journlaw

May 29, 2012 · 8:39 pm

Social media, you and the law: Transcript of the @lawreportrn interview with @journlaw & @julieposetti

Transcript of the @lawreportrn interview with @journlaw and @julieposetti on May 22, 2012.

To listen, go to the ABC Radio National Law Report website for podcast download.

Anita Barraud: you’re probably all well acquainted with that advice that you shouldn’t put anything on the internet that you wouldn’t want your employer or your mother to see. There are those posts that can lead you to missing out on that great job, but some might even land you in court. James Pattison reports on the legal dangers of your online life.

James Pattison: Have you got a phone in your pocket? Or what about a laptop in your bag? Well, if you use social media, you’re now a publisher, whether you know it or not. Mark Pearson is professor of journalism at Bond University. He’s written a book that’s very aptly named Blogging and Tweeting Without Getting Sued.

Mark Pearson: The book stemmed from 30 years of looking at the law, as it relates to journalists and journalism students, and coming to the realisation a couple of years ago that of course this whole development in social media meant that everybody out there using it is now a publisher, just like journalists have been, and therefore come under the laws of both media law and many others that might apply to citizens who publish things.

James Pattison: And trying to be funny online can land you in some serious trouble.

Mark Pearson: And only last year we had a British gentleman who posted a witty tweet, or what he thought was a witty tweet, about blowing up an airport, and he was just expressing it as satire, he said, because he was frustrated that snow had stopped flights from this particular airport, but unfortunately national security and police agencies don’t always have a sense of humour, and they certainly didn’t in that case, and his house was raided, he was arrested, he was charged with national security offence and he finished up being released, of course, but he suffered a whole lot through the process and spent some time in the big house, at least temporarily, as a result of it. Something none of us need in our lives.

James Pattison: There’s been a lot of changes with media that’s available to us as individuals; a student on their mobile phone posting witty tweets about the lecturer at the front of their lecture theatre, so we now have this instant public communication. Have the laws changed to cover the instant nature of this communication?

Mark Pearson: The basic laws are pretty much the same as they applied to journalists and media organisations in the past. So, your fundamental law of defamation, contempt, confidentiality, all of these areas, you know, the core law is still the same, it’s just that some circumstances have changed with new media and social media.

James Pattison: If the core law is still the same, if the underlying principles are still the same, how’s the adaptation been? Is it exposing perhaps that there’s some principles upon which our legal system is founded, that don’t quite weigh up in 2012?

Mark Pearson: Indeed, it is already demonstrating that, and when it comes to social media law decisions, well, it’s problematic. For example, only last year we had the retired judge Finkelstein presiding over a consumer law case known as the Allergy Pathways case where a company had been directed not to make certain misleading comments about its health treatments, and what had happened was that some of these claims had continued to be made on their website and some by Facebook fans on their Facebook page, and some in a Twitter feed. So Justice Finkelstein was placed with a situation where he had to rule whether the fact that they…some of these comments had been hosted on the company’s Facebook fan page, meant that they were in breach of the order. He held that they were, and he found them in contempt, because of that breach, they were fined. He also made the interesting direction that they should remove all such comments from their Twitter page, whatever a Twitter page is. I don’t know what a Twitter page is, but nevertheless Justice Finkelstein made that direction in that case, so all I’m saying is that judges themselves are still trying to come to grips with social media and its implications, both in the court system and in particular cases where old law should apply, but it has to be adapted to these new technological circumstances.

James Pattison: Professor Mark Pearson. Julie Posetti is a journalist and assistant professor at the University of Canberra. She’s writing a PhD about the impact of social media on professional journalism. Posetti has firsthand knowledge of the troubles that you may encounter when using online platforms like Twitter. A couple of years ago she found herself at the centre of a legal stoush involving the editor of The Australian newspaper, Chris Mitchell.

Julie Posetti: This whole episode, which eventually became the subject of large headlines and news tickers and coverage ad nauseam in the mainstream media, at least as far as The Australian was concerned, started with the live tweeting of a conference about journalism which was being held at the University of Technology in Sydney in late 2010. It was a particularly newsworthy session because it involved the launching of brand new research into the global reporting of the environment and climate change, which was being released in the context of this particular session, and one of the speakers was Asa Wahlquist, who, and I had heard from others, had left The Australian in difficult circumstances, and she was talking about her experience of trying to report climate change and environmental issues generally within the remit of being the rural reporter for The Australian. She was a very…highly respected, very experienced award-winning journalist, so a very trusted source, and somebody who was exceptionally media literate. So, in my mind there were no impediments to reporting what she was saying, and other than to think about the context of the event, which was a public event, there were many journalists present, so there I was, live reporting what Asa Wahlquist was saying. She had some very newsworthy, very interesting, very challenging things to say about what it was like to work at The Australian under its current editorship, and she made comments that were eminently newsworthy, and I felt were appropriate to distribute to the people who were following me on Twitter, and as I live tweeted, I had a couple of people who saw those comments who were at the conference who redistributed them via process which is called re-tweeting, and people who follow me who were not at the conference did the same. So they redistributed those comments, about four or five people I think redistributed those 140 character tweets to their own audiences, so…

James Pattison: What came about as a result of publishing these comments on Twitter?

Julie Posetti: Well, as I understand it somebody at The Australian had been monitoring my tweets, and within I think it was 12 hours of those tweets, 12 to 24 hours of those tweets being published I was sitting on a panel, and there was a live Twitter feed running behind me, and people started gasping and pointing, and somebody sent me a direct message on Twitter on my phone, so I’m sitting at this panel looking at an audience that seemed to be erupting inexplicably, and it became evident that they were reacting to a headline that had been posted by The Australian via their Twitter feed which was being rapidly redistributed which stated that Chris Mitchell, the editor-in-chief of The Australian would sue me, named me, Julie Posetti, as though I was some sort of household name, and that created an immediate explosion, and of course triggered all of the usual legal ramifications. So I had to seek legal advice from my employer, because I was there in my professional capacity as an academic. That resulted in me being effectively silenced because I couldn’t engage in any public discussion while legal advice was being sought, particularly in light of it being a threat to sue for liable or defamation. That’s where it began, and it got a life of its own on social media, it became know as Twitdef, what it came down to was, in any kind of defamation case, in very traditional terms, whether or not there was a defence against defamation, and the protection that the university, myself and our lawyers were relying on was that this was a fair and accurate report of public proceedings, which is a very familiar defence to journalists. So it was quite a tumultuous experience, but one that demonstrated to me both the power and the risk of an active online life.

