’s Reconciliation Action Plan here.

[I attended the ceremony as a member of the Griffith Centre for Social and Cultural Research which has a strong record of research into indigenous media.]

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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 2017

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Is an Open Justice Advocate the solution to overly restrictive suppression orders? #MLGriff

By MARK PEARSON

Jason Bosland [@JasonBosland] – Deputy Director of the Centre for Media and Communications Law at Melbourne Law School – has called for the introduction of a state-funded Open Justice Advocate as a measure to alleviate the continuing practice of judges issuing overly restrictive suppression orders.

Bosland’s explanatory article in Pursuit and his research article the Sydney Law Review come just as we are about to examine open justice and court restrictions in our Griffith University Media Law course, so they are essential reading for students.

He is the acknowledged leader in the field of suppression order scholarship in Australia and his work tracked firstly the need for the Open Courts Act 2013 in Victoria and, more recently, its failings to impact effectively on court practices.

Bosland writes in the Pursuit article:

This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene? It is my view that the only solution is for the introduction of a state funded open justice advocate.

His longer Sydney Law Review is an expert combination of insightful policy analysis, meticulous scrutiny of the legislation, and illuminating statistics drawn from his funded research projects on the topic. I commend them to all media law geeks and students.

His concludes that article with this wise counsel:

This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

Insightful indeed.

[See also – my article in The Conversation on how the 2015 edition of our textbook inadvertently breached a Victorian suppression order and had to be reprinted.]

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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Lessons for us all in $300k Yahoo!7 fine for contempt [updated]

By MARK PEARSON

Most Australian followers of this blog will have seen in the news that Yahoo!7 has been fined $300,000 for sub judice contempt over a publication which triggered the discharge of a jury in a Victorian murder trial.

The relatively inexperienced online journalist who wrote and uploaded the story to the organisation’s news site (without attending the court case on which she was reporting) escaped with a two year good behaviour bond, but Supreme Court Justice John Dixon noted the impact upon her of the media coverage and public shaming.

The main problem with her story was that it included excerpts from the victim’s social media accounts indicating the accused had a history of violence towards her and that she feared for her life – prejudicial evidence of which the jury was unaware.

This was enough for Dixon J. to rule:

“I find that the conduct of the respondents in publishing the article during the trial of an accused on a murder charge was conduct in contempt of court. I am satisfied beyond reasonable doubt that the publication, objectively and as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused.” (2016 judgment, para 3).

As university classes resume for the new academic year, it is timely to consider the lessons of the sorry episode for journalists and journalism students, educators and media organisations.

The two judgments – the conviction in 2016 and the sentencing in 2017 – deserve careful examination by all. Here are the take-home messages for us all:

Journalists and Journalism students

According to her LinkedIn page, the journalist was a graduate of a one year broadcast journalism program in 2013 and had since worked at modeling, sales, and internships as a television producer before gaining her position with Yahoo!7 as morning news producer in June 2015, just over a year prior to the offending story.

No doubt some basics of media law would have been covered in that institution’s media law course as they are in tertiary journalism programs throughout Australia. However, just because a student passes a media law subject with a mark of more than 50% does not mean he or she has learned and remembered every key topic covered.

If you are a student about to embark on a media law course you must realize that the consequences for failing to remember and apply the key elements of media law in your workplace can cost you your professional reputation, many times your annual salary in fines or damages awards, and even your liberty in the form of a jail term.

This means media law is way too important to undertake with that common student approach of “passes build degrees”. You need to read your textbooks and assigned readings, review them, view and engage in other recommended learning materials and tools, grapple with learning problems – and set your mind to keep up to date with developments in each of the media law topic areas. In other words, you need to make media law your passion and hobby if you are to have a good chance of staying out of trouble with the law.

That goes for working journalists as well as students. My experience in training working journalists is that most have forgotten the basic principles of defamation and contempt they learned at university or in training courses many years prior.

