journlaw

By MARK PEARSON Follow @Journlaw

The royal prank call saga has been so disturbing an episode that a worthwhile policy outcome should result from this regrettable human tragedy: the total demise of the prank call.

This blog is not aimed at the 2Day FM disc jockeys who are attempting to deal with the emotional fallout from the prank call that preceded the suicide of a nurse at a London hospital.

They were indeed ‘just doing their job’. We now need to dispense with that job – the practice of making prank calls.

The law and ethics of the matter are quite clear.

The NSW Surveillance Devices Act prohibits the broadcast of recorded private conversations without the permission of the participants.

The Commercial Radio Code of Practice does likewise at section 6.

As with any legal or regulatory matter, the lawyers for the radio station might argue over interpretations of both – and whether the conversations were ‘private’ or the parties ‘identifiable’ – but the path is certainly open for both the police and the regulator to move against them.

My beef is with the genre of prank calls more generally – not merely those where the consent of the target has not been granted to broadcast them.

I’ve heard many arguments in their favour in recent days, including that they are a time-worn practice in commercial radio, that they are just a bit of fun, that good sports will laugh them off, that they are part of an Australian tradition of laconic humour.

Well, so were racist jokes and workplace bullying pranks last century, and neither are acceptable in the modern era.

The basic premise of the prank call is to exploit the naivety, trust, and vulnerability of the target for the entertainment of the listener.

A prank call typically involves a family member, friend or work colleague contacting the radio station to set the target up with some information about something they know has upset them and will likely trigger a reaction.

By definition, the individual is already vulnerable in some way – frustrated by bureaucracy, upset over a relationship, feeling guilty about some trivial misdemeanour, or just known to be gullible and an easy target.

Just a few decades ago all this might have been written off as good fun – just like the workplace tricks colleagues would play on their apprentices or the racist and misogynist jokes you could read in the newspaper or watch on television.

But society has moved on. Both of those practices are now illegal under harassment and anti-discrimination laws.

And we now have data that tells us that the prank call ‘victim’ might be much more vulnerable than we previously suspected.

According to Sane Australia, about 20 per cent of adults experience a mental disorder in any year – typically anxiety or depression.

When a radio station conducts a prank call, they are never absolutely sure about the mental and emotional state of the person they are calling. Sooner or later that call is going to reach a person at a particularly vulnerable moment of his or her life.

A moment when they are low on self esteem, high on anxiety or perhaps under the influence of a substance – prescribed or otherwise.

They might well feel the world is set against them.

The idea of the prank call is to lead them on and to encourage their level of anxiety or emotion – all as part of the theatre of the ruse – and to end by laughing at their expense.

We now have decades of psychological research proving that this may be detrimental. What vulnerable people need at that moment in their lives is not a prank call but expert counselling.

They need their friends to support them, not set them up to be the laughing stock of society.

And any ‘consent’ they may give to a DJ encouraging them to go along with the joke – in the moments after they have just been deceived – has to be questioned.

Peer or societal pressure to “be a good sport” might generate an “Oh … okay” kind of permission from such an individual still reeling from the experience, but is that true consent?

Then we all hear it and have a good laugh at them for being so naïve or gullible or anxious or angry and then leave them to pick up the emotional pieces.

This particular radio station has made emotional exploitation part of its commercial model. Just look at the long history of complaint and relative inaction over its leading disc jockey Kyle Sandilands in recent years, well documented on Media Watch.

It is good that the 2Day FM management has been moved to suspend its prank calls.

Now it’s time for the rest of the industry to do so as well – permanently. We are at a pivotal moment in media history and it is time for industry to build the public’s trust, not to exploit it for a cheap laugh at someone’s expense.

* This blog has dealt with mental health issues. If you are in Australia, please call Lifeline on 13 11 14  for 24 hour counselling, information and referrals or the beyondblue info line 1300 22 4636.

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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.

