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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Mindful journalism explained in Q&A style

By MARK PEARSON

It is heartening to see fellow journalism academics taking an interest in ‘mindful journalism’ – an important area of my research over recent years.

I was honored to be interviewed on the topic by lecturer in journalism and electronic media from the University of Tennessee, Melanie Faizer, and she kindly allowed me to record the interview to screen via this blog.

UPDATE: View Melanie Faizer’s article in Columbia Journalism Review here:

So here it is for those of you interested in mindful journalism as I see it a few years into my journey…

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.

Screen Shot 2015-05-29 at 3.08.59 pmI  recently wrote an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette 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.

The article backgrounds important critiques of the Western approach to communication  studies, and considers how globalized communication and media studies has become, before exemplifying how a secular Buddhist perspective might offer 2,500 year-old analytical tools that can assist with media analysis, law and ethics.

I’ve also written a shorter 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. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

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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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Final global report on source protection by @julieposetti released by UNESCO

By MARK PEARSON

The final report of the three year global project by Fairfax Media and University of Wollongong colleague Julie Posetti (@julieposetti) comparing international approaches to protecting sources has been released by UNESCO.

As I foreshadowed earlier, the impressive study tracks, assesses and compares protective legal frameworks like shield laws over the 2007-2015 period, and recommends new measures for protection of journalists and their sources.

The report acknowledges the enormous benefits to journalism harnessed from the Internet and Web 2.0 communications, but homes in on the challenges of  the privacy and safety of journalistic sources. Mass surveillance, data retention and expanded national security laws all stand to erode the integrity of the journalist-whistleblower relationship.

The publication is available here.

The Posetti study draws on surveys and long form interviews involving nearly 200 international experts from the fields of law, journalism, digital communications and civil society organisations.

Academics from Australia (Posetti and UoW colleague Marcus O’Donnell), Brazil and China contributed, along with 11 research assistants from a range of countries.

I was honored to serve on the eight-member international advisory panel.

The report’s key recommendations for nations were:

  • Legislate for source protection;
  • Review  national laws on surveillance, anti-terrorism, data retention, and access to telecommunications records;
  • Co-operate with journalists’ and media freedom organisations to produce guidelines for prosecutors and police officers, and training materials for judges on the right of journalists not to disclose their sources;
  • Develop guidelines for public authorities and private service providers concerning the protection of the confidentiality of journalists’ sources in the context of the interception; or disclosure of computer data and traffic data of computer networks; and
  • Apply source protection regimes and defined exceptions in a gender-sensitive way.

Its main recommendations for journalists were:

  • Engage with digital issues impacting on source confidentiality protection, and actively campaign for laws and rules that provide adequate protection;
  • Explain to the public what is at stake in the protection of source confidentiality, especially in the digital age;
  • Ensure that sources are aware of the digital era threats to confidentiality;
  • Consider altering practices – including ‘going back to analogue methods’ when required (recognising this may not always be possible due to international or gender dynamics) – in order to offer a degree of protection to their confidential sources;
  • Help audiences become more secure in their own communications, for example explaining how encryption works, and why it is important not to have communications security compromised;
  • Consider providing technical advice and training to sources to ensure secure communications, with the assistance of NGOs and representative organisations;
  • In the case of media leaders, ensure that they also respect their journalists’ ethical commitment (and in some cases legal obligation) to source confidentiality; and
  • In the case of media owners, ensure that their journalists, and freelancers who contribute investigative reports, have access to the appropriate tools and training needed to ensure that they are able to offer the most secure channels of digital communication possible to their sources.

Related:

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

By MARK PEARSON

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

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

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

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

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

She congratulated the Press Council on its Reconciliation Action Plan.

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

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

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

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

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

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

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

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

The Press Council’s RAP commits the organisation to:

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

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

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

•   promoting Indigenous cultural competence among staff;

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

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

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

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

Read the Press Council’s Reconciliation Action Plan here.

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

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

© Mark Pearson 2017

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