journlaw

April 26, 2013 · 11:22 am

Surveillance and investigative reporting: How would Deep Throat stay anonymous today?

We might support shield laws for journalists and bloggers but the actual practicalities of protecting confidential sources are a huge challenge for journalists in the modern era.

It’s of little value having a shield law to excuse a journalist revealing the identity of a whistleblower in court if litigants or government agencies have already been able to detect them using the surveillance regime that is ubiquitous in modern society.

It prompts the serious question: Could the Watergate investigation by the Washington Post three decades ago happen in the modern era? How long would Carl Bernstein and Bob Woodward’s White House source ‘Deep Throat’ (senior FBI official Mark Felt) remain anonymous today?

It would be interesting to hear from Bernstein and Woodward about how they would manage their top secret source in an era of geo-locational tracking, phone and social media e-records, CCTV in private and public spaces, and email logs.

Add to that new technologies like Google Glass and you start to wonder where a journalist could possibly meet in secret with a government source without being caught in the surveillance net.

The volumes of private information held on every citizen by governments and corporations was highlighted in the documentary Erasing David, where the lead character went into hiding and hired some of Britain’s top investigators to try to find him by discovering everything they could about him via public and private files. He found it was impossible to lead a private and anonymous existence in the 21^st century.

Our digital trail extends wherever and whenever we conduct business on the Internet. The typical web browser allows countless ‘cookies’ that track many of our online activities. Search engines, app stores, airlines, travel booking agencies and countless other online entities hold all sorts of digital information about us that may or may not be secure or subject to legal discovery in the case of a court action. Some European experts are so concerned about the amount of information about us that is out there and its irretrievable nature that they are proposing a new ‘right to be forgotten’ allowing citizens to have personal data permanently erased.

Law enforcement authorities throughout the world are winning court orders to search suspects’ Internet records. Facebook is a popular hunting ground, with Reuters reporting federal judges in the US had approved more than two dozen applications to retrieve incriminating data from Facebook accounts between 2008 and 2011, leading to several arrests and convictions. The Electronic Frontier Foundation has published a useful online Know Your Rights! guide for US citizens faced with the threat of search and seizure of their devices by law enforcement authorities. EFF attorney Hanni Fakhoury explained the volumes of private information the average citizen holds on their personal devices. “With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information,” Fakhoury said. “That smart phone in your pocket right now could contain email from your doctor or your kid’s teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data — your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that’s worth protecting from prying eyes.”

Of course, basic password selection and management is a fundamental starting point we often overlook. As the computer experts advise, choose your passwords carefully and change them often. Our laptops and smart devices also have geolocation capability, meaning our very movements can be recorded and abused, a point well explained by the Australian Privacy Foundation. This has serious implications for any meetings or communications we might have with confidential sources for our blogs or reporting.

As the Pew Research Center reported in 2011, more than half of people online had uploaded photos to be shared with others. As facial recognition (‘tagging’) is combined with geolocation capabilities, it means we are leaving a digital footprint via our images. That seem fine when we are just sharing an image with our small circle of friends on Facebook, but our ‘friends’ might choose to download and forward them and, depending on our privacy settings, these photos might well be viewable to the outside world.

Despite whistleblower protection laws and shield laws, confidential sources face lengthy jail terms in most countries if they reveal state secrets because officials might not agree there was an ethical or public interest in the material being revealed. That was certainly the case with one of the most famous whistleblowers of the modern era – the military analyst Daniel Ellsberg who leaked the sensitive ‘Pentagon Papers’ about the true story of the US involvement in Vietnam to the press in 1971. Despite government efforts to stop the publication of the material, the Supreme Court allowed the New York Times and the Washington Post to go ahead with its release. Ellsberg and a co-accused later faced charges of conspiracy, theft of government property and espionage which were dismissed among allegations of FBI wiretapping.

Bernstein and Woodward operated using document drops at park benches and secluded places, coded phone messages and convoluted taxi rides to face-to-face meetings with Felt. In the modern era it is even harder to protect communications against detection by the authorities so you need to take extraordinary steps if you hope to keep your sources truly confidential. The international whistleblowing organisation Wikileaks became famous for revealing the 21^st century equivalent of the Pentagon Papers when it released thousands of secret US government files on the Middle East conflicts and broader diplomatic relations throughout 2010 and 2011.

It reassured sources that its high security encrypted submission system using an electronic drop box protected their identity. US soldier Bradley Manning was arrested in 2010 and held in solitary confinement pending trial over the release of the classified material. CNN interviewed several experts about the spate of similar sites to Wikileaks who warned whistleblowers to examine their protocols very carefully if they wanted their identities to remain secret after the authorities discovered the leaks. Some reserved the right to disclose leakers’ identities if subpoenaed to do so.

Reporters, bloggers and citizen journalists should pay heed to the fact that their colleagues have served jail time throughout the world for either leaking secrets or refusing to name their off-the-record sources in court. Equally important are the measures you take to protect their identities in the first place.