James Pattison: Julie Posetti, and 18 months later nothing further has come of the threatened legal action. Posetti posted her online comments on her personal Twitter account under her own name, but what if you don’t? There are lots of anonymous internet users who tweet, blog and post comments under a pseudonym. Is this enough of a protection from a possible lawsuit? Mark Pearson.

Mark Pearson: Well, the law is still undecided in that area. Certainly in criminal cases there’s a very strong argument, but we have yet to get enough decisions to really base any real judgement on there, but even if the courts are reluctant, because of IP addresses and so on, the lawyers and the discovery process can often actually find the suspect as it were, or the defendant in a civil action. It happened in Australia only a couple of years ago, where an anonymous poison penner in Western Australia was using the pseudonym Witch to attack a technology security company and its chairman. Well, the court ordered the forum host Hot Copper to hand over the blogger’s details, and at first the details could only be tracked to an interstate escort service, but the law firm conducted its own private investigation and eventually found the true author of the postings and then that author was hit with a $30,000 damages verdict.

James Pattison: So, let’s say that you’re living in Australia, you post a comment albeit witty about somebody in the United States.

Mark Pearson: You raise a really interesting point, and that is to do with the whole area of jurisdiction, and that’s why I’ve, you know, very boldly targeted the book internationally, because really it’s silly talking about the laws of just one jurisdiction when social media defies all jurisdictional boundaries. My own blog, Journlaw, journlaw.com, is…doesn’t have a huge following, it doesn’t have a huge readership, on any day there might be 50 or 60 people looking at it, but on any day, while 90 per cent of them will be looking at it from Australia, there are these outliers. There will be someone who’s accessed it from Thailand, someone else from Finland, someone else from Kuwait, and what it means is that if I have written something on my blog, which thankfully normally wouldn’t be offensive, but if for example I’d insulted the king in Thailand or perhaps written something blasphemous about Mohammed in Kuwait, then if I ever chose to travel to that place, I could face consequences, and as we learnt a couple of years ago with a Melbourne man who breached the Thai lese-majesty laws, he actually spent six months in one of the so-called Bangkok Hiltons, suffering away with all of the other prisoners, because he had dared to write something about the royal family there.

James Pattison: Julie Posetti, we are sort of caught up in the social aspect of social media and not the media aspect of social media; that what was once a social comment to make, a comment to make amongst friends in a social setting has now become broadcast, and that we do that every single day without realising the consequences of it. What does this present for young people who believe that they’re just having a bit of fun, and fair enough, just wanting to have a laugh with some friends, but are publishing these things in a public forum?

Julie Posetti: When we have situations where people who are very new to these mediums find themselves saying something that they might say in their lounge room but publishing it broadly, and it might be, you know, terribly defamatory or terribly contemptuous, and find themselves at the end of a threat from a big corporation or a powerful individual, what is the law going to do with that? I think these are all, you know, very interesting questions, and many of these cases have settled out of court, and case law hasn’t necessarily caught up, and it may not catch up and it may not need to catch up, but in the intervening period we have a need, I think, for a lot more communication about these issues and a lot more education about these issues, for the general public in particular.

I have a rule that I share with anybody who I’m teaching or training with regards to social media, which I borrow from my broadcasting experience which goes to the mute button and the capacity for a seven-second delay to exist, so if anything seems to you to be slightly, even slightly risky, don’t hit that send button on Twitter or Facebook, step back for seven seconds, then go and have another look at it. And if you’re still angry, if what you’re doing is about to post in anger or contempt, then step back for another seven seconds.

Anita Barraud: Julie Posetti and Mark Pearson’s book Blogging and Tweeting Without Getting Sued is published by Allen & Unwin. James Pattison with that report, and speaking of social media, on Friday, how Twitter is affecting sports journalism. Some reporters love it, some hate it, it’s certainly causing some conflict in the competitive world of British sports journalists. That’s coming up on the Media Report with Richard Aedy, Friday at 5:30 pm. That’s it for the program this week, thanks to producer James Pattison and to technical producer Angie Grant, and I’m Anita Barraud.

Guests

Mark Pearson: Professor of journalism at Bond University and author of Blogging & Tweeting Without Getting Sued
(@JournLaw)

Julie Posetti: Journalist and assistant professor at the University of Canberra (@JuliePosetti)

Publications

Title: Blogging & Tweeting Without Getting Sued: a global guide to the law for anyone writing online

Author: Professor Mark Pearson
Publisher: Allen & Unwin
Released: 01 Apr 2012
Description: Every time you blog or tweet you may be subject to the laws of more than 200 jurisdictions. As more than a few bloggers or tweeters have discovered, you can be sued in your own country, or arrested in a foreign airport as you’re heading off on vacation – just for writing something that wouldn’t raise an eyebrow if you said it in a bar or a cafe.

© Mark Pearson 2012

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.

Doctors bury their mistakes. Lawyers jail theirs. But bloggers publish theirs for the world to see

By MARK PEARSON Follow @Journlaw

An excerpt from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online:

—————-

Time warps on the Internet. It is one of the most important aspects of new media, and one of the most complicating in legal terms. On the one hand, pressing the ‘Send’ or ‘Publish” button makes your work instant and irretrievable. While the newspaper publisher could always pulp an offensive edition before the trucks left the factory, as a blogger or micro-blogger you have to live with the consequences of your digital publishing errors. Yes, you can remove your blog, tweet or Facebook status within seconds of posting it, and request that it be taken down from search engines. But you can never be sure someone hasn’t captured, downloaded, and forwarded it in the meantime.