By MARK PEARSON Follow @Journlaw

Lord Justice Brian Leveson – who delivered his 2,000 page report on the British press on November 29 – addressed us in Sydney yesterday on ‘Privacy and the Internet’.

He steered well clear of commentary about his landmark report and its recommendations.

Instead, he drew upon some of the historical foundations of privacy law as a platform for an exploration of the issues surrounding privacy regulation in the Internet era.

His concluding comments demonstrated that link:

“(W)hile established legal norms are in many respects capable of application to the internet, it is likely that new ones and new laws will need to be developed.

“The rise of the media produced Warren and Brandeis’s famous dissertation on privacy law.

“The internet may well – and no doubt will – require us to think as creatively as they did.

“Only if we do so will we properly understand the role and values which underpin privacy and freedom of expression, the balance to be struck between them and the means to ensure that they are both safeguarded in an internet age.

“The answers we reach might differ from those we have reached in the past.”

Lord Justice Leveson devoted the first several minutes of his speech backgrounding the interface between nineteenth century technological innovations contributing to the famous Harvard Law Review article – ‘The Right to Privacy’ – by lawyers Samuel Warren and Louis Brandeis.

I also recently explored some of the historical background to privacy in my book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012) – and discovered a French connection in the process.

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Privacy rights and protections are a fairly recent legal development. For centuries gentlemen in Europe (and later North America) settled personal embarrassments and insults using the strictly codified practice of the duel – well documented in Best Served Cold – Studies in Revenge. Even today the tribal laws of many indigenous peoples invoke a physical punishment such as a beating or stoning for causing another to ‘lose face’ in a community – actions covered by both privacy and defamation laws in the developed world. While French courts were developing privacy law in the 1860s there was no notion of a formal ‘right to privacy’ in the English speaking world. Laws in the US, Britain and its former colonies had evolved over centuries to protect the individual’s space and reputation in several ways, including defamation, copyright, trespass, nuisance and confidentiality.

… Let’s journey back to Paris in 1867, when gentlemen still duelled to the death over matters of pride. The practice was masterfully recorded by the writer Alexandre Dumas père in his novel The Three Musketeers. In real life, Dumas lived the extravagant lifestyle of the famous author in an era when the stars of print were the equivalent of screen idols today. He was besotted with 32-year-old actress Adah Isaacs Menken – the Paris Hilton of her time – regarded by some as the first female cult celebrity. The lovebirds posed for some saucy photographs (she in her underwear and he without the compulsory gentleman’s jacket) but the photographer then tried to trade on their celebrity by registering copyright in the images. Dumas felt aggrieved but, as James Q. Whitman explained in the Yale Law Journal, the court held his property rights had not been infringed. However, the judge decided Dumas did have a right in privacy that trumped any property right the photographer might have held. With that decision, privacy was born as a right in the legal world.

Across the Atlantic two decades later, in 1888, Michigan Supreme Court Justice Thomas Cooley wrote of a ‘right to be let alone’. Then, in a landmark Harvard Law Review article in December 1890, the great US jurist Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis announced a new ‘right to privacy’ in an article by that very name. Warren had been angered when a daily newspaper had published the guest list of a high society dinner party his family had hosted at his Boston mansion, which he saw as a gross invasion of his privacy. The right to privacy owes its existence to a wealthy lawyer who resented the media prying into his personal life.

Warren and Brandeis wrote: ‘The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery’. Their words were chillingly similar to those used by the critics of celebrity gossip mags and websites today, particularly in the wake of London’s News of the World scandal which triggered the Leveson Inquiry.

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Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.

[Media: For review copies please contact publicity@allenandunwin.com or call +61 2 8425 0146]

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.

By MARK PEARSON Follow @Journlaw

News that nine Facebook and Twitter users in the UK have been ordered to pay compensation to a rape victim after identifying her on social media sounds a warning that we are all now publishers and subject to the same laws as mainstream media. Here is an edited excerpt from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012) – explaining the basic principles of court reporting restrictions for lay users of social media.

