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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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Fake news prompts a mindful approach to teaching media law in a ‘post-truth’ context – #MLGriff

By MARK PEARSON

My article ‘Teaching media law in a ‘post truth context’ has just been published in the Sage journal Asia Pacific Media Educator, edited by Professor Stephen Tanner from the University of Wollongong.

Much has been written about the ethics of so-called ‘fake news’ and ‘alternative’ facts in a ‘post-truth’ era, but few have explored the legal implications of these and the flow-on to education in media law.

This article suggests there are clear legal risks for journalists adopting the hallmark practices of ‘fake news’ – particularly in linking identifiable individuals to reputationally damaging falsities (defamation) and in making misleading or deceptive claims in the course of business (consumer law).

Whether or not such an ethically dubious practice is actionable will depend on a host of factors including the strength of publishing defences, the availability of legal advice, and the jurisdictional reach of any legal suit.

This article suggests a problem-based approach – including recent examples and classical media law principles – might encourage a ‘mindful’ (reflective) practice when assessing media law risks in the news room.

When a graduate makes the news for a serious legal error – as one Yahoo!7 journalist did in Australia in 2016 (DPP v Johnson & Yahoo!7 [2016] VSC 699 (28 November 2016) ) – journalism educators are deceiving themselves if they think such a fate might not await their own graduates.

If we accept there is no guarantee our students will retain the key knowledge they need in an important area like media law, we need to at least ensure they are equipped with the requisite skills to pause and reflect in the midst of their news reporting and production to assess their capacity for reporting a particular story or addressing a legal or ethical dilemma.

We have developed and refined one approach to achieving this over recent years which we have called ‘mindful journalism’. I’ve  written a short account of the basic principles of mindful journalism in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015)  explored the possibilities of applying mindfulness techniques to journalism practice.

The Asia Pacific Media Educator article explains that in applying the mindful journalism approach to media law, students are taught to work through an eight-point checklist to self-assess their capacity for dealing with an ethical or legal dilemma. When applied to the proposed construction and/or publication of ‘fake news’, the eight points of questioning and reflection might appear as follows:

Understanding – What is my understanding of the media laws relevant to this situation? What are the legal implications of publishing something false – even the false words or constructions of others? What are the risks of publishing something true, which might still be in breach of a law (for example, in breach of a suppression order or in breach of sub judice contempt rules)?

Intent – Why do I even want to report this story? What public interest does it serve? What am I intending to achieve by my involvement in its production?

Livelihood – Am I in the right occupation here? Where does the task I am approaching (‘fake news’) sit within my career definition?

Speech – What is the factual basis to the words I am selecting and how are they best selected and crafted to demonstrate truth, accuracy and good faith? Whose voices are in my story and is there a sufficient range of voices and perspective to earn the relevant defences? What needs to be said that is not being said in this story, contributing to falsities, misunderstandings, or imputations about others?

Actions – What aspects of my behavior in this reporting and publishing sit within the bounds of the law and the defences to which I aspire? How do I manage the fact-checking of the words others are saying here and how do I explain any falsities to my audience? Can the publication of my story be delayed until I can substantiate any claims with further evidence?

Effort – To what extent am I trying to follow both the letter and spirit of the law in the pursuit of this story? How hard have I worked to gather evidence to prove the truth of the facts in my story, and to give all key stakeholders the opportunity to speak and respond?

Mindfulness – What techniques of self-reflection and micro-meditation upon media law risks and approaches have I learned and implemented? What time have I devoted to working through each of the other factors here and in applying them to my situation at hand?

Concentration – How accomplished is my concentration upon the multiplicity of legal dimensions to the story in focus? How well have I focused upon each of them and worked systematically through its elements and the extent to which I have addressed them?

Interested? Please go to the Sage site to access the full article.

If you are interested in reading more about my application of mindful journalism to media law and ethics, please see my treatment of its relationship to defamation in the International Communication Gazette in my article titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here. See also the mindful approach to navigating mental health reporting restrictions I used with colleague Tom Morton, reported in the Pacific Journalism Review article “Zones of Silence”, accessible 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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Alternative media values offer hope in a ‘post-truth’ media world, says journalism academic

By MARK PEARSON

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

Associate Professor Susan Forde delivers the 2017 AEL Professorial Lecture

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

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

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

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

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

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

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

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

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

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

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

“They provide what we call mobilizing information.”

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

© Mark Pearson 2017

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Changes to drone laws force a rethink of their risks

By MARK PEARSON

Much has changed in the regulatory landscape in the two years since Scottish drones expert Dr David Goldberg and the ABC’s Mark Corcoran addressed a Griffith University seminar on the law and ethics of the media use of drones and graduate student Sam Worboys and I wrote a paper on the topic.