This permanent quality of new media does not mix well with an online writer’s impulsiveness, carelessness or substance abuse. There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today. At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

British actor Stephen Fry learned this in 2010 when he tweeted his two million followers, insulting Telegraph journalist Milo Yiannopoulos over a critical column. “Fry quickly deleted the tweet once others started to latch on to it, but as we know that rarely helps when you’ve posted something injudicious online: the Internet remembers,” Yiannopoulos wrote.

This new permanence of stored material also creates problems for digital archives – because if the material remains on the publisher’s servers it may be considered ‘republished’ each time it is downloaded, as lawyer Steven Price has blogged. This means that even where there might be some statutory time limitation on lawsuits, the clock starts ticking again with each download so you do not get to take advantage of the time limit until you have removed the material from your site. The best policy is to take all steps to withdraw any dubious material as soon as possible. If others choose to forward or republish it, it has hopefully become their problem rather than yours.

…

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print format in Australia and New Zealand (UK release in July and US release in October) and as an ebook via Kindle, Google, Kobo and some other providers. [Order details here.]

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

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Tagged as blogging, courts, defamation, Facebook, First Amendment, free speech, law, liability, malice, media, public interest, social media law, Twitter

May 12, 2012 · 8:21 am

Blurred lines for journalists and social media editors: Are you personally liable for an error?

By MARK PEARSON Follow @Journlaw

A short section of my new book – Blogging and Tweeting Without Getting Sued – has the heading ‘Who carries the can?’.

There, I write:

“Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. If you write for a larger organisation you share that responsibility with your employer or client. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger.

“In the 20^th century, large media organisations would usually pay the legal costs and damages awards against their journalists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream reporter or columnist thinking of going solo with your blog you might weigh this up first. Another advantage of writing for a large media group is that your work will be checked by editors with some legal knowledge and perhaps even vetted by the company’s lawyers before being published. Either way, you might investigate insuring yourself against civil damages, although even in countries where this is available premiums are rising with each new Internet lawsuit. Another option is to scout for liability insurance policies offered by authors’ and bloggers’ associations. Search to check your options.”

The issue has come into sharp focus with journalists’ own tweeting under their personal handles in recent times. My recent piece in The Australian, reproduced below, looked at the question of journalists’ standards of independence and fairness on Twitter compared with the expectations placed upon them in their ‘day jobs’.

Organisations have started to develop social media policies for their reporters’ and social media editors’ use. But a huge grey area is the question of personal liability for individuals.

If a journalist (or any other employee, for that matter) claims in their Twitter profile that the views expressed are private not those of their employer (a standard disclaimer) where does that place them if someone sues them personally over their tweets?

It would take a particularly generous proprietor to cover the legal expenses of their employee who has distanced their private comments so clearly from their work role. It would likely leave them high and dry, with their own house and savings on the line, defending a legal action over a tweet, blog or other posting.

Despite my long experience as a journalist and academic, I made a serious error in this very story commissioned by The Australian. It was only noticed by an astute sub-editor (copy editor) at the eleventh hour – saving the newspaper and myself significant embarrassment at the very least. Thank God for subs!

But the fact is that our private blogs and tweets do not have the expert eye of a copy editor scanning them pre-publication – which can leave us personally liable for our words.

That’s something worth pondering very carefully before we press that ‘Send’ button.

———

Media twitters as Murdoch fronts Leveson

The Weekend Australian, April 28, 2012, p. 12

MARK PEARSON

THERE was a virtual sideshow alley to the circus of Rupert Murdoch’s appearance at the Leveson media inquiry in London – coverage of the event on Twitter.
The topic #rupertmurdoch trended briefly at 7th place worldwide on the social media network, remarkable given discussion was also running at #leveson, #NOTW and #hacking.
It augurs well for a future for journalism that the appearance of an important public figure at a judicial inquiry could hold its own in the Twittersphere with the rapper 2 Chainz, a reality program on teenage pregnancy and the hashtag #APictureOfMeWhenIWas.
The Twitter feed offered a warts-and-all view of the medium as a source of information and informed opinion on news and current affairs.
It also raises issues of relevance to the self-regulation of journalists’ ethical behaviour when democratic governments are proposing statutory media controls in the converged environment.
Frequent Twitter users are accustomed to the extremities of opinion expressed in 140 characters on controversial issues.
The very “social” nature of the medium means that the streaming commentary is not dissimilar to what you would hear from a crowd gathered around a pub television watching a major sports event or a breaking news event.
You get a smorgasbord of views, quips, snide remarks, venom, puns, one-liners and references to a whole lot more, often in the form of links or photos.
With retweets you can then get the “Chinese whispers” effect, as facts are massaged or adapted to fit the character count down the grapevine.
Journalists are supposed to offer audiences some meaning in the midst of this mess.
For journalism and media organisations to stand out from the crowd they need to be the source of reliable, verified and concise information and opinion based on proven facts – something we used to call “truth”.
This week’s coverage of the Murdoch appearance demonstrated that some prominent journalists seem to have formed the view that Twitter is so different a medium that they have licence to ignore some of the foundation stones of their ethical codes.
Murdoch’s appearance elicited a blood sports style of sarcasm from critics from rival organisations, most notably at the ABC and Crikey.
Crikey’s Stephen Mayne might argue that readers would expect his Twitter feed to reflect his years of confronting Murdoch at News Corporation annual general meetings. Fair enough.
But does that excuse his tweet suggesting counsel assisting Leveson ask Murdoch about his marriages and fidelity “to test whether he really agrees that proprietors deserve extra scrutiny”?
Surely it was that kind of tabloid privacy intrusion that prompted the whole sorry saga. Which was Mayne’s point, I guess, in “an eye for an eye” kind of way.
Of course, News Limited journalists are not ethical saints in their use of Twitter, but on this issue they were in defensive mode.
Many prominent News columnists do not have active Twitter accounts, but even The Australian’s Media team chose not to engage on this important international media issue.
The Daily Telegraph’s Joe Hildebrand showed that, in the Twittersphere, sarcasm is often the preferred line of defence: “Can’t wait until Rupert Murdoch resumes speaking at the Leveson inquiry. I haven’t known what to write for 10 minutes.”
News journalists can hardly look to their boss for leadership in seeking to be unbiased in their Twitter commentary.
Murdoch himself posted to his @rupertmurdoch handle on March 30: “Proof you can’t trust anything in Australian Fairfax papers, unless you are just another crazy.”
Amid the snipes and counterattacks there is a whole lot of banter too – journalists doing the virtual equivalent of talking in the pub after work.
It might be gratifying, clubby and intellectually stimulating, but is a very public media space the place to be doing it?
What message does this send the audiences who follow these journalists on Twitter because of their connection to their respective masthead?
Most offer the standard “views expressed here are my own” rider on their Twitter profiles.
But is that really enough, when beside that they trumpet their journalistic position and employer organisation?
It is symptomatic of a broader problem of corporate social media risk exposure that has triggered an industry of social media policy writing, in the wake of the harsh lessons for McDonald’s and Qantas when hostile customers converted their promotional hashtags to #bashtags in public relations disasters.
But in journalism it’s more complex, because reporters are encouraged to use social media for establishing and maintaining contacts, sourcing stories and engaging with their audiences.
Journalism should be all about transparency, so many would argue it does no harm for readers to know what a reporter really thinks about an issue, particularly in a converged postmodern world where objectivity is supposedly dead.
It might well be, but the ethical codes still speak of fairness, accuracy and respect for the rights of others.
And those very codes are meant to be followed by journalists and their organisations in their mainstream reporting.
Sadly, they might soon face a statutory tribunal and penalties for their unethical actions.
They can’t have it both ways. News organisations cannot sell themselves to readers as impartial, authoritative sources of news and informed commentary when on Twitter their journalists are either breaking their codes or staying mute about an important international news event involving their boss.
The citizenry deserves better if we are to rebuild its confidence in journalism as an important democratic institution.

