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Griffith Review publishes podcast on ‘Trust and Press Freedom’ #MLGriff

By MARK PEARSON

Journalist in residence colleague at Griffith University, Walkley Award-winner Nance Haxton, has produced a quality podcast on Trust and Press Freedom as a special instalment of Griffith Review‘s The Backstory.
Matters of TrustIt includes interviews with yours truly (Mark Pearson @journlaw), along with prominent journalists and academics Damien Cave, Matthew Condon, Trent Dalton, Peter Greste, Kate McClymont, Hugh Riminton, Gerard Ryle, Leigh Sales, Julianne Schultz, Sandra Sully and Mark Willacy.
As explained by Griffith Review, Haxton explores ‘Matters of Trust’ through the prism of the media – access to information, the processes of injunction and defamation that limit media freedom, the absence of a constitutionally enshrined right to freedom of expression, the shrinking of news sources with the closure of AAP and many regional newspapers, and the need for journalists to strive harder to earn more respect.
The episode of The Backstory complements Griffith Review 67: Matters of Trust.

 

Read the episode transcript here.

More articles about trust, freedom, transparency and threat can be found in Griffith Review 67Matters of Trust  – the current edition.

Print, PDF, ePub and Kindle versions, as well as subscriptions can be accessed 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 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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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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Why study media law? #MLGriff

By MARK PEARSON

More than 200 new media law students embark on our seven week summer intensive course next week, so I thought it timely to reflect upon what might be gained from studying media law.

About two thirds will be attending classes in person, while the balance will be undertaking the course online. The cohort is almost evenly divided between journalism, law and communication students, with a few others taking it as an elective.

Here are 10 key benefits of media law study:

  1. Identifying and assessing risks in publishing is the new digital literacy. Traditionally only journalists and some lawyers really needed to know about media law, but now every citizen must know the risks of publishing because we are all now publishers as we post to social media, send emails and release our blogs, videos, films, games, software and images.
  2. Many areas of the law coalesce in ‘media law’, making it an excellent introduction to the legal system for journalists and public relations practitioners and a fertile field of revision and practice for law students.
  3. Media law presents a wonderful opportunity to explore the many competing rights and interests in society as the rights to free expression, information, and a free media compete with other important rights including reputation, a fair trial, privacy, confidentiality, intellectual property and national security, along with the right to be free from discrimination in all its forms.
  4. It affords us a superb showcase of the role of the news media in the varied political systems internationally as governments select different points where free expression should be curtailed. You learn that free expression is a continuum, with fewer restrictions in some nations and alarming censorship in others. International students get to compare Australia’s media laws with those in their home countries.
  5. Just as truth might be shackled by some governments and individuals, media law offers insights into so-called ‘fake news’ and ‘false news’ by demonstrating how fair and accurate reporting and publications can earn special protections and how ethical research and reporting can be rewarded by the courts.
  6. Media law cases are often fascinating portrayals of human foibles, egos and temptations and sometimes have elements of the Shakespearean tragedy where good reporting exposes the abuse of power.
  7. The laws and examples encourage the exercise of mindfulness in communication practice. A few moments spent reflecting upon risk and harm before publication might save you many dollars in fines or damages and perhaps even time in jail. Also, many a media law case could have been avoided by a simple utterance of the word ‘sorry’ and a heart-felt offer of amends (both on legal advice!).
  8. Problem-based media law learning offers a vivid insight into how a prickly legal situation might arise, and helps you navigate a course of action after assessing the legal risks. Robust and truthful journalism can still be produced within the bounds of the law, in some countries at least.
  9. Media law cases and reforms are in the news on a regular basis, adding relevance and topicality to your studies as you watch cases involving real people contested in the courts and covered in the news media.
  10. Finally, you learn that all laws can be improved, so you engage with the continuous process of media law reform. You learn about the reform process, access historical reform recommendations in your research, and have the opportunity to recommend your own reforms in areas of your interest. You are even encouraged to make submissions to current law reform commission and parliamentary inquiries.

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

© Mark Pearson 2018

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Social media developments have legal implications and require a new literacy

By MARK PEARSON

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


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

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

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


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

© Mark Pearson 2018

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

By MARK PEARSON

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

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

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

The book description and our chapter abstract are as follows:

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

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

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

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

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

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

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

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

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

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

 

© Mark Pearson 2018

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

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