Category Archives: Media regulation

Media law for local government communications officers

By MARK PEARSON

A host of media laws might arise in the work of local government communications and media relations personnel, as I explained to a team from a large council recently.

With councils hosting inquiries and debates among ratepayers on social media platforms, and some even publishing their own news products to supplement a weaker suburban and regional media sector, they are facing many of the same media law risks that journalists encounter in their work.

These include defamation, contempt, breach of confidence, privacy, freedom of information/right to information, intellectual property and discrimination laws among others.

Yet while the news media have been described by some as “not just another business” because of their Fourth Estate role in a democracy, councils are clearly “not just another publisher” because of the special role local government plays in our political system.

A news organ published by the communications department of a local government body faces epistemological questions about their purpose and responsibilities which, in turn, feed into media laws and their defences.

A central question is: “Whose interests should come first, the citizen-ratepayer’s or the council’s?”

The reality is that most topics covered – such as extended library hours and the Carols in the Park coverage – would not trigger a dilemma here.

But push comes to shove when citizens are strongly critical of a council, its officers or its elected representatives over a decision or a proposal.

This is where the editor of any council-owned news organ and the moderator of comments on its social media feed face this fundamental dilemma over who is their real master – which in turn can feed into their position on several media law issues, most notably about whether defamation defences might be defeated by a lack of good faith or a perceived bias.

But there are also fundamental issues over the extent to which councils can shackle both the common law right to free expression and of course the implied freedom to communicate on matters of politics and government – both clarified in relation to local government bylaws by the High Court in Attorney-General (South Australia) v Corporation of the City of Adelaide (2013) 249 CLR 1.

While that case found Adelaide Council’s restrictions on preaching in Rundle Mall were a reasonable restriction on those freedoms, the decision prompts questions about other restrictions some councils may exercise upon their staff and elected officers.

Some, for example, have banned councilors from speaking publicly against decisions of their councils by narrowly interpreting some provisions of local government acts.

Early in 2017 the Redland City Council in Brisbane was criticized by the Queensland Ombudsman for threatening two citizens with defamation action over alleged defamatory comments about council, council officers and the Mayor, Karen Williams on social media websites. Legal letters from the Council demanded the complainants remove their comments and post apologies. The Ombudsman concluded the threats were not a reasonable or proportional response to what was relatively minor criticism of council’s decisions and were an unreasonable expenditure of public funds. He recommended training for councils in defamation law.

There are many other areas of the law beyond media laws that are likely to impact on local government media relations and communications personnel – both because of their public relations role and because of their function as part of the third tier of government.

These might include contract law, negligence, professional liability, HR law, whistleblower legislation and a host of regulations and common law obligations over transparency in council processes.

The recommendation by Queensland’s Ombudsman that council officers need training in defamation could well be extended to numerous media laws and several other legal and regulatory restrictions.

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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Reporting upon forensic mental health cases and identifying patients

By MARK PEARSON

What are the key policy factors influencing courts and tribunals attempting to balance open justice against other rights and interests in newsworthy cases involving forensic mental health patients? 

Associate Professor Tom Morton from UTS, ABC lawyer Hugh Bennett and I examined this question – and the related issue of whether the media could report upon such cases and identify the patients involved – in our recent article in the leading journal in the field, the Journal of Media Law.

Citation: Mark Pearson, Tom Morton & Hugh Bennett (2017): ‘Mental health and the media: a comparative case study in open justice’, Journal of Media Law, DOI: 10.1080/17577632.2017.1375261

Here is our conclusion:

Open justice in mental health proceedings need not be viewed in a vacuum. There are strong parallels with numerous other situations where the legislature and the courts find and apply exceptions to the open justice principle. There is much scope for consistency across Australian jurisdictions and across the many situations where the restrictions are in place because of different vulnerabilities faced by key participants in the court process – mental health patients, children, sexual crime victims, family law parties, protected witnesses and, in two Australian states, even those accused of sexual offences until after the committal stage of proceedings.

There is a strong argument that the courts should be most transparent when the public gaze is so sharply focussed upon them, and that public education about the workings of the justice system in the important area of mental health will be most effective when citizens are intrigued by a particular story and know its background. The courts might acknowledge that in some circumstances a story can be both “interesting to the public” and “in the public interest” – and that perhaps the two notions might not have to be mutually exclusive as Lord Wilberforce so famously suggested.

Full contents of the edition and subscription details can be seen here.