© Mark Pearson 2012

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Tagged as blogging, courts, Facebook, free speech, HR, journalism, journalism ethics, law, liability, marketing, media, media law, PR, social media law, social media policies, Twitter

May 5, 2012 · 5:32 pm

Any Australian #privacy tort must feature strong free expression protections

By MARK PEARSON Follow @Journlaw

The Media Entertainment and Arts Alliance has released its latest annual press freedom report – Kicking at the Cornerstone of Democracy – with some excellent articles covering the gamut of media law and censorship issues in Australia.

It is essential reading for journalists, media lawyers and students – updating the material covered in their media law textbooks in an accessible journalistic style.

My article is on privacy law, and I reproduce it here in its extended, unedited form for the benefit of my blog followers:

———

Privacy On Parade

The right to privacy is a relatively modern international legal concept. Until the late 19^th century gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright in some steamy images of Dumas with the ‘Paris Hilton’ of the day – 32-year-old actress Adah Isaacs Menken.

The court held his property rights had not been infringed but that he did have a right to privacy and that the photographer had infringed it.

Across the Atlantic in 1890 the top US jurist Samuel D. Warren teamed with future Supreme Court Justice Louis D. Brandeis to write the seminal Harvard Law Review article ‘The Right to Privacy’ after a newspaper printed the guest list of a party held at the Warren family mansion in Boston.

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.”

Thus celebrities, lawyers, paparazzi and the gossip media were there at the birth of the right to privacy – and the same players occupy that terrain today.

While both privacy and free expression are recognised in many national constitutions and in international human rights treaties, Australia is rare among Western democracies in that it has no constitutional or Bill of Rights protection for either.

That distinguishes us from the United States, United Kingdom, Canada and New Zealand which all have constitutional or rights charter requirements that proposed laws must be considered for their potential impact on free expression.

It is one of the main reasons for the complex array of legislation, court decisions and industry codes of practice limiting Australian journalists’ intrusion into the affairs of their fellow citizens.

The myriad of laws of defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright all have a privacy dimension. The Privacy Act controls the collection and storage of private information by corporations and government.

There are very few situations of media intrusion into privacy not covered by one of these laws or by the framework of codes of ethics and practice controlling journalists’ professional activities.

Proposals to replace the self-regulatory and co-regulatory ethics systems with a statutory news media regulator would add yet another layer to the regulation of privacy intrusions.

The crux of the proposed ‘statutory cause of action for a serious invasion of privacy’ is whether a citizen should have the right to sue over a privacy breach and receive either an award of damages or an injunction to stop publication.

Over the ditch, Kiwi journalists now have to navigate a judge-made right to privacy, developed interestingly from a celebrity suit in which the plaintiffs lost the case.

Mike and Marie Hosking were New Zealand media personalities who had adopted twins and later separated. They asked for their privacy, but a magazine photographer snapped the mother walking the twins in their stroller in a public place. They sued, claiming breach of privacy. The NZ Court of Appeal invented a new action for breach of privacy, but held it did not apply in that particular case. The Kiwi privacy invasion test requires “the existence of facts in respect of which there is a reasonable expectation of privacy” and that “publicity given to those private facts that would be considered highly offensive to an objective reasonable person”.

But this is set against the backdrop of the New Zealand Bill of Rights Act which protects free expression.

Australia’s High Court famously left the door open for a possible privacy tort in the ABC v. Lenah Game Meats case in 2001, when animal liberationists had secretly filmed the slaughter of possums in an abattoir in Tasmania and the ABC wanted to broadcast the footage – the fruits of the trespass.

It is hard to quarantine this latest push by the Federal Government from the News of the World scandal in the UK and the Greens-championed Finkelstein inquiry into media regulation.