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Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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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Tagged as Alliance, Code of Ethics, confidentiality, contempt, courts, ethics, journalism law, MEAA, media law, shield laws, social media law, sources

April 11, 2013 · 7:39 pm

Call for uniform shield laws is worth supporting, but not an easy fix

By MARK PEARSON Follow @Journlaw

Five Australian journalists face possible contempt charges for refusing to reveal the identity of their sources in court.

The journalists’ union – the Media, Entertainment and Arts Alliance – has quite rightly called for the introduction of uniform shield laws for journalists throughout Australia.

Australia’s attorneys-general managed to reach agreement on uniform defamation laws in 2005, and it is within their power to bring some sanity to the differing shield laws at federal level and in NSW, Victoria and Western Australia.

The laws in the various jurisdiction were well summarised last year by the Queensland Parliamentary Library and Research Service, and WA has passed its shield law since then.

However, as noted in the ABC’s Media Report in March, even a unified system would not necessarily protect reporters because even the most generous shield laws give a discretion to a judge to compel a journalist to answer a question in court if an answer is seen as crucial to the interests of justice.

Three Australian journalists have been jailed and others fined and convicted for refusing to reveal their sources since the early 1990s.

Only one of those cases – that involving Courier-Mail journalist Joe Budd in the midst of a defamation case – might have had a different outcome if such a shield law was in place. The others involved criminal allegations or charges and it is doubtful the presiding judicial officer would have excused a journalist from answering a ‘relevant question’.

Courts throughout the world have long insisted on witnesses answering relevant questions, whether or not they are bound by some professional or ethical obligation of silence.

Lawyers are an exception. Throughout the UK, North America and the Commonwealth a legal professional (attorney-client) privilege protects lawyers from having to reveal to the court prejudicial statements a client might have confided in them. In some places the privilege has been extended to doctor-patient relationships and sometimes to priests whose parishioners who might confess criminal sins to them. Witnesses are excused from answering incriminating questions in court. Sometimes, as in the Australian state of NSW, judges are given a discretion to weigh up all professional confidences against the interests of justice in deciding whether a question must be answered.

Canada allows a promise of confidence to be protected in court if:

– It originates with a non-disclosure agreement

– It is essential to the relationship involved

– The relationship is one that should be fostered ‘in the public good’; and

– The public interest in protecting the identity of the informant outweighs the public interest at getting at the truth.

It was put to the test in Ontario in 2010, where a National Post newspaper was ordered to produce documents upon which it had based corruption allegations against the prime minister. Despite the newspaper’s claim of a journalist-source confidential relationship, the Supreme Court decided there was no such constitutional right and that a greater public interest lay in pursuing an investigation that the source had actually forged the documents in question.

Several western democratic nations have also introduced so-called ‘shield laws’ to specifically excuse journalists from having to identify their confidential sources in court and sometimes allowing them to refuse to hand up their interview records or other documents. According to the Reporters Committee for Freedom of the Press, 31 US states and the District of Columbia have shield laws protecting journalists’ confidential relationships with their sources, although several have quite serious limitations.

Britain offered a limited protection for journalists in its Contempt of Court Act 1981. New Zealand’s Evidence Act protects journalists’ sources, but gives the discretion to a judge to override this on public interest grounds.

France amended its 1881 press law in early 2010 to protect the confidentiality of journalists’ sources after pressure from Reporters Without Borders over several violations. This was enough for a Bordeaux appeal court to rule in 2011 that a prosecutor had wrongly allowed two Le Monde newspaper reporters’ phone records to be seized when they were covering a high-profile case involving L’Oréal heiress Liliane Bettencourt.

Yet a tough shield law in another European country was not enough to protect one reporter and blogger. Young Ukrainian journalist Olena Bilozerska had her cameras, computers, phone and other gear seized by police in Kiev despite article 17 of the press law stating ‘journalists may not be arrested or detained in connection with their professional activities and their equipment may not be confiscated’. She was interrogated after posting footage of someone throwing a Molotov cocktail at a building during a protest.

Journalists have been jailed in several countries for refusing to reveal their sources in courts or hand over documents that might break confidences. Between 1984 and 2011, 21 US journalists were jailed under such laws, including video blogger Josh Wolf who was released in 2007 after serving 226 days for refusing to hand over tape of protesters damaging a police car. New York Times journalist Judith Miller served 86 days in prison in 2005 for refusing to tell a grand jury who leaked the identity of CIA operative Valerie Plame to the media. The First Amendment Center features a useful timeline on jailed journalists.

The Committee to Protect Journalists records numerous other cases, including arrests in Ghana, Ethiopia and Kenya.

It is ridiculous that Australia should have so many variations on journalists’ shield laws in an era of cross-border reporting and publishing via a range of media, including the Internet and social media.

As the Media Alliance points out, it is an area of the law in dire need of reform.

