Category Archives: suppression

Review: Truthteller – An Investigative Reporter’s Journey through the World of Truth Prevention, Fake News and Conspiracy Theories

By MARK PEARSON

Truthteller: An Investigative Reporter’s Journey through the World of Truth Prevention, Fake News and Conspiracy Theories, Stephen Davis (2019)

Dunedin and Chatswood: Exisle Publishing, 264 pp.,

ISBN 978-1-92533-589-7, p/bk, USD 29.99

[This review was first published in Australian Journalism Review, Volume 41, Issue 2, 2019]

Timing of the publication of the page-turning paperback Truthteller could not have been better, with the subsequent Australian Federal Police raids on the ABC offices and News Corporation journalist Annika Smethurst’s home offering a haunting currency to many of its themes.

Former journalism educator at Macleay College, Stephen Davis, has seen the craft from all angles over an impressive career as investigative reporter on the Sunday Times’ Insight team, producer for 60 Minutes, and editor of the New Zealand Herald.

Three decades of reporting international wars, espionage, crime and intrigue make for a riveting read as Davis reveals the lengths to which governments and agencies and their functionaries will go to mislead and deceive the media when they have something to hide.

Davis structures Truthteller into an introduction and conclusion plus 10 chapters taken from the ‘toolbox for lies and deception’ – each centred on a case study from his reporting career where the authorities have used a different technique of spin or outright censorship.

Highlights include:

  • The UK Government’s cover up of the truth behind British Airways flight BA149 which was given permission to land in Kuwait with 367 passengers in 1990 despite the Iraqi invasion of that nation having already commenced. The passengers were subsequently used as human shields by the Iraqis but the British government denied them compensation despite evidence the flight had been landed to deploy a troop of undercover special forces operatives;

  • The world exclusive that oil giant BP was using a Brazilian subsidiary to rape huge swathes of Amazonian rainforest and the subsequent attacks by authorities on Davis’s prime NGO source in a classic case of shooting the messenger rather than addressing the problem; and

  • The multi-government conspiracy to cover up the real reasons for the 1994 sinking of the ferry Estonia in the Baltic Sea with the loss of 852 passengers and crew amidst allegations that the captain had been whisked away and that the ship had been carrying Russian arms.

Davis’s ‘toolbox’ of techniques used by governments and big corporates include character assassination, targeting sources, generating alternative theories, delay, distance, cover-ups, legal suppression, secret deals and media manipulation.

His stated aim is “to inspire truth seekers of the future, because the battle between those seeking to expose the truth and those seeking to prevent it is an unequal struggle”. Sadly, I could not find much inspiration in the dark picture Davis paints in his case studies, most of which remain clouded in the confusing mystery of spin despite the best efforts of some of the world’s best investigative teams.

The book’s subtitle ‘An investigative reporter’s journey through the world of truth prevention, fake news and conspiracy theories’ promises to shed light on false news in the modern ‘post truth’ era. However, while Davis offers some insights into bots and trolling and a short chapter on the 2017 fake news conspiracy theory about a secret anti-Trump society in the FBI, the bulk of the book is centred on analogue media manipulation from the 1990s and early 2000s when Davis was doing most of his international reporting.

There is a paucity of references and a gimmicky technique of listing random other news items from the particular case study’s news day at the start of each chapter which contribute to the impression it is a popular read rather than a worthy set text or reference work.

Nevertheless, it is a fascinating memoir and a useful vehicle for the media literacy of the masses, whose eyes will be opened to the methods governments and multinational companies have used to keep truth from their citizenry.

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 2020 – the moral right of the author has been asserted.

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Five media law essentials for journalists, publishers and students #MLGriff #auspol #medialaw #auslaw

By MARK PEARSON

Much has happened in the field of media and social media law, even since the sixth edition of our Journalist’s Guide to Media Law (Pearson & Polden) was published in 2019.

As media law students start their academic year at Australian institutions, this calls for a quick update of the five most important risks facing journalists in the digital era.