The government had effectively sat upon the Australian Law Reform Commission’s proposal for the statutory cause of action for three years before progressing the matter with its Issues Paper last September in the wake of the phone hacking revelations from London.

Few journalists or their media organisations object to the notion of their fellow citizens’ embarrassing private information being kept secret.

However, it is in the midst of a breaking story like that involving collar bomb extortion victim Madeleine Pulver, a celebrity scoop like the Sonny Bill Williams toilet tryst images or the case of the fake Pauline Hanson photos that genuine ‘public interest’ gives way to audience gratification and the resulting boost to circulation, ratings or page views.

Free expression is already greatly diminished by this mire of privacy-related laws and regulations without adding a new statutory cause of action for privacy.

But if this latest proposal is advanced further, journalists should insist upon:

– a free expression and public interest defence reinforced in the strongest possible terms;

– removal of the existing laws it would duplicate; and

– strong ‘offer of amends’ defence like that now operating in defamation law and alternative dispute resolution provisions to deter celebrity gold diggers.

Short of a bill of rights enshrining freedom of the press and free expression, these demands amount to the minimum the news media deserve in a Western democracy.

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Tagged as amnesty, Australian media, censorship, free expression, journalism, law, MEAA, media, media inquiry, media law, Press Council, press freedom, privacy, Reporters Without Borders, RSF, World Press Freedom Index

April 26, 2012 · 10:07 am

Social media legal risk: Are you ‘red alert’ on the @journlaw 6-point scale?

By MARK PEARSON Follow @Journlaw

It was only in planning, researching and writing my book ‘Blogging and Tweeting Without Getting Sued’ that I started to think about various levels of legal risk in the use of social media.

The book was never aimed to substitute for expert legal advice, but is designed for the serious blogger or social media user who wants to know the main areas of risk – basically when to sound the alarm bells so they either refrain from pressing that ‘publish’ or ‘send’ button or see a lawyer before doing so.

I have thought more about this, and the level of social media literacy in the community, and have developed these six-point lists to identify the levels of social media legal risk users and their organisations might be facing.

Looking at the lists, I feel my book is mainly targeted at Levels 1-4 in each category – individuals and organisations needing basic knowledge of social media legal risks to help avoid complete disasters and to blog, post and tweet with confidence – on legal advice when needed.

No such list is perfect of course, and I would welcome your suggestions for improvement either as comments to the blog below or as tweets citing my handle ‘@journlaw’.

So here they are, open for your comment:

Individuals

Level 1 (highest risk) RED ALERT! –Totally ignorant of the legal risks of social media and reckless in your use of it

Level 2 – Blissfully ignorant of the legal risks of social media but basically cordial, polite and well meaning in your social media interactions

Level 3 – Vaguely aware of the legal risks of social media but happy to tweet and post regardless

Level 4 – Aware enough of the legal risks of social media to show some caution in your use of social media and to know when to seek legal advice. (Suffering the ‘legal chill’ factor through fear of risks.)

Level 5 – Fully expert in social media legal risks and strategies and aware enough of your rights and defences to be bold in your expression

Level 6 (lowest risk) – Legally qualified and up to date with media law and the numerous emerging additional laws affecting social media use internationally.

Organisations

Level 1 (highest risk) RED ALERT! – ‘Twit What?’ Still in the 20^th century with no social media policy (or many other policies for that matter) and employees can post whatever they like with no distinction between their corporate and private roles

Level 2 – Reasonable corporate communication policies hopefully applicable to, but not yet expressly incorporating, social media use.

Level 3 – Good corporate communication policies and a series of directives on social media use forming a good platform for a social media policy which has not yet been created.

Level 4 – A specific social media policy covering the main bases, but developed by HR department without expert legal input and lacking organisational follow-through with training and management awareness.

Level 5 – A specific social media policy developed on legal advice, but lacking in a key aspect such as currency or in-house training and awareness.

Level 6 (lowest risk) – Fully developed, monitored and routinely updated social media policy, with expert legal, HR and employee input, allowing for active but sensible social media presence with a clear firewall between employees’ private and corporate use. Regular training and briefing of management and staff on policy and changes.

© Mark Pearson 2012

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Tagged as blogging, courts, Facebook, free speech, HR, law, marketing, media, PR, social media law, social media policies, Twitter

April 15, 2012 · 2:11 pm

Don’t shoot the messenger #RSF #UN #censorship

By MARK PEARSON Follow @Journlaw

Don’t shoot the messenger

(My closing address to Brisbane Model United Nations conference, Queensland Conservatorium, 15 April 2012)

———

What a wonderful concept this is – students from a diverse array of disciplines having the opportunity to put your knowledge and abilities into practice over three days in this model United Nations setting – and to gain so much more understanding and skills through the process.

I have no doubt many of you will look back on this conference as an important landmark in your lives and will take many of the lessons and friendships into successful careers, wherever they may lead you.

You have applied your minds to important and innovative challenges – crimes against humanity, a right to death, impoverished nations, new weaponry, space rights, the economics of polio and the international criminal court. Journalists from the international press gallery have reported on proceedings while representatives of non-government organisations have attempted to negotiate suitable outcomes for their constituencies.

My address to you relates to these latter elements and how one Paris-based NGO – Reporters Without Borders – has worked since 1985 to defend the interests of journalists and cyber-dissidents attempting to report on these kinds of issues internationally and to promote the global right to free expression.

Reporters Without Borders is registered in France as a non-profit organisation and has consultant status at the United Nations.

For the past several years I have been Australian correspondent for RSF, filing regular reports to my colleagues in Paris on the threats to media freedom in this liberal Western democracy.

Sadly, I have had much to report because there has been a legislative creep factor at play which means that politicians will pay lipservice to free expression and media freedom yet continue to propose and pass laws that impinge upon that core democratic value.

Australia is rare among liberal democracies in that we do not have free expression explicitly enshrined in our Constitution and we lack the bills and charters of rights of comparable nations where it stands alongside other important human rights.