As for content, the key lesson from this case is that while a criminal trial is pending or in progress you should only report what has been stated in court in the presence of the jury. Dixon J. summed up the basic principles of sub judice contempt particularly well at para 24 of the 2016 trial:

(a) All contempt of court proceedings involve circumstances where there has been an interference with the due administration of justice;

(b) The law is concerned with the tendency of the matter published in the risk created by its publication.[3] It is unnecessary to prove that a juror or potential juror actually read or heard the prejudicial material;[4]

(c) The test for liability for sub judice contempt is whether the published material has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass particular legal proceedings or interfere with the due administration of justice in the particular proceeding;[5]

(d) The tendency is to be ‘determined objectively by reference to the nature of the publication and it is not relevant for this purpose to determine what the actual effect of the publication on the proceedings has been or what it probably will be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimis principle should be applied’;[6]

(e) The tendency is to be determined at the time of the publication;[7]

(f) Publication on the internet occurs when the material is uploaded onto the internet;[8]

(g) Proof of an intention of the contemnor to interfere with or obstruct the administration of justice is not a necessary element to be proved;[9]

(h) It is not relevant to consider the actual effect of the publication. Regard is had to the nature and content of the publication and to the circumstances in which it occurred;[10]

(i) Publishing or broadcasting material that is inadmissible before a jury may have the necessary tendency to prejudice an accused’s right to a fair trial;[11]

(j) It is an elementary principle in the administration of criminal justice that, apart from exceptional cases, usually defined by statute, the bad character or prior convictions of an accused cannot be put before the jury on a trial;[12]

(k) The law sets its face against trial by prejudice and innuendo. The principle that the prosecution may not adduce evidence, tending to show that an accused person has been guilty of other criminal acts or has a propensity to violent behaviour, for the purpose of leading to the conclusion that he is a person likely to have committed the offence with which he is charged is deeply rooted and jealously guarded;[13]

(l) The weight and importance of the various factors that will be material in assessing the circumstances of publication will vary from case to case. Broadly speaking, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience;[14]

He continued:

Para 25: For centuries, a ‘golden rule’ has been observed by journalists and publishers that while proceedings are being tried before the courts, information that is not admitted as evidence before the jury is not reported or published to prevent the possibility that the jury is influenced by prejudicial, extraneous, or irrelevant information. The rationale is well understood. In 1811, Lord Ellenborough stated in R v Fisher:[18]

“If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced’.”

Para 26: More recently, in 1985, Watkins LJ in Peacock v London Weekend Television[19] reaffirmed the balance between a fair trial and media reporting:

“In our land we do not allow trial by television or newspaper. Until the well-recognised institution of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.”

Para 27: The rule is well understood by journalists through their education and is communicated to journalists by the court. The court’s website has a guide ‘Covering the Courts’[20] that stresses the importance of not disclosing material that is kept from a jury:

“Remember the golden rule: do not report anything said in the absence of the jury.

Advice: study, understand and remember these basic principles and you might avoid the fate of this Yahoo!7 reporter.

Journalism Educators

Much as we would like to believe otherwise, we all secretly know that this Yahoo!7 journalist could have been any one of our graduates in the modern news media environment.

24/7 rolling deadlines, staffing shortages, acute competition, minimal on the job training, combined with the rookie’s urge to prove themselves in a tough occupation mean that shortcuts are taken, mistakes are made, and much of the knowledge gained doing highly caffeinated swatting for media law exams has long since exited the memory banks.

This case is a clarion call to us to revisit our curricula and pedagogies and implement the latest learning and teaching techniques to “scaffold” and “deepen” our learning.

My recent experience has been that a combination of problem-based learning, formative quizzes, and end of semester problem scenarios seem to be far superior to the traditional end of semester sit-down exam of yesteryear. Add to the mix student discussion of cases and law reforms as they unfold, along with the embedding of some key media law revision in other subjects, and you gain confidence that the key principles will be learned and remembered in the news room – an exercise in genuine “mindful journalism” or “reflection-in-action”.

Media organisations

The halcyon era for media law training in news organisations was 1990-1994 with the operation of the Keating Government’s training guarantee levy – an obligation on corporations to spend 1.5% of their payroll on structured training courses. Back then regional journalists, for example, received up to five full days of media law training as part of their award and could not be promoted without being certified that they had undertaken it. From memory, it consisted of two days of defamation training, one day on contempt, another on court reporting, and the final on a mixed bag of other media law topics.

If they are lucky, journalists today might get a couple of hours every year or so of a media law briefing from a lawyer, on the strong (and usually false) assumption that they already know most of it from their university degrees.

In his 2017 sentencing judgment, Dixon J. found serious shortcomings in Yahoo!7’s training and workplace protocols justified the $300,000 fine:

“Para 26: I infer that the contemptuous publication likely occurred, at least in part, as a consequence of inadequate resourcing, driven by profit or commercial motivations. Conduct by media organisations that contributes to the risk of sub judice contempt in pursuit of a profit motive must be strongly discouraged.”

He was skeptical about the sustainability of the company’s assurances that it now had new systems in place to train journalists, assign extra editorial staff to manage the workload, and to engage external lawyers to assess court stories.