The MEAA also supports the petition for reporter Adele Ferguson, who has been subpoenaed by Australia’s richest woman, miner Gina Rinehart, seeking information about Ferguson’s confidential sources. You can add your name here, but read the terms and conditions closely before volunteering a donation, which seems to be directed to change.org to generate further support for the cause online.

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Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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April 4, 2013 · 10:41 am

A taste of PR law #publicrelations #auslaw

By MARK PEARSON Follow @Journlaw

I have just completed a legal chapter for a public relations text edited by colleague Jane Johnston. In researching the chapter I came across several Australian cases where PR practitioners had found themselves in legal tangles. Here is a taste of them, but you’ll have to wait for Jane’s new book to get more detail!

According to the Australasian Legal Information Institute (www.austlii.edu.au), the term ‘public relations’ has only been spoken 10 times in High Court judgments, with none of the cases having public relations as a key factor in the decision-making. The mentions did, however, give some indication of the way our leading justices viewed the profession and some hints of the legalities of PR. For example, the 2004 case of Zhu v Treasurer of NSW [2004] 218 CLR 530 involved a dispute between the Sydney Organising Committee of the Olympic Games (SOCOG) in 2000 and a sub-contractor who had been licensed to market an “Olympics Club” package to residents of China. ‘Public relations’ formed part of the intellectual property he was licensed to use, which included “letterheads, stationery, display materials and other advertising, promotional and public relations materials approved by SOCOG to promote the Olympic Club” (para 59). The case establishes both contract law and intellectual property law as important to the role of PR professionals.

In Sankey v Whitlam (1978) 142 CLR 1, the High Court identified the importance of keeping secrets and confidentiality in government media relations. Acting Chief Justice Gibbs quoted an earlier British case where Chief Justice Lord Widgery had acknowledged the practice of ‘leaking’ as a PR tool: “To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable.”(para 41).

The term ‘public relations’ has been used much more frequently in other courts and tribunals, with Austlii returning 1387 mentions of the term across all its case law databases. It was used in a host of contexts, including defamation, confidentiality, industrial relations, PR advice as lawyer-client privilege and whether public relations expenses could be claimed as part of a damages claim.

Here is a sampler:

Defamation

Words spoken at a media conference in Adelaide were at the centre of a defamation action in 2012. A Hindley Street nightclub owner sued a neighbouring travel agency operator over a statement she had uttered almost two years earlier in the midst of a media conference he had called to announce an initiative to increase public safety and reduce violence in the central Adelaide precinct. He alleged the travel agency owner had announced loudly to the media gathered at the conference that he – the nightclub owner – was responsible for all the violence in Hindley Street. After hearing from several witnesses (including the nightclub’s public relations consultant) the District Court judge found for the defendant. He said it was more likely the interjector had not made such a blatant defamatory allegation against the nightclub owner and, even if she had, he would only have awarded $7500 in damages. There was no evidence of any actual recording of the words she had spoken despite numerous media representatives being present at the time: Tropeano v. Karidis [2012] SADC 29.

In a Western Australian case in 2006, the consultancy Professional Public Relations (PPR) was ordered to provide all records they had about a DVD recording criticising a proposed brickworks which the director of a building materials company claimed made defamatory statements about him and his company. He suspected a rival building materials company – a client of PPR – was behind the production, and wanted this confirmed so that he could commence legal action: Bgc (Australia) Pty Ltd v Professional Public Relations Pty Ltd & Anor [2006] WASC 175.

Contempt

The most famous sub judice breach in a PR context came in 1987 when former NSW Premier Neville Wran called a media conference where he stated that he believed his friend – High Court Justice Lionel Murphy – was innocent of serious charges he was facing. Sydney’s Daily Telegraph published the comments under the heading ‘Murphy innocent—Wran. Court orders retrial’. Both Wran and the Daily Telegraph were convicted of contempt, with Wran fined $25,000 and the newspaper $200,000: Director of Public Prosecutions (Cth) v. Wran (1987) 7 NSWLR 616.

Trespass

Nine Network’s A Current Affair program had to pay $25,000 in damages to a property owner in 2002 after they had been invited by the Environment Protection Authority to accompany them when raiding his property for suspected environmental offences. The crew had cameras rolling as they entered the property and confronted the owner. The court held there was an implied licence for journalists to enter the land to request permission to film, but not to film without permission. The court also warned public authorities not to invite journalists on such raids, known as ‘ride-alongs’: TCN Channel Nine Pty Ltd v. Anning [2002] NSWCA 82.

Contract law

A West Australian District Court case involved a consultant to a South African mining company considering buyouts or mergers with other mining companies. The dispute surrounded a “partly written, partly oral and partly implied” agreement to provide “public relations, lobbying, consulting, networking, facilitating and co-ordinating” services: Newshore Nominees Pty Ltd as trustee for the Commercial and Equities Trust v. Durvan Roodepoort Deep, Limited [2004] WADC 57. The problem was that very little was detailed in the agreement, forcing the judge to look at previous work done by the consultant and to come to an estimate of the number of hours he had worked and their value on this occasion. He accepted that an agreement had been reached, and concluded that $250 per hour was a reasonable sum for the services provided, but could not accept that the consultant had worked 14 hour days for 64 days. Instead, he awarded him $830 per day for eight weeks, totalling $33,200 plus expenses.