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Courting secrecy

Despite the existence of the ‘open justice’ principle, online writers face restrictions on their reporting of crimes and other matters before the court. Your behaviour, postings and comments can lead to substantial fines or even jail terms if you breach the laws of contempt of court and the many and varied bans on reporting certain court matters and identifying certain people in the courtroom. Reporters who cover court every day know these restrictions well and are trained to deal with them – although sometimes they slip up as happened recently in a Tasmanian case prompting a push for law reform. The challenge for bloggers and social media writers is that you might be unaware of the fact that certain names and other identifying matters cannot be published in particular kinds of cases. In fact, some cases are closed to the public and cannot be reported at all.

The rules vary markedly between countries, but the most common restrictions are on identifying victims of sex crimes (and sometimes the sex accused), juvenile offenders and witnesses, jurors, and parties to family law disputes. Sometimes the whole court is closed for these and other proceedings such as preliminary hearings, military and national security trials and mental illness hearings.

The temptation for the gossip or sports blogger might be to mention some of these matters in postings about celebrities, perhaps via family or friends, without being aware of the court restrictions on identification. Heavy fines and even jail terms apply in some places if you break these prohibitions. At the very least you need to check what bans apply in both your own jurisdiction and the place of the court proceedings before firing off those words or images.

Gags, but not the funny kind

Sometimes a judge will use their power to issue orders prohibiting publication of some aspect of a court case and occasionally even the whole case. These are known as injunctions, suppression orders, gag orders and stop writs. Last month a Victorian magistrate issued such an order against publication of information about the man accused of murdering Melbourne ABC worker Jill Meagher – although Michael Bradley from Marque Lawyers highlighted some problems with that one.

When the orders ban you from revealing even the fact that the order has been issued, they are known as ‘super injunctions’. These prompted a social media nightmare for the English courts when they were issued in relation to privacy matters in 2010 and 2011. It came to a head in May, 2011, when footballer Ryan Giggs was named in the House of Commons as the person at the centre of an anonymity injunction after 75,000 Twitter users had already tweeted his name. A Times journalist was threatened with a contempt of court charge for tweeting the footballer’s name to his followers in breach of the order. It was believed to be the first time the Attorney-General had been formally asked to consider contempt charges against a social media user.

Gags like super injunctions have also been used in the US. The New York Times reported in 2008 that the owners of political website Room 8 received a grand jury subpoena to disclose the authors of some of their anonymous bloggers. They were threatened with prosecution if they revealed they had even received the subpoena. In another example, Florida-based legal blogger David O. Markus explained the frustrations of dealing with a gag order on his Southern District of Florida Blog after a judge in a terrorism trial issued one and then partially lifted it in 2008. Markus was then allowed to blog about some aspects of an ongoing immigration case without going into the details of the alleged bombing plot which shared many of the same facts.

Blogs covering sensitive national security information or sexual taboos are much more likely to be gagged, sometimes permanently. In 2009 Seattle University postgraduate law student Danielle M. Cross explained how Californian courts were able to uphold permanent injunctions against websites set up by a paedophile to track the movements of young girls at public events.

Take down notices

Sometimes the injunction is in the form of a notice to ‘take down’ certain material from a site or to shut down the whole site. This is sometimes issued to the ISP or search engine host. In 2011 Google complied with a ‘preventative closure’ order from an Italian court to remove an English language blog titled ‘Perugia Shock’ criticising aspects of the prosecution of an alleged murder of a British exchange student by her US roommate. (The accused, Amanda Knox, was later acquitted.)  The blog reappeared elsewhere, the Washington Post reported. In Australia, media organisations were ordered to remove from their searchable archives material related to the upcoming trial of a prominent criminal figure. Former News Limited chief executive John Hartigan criticised such take down notices for their expense and unrealistic application in an address to our Courts and the Media in the Digital Era symposium at Bond University last year.

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Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.

[Media: For review copies please contact publicity@allenandunwin.com or call +61 2 8425 0146]

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.