“Para 27: I can find no feeling of comfort that, should the profit motive rear its head in the future, Yahoo!7 (and other media organisations) will continue to incur expense to maintain systems and procedures that protect the integrity of court processes.”

“Para 30: The arrangements about legal advice before articles are uploaded to the internet appear clumsy, unrealistic in some respects, and may prove more difficult to enforce in practice, given time constraints and their importance in the business model being employed by Yahoo!7”.

One can only hope that all of those stakeholders – students, journalists, educators and media organisations – pay heed to those important lessons the learned judge has so eloquently expressed.

UPDATE: Court copycats caught out. ABC Media Watch exposes how some news organisations lift court reports from their competitors – an unethical practice with major legal pitfalls. View here.

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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 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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Crystal ball gazing 101: Media Club event triggers flashback to 1995

By MARK PEARSON

Huffington Post Australia CEO Chris Janz addressed the Gold Coast Media Club at Griffith University yesterday (17/6/16) and offered fascinating insights into how the leading international news brand is forging success in an ever-changing mediascape.

My Griffith University journalism and public relations colleagues and I quizzed him on the implications for our students and programs. His essential toolkit for the journalism graduate in the new era?  All the basics of good reporting (fairness, accuracy, fact-checking etc) plus a good measure of curiosity, enthusiasm and the ability to cope with change.

The event and topic triggered a flashback to my own address to what was then the Gold Coast Media Industry Club way back in 1995 when the “Net” was first taking off as a mainstream medium. As I recall, only the Melbourne Age had an online version. Amazingly, I just found an ancient text file of that speech in my backups folder, and thought I would reproduce it here for those interested in checking whether my  crystal ball gazing was accurate – or way off beam – two decades ago. (You’ll see how early it was in the growth of the Internet at the time, with fewer than 9,000 commercial websites in existence internationally.)

Apologies for the missing graphics. I’m not sure I had access to Powerpoint back then, and my ‘slides’ were transparencies displayed on an overhead projector [OHPs/OHTs] .

I hope you enjoy the journey back in time and would love to hear your reactions.

—-

“The Media and the Internet: Threat or Opportunity?”

Gold Coast Media Industry Club address by Mark Pearson

Gold Coast Arts Centre, July 14, 1995

Where do you think you’d find these things if you really needed to access them?

  • The share price for Zeolite
  • The weather in Nairobi
  • Program details for a Croatian film
  • Photographs of women in G-strings and in steamy shower scenes.
  • The value of the Cyprus pound
  • The world mosquito-killing record, as set in Finland.

The Internet? … No, actually all those things appeared in this issue of the Gold Coast Bulletin.

It’s amazing what you’ll find in your daily newspaper.

I’m a great fan of newspapers. My whole career has been built upon them. Production-wise it’s easy to see why they’re called the ‘daily miracle’. I still can’t fathom how those two rolls of paper arrive on my front lawn every morning… the human and physical resources that have gone into them … the efforts of correspondents in Finland relayed to news agencies, where sub-editors process copy and send it thousands of kilometres to other news agencies who forward it to newspapers where it is selected, edited and placed alongside photographs and advertisements which have been through equally complex processes. And somehow it’s all printed and transported and passed through many more hands before it arrives next to my letterbox and I have to fight my wife and 14 year old son to read it.

But that still doesn’t mean I’m interested in the weather in Nairobi or the value of the Cyprus pound. I find enough in the newspaper to keep me buying it and its advertisers must find enough buyers in the newspaper to keep sponsoring it.

There are a few lessons for us here when we start to think about a new technology like the Internet. And this talk’s devoted to three of those lessons:

  1. The value of information is relative. What’s trivia to me might be important to you. What’s fun to me might offend you.We can’t impose our own values on other people’s information.
  2. All media have their advantages and disadvantages.
  3. No matter what the medium, the audience comes first.

And I’m going to apply all of that to the Internet: discuss the material we find on it, talk about its pros and cons; and take a look at the demographics of its audience.

I’m going to try to do all that without using the hype that’s being bandied about when it is discussed. We’ll assess it as a medium, decide whether it’s useful to us, and have a bit of fun along the way.

  1. The Internet as a Medium

Technological developments such as the telegraph, radio and television prompted changes in both the gathering and distribution of news. But only the advent of the computer and advances in telecommunications have redefined mass communication. The convergence of media, computing and telecommunications is allowing audiences a degree of independence and interactivity not possible with traditional media.