Consumer law

The public relations consultancy Essential Media Communications used Victorian consumer law to win a Supreme Court injunction to stop another PR firm – EMC2 – from using that abbreviation of their name. They claimed it could ‘mislead and deceive’ their clients, some of whom knew them by that acronym. The court also accepted Essential Media Communications’ argument that EMC2 might have been ‘passing off’ their business as that of the plaintiff: Essential Media Communications Pty Ltd v EMC2 & Partners [2002] VSC 554. The Federal Court issued an injunction in similar circumstances in an earlier case to stop a public relations company using the name “Weston”, when an existing consultancy was already operating under that name: Re Weston Communications Pty Ltd v Fortune Communications Holdings Limited and the Weston Company Limited [1985] FCA 426.

© Mark Pearson 2013

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March 28, 2013 · 11:57 am

Narrow escape for a fragile freedom #medialaws

By MARK PEARSON (@journlaw)

[Here is a taste of my commentary in The Conversation today.]

It is just a week since the Gillard government withdrew the four media reform bills for which it could not garner the necessary support from the crossbench MPs.

The proposal that concerned me most as a media law scholar and free expression advocate was the News Media (Self-regulation) Bill. This would have given an individual the power to deregister bodies, like the Australian Press Council, if they failed to police effectively the ethical standards of their newspaper and online members.

The big stick the so-called Public Interest Media Advocate would have wielded was the withdrawal of media companies’ journalism exemption from the Privacy Act – a penalty that stood to send newspapers broke through its demands of bureaucratic compliance. I detailed this problem in a blog republished on The Conversation last week, describing it as a defacto form of licensing. Many vested political and commercial interests were at stake in this debate.

There are lessons for all to learn from the events of the past fortnight and from the broader media regulation debate of the preceding year. Free expression is often described as a “fragile freedom”, perpetually at risk in a democracy like Australia where it lacks any explicit constitutional protection.

It is a mistake to view free expression through the lens of your own political allegiances. My observation after more than two decades researching in the area and several years as Australia’s correspondent for Reporters Without Borders, is that governments of all political persuasions can present major threats to media freedom.
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This week’s blog was commissioned by The Conversation. Read more at http://theconversation.com/media-reforms-lessons-from-a-narrow-escape-to-a-fragile-freedom-13123

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.

Press regulatory ‘stick’ so tough it’s licensing #mediareforms

By MARK PEARSON (@journlaw)
It’s a great shame when political and commercial vested interests drown out compelling and principled arguments for free expression in this Australian media reform debate.
Firstly, I declare my own interest as Australia’s correspondent for Reporters Without Borders (RSF) – an interest in free expression and media freedom.
That said, here are my three reasons the proposed Public Interest Media Advocate proposal for control of press regulation deserves a sudden death.
1. It amounts to de facto licensing. I don’t believe the plan was sinister or Stalinist – I just don’t think the policy wonks looked at the impact of the ‘stick’ end of the ‘carrot and stick’ approach to ‘enforced self-regulation’. As I blogged last week, it would mean ‘death by a thousand consent forms’ for any newspaper/online company who refused to sign up (with $3m plus turnover). Why? The Privacy Act exemption for journalism exists for good reason: the Act is designed for government departments, banks, insurance companies and other large corporates and we all know that journalism is not “just another business”. Those bodies have predictable dealings with customers and are not in the business of publishing stories about them. The revised Privacy Act – effective from 2014 – gives the Privacy Commissioner tough new powers to audit corporations, wielding civil penalties of up to $1.7 million (See Mallesons brief). A relatively small newspaper group would reach the required $3 million annual turnover threshold to qualify and would be crippled by the paperwork involved in complying with the Privacy Act – consent authorities for all personal information collected – the very lifeblood of community news reporting such as people’s ages, workplaces, political and union affiliations. It would require consent from anyone identifiable in photographs – including those in the background. It would thus set up a statutory market differentiation between such a news organisation and its competitors – other media not subject to the Act, including newspaper groups in a press council, broadcast media not subject to this provision, and smaller media of all types exempt from the Privacy Act threshold. Law firm Minter Ellison issued a release on March 14 with the following stark advice: “The potential loss of the media exemption in the Privacy Act could make it difficult, if not impossible, for news media organisations to effectively continue their operations.”
So, it’s not a ‘stick’ but a shotgun to the head of newspaper companies to be in a registered press council or be out of business. That’s licensing – and ‘prior restraint’ on a news outlet’s ability to publish – a situation abhorrent to our system of law for centuries.
2. The Bill’s very terms are self-defeating and damage free political speech. Section 14 of the Bill proclaims that nothing within it should counter the High Court’s freedom to communicate on matters of politics and government. But the very mechanism does that in two ways. Firstly, the overall effect is to force newspaper companies into a regulated ‘self-regulator’. The alternative, as per point 1 above, is almost certain death. Newspapers have long been a key forum for political and governmental debate in our society. How informed about candidates for the upcoming election would voters in Tamworth be without their Northern Daily Leader and its website? Well, that would be the plight that community would face if its owner – Fairfax – decided to leave the Press Council on principle, could no longer afford the membership fee, or was expelled. Secondly, the very Privacy Act that is being held as the threatened ‘stick’ deems ‘trade union membership’ and ‘political affiliation’ as ‘sensitive information’ – subject to even more red tape. The mechanism forces a recalcitrant news organisation into a disadvantaged position in its election coverage because its hands would be tied by this level of bureacratic compliance. This would mean – at the very least – that the flow of political and government opinion in the community would be unacceptably delayed by privacy consent paperwork. Imagine the impact of such a brake on the web-based and social media divisions of such a newspaper – getting consent from everyone identifiable through a comment thread! This would give ample ammunition for a High Court challenge.
3. The instrument has already damaged Australia’s standing as a free Western democracy. We have no written constitutional free expression protection, which sets us apart from other democracies. Both Communications Minister Stephen Conroy and Prime Minister Julia Gillard cited RSF’s World Press Freedom Index in recent days, using the argument that Finland is in number one position there despite having a statutory mechanism for its press regulation. Perhaps – but Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws impacting on free expression that we have in this country which place us at number 26 on that same Index. We languish there partly because of the very threats to media freedom posed by the recent inquiries into its regulation. The UK’s latest move is also set against a European human rights free expression framework and is a reaction to much more heinous media acts than we have seen in this country. Australia has spent millions over recent decades ‘counselling’ our Pacific Island and Asian neighbours against exactly these kinds of government interference with a free media – in the form of AusAID training courses and other diplomatic interventions. Now we send the clear signal that the Australian government is willing to offer a handy lesson in managing adverse publicity – using a cynical device to subject non-compliant newspapers to death by red tape.
There you have it – a vent from someone whose only agenda is to encourage truth-seeking and truth-telling in our society through the long-established right of free expression. Oh, I do have another agenda – preserving an employment market for journalism graduates. And it looks like that challenge may get even harder!