Of course we are not among the worst offenders.

But it made news recently when RSF demoted Australia from 18^th to 30^th position in its World Press Freedom Index among the 179 countries ranked.

First to the latest ranking: what factors contributed to Australia’s decline in its media freedom status since 2010? For a start, the fact that there were five simultaneous government inquiries into news media regulation at the time it was being compiled sent a message to the international community that, for a Western democratic nation, the Australian government and its agencies were entertaining tougher regulatory measures.

They included the Convergence Review, its subsidiary Independent Media Inquiry, the National Classification Scheme Review, the Commonwealth Government’s Privacy Issues Paper and the Australian Communications and Media Authority’s review of privacy guidelines for broadcasters.

Between them they raised the prospects of new controls on print, broadcast and online media; a new tort of privacy; tough new classification systems across media; and the conversion of some self-regulatory bodies to regulatory status.

RSF was specially concerned by suggestions at the hearings of the Independent Media Inquiry that journalists should be licensed and at that inquiry’s recommendation that a government-funded statutory regulator be established, with ultimate powers to refer editors to courts on contempt charges with potential fines and jail terms as punishment.

The trial of Victorian police officer Simon Artz for alleged leaks to The Australian newspaper about a counter- terrorism operation raised several media freedom issues, with Crikey senior journalist Andrew Crook allegedly breaching a suppression order by revealing the name of a former member of Victoria’s Special Intelligence Group involved in the hearing; warnings over Crikey journalist Margaret Simons’ live tweeting from the hearing; and The Australian’s Cameron Stewart being ordered to reveal his sources.

Victorian Police launched an investigation into an alleged hacking of an ALP electoral database by four journalists at The Age, including editor-in-chief Paul Ramage.

Government control over media access to detention centres prompted condemnation from the journalists’ union and RSF issued a release. The Department of Immigration introduced new guidelines to restrict reporting of, and access to, detention centres.

The Federal Court’s ruling that hate speech laws should trump free expression was of concern when a judge ruled Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act in his criticisms of fair-skinned indigenous people.

Senior Fairfax executives were summonsed by the Police Integrity Commission to produce documents revealing sources in September in relation to articles by Herald journalists Linton Besser and Dylan Welch about the NSW Crime Commission.

Fairfax’s deputy technology editor Ben Grubb, 20, was arrested after reporting on a conference presenter’s alleged hacking at the AUSCert IT security conference.

RSF has also expressed concern for some years at the Federal Government’s determination to introduce an Internet filtering scheme.

RSF does not claim its index is a precise scientific measure. It could never be, given the enormous variables at stake, and has to rely on an element of expert qualitative judgment when making the final determinations of a country’s comparative ranking.

The process centres upon a questionnaire sent to partner organisations (18 freedom of expression groups in all five continents), to its network of 150 correspondents around the world, and to journalists, researchers, jurists and human rights activists.

The questionnaire features 44 main criteria indicative of the state of press freedom. It asks questions about every kind of violation directly affecting journalists and ‘netizens’ (including murders, imprisonment, physical attacks and threats) and news media (censorship, confiscation of newspaper issues, searches and harassment).

It also measures the level of self-censorship in each country and the ability of the media to investigate and criticise.

Many countries’ rankings change from year to year but there is little movement at the extremes. Europe typically dominates the top 10, with Scandinavian countries like Norway and Finland among the top few, while the usual suspects feature at the other end of the scale: Iran, North Korea, Vietnam, China, Burma, Turkmenistan and Eritrea.

Free expression is not absolute, although its opposite, censorship, can be.

The major difference is in what the lawyers call ‘prior restraint’ – censorship before publication or broadcast. Those at the top of the scale have high levels of transparency and welcome media scrutiny of government processes, with a minimum of licensing, suppression and no physical intimidation of journalists. At the other extreme journalists are murdered, jailed and tortured, publishers of all kinds require a licence, and Internet access is restricted.

Over the past five years, Australia’s ranking has fluctuated between 16 and 30 of the 179 countries surveyed, typically ahead of the United States but well behind New Zealand in the level of media freedom.

Governments might take issue with the methodology and dispute their nations’ rankings, but the index draws on the energies of experts throughout the world and in Paris and is thus taken seriously in international circles.

It serves to raise awareness about media and Internet freedom, which cannot be a bad thing in an age of government spin.

And there are almost 150 nations RSF ranks lower than Australia in its index.

I devote a chapter of my recent book – Blogging and Tweeting Without Getting Sued – to the difficulties you can encounter when writing about them online.

There I explain that the only country outside the US, Europe and the Commonwealth to rank highly in free expression rankings over recent years has been Japan. Despite having regional charters of human rights, several countries in Africa and Central and South America have shown little respect for Internet or media freedom.

The so-called ‘Twitter revolutions’ throughout the Middle East and North Africa in 2010 and 2011 showed how social media could help accelerate movements for better human rights.

But despite the impact of ‘people power’ in such countries there is still evidence of censorship and intimidation throughout much of the world. No regional human rights convention exists in Asia and the Hong Kong-based Asian Human Rights Commission provides an ongoing chronicle of abuses, many involving the gagging of journalists, bloggers and dissidents.

The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority.

These are places where you get labelled a ‘dissident’ and face jail if you blog or tweet to express your political views. Reporters Without Borders has released a list of enemies of free Internet speech: Bahrain, Belarus, Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so.

Governments in such countries block access to full Internet use via systems like the so-called ‘Great Firewall of China’. While the Internet is seen by many as a wonderful new tool for democracy, there is a downside to the use of social media and blogs if your nation does not value free speech: your Web-based activities can be monitored quite easily by security forces and your careless use of such media can leave you dangerously exposed.

Blogger Nay Phone Latt was only released from a Burmese jail in January after reporting in his blog about the unfolding demonstrations against the government in Rangoon in 2007 and for describing how hard it was for young Burmese to express themselves freely.