  1. Defamation: Reforms to Australian defamation laws appear imminent, but the basic principles will remain the same. Pause before publishing anything criticising or ridiculing anyone and consider your language, evidence base, intended meaning, motivation and working knowledge of the defences available to you. If in doubt, seek legal advice. If you can’t afford that advice, then modify the material or leave it out – unless you have considerable defamation insurance. Society needs robust journalism, but remember it can also need deep pockets to defend it. The 2019 case of Voller v. Nationwide News underscores the decision in Allergy Pathway almost a decade ago: publishers may be responsible for the comments of others on their social media sites, particularly when posting articles on inflammatory topics or people. Ashurst law firm has produced a useful flow-chart to explain the steps a publisher should take to minimise the risks of liability for comments by third parties on their social media sites.
  2. High profile trials: Regardless of the fate of the 30 journalists and news organisations still facing contempt action over their reporting of last year’s trial of Cardinal George Pell, the episode reinforces the dangers facing those reporting and commenting upon major court matters. As we show in our crime reporting time zones flowchart in our text, a criminal case involves an interplay of risks including defamation, contempt and other restrictions. Courts and prosecutors take suppression orders seriously, so it is wise to pause to reflect and to take legal advice when navigating this territory.
  3. National security risks: Many of the 70-plus anti-terror laws passed in Australia since 2001 impact on journalists, with jail terms a real risk for those reporting on special intelligence operations, ASIO, suppressed trials, and any matter using insider government sources, along with a host of other risks as identified by Australia’s Right To Know’s submission to the Parliamentary Joint Committee on Intelligence and Security in 2019. The laws present a minefield for journalists covering national security, defence, immigration and related topics. It is a specialist field requiring a close familiarity with the numerous laws.
  4. Breach of confidence: Journalists are reluctant to reveal their own confidential sources, but they are keen to tell the secrets of others – particularly if matters of public interest are being covered up. Actions for breach of confidence allow individuals and corporations to seek injunctions to prevent their dirty linen being aired. Further, the Australian Law Reform Commission has recommended a new action of serious invasion of privacy and the future development of the action for breach of confidence with compensation for emotional distress. The Parliament has not yet embraced the proposal but judge-made law on privacy and confidentiality remains a possibility.
  5. Compromising sources: The journalist-source relationship is one where the journalist’s ethical obligation to preserve confidentiality is threatened by a number of laws. Most Australian jurisdictions now have shield laws giving judges a discretion to excuse a journalist from revealing a source after weighing up various public interest factors. This is far from a watertight protection and journalists face potential jail terms for ‘disobedience contempt’ for refusing a court order to reveal a source or hand over materials. Further, as two ABC journalists and News Corporation’s Annika Smethurst discovered last year, journalists can also face criminal charges for just handling or publishing confidential or classified materials given to them by whistleblowers, even if the matter relates to an important matter of public interest. The validity of the warrants to raid them over ‘dishonestly receiving stolen property’ (Commonwealth documents) was upheld by a Federal Court earlier this year, despite a range of arguments including shield laws and the constitutional implied freedom to communicate on political matters. Such action, combined with the far-reaching powers of authorities to access communications metadata and the proliferation of public CCTV footage presents huge challenges to journalists trying to keep their whistleblower sources secret. It is one thing to promise confidentiality to a source, but quite another to be able to honour that promise given modern surveillance technologies and the legal reach of agencies.

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 2020 – the moral right of the author has been asserted.

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Washington Post podcast shows role of JWs in First Amendment rights #MLGriff

By MARK PEARSON

MEDIA law students and colleagues will have undoubtedly noticed the Jehovah’s Witnesses pop-up stalls with religious books and magazines outside campuses and public transport stops, staffed by followers passively promoting their religion.

Yet few would realise the important role this religious group has played in cementing First Amendment rights in the United States, with a ripple effect for freedom of religion and free expression internationally.

That story is central to Episode 16 of the acclaimed Washington Post podcast ‘Constitutional’, available free here.

It uses the voices of constitutional experts and those who lived through the period to explain how a series of cases brought to the US Supreme Court by the Jehovah’s Witnesses forged the interpretations of the First Amendment that laid the platform for religious and media freedom – and free expression more generally – today.

More than 20 cases were brought in the midst of the Second World War. The religion lost the first two major cases, related to proselytising in public and the right of their children to refuse to salute the US flag at school.

But within two years the Supreme Court had overturned that decision, giving the First Amendment precedence over many other rights.