PS. Find an inaccuracy here and I’ll correct it immediately and record that correction in a note below.

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Tagged as censorship, ethics, Finkelstein, media law, media regulation, Press Council, press freedom, RSF

March 14, 2013 · 6:06 pm

‘Self-regulation’ oxymoron heralds the era of ‘death by a thousand consent forms’ #mediareforms

By MARK PEARSON Follow @Journlaw

The oxymoron in the name of the proposed media reform legislation says it all: It is the “News Media (Self-regulation) Bill 2013”. (See here).

Here we have a piece of legislation proposing a statutory mechanism for the supervision of industry-based self-regulation of print and online news media.

That, dear readers, is “regulation”.

Just as it is troubling when proposed legislation purports to be what it is not, it is of even greater concern when a government moves to rush such laws through Parliament in just one week.

This blog is about media and social media law and regulation and their impact on free expression – not about politics.

But it is politics that has cruelled this whole media regulation review over the past 18 months.

The Independent Media Inquiry, chaired by former Federal Court justice Ray Finkelstein, was mired in politics when it was announced in late 2011 against the backdrop of both Labor and Greens stoushes with Murdoch titles.

And it seems to be politics that is now driving the desire to enact ‘something’ in the life of this government.

But that ‘something’ is problematic on a range of measures.

The basic ‘self-regulatory’ proposal is that a Public Interest Media Advocate be appointed with the power to declare bodies like the Australian Press Council to be a suitable ‘news media self-regulation body’.

If such bodies do not meet the government-appointed Advocate’s criteria, their member media outlets would be stripped of their current Privacy Act exemptions – leaving them exposed to potential privacy compensation orders and a bureaucratic reporting regime that would cripple their news operations.

At present, media organisations just have to be signed up to the Press Council or an equivalent body and be ‘publicly committed to observe’ its privacy standards.

If a media company falls foul of the self-regulator, refuses to join one, or joins one that does not meet the requirements, then the new Public Interest Media Advocate would have the power to strip them of their Privacy Act exemption under Section 7B(4) – leaving them obliged to follow all the privacy protocols associated with ‘obtaining, keeping and disclosing of personal information’ related to any of their stories and photographs.

This would leave the newspaper or online news company having to get every person in a group photograph to sign consent forms and to refrain from publishing sensitive personal information about people like their financial dealings, medical conditions, employment history and a host of other material commonly appearing in news stories.

They would also have to go to the expense of safely storing all the personal information they gathered for news reports and deal with requests from individuals who might want to withdraw their permission for them to retain that information about them.

There is no ‘public interest’ exemption to this requirement under the Privacy Act – other than formally seeking a ‘public interest determination’ from the Privacy Commissioner in a specific case.