Newspapers, magazines, radio and television were all one-to-many communication media, with single products or programs being distributed to mass audiences. Presenting news to such audiences was a matter of determining the topics of greatest interest to the largest number of readers, listeners and viewers. Audience choice was limited to the selection of the medium and the news product. From that point on audiences had to take what they were offered. The new media allow for a significantly greater degree of choice and interactivity, prompting questions about the suitability of mass media techniques of reportage and distribution.

What are the new media? Obviously, the “new” media will change with time. Newspapers comprised the “new medium” of the 18th century; television the “new medium” of the 1950s. To me, the new media are those which involve some convergence of traditional media to offer audiences a greater level of choice and interactivity. Examples include the Internet and its permutations (such as the World Wide Web and on-line discussion groups); broadband distribution services providing interactive television services in homes; and virtual reality technology offering the user some electronic experience which appears real.

The Internet is the linking of computers at thousands of academic, governmental and commercial institutions worldwide into a wide area computing network (WAN). Figures are in dispute, but conservative estimates put full Internet access at more than 30 million and simple electronic mail access at 120 million world-wide.

But it’s built on chaos. The whole system – originally a US defence initiative – was premised on the notion that no single link would be crucial to the network, so that if any single computer was taken out by a military strike the other nodes could still communicate. It’s this interconnectivity that makes the whole network so difficult to count – and just as difficult to regulate.

The most exciting part of the Internet today is the world wide web of computers using a common language to publish material to computers with different architectures throughout the world. Hundreds of traditional media outlets – newspapers, magazines, radio and television stations – are now producing Web versions of their products.

Other new players are creating tailor-made services for Web presentation. And hundreds of thousands of individuals are publishing their own Web pages as a hobby.

Whereas a newspaper might have previously been competing on the news stand against a handful of other newspapers and scores of magazines, on the Internet it is competing against hundreds, perhaps thousands of other newspapers and magazines and millions of independently initiated documents and multi-media presentations, each of which has varying relevance to its separate readers’ needs.

This makes the function and purpose of a traditional media provider problematic from both a communication and an economic perspective. For example, how useful and viable is the entity known as The Age newspaper when published in an electronic form on the World Wide Web? At the same time, how useful and viable does the print version of the same newspaper continue to be to its traditional audience? Such questions strike at the heart of the dilemma facing traditional providers as they confront the ramifications of a large-scale move towards the new media.

At the same time, traditional journalism can be enhanced by adept use of new technologies in reportage. New resources are now at the finger tips of the journalist wanting to use the Internet for reporting. Computer aided reporting involves electronic access to government documents, court reports, articles, and specialist opinions, adding to the depth of coverage of an issue and the discovery of angles on stories which might never have been contemplated. So, while new media might represent a threat to the medium in which the journalist currently works, the journalism itself can be enriched by using the new media proficiently.

Newspapers and the journalism which evolved through their pages owe their very existence to a technological innovation which, when harnessed by the intellectual pursuits of modern humanity, has provided the catalyst for the spread of knowledge. That invention was the printing press. The evolution of the printing process from the archaic machinery of the seventeenth and eighteenth centuries, through the era of hot metal type to computer typesetting and finally to electronic pagination and distribution has affected the time frames within which newspaper journalism has been expected to be conducted and the audiences which it has been able to reach.

The introduction of the telegraph, radio and television each brought their own challenges to media practices.

The fleeting 1980s technologies of videotext/teletext news services were a flop because they expected audiences to sit in front of television sets and read text over which they had no control.

The new media make no such mistakes. They are premised on interactivity and user choice. The theory is you get the information or entertainment you request … when and where you want it. The mass media is becoming individually tailored. That’s the main point of difference of both the Internet and the broadband interactive services promised with the next phase of digital television.

So, what does it look like?

Here’s a new publication I started with my students last week: the first daily journalism student production targeted exclusively at a Web audience…

Explain background to Bond student project. (OHPs1-3) (explain how it beat SMH with main news by 16 hours and television stations by 4 hours). People in Anchorage can be reading our news hours before Australians are accessing the mainstream media.

Ours is one site of more than 2000 Australian sites on the World Wide Web. There are more than 5 million of them internationally. Just like the daily newspaper, there’s a lot of guff out there in cyberspace. There’s the trivial and the bizarre…

(Read two from .net directory)

(Explain toilet one.)

There are entertaining sites: (Sound and video clips from the latest movies, fan club pages, even interactive chess – Daniel).

There are educational sites, places to do courses and research material for projects and essays. (Ancient Egypt page, Library catalogues, interactive classrooms.)