It is a compelling narrative and particularly well produced, and recommended listening for media law students.

Australia’s High Court has chosen to take a narrower approach to freedom of speech and religion in its interpretation of what it has called an ‘implied freedom to communicate on matters of politics and government’. In a comparable case in 2013, it declined a religious group’s attempt to use that implied freedom to proselytise in the centre of Adelaide.

Caleb and Samuel Corneloup were evangelical members of the fundamentalist ‘Street Church’, who preached in Adelaide’s busy Rundle Mall in a loud, animated and sometimes confronting style. Adelaide City Council tried to stop them, by using a by-law prohibiting anyone preaching or distributing printed matter on any road to any bystander or passer-by without permission.

The High Court majority held that the Local Government Act empowered the council to make the by-laws. They ‘were a valid exercise of the Council’s statutory power to make by-laws for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants’.

Although they ‘burdened political communication, they did not infringe the implied constitutional freedom’ because they served a legitimate end in a manner compatible with our system of representative and responsible government, the High Court said (Pearson & Polden, 2019)

[See Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (27 February 2013), <www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2013/3.html>. ]

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

© Mark Pearson 2019 – the moral right of the author has been asserted.

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Australian metadata laws put confidential interviews at risk, with no protections for research

By MARK PEARSON

Interviews from a range of sensitive research topics may be at risk. These include immigration, crime and corruption.
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EACH year, academics and students make countless applications for research ethics approval, based on the promise of confidentiality to their interview subjects. Interviewees sometimes offer academic researchers information that might be self-incriminating or might jeopardise the rights and liberties of others they’re discussing.

But Australia’s metadata retention laws can lead to the identification and even incrimination of the very people whose identities academic researchers have promised to keep secret for their work.

Imagine, for instance, a criminologist conducting a project examining white collar crime in banking and financial services. The academic’s confidential interviews with former company directors and executives might elicit specific and revealing answers. It could lead to potential redundancy or even jail time, depending on their vulnerability and culpability.

Under the metadata laws, government agencies make hundreds of thousands of requests to Australian telcos each year for their customers’ phone and internet communications metadata.

For the criminologist, this means relevant agencies can ask telcos to access his or her metadata in the form of call records and computer IP addresses. This means they can identify whether a person of interest has been in communication with the researcher and is the possible source of incriminating material. Other investigations and legal steps might then follow.

Interviews about a range of sensitive research topics may be at risk. These include immigration, crime and corruption, national security, policing, politics, international relations and policy.

The impact of metadata laws on journalists and their sources have been well documented. But we can only wonder how many people will agree to participate in academic research if they are made fully aware of the real potential of being identified by investigators.

Interested?

READ my full article in The Conversation.

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 2019 – the moral right of the author has been asserted.

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Submission to inquiry shows journalism educators and students lack metadata source protection

By MARK PEARSON

Australian journalists have a narrow and inadequate protection under national security laws from government agencies accessing their metadata to discover the identity of their confidential sources.

I helped the Journalism Education and Research Association of Australia (JERAA) prepare a parliamentary committee submission that explains journalism educators and journalism students do not even qualify for that low level of protection, leaving their confidential sources open to revelation.

Our submission now sits with several others on the Parliamentary Joint Committee on Intelligence and Security site here.

We have asked that legislators focus on the public interest journalism involved when awarding such defences and protections rather than focussing simply on whether someone is a ‘journalist‘ – an occupation and term difficult to define in the modern era – and used as the default for the rare privileges given.

We have proposed that

existing and proposed protections for ‘journalists and media organisations’ be extended to apply to the research and outputs of journalism educators and their students when they are engaged in ‘public interest journalism’, whether or not they are paid to work as journalists and whether or not their work is published by a ‘media organisation’ in its traditional sense.

We have also asked that the Commonwealth lead a reform initiative to unify all state, territory an Commonwealth media laws across a range of publication restrictions to do away with anachronistic inconsistencies and introduce a public interest journalism defence or exemption so that courts are prompted to balance the various interests at stake before issuing a warrant against a journalist or taking criminal action.

The Committee is now entering the phase of public hearings. See their site 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 2019 – the moral right of the author has been asserted.

 

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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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