Of course, there may be other protections for investigative reporters – perhaps the permission to publish details already released under the privacy provisions of Freedom of Information laws, and of course privileges extending to material tabled in court or Parliament.

There might also be an argument that the High Court’s implied freedom to communicate on matters of government and politics might apply to some private information in limited circumstances, although recent decisions from that court seem to render that freedom problematic and dependent on the views of individual judges.

There is a long principle ‘against prior restraint’ in our legal system – shackles by governments and courts to stop the news media before they have the opportunity to publish something.

The most famous example were the attempts in earlier centuries to license the printing presses – government measures opposed by famous statesmen and jurists like John Milton, John Stuart Mill and our own colony’s first Chief Justice, Sir Francis Forbes.

This proposal is for a system of de facto licensing because the statutory alternative to joining the self-regulatory regime would almost guarantee financial ruin for a newspaper company in this environment, when they are already facing huge challenges retaining readership and winning advertising in the Web 2.0 era.

The Privacy Act provisions would only apply to media companies earning more than $3 million per year – which is the threshold for corporations – and the proposed bill also offers a ‘small business’ exemption to its requirements.

This would potentially leave us with a two-speed news media – small operators, bloggers, citizen journalists and social media users sharing private information willy-nilly while larger news organisations falling outside the ‘self-regulatory’ regime are left to expend valuable time and resources filling out all that privacy paperwork.

Unlike other Western democracies, Australia has no written constitutional protection of free expression in the form of a Bill of Rights or a regional human rights document. The explanatory notes to the proposed laws go through the usual routine of giving a ‘Statement of Compatibility with Human Rights’, in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

But the imposition of the proposals on free expression is dispensed with in just three paragraphs excusing it because of its capacity for respecting the privacy and reputations of other citizens.

There is no doubt Australia’s media self-regulation can be improved, and there is even scope for some fine-tuning of media laws.

It is also evident that the Australian Press Council has markedly improved its systems and funding under the leadership of its chair, Professor Julian Disney.

There are already several hundred media laws in this country – enough to fill at least three major journalism textbooks in the field and several more in the specialist areas of torts, criminal law and intellectual property.

Even a tort of privacy invasion with a strong public interest exemption for journalism would be preferable to this proposal for a system of ‘death by a thousand consent forms’ for struggling news organisations who should have the right to be lone wolves and refuse to play the government’s game.

Call it what you like, but this Bill is not ‘self-regulation’.

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March 10, 2013 · 4:20 pm

Tweeting and questioning free expression

By MARK PEARSON Follow @Journlaw

It’s gratifying how well students seem to advance their understanding of free expression issues by tweeting about them and extending their inquiry through deeper questions.

Some months ago I unveiled a new media teaching law aimed to help students update their knowledge while triggering key questions they might explore.

Since then I’ve trialled it with one university class and have redesigned it for my new crop of students this year.

It involves students completing their weekly chapter readings from their text and, firstly, tweeting to the class hashtag (#MLGriff) a recent development in that topic area (perhaps a news story, court case, report or blog). Next, they frame an extension question from their textbook – something they still wonder about after reading the chapter.

Our first topic for the year was Freedom of the Press and more than 100 students came up with some excellent resources and questions for discussion.

Their tweets on new developments can be grouped broadly into:

Australian updates (High Court free speech decisions, media regulation push, access to detention centres, and Assange’s rights as an Australian citizen);
International updates (Greek and Somali crackdowns, Hong Kong protests, Vietnam and Burmese censorship, Mexican murder of a journalist, British campaign against seditious libel, Turkish PM’s media threats); and
Social media implications (YouTube bans, Facebook’s news push, social media as the Fourth Estate, unmasking trolls, cloud censoring and Twitter as a polarising agent.)
Some of the students’ questions would make excellent topics for future blogs, while others would need a PhD thesis to explore.

Here is a selection, credited to the students who asked them of course:

– Why has the Australian Federal Government not codified freedom of the press laws despite the High Court making a number of rulings on the issue over the past 20 years? (Christopher Young)

– As Australia does not have a bill of rights guaranteeing the protection of free expression, how heavily can journalists rely on government support? (Tiarna Lesa)

– Although lying is not a crime, should it be protected speech for politicians? (Emma Lasker)

– In a global community, fuelled by the Internet, is it sustainable or viable for some countries to have greater restrictions on the freedom of the press and freedom of expression than others? (Jessica Payne)

– Has social media and freedom of speech and the press in Australia given us too much liberty to be opinionated – to the point where it becomes difficult for government to make popular political decisions? (Annabel Rainsford)

– Do the current laws of freedom of speech cover every aspect of the Internet or social media or should new extensive laws be put into place? (Michelle Roger)

– With no professional awareness of media law and ethical boundaries, can citizen journalists be treated as harshly in the legal system as qualified journalists? (Michaela Eadie)

– Does freedom of speech protect victims of crime and their families? (Kristy Hutchinson)

– Are laws that assist the freedom of the press too lenient in a time where false information can be so easily disseminated and seen as factual? (Simon Eddy)

– Is popular opinion the difference between freedom of speech and vilification? (Ashley Pearson)

– In the aftermath of Wikileaks and Julian Assange, how has the public’s perception of freedom of the press changed? (Jacob Blunden)

– How has each country’s political, cultural and historical background influenced their view on freedom of the press? (Emma Knipe)

– To what extent does the media influence our thoughts and our ability to make informed decisions ourselves? (Harrison Astbury)

– What are the legal consequences of cyber-bullying? (Angela Eisentrager)

– Should Australian politicians be allowed to hide behind parliamentary privilege and not be subject to the same laws as other citizens? (Ranui Harmer)

– Why does Australia have a higher Press Freedom ranking than the US when America has a Bill of Rights? (Jess Henderson).