We compared four forensic mental health cases in Australia and the UK and highlighted some of the key competing rights and interests at stake when the news media or other parties seek to have mental health proceedings opened and to identify the patients involved. The approaches of the tribunals and courts we  studied showed the competing policy considerations in such applications were by no means clear-cut. They varied markedly from case to case with regards to the potential impact on the patient and other stakeholders and in their respective public interest value in the stories being told to broader communities. Policies around publicity are complicated when expert psychiatric opinion varies on the potential impact on the mental health and treatment regime for the patient.

The weighing of such important rights and interests is not a precise science where a pre-set formula will apply. Of course, important differences between Australian and UK jurisdictions inform such decisions, including different statutory frameworks for the particular tribunals, together with the lack of a formal human rights framework in Australia, comparable with the European Convention on Human Rights, which affords privacy and free expression rights. In Australia, these considerations draw upon the common law, because there is as yet no actionable tort of privacy invasion and free expression is limited to a High Court-designed implied constitutional freedom of communication with respect to “discussion of government and political matters”. Further, the various mental health tribunals dealing with applications from or regarding forensic patients operate within their own statutory frameworks, rules and practice directions which sometimes bind, and in other circumstances guide, their decisions on whether hearings can be held in public and, if so, whether parties and other participants might be identified.

In Australia alone, the nine jurisdictions have taken a variety of approaches to whether such hearings are held in public and whether parties must be anonymised in any reporting permitted. Open justice can be viewed as a policy continuum, ranging from closed hearings and a total ban on reporting at one end through to open hearings with full identification of parties allowed as part of a fair and accurate report of proceedings at the other. Somewhere in between are attempts to strike a balance between open justice and competing rights and interests with partial permissions; where the public or the media might be admitted to proceedings with a range of conditions placed upon the extent of identification of parties or witnesses allowed.

We developed  this list of key policy factors elicited from the cases reviewed, influencing whether a forensic patient or former patient might be given a public hearing or be identified in proceedings:

  1. Specific legislation, regulations, rules and practice directions relating to privacy and anonymity in hearings involving forensic patients or former patients;

  2. Whether there is informed consent from the patient to identification and publicity of his or her case;

  3. The extent to which a public trial and/or identification impacts upon on the life (ECHR Article 2), ill-treatment (ECHR Article 3), liberty (ECHR Article 5), and other rights, dignity and self respect of patients; including the impact of publicity and identification on their mental health and well being, ongoing treatment, safety and ease of re-entry to the community after treatment/rehabilitation;

  4. The impact of a public hearing or identification upon the right to privacy (ECHR Article 8) of the patient and other participants, and the confidentiality of personal medical details;

  5. The historic principle of open justice (ECHR Article 6): fundamental principles of transparency and justice ‘being seen to be done’, as espoused in Scott v. Scott; the public interest in transparency of mental health processes and proceedings;

  6. Freedom of expression and communication (ECHR Article 10); including the freedom of expression of the media, patients and other participants like hospital and prison personnel;

  7. The public’s right to know: public understanding of the mental health system and its treatment of patients; the public interest in knowing the outcome of highly publicised or emblematic cases; the public interest in knowing of wrongdoing in the mental health system; and the public interest in the safety and security of their communities;  

  8. Impact of identification and publicity upon other parties, including hospital staff, other patients, victims and their families;

  9. Public administration costs (economic and organisational) associated with implementing effective systems of publicity and identification. (For example, hospitals’ and courts’ management of media inquiries, extra costs of security for patient, special accommodation for public hearings, expense of installing video links etc);

  10. Stage of the process – for example, publicity and identification might be allowed on early applications related to conditions while institutionalised, but perhaps refused when re-entry to society is imminent or has already passed;

  11. The track record of the applicant media organisation/s in prior coverage and ethical management of privacy and consent issues, in this and perhaps in other comparable cases; the nature of the proposed program or publication and whether it is likely to be of a professional standard, balanced, accurate, reflective of a range of stakeholder views and sensitive to the patient’s experiences; and the context and focus of the identification of the patient in the media output;

  12. Whether a public hearing and/or identification of a patient might risk stigmatising mental illness.

Full contents of the edition and subscription details can be seen here.