Brisbane lawyer Daniel Popple (Norton Rose Fulbright) updated colleagues at the Law Futures Centre yesterday (April 27) with an engaging seminar titled “Drone regulation in Australia: Opportunity and liability abound in the new regulatory void”.

He explained that the recent deregulation of drones by the Civil Aviation Safety Authority (CASA) meant the recreational use of small drones had minimal restrictions and that it was easier to utilise drones for commercial purposes.

“However, behind this potential sits a complex web of liability which has the ability to catch would-be drone pilots unaware and facing significant fines and potential imprisonment,” Popple said.

He identified a range of laws impacting upon drone use including negligence actions from damage to person or property, radiocommunications and aviation laws, privacy, surveillance devices legislation, trespass or nuisance actions, and work health and safety legislation.

For those who missed the engaging talk, Popple will be speaking again in Brisbane in June as part of a panel of speakers addressing drone regulation.

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© Mark Pearson 2017

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

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DEFAMATION CASE UPDATE: Zoef v Nationwide News Pty Ltd – identification and offer of amends appealed #MLGriff

By MARK PEARSON

CASE UPDATE: Zoef v Nationwide News Pty Ltd – 2015, 2016 and 2017

I blogged in 2016 about a case where the mistaken identification of an innocent octogenarian tailor in place of his alleged gun-running son produced a useful case study for media law educators trying to explain the basic elements of defamation.

Indeed, the NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 remains an excellent introduction to defamation, although in October 2016 the NSW Court of Appeal overturned the publisher’s defence of “offer of amends” which was originally granted by the lower court, in the appeal case of Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, and awarded the plaintiff $150,000 in damages. The appellant, Mr Tony Zoef, also had a partial victory in a more recent appeal over the backdating of the damages award, costs and interest owing in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2.

The first appeal is useful for educators explaining identification issues in defamation and the “offer of amends” defence requirements under s 18 of the Defamation Act 2005 (NSW) (Defamation Act) – and its equivalent in other Australian jurisdictions – while the 2017 appeal holds little value for media law teachers.

The case centred upon an article published in The Daily Telegraph on 22 August 2013.

It appeared a relatively straightforward case of confused identity, where the reporter mistakenly attributed to the older Mr Zoef – a suburban Sydney tailor – the alleged crimes of his son who lived at the same address. At trial, the sole basis on which Mr Zoef’s claim was dismissed was the newspaper’s defence that Mr Zoef had failed unreasonably to accept its offer of amends.

The article in the Telegraph (22-8-13, p. 9) carried the heading “Tailor’s alter ego as a gunrunner”, which might also make an interesting topic of discussion for students around the issue of sub judice contempt: Does such a heading carry a presumption of the accused’s guilt when accompanying a report of a preliminary court appearance? [The article in question is attached to the judgment as a pdf file.]

The article portrayed a then 81-year-old suburban tailor (with a distinctive surname ‘Zoef’) as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

As I blogged in 2016, the trial judgment by District Court Judge Leonard Levy is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first [*** considered on appeal].
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age]. [*** considered on appeal].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff [***the trial judge’s decision which was subsequently overturned on appeal].

The trial judge had held that, despite the serious errors in the reporting of the story and a dispute over whether the publisher’s offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

In the leading appeal judgment, Justice Fabian Gleeson stated:

Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent’s defence under s 18 of the Defamation Act. (at para 78).

His reasons for that decision involved a step-by-step appraisal of the offer of amends defence and thus make useful instructional material for educators wanting to explain this defence to students. It should also serve to remind journalists that the offer of amends is very much a ‘lawyers’ defence’ – not something that should be handled by journalists or editors independent of legal advice – and given its time constraints it means that counsel from lawyers on the efficacy and wording of any such offer should be sought promptly.

The publisher also challenged the trial judge’s findings on whether the plaintiff had been identified in the article when it carried a photograph of his son and stated his age as 43 years old.

The Court of Appeal affirmed the trial judge’s decision that Mr Zoef Sr had been identified in the article despite those countering factors. Justice Gleeson ruled:

The article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a “43 year old” which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person’s name, profession and locality in the foregoing paragraph.

In respect of the photograph, his Honour’s finding that it was “immaterial” is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, “less than distinct”. Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant’s customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant. (paras 159-160).

So there you have it. The Zoef case – both at trial and on appeal – holds valuable lessons for media law students and educators are encouraged to use it as a case study. I have done so successfully with both journalists and tertiary students.

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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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