I hope you can appreciate how much more animated the discussion was in our tutorials when students had thought so deeply about the issues and the key questions. Their tweets added material for fresh examples for their arguments.

It’s a recipe for deeper learning – for the students and me!

Follow us at #MLGriff as we work through media law topics over the next three months. The next topic is Open Justice and the students’ tweets have started to roll in. Chime in with a comment or example if you have one to share.

[The latest rubric follows. Feel free to borrow or adapt it with due credit.]

Media Law (Two hard copies needed at start of lecture/tute each week – one for your reference and one to submit. Not accepted by email, sorry.) Date and topic this week: Name:
*YOUR ORIGINAL TWEET ON THIS WEEK’S TOPIC. Must include insightful comment and/or link to recent case or article on topic. NB.* *INCLUDE IN TWEET:* #MLGriff @journlaw
Criterion	Poor	Fair	Good	Excellent
Understanding of chapter readings
Link to a recent development on this week’s chapter topic
Clear and simple Tweet, perhaps with a witty twist?
*YOUR ORIGINAL ANALYTICAL EXTENSION QUESTION:*
Criterion	Poor	Fair	Good	Excellent
Understanding of chapter readings
Important extension of inquiry BEYOND those readings
Clear and simple question structure
Other comments:				Total %

Example of EXCELLENT question on Defamation: “How has the High Court dealt with the political qualified privilege defence since the textbook was published in 2011?”

Example of POOR question on Defamation: “What is defamation and give an example?”

Mapping social media use in courts – some text search gems

By MARK PEARSON Follow @Journlaw

A search of the Australasian Legal Information Institute (Austlii) database offers some interesting insights into the use of social media terminology in the courts.

Legal scholars know that an Austlii search is not a flawless indicator, but it remains one of the best tools available to us.

My search on March 2, 2013 reveals the following insights into the Australian courts and the use of social media terminology.

The venerable justices on the High Court have yet to use the terms “social media”, “Facebook” or “Twitter” in a judgement.

However, transcripts of High Court proceedings reveal some gems.

The honour of being the first High Court justice to use social media terminology appears to go (quite appropriately) to then Chief Justice Murray Gleeson who famously asked on May 16, 2008: “Are you responding to the argument that I just mentioned by saying that if these two people had individually decided to post their statements on their respective Facebooks they were perfectly entitled to do so?”

He was querying counsel in State of NSW v. Jackson [2008] HCATrans 193 – a dispute over whether a student teacher’s written statement after a school gym accident could be withheld from release under client legal privilege.

Justice Susan Kiefel was the first to use the word “Twitter” in the High Court – while hearing submissions in the 2011 free political speech case of Wotton v. State of Queensland on August 2, 2011.

Her Honour was questioning how the appellant might seek to communicate his views to the media: “But he could do it by telephone, could even Twitter,” she stated.

The term “social media” was also used by counsel in that case.

The only other case recording related words being spoken before the High Court was the mention of both “Twitter” and “Facebook” by Guy Reynolds SC in David v. Abdishou [2012] HCATrans 253 on October 5, 2012.

It formed part of a query about whether the test of ‘publication’ should remain the same in social media, but the application for leave to appeal was unsuccessful.

It would be a worthwhile research project to examine the frequency of mentions of social media terms across all courts listed in the Austlii database, along with a content analysis of the situations in which they arose.

My preliminary search across all case law databases (courts and tribunals across the nine jurisdictions) revealed 604 mentions of the term “social media”, 75 mentions of “Facebook”, 73 mentions of “Twitter” and 41 mentions of “MySpace”.

The contexts seemed to range widely, including the following:

social media material used as evidence in criminal trials and compensation claims
applications for injunctions prohibiting the use of social media for a range of reasons (confidentiality, defamation, consumer law, breach of parole conditions etc)
orders that certain announcements be posted to social media sites
concern about jurors and witnesses viewing social media sites
use of social media in the court room.

It is a fascinating field, and I welcome your comments below.

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Tagged as contempt, courts, Facebook, high court, media law, myspace, social media, social media law, Twitter

February 24, 2013 · 2:16 pm

The journalist and the police source – learning from an unfortunate case

By MARK PEARSON Follow @Journlaw

The sad case of a Victorian detective who revealed operational information to a newspaper journalist ended this month when senior constable Simon Artz was given a four month suspended sentence for ‘unauthorised disclosure of information’.