Chinese blogger Ran Yunfei was among several arrested in a crackdown on dissent by government authorities in 2011. He spent six months in prison and was released on the condition he did not speak with the media or continue to share his political views online.

Many more languish in jails throughout such countries today for expressing themselves freely.

Repressive regimes also engage in modern age propaganda techniques such as cyber-attacks on target websites and on ‘phishing’ to steal dissident password information to access their email addresses and other contact details. The US has declared cyberspace the new ‘fifth sphere of war’ after land, air, sea and space.

Some countries have laws making it an offence to insult the royal family, with Thailand, a nation with an otherwise free and vibrant media, the most active in its use. It is called ‘lèse majesté’, and in that country it can carry a maximum jail term of 15 years.

Authorities have charged as many as 100 people a year with the offence in recent years, with several unsuspecting foreigners including an Australian jailed because of their published criticisms of royalty. Many other nations have lèse majesté laws or similar.

As you enter your international careers, you need to be concerned for both your own safety and the liberty of others in your blogging and social media activity.

In my book I explain how you need to be extra careful that your words or images do not implicate someone in a country with a stronger censorship regime than your own. Remember, your blogs, tweets and Facebook pages can be accessed by authorities in other countries, even if they have an Internet firewall in place for their citizens. Also you need to be careful with what you write about the activities of your friends and colleagues from other countries. I’m sure you would not want another blogger’s imprisonment or torture on your conscience if the security agencies in their home country arrest them over something you have posted from the cyber-safety of your free expression haven. You need to bear this in mind because your new networks may well extend to vulnerable individuals living in such regimes.

So what can you do to help elevate free expression as a fundamental human right?

I would encourage student journalists to sign up with RSF and perhaps one of the other free expression NGOs like Article 19 or Index on Censorship. The rest of you might become more active within Amnesty International which also has a strong free expression chapter.

Free expression is a right Amnesty regards as “important for the personal development and dignity of every individual and vital for the fulfillment of other human rights”.

And rightly so. For without free expression, victims of human rights abuses would be unable to communicate their predicament and their supporters would be prevented from issuing their rally cries for change.

While the United Nations Universal Declaration of Human Rights enshrined free expression for all the world’s citizens at Article 19 in 1948, it was only ever meant to be a declaration of a lofty goal and has many limitations.

Better safeguards came internationally in 1966 when the UN adopted the International Covenant on Civil and Political Rights, which also protected free expression, again at Article 19.

But many countries have not ratified the covenant and you are left without regulatory bite. Complaints about individual countries’ breaches can be brought to the Office for the High Commissioner for Human Rights, but the processes can take several years and are often unresolved.

The journalists among you should have truth-seeking and truth-telling as your absolute mission.

The rest of you might sometimes have other obligations which sometimes limit your ability to reveal everything about a topic, but you should make it your own mission to defend the rights of others to speak their minds.

In journalism we use the expression ‘don’t shoot the messenger’ – and we mean it both literally and metaphorically.

While the world has changed markedly since the UN was established in 1945, a constant has been the natural tendency of those in power to gag their critics.

Active membership of organisations like Reporters Without Borders and Amnesty International can at the very least remind those who abuse their positions that they are being watched, and at best motivate them to change their ways.

Anti-social racism in social media is unwise and illegal

By MARK PEARSON Follow @Journlaw

Two recent cases stand out as examples where racist commentary has landed online writers in legal trouble.

The first was in the UK where a student was jailed for 56 days for Tweeting offensive remarks about a stricken footballer.

Another was in Australia where a Federal Court judge fined the News Limited website PerthNow $12,000 over comments posted by readers to its website featuring racial abuse of four indigenous teenagers who died in a stolen car. It reinforces the Australian law that you are legally responsible for the moderated comments of others on your social media or web sites.

I take up the issue of discriminatory abuse in my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online.

The chapter is titled ‘The fine line between opinion and bigotry’. Here’s a short excerpt:

—————-

The fine line between opinion and bigotry

Sadly, human beings have found the negative energy to hate each other since time immemorial. Hatred of one form or another explains most of the wars and acts of violence throughout history. While the Internet and social media has allowed us to communicate with countless new friends and form all kinds of new professional and personal relationships, we do not just attract the attention of the ‘like-minded’.

There is a war going on in our pockets and handbags in each and every smartphone and on every home computer connected to the Internet. There are people so possessed with hatred and revenge that they are conducting a cyberwar on the objects of their disdain.

No matter who you are and where you live, there are others who might not know you personally but hate you for the category of human being you are: black, white, Asian, Hispanic, male, female, gay, straight, conservative, liberal, environmentalist, climate change denier, Muslim, Jew, Christian, obese, American, British, Pakistani, teenager, rich, poor, lawyer, politician or used car salesman. (Lucky there’s not a ‘hate’ button on Facebook, hey?)

Sometimes even some fun turns sour. A satirical swipe at redheads on the Simpsons television series prompted a 14-year-old Canadian boy to set up a Facebook ‘Kick a Ginger’ campaign in 2008, rapidly ‘friended’ by more than 5000 fans. As the Telegraph reported, dozens of children posted comments on the page claiming to have attacked redheads, with a 13-year-old girl from Alberta and her sister among the victims of the schoolyard bullies.

Such people judge you based on the labels they apply to you rather than who you really are or your life experiences that inform your views and values. And they are online and angry.

If you also have strong opinions and express them without fear or favour, your challenge is to avoid becoming one of them. Because if you do, the force of the law in most places can be brought down upon you.

Some individuals just cannot back away from a fight in real life or cyberspace. They become so obsessed with their causes or grudges that they launch poisonous online assaults on others that can leave their targets as traumatised as they would have been if they had been assaulted physically. Tragically, some victims have become so despairing and fearful that they have been driven to take their own lives.