But is it useful???

Explain my usage: checking references, politicians’ names/contact numbers, multi-media course outline.

But for Mrs Allen over the road … probably not just yet. As the sites build up locally I could see her accessing catalogues, getting quotes and ordering products by email, downloading and printing a map of Fraser Island for her next trip, booking her camping permit there, and dragging some puzzles off the Net to entertain her kids on the long drive there.

For Mrs Allen, it will be a matter of being educated as to its possibilities. For her children, it or some version of it will be second nature.

You’ve seen our fairly modest news production. Here’s the kind of product being produced exclusively for Web distribution…

[OHP: Hotwired home page.]

  1. Commercial potential

Commercial use of the World Wide Web can take three main forms:

  • Passive presence

A Web site used for PR or low-key corporate presence. This might simply give information about the company and its activities and structure.

  • Spot advertising

Actual display advertising on someone else’s Web site. (OHP: MacMillan site).

(Explain Infoseek’s search page: Cathay Pacific giveaway, Alamo freeways online rentacar, Species, the sci-fi thriller from MGM/UA, Sun Microsystems, Metricom Wireless Data Technologies, MacMillan Information Superlibrary, Internet Shopping Network, NECX Direct computer products, Dealernet – the source of new car information)

  • Designated sales site

A whole Web site specifically designed to sell a product. (OHP: First National example.)

US market research group ActivMedia has produced one of the first reports on Internet marketing.

It reported there were 588 commercial World Wide Web (www) sites at the end of September 1994. Eight months later, the index listed more than 6,000, an average monthly growth rate of 34%. Even if growth slows considerably, 9,000 commercial websites will exist before the end of August, 1995. ActivMedia surveyed 195 of these active Internet marketers, and projected the responses to reveal an industry worth more than $300 million.

(OHP: Activmedia graph)

Interestingly, it showed that the average website was generating more than US$7000 per month in sales for the average active marketer, with 18 per cent reporting five figure turnover generated to their websites.

  1. Demographics

Cyberspace (Show William Gibson Neuromancer book cover).

Cyberspace…. A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding…

Gibson’s cyberspace was an incredibly violent and masculine place, with the direct neural connection between humans and computers both exhilarating and painful.

The non-fiction cyberspace is rarely violent, often exhilarating, but is notably masculine.

The Graphics, Visualization, & Usability Center at the College of Computing, Georgia Institute of Technology surveyed 13,000 Web users and came up with the following demographic data:

  • Average age across all users was 35.
  • More than 80% of users were men, but female use was increasing.
  • More than half of the users were married or had been.
  • 60% of users had no dependents.
  • Average income of users was US$69,000
  • 70% used their computers for “fun” for more than five hours per week. (Time they might otherwise be watching television.)
  • Women did less fun computing than men.
  • 30% had been on the Internet for less than 6 months.
  • Almost half owned only one computer.
  • Only 31% were in the computing profession, with the next largest occupational groups education, professional and management.
  • 22% said they would not pay fees to access Web sites.
  • 85% of users shared their computers with others.
  • About 20% use their computer for work for more than 30 hours per week.

The advertising and marketing people will know much more about that demographic than I do. I’ll make two blatantly obvious comments: They’re not all tech-heads, or nerds, as they have been portrayed, and they have money to spend. You can figure out the rest.

  1. Problems

[OHP] Load: technical difficulties of speed and quality.

Access: Information rich vs. information poor

Control: large vs. small players. Delphi on line within month. Microsoft to launch its exclusive Web access under the long awaited Windows 95 release.

Legal hazards: Copyright and stealing images, Defamation (WA academic who sued over Internet libel), trade practices (consumer fraud), and the common legal problem of trans-jurisdictional infringements.

Pornography

Down side – rape in cyberspace, child pornography arrest.

Fun side: ‘teledildonics’; erotica.

In conclusion ………………

Some say this whole Web thing is like the gold rush era: the only ones who’ll make any money out of it will be those who supply the miners with rations, rum and rump.

Others call it the ‘world’s largest zero billion dollar industry’.

Experts who claim to predict the future have only one thing in common – they’re always wrong.

But I’ve got a feeling there’s gold in them there hills for any media player with a good eye for an audience and the right product to market.

Just remember that audiences are human beings with their own problems and passions. Technology on its own holds no power. The power is in your ability to use it to help people solve their problems and to ignite their passions.

The Internet will prove to be a threat to those of you who don’t understand your audiences. And perhaps an opportunity to those who do.

© Mark Pearson 1995 and 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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