The sobering 10 pages of sentencing remarks of Victorian County Court Judge Mark Taft on February 5 should be read by every journalism student, journalist and serious blogger because they are testimony to one of the most serious consequences a whistleblower can face – loss of their job and mental anguish.

The ethical rights and wrongs of the Artz episode have been contested very publicly with the Australian newspaper attacking journalism educator and Crikey correspondent Margaret Simons, prompting her point by point response to the allegations and Media Watch host Jonathan Holmes blogging in her defence.

Golden Quill-winning journalist Cameron Stewart has detailed the events surrounding his source releasing him from the usual journalistic ethical obligation of confidentiality (all handled by the police, without Stewart’s knowledge).

Different versions of conversations between the AFP and The Australian about whether the newspaper would publish a report about the Operation Neath raid on a terrorist cell have been detailed. Crikey published the affidavit by AFP Commissioner Tony Negus about his phone conversation with former editor of the Oz, Paul Whittaker, which claimed Whittaker was somehow weighing up how many lives might be lost in a terrorist attack as a determining factor on whether he should publish the story. Fascinating reading, but the veracity of the Commissioner’s recollection of that conversation was eroded somewhat by him getting Whittaker’s name wrong in his affidavit – calling him ‘Neil’ instead of ‘Paul’.

The issue is clouded by ongoing animosities between The Australian and Simons, between The Australian and former Victorian Police commissioner Simon Overland, and between the Victorian Police and the AFP.

I do not have enough facts to inquire deeply into the veracity of all the contested facts, although I hope to do explore the case study further for our next edition of The Journalist’s Guide to Media Law.

Rather, I suggest the following questions and discussion points for a workshop on the law and ethics of confidential sources, using this episode as a wonderfully suitable case study. If you are a student or journalist, you are welcome to think through the questions and post any comments or queries at the end of this blog. If you are a journalism academic or in-house trainer, you might wish to work through these questions and the associated documents when exploring the contentious issue of the relationship between journalists and their sources.

Read the Cameron Stewart page 1 story ‘Army base terror plot foiled’ from The Australian on Tuesday, August 4, 2009 at this link. Discuss the newsworthy elements of this story and the various matters of public interest at stake.
Let’s go to the Judge Taft’s remarks when sentencing detective Simon Artz on February 5, 2013 and explore the journalist-source relationship. Artz was a respected detective in the Security Intelligence Group of the Victoria Police. Stewart was a highly regarded investigative reporter for the national daily newspaper. Let’s focus in on this relationship and answer the following questions:
- Explore the likely motivations at play – for the detective and the journalist
- What did we learn from the judge’s remarks about the dealings between the detective and the journalist? How might a journalist handle the discussions with such an inside source and the potential risks facing them?
- What, if any, onus is on the journalist to make the source aware of the potential consequences of discussing sensitive information?
- Consider the information being revealed. Was Artz the classic ‘whistleblower’ as we have come to use that term? Why or why not?
- Should journalists handle ‘vulnerable’ sources differently in such situations? If so, who might ‘vulnerable’ sources be, and would Artz have fallen into that category?
- Considering the journalist’s obligation of confidentiality to a source, what discussions or negotiations over the terms of that confidentiality should happen at this early stage?
- What measures can the journalist and source take in this modern era of geolocational tracking technology and telecommunications call tracing to preserve the anonymity of an inside source?
- Reading Stewart’s account, he was unknowingly ‘released’ from the obligation of confidentiality by his source without even having had the opportunity to discuss it with Artz in person. If this had not happened, what were the possible outcomes for Stewart in an upcoming court case? How might a ‘shield law’ like s126H of the Evidence Act operate if Artz was ordered to reveal his source? (Remember, however, this case was tried under Victorian law, not Australian Commonwealth law.)
Let’s now consider the early release of the copies of The Australian newspaper, detailed on page 2 of the court transcript, and in the Media Watch account of the episode.
- The Australian
- What elements of legitimate public interest can you propose for its release on the morning of the raid?
- What public interest considerations would have weighed against its release at that time?
- If the story had not been released, and the accused had appeared in court, what impact might sub judice contempt restrictions have had on the reportage of the story?
You can see from the Federal Court documents that The Australian and its editor Paul Whittaker launched a court action to prevent the release of a report by police agencies into the role of the newspaper in the events. Media companies usually go to court seeking the release of documents, not the suppression of them. Discuss the issues at play here.
What if Stewart had never known about the story and if his police sources had not given him the inside information? When would the public have heard about the raid and what information would they be likely to have learned about it?

There are many more potential issues arising from this story, not least of which concern the respective approaches of The Australian and Crikey in the aftermath. It is worth considering the extent to which media outlets can report fairly upon matters involving their own personnel.

…

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Tagged as confidential sources, confidentiality, contempt, courts, MEAA Code of Ethics, media law, off the record, police media