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

© Mark Pearson 2017

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

By MARK PEARSON

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

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

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

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

Australia: Whither media reform under Abbott? – Mark Pearson

25 11 2013

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

Read the rest of this entry »

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

13 10 2013

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

 

Privacy On Parade – Mark Pearson

12 05 2012

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

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

 

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

10 03 2012

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

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

 

Consumer law holds solution to grossly irresponsible journalism – Mark Pearson

9 11 2011

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

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


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

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

11 04 2012

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

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


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

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

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

© Mark Pearson 2017

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Speaking with magistrates about Open Justice #MLGriff

By MARK PEARSON

New magistrates from throughout Australia met in Brisbane last month for the National Magistrates Orientation Program and I was honoured to join a panel addressing them on open justice.

While magistrates have both legal qualifications and considerable experience, sadly open justice does not figure prominently in the curricular of most law schools so it is heartening to see the organisers of this program giving time to this important legal principle.

My fellow panellists for the session were former Queensland chief magistrate, District Court Judge Brendan Butler (who recounted his experiences with the media in prominent trials and inquests) and the Queensland Supreme and District Courts’ first Principal Information Officer Anne Stanford (@Anne_Stanford) (who explained her role and the interaction between the courts and the media in Queensland and in Victoria where she held a similar position).

I traced the origins and importance of the open justice principle in our legal system, citing English Master of the Rolls Lord Neuberger who described it as “a common law principle which stretches back into the common law’s earliest period” – to “time immemorial” – “…older than 6 July 1189, the date of King Richard the First’s accession to the throne” [Neuberger, Lord of Abbotbury (Master of Rolls) 2011, ‘Open justice unbound?’, Judicial Studies Board Annual Lecture, 16 March, < http://netk.net.au/judges/neuberger2.pdf>., p. 2].

Particularly important was the notion that the media should be free to report upon cases and publish the names of parties involved, with minimal exceptions, as recently stated in the UK by Baroness Brenda Hale, new President of the UK Supreme Court:

“The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. … The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. [… limited exceptions].” R (on the application of C) v Secretary of State for Justice [2016] UKSC 2, 1 (per Lady Hale).

I suggested that with diminished resources and finances available to mainstream media in both metropolitan and regional areas, magistrates might be the only people left to speak to the principle of open justice when lawyers and litigants want the court to be closed or names suppressed. Media organisations that might have formerly paid for lawyers to push for the courts to remain open might not be able to afford them, and court reporters might not be available to even report on the particular case being heard.

I attach here my Powerpoint presentation from the session for colleagues and students who might be interested.

MagistratesOrientationBrisbane8-9-17

 

 

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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Mental health and the media: a comparative case study in open justice

By MARK PEARSON

Our article comparing Australian and UK restrictions on the reporting of forensic mental health cases has appeared in the leading journal in the field, the Journal of Media Law.

Citation: Mark Pearson, Tom Morton & Hugh Bennett (2017): ‘Mental health and the media: a comparative case study in open justice’, Journal of Media Law, DOI: 10.1080/17577632.2017.1375261

Here is our abstract:

Media reportage about forensic mental health cases raises several competing rights and interests, including the public interest in open justice; a patient’s right to privacy, treatment and recovery; the public’s right to know about mental health tribunal processes; and victims’ and citizens’ interests in learning the longer term consequences of a publicised serious unlawful act. This article details a case study of successful applications for permission to identify a forensic mental health patient in both a radio documentary and in research blogs and scholarly works in Australia. It compares the authors’ experience in this case with three other cases in Australia and the UK, and identifies and weighs the competing policy issues and principles courts or tribunals consider when attempting to balance open justice with the rights and interests of a range of stakeholders in forensic mental health cases where the news media and/or patients are seeking publicity and/or identification.

Full contents of the edition and subscription details can be seen 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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Public Interest Journalism Committee hears from journalism educators

By MARK PEARSON

The Australian Senate’s  Select Committee on the Future of Public Interest Journalism – known as the ‘Public Interest Journalism Committee’- has heard from several journalism educators in its inquiry into the future of public interest journalism.

Journalism academics have been made several of the 70 submissions to the inquiry and have featured among appearances at the public hearings held to date. It is heartening to see so many of my colleagues lending their considerable expertise to the committee’s deliberations upon the impact of fake news, emerging technologies and other social and economic changes upon the state of public journalism in Australia.

My own submission proposed a new public interest journalism defence which would excuse “legitimate and demonstrated public interest in freedom to communicate on this occasion”. You can read it at my earlier blog post here.

I recently appeared at the Sydney hearing of the committee and my testimony is available 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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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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