In the eyes of the law, such attacks go under a range of names according to their type, scale, and jurisdiction. They include: cyberbullying, cyberstalking, online trolling, malicious online content, using carriage services to menace, harassment, hate speech, vilification, discrimination and even assault. Some are criminal offences where offenders can be fined or jailed and others are civil wrongs where courts can award damages to victims. Some are litigated under actions we have already considered such as defamation, privacy and breach of confidentiality.

Some are difficult to explain because the motivations are beyond the imagination of ordinary citizens. Australian ‘troll’ Bradley Paul Hampson served 220 days in jail in 2011 for plastering obscene images and comments on Facebook tribute pages dedicated to the memory of two children who had died in tragic circumstances. He had entered the sites to depict one victim with a penis drawn near their mouth and offensive comments including “Woot I’m Dead” and “Had It Coming”.

At about the same time the US Appeals Court in Virginia was dealing with a suit by former high school senior Kara Kowalski who had been suspended for five days for creating a MySpace page called ‘S.A.S.H’. She claimed it stood for ‘Students Against Sluts Herpes’, but the court found it really aimed to ridicule a fellow student named Shay. She had also incurred a social suspension for 90 days, preventing her from cheerleading and from crowning her successor in the school’s ‘Queen of Charm’ review. Kowalski felt aggrieved at the suspension because she claimed it had violated her constitutional speech and due process rights as it had not happened during a school activity but was really ‘private, out of school speech’. But the court disagreed.

“Kowalski’s role in the ‘S.A.S.H.’ webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful,” judge Niemeyer wrote. “The webpage called on classmates, in a pack, to target Shay N., knowing that it would be hurtful and damaging to her ability to sit with other students in class at Musselman High School and have a suitable learning experience.” The court agreed with the school and the trial judge that ‘such harassment and bullying is inappropriate and hurtful’ and denied her damages claim. A ‘Queen of Charm’ indeed!

…

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print format in Australia and New Zealand (US release in October) and as an ebook elsewhere via Kindle, Google, Kobo and some other providers. [Order details here.]

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

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Tagged as anonymous, blogging, courts, discrimination, Facebook, First Amendment, free speech, hate speech, law, media, Perthnow, racism, social media law, Twitter

March 28, 2012 · 9:05 pm

Canadian CJ headlines ‘Courts and the Media: Challenges in the Era of Digital and Social Media’

By MARK PEARSON
Follow @Journlaw

Our book – Courts and the Media: Challenges in the Era of Digital and Social Media – edited by Patrick Keyzer, Jane Johnston and me – has been published by Halstead Press. Order details are here. The book was launched by Queensland Chief Justice Paul de Jersey (below) on March 29.

It stems from our symposium Courts and the Media in the Digital Era held on February 12, 2011, keynoting the Chief Justice of Queensland Paul de Jersey, News Limited chief executive John Hartigan (who has since retired) and shadow attorney-general Senator George Brandis.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered in Brisbane on September 15, 2011. We thank Her Honour for agreeing to make it available to us as our opening chapter.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!) You can get a sneak preview from my earlier blog.

The convergence of media and technologies have had resounding implications for the justice system, particularly with the advent of blogging and social media such as Facebook and Twitter. This, combined with broader, faster and more portable access to websites with Web 2.0 devices, has challenged traditional conceptions of jurisdiction, open justice and transparency while raising serious definitional questions about journalism and journalists. The release of tranches of documents by Wikileaks and subsequent legal action in recent months served to highlight many of those issues as pundits debated issues of confidentiality, espionage, whistleblowers, freedom of information, international relations, secret hearings, suppression, journalism, public interest and social media in the courtroom.

The papers presented at the Courts and the Media in the Digital Era Symposium and the chapters of this book address those questions from a range of perspectives – judicial, political, administrative, journalistic, academic, and corporate – with some offering insightful hybrid views of each.

You will find a variety of voices in the chapters, reflecting the background of the authors and the circumstances of their contributions. Some bear the rhetorical hallmarks of keynote addresses, others reflect the meticulous research and documentation of academic scholarship, while some reflect a more conversational tone of a contribution to a conference panel. Such variation happens in such edited volumes, and in many ways it adds to their flavour and appeal.

While all chapters acknowledge the intersection of justice, journalism and new technologies as the focal point of the ‘Courts and the Media in the Digital Era’ theme, some are focussed less on the new media elements. All pay strong attention to the issue of open justice and its interpretations in laws and policy in the 21^st century.

McLachlin CJ’s opening chapter explores the relationship between the courts and the media in the modern age by drawing upon the historical and philosophical traditions of open justice and itemising the shared interests of journalism and justice. Her conclusion foreshadowing the challenges posed by the communications revolution lays a suitable foundation for the subsequent articles to explore them in depth.

The keynote address by the Chief Justice of Queensland, the Hon Paul de Jersey, grapples with the competing interests at stake when the news media cover courts and explains several initiatives in his own jurisdiction to balance those interests in the digital era, including establishing free wi-fi in court houses, permission for journalists to tweet proceedings and the uploading of civil judgments and criminal sentencing remarks to the court webpage.

News Limited chief executive John Hartigan (who recently retired) proposed the following four reforms to enhance open justice: allowing cameras in courts for openings and sentencings; real time access to transcripts and court documents; rejection of the current suppression model and removal of take-down orders.

Co-editor Jane Johnston from Bond University surveys the international field to offer examples of the impact of social media on the courts and focuses on some recent Australian examples where tweeting from court has prompted differing judicial outcomes. She also reports on the attitudes of court information officers to social media.

Griffith University’s Jacqui Ewart draws upon her expertise as journalist, researcher and author of Haneef: A Question of Character, to analyse the implications of national security laws for coverage of anti-terror trials and to assess the new dynamic of social media in the mix.

Law academic Daniel Stepniak from the University of Western Australia traces the use of cameras in courtrooms and offers insights into the attitudes of the judiciary to audio-visual technologies in their various forms.

University of Technology, Sydney, law lecturer Geoff Holland illustrates the complex research issues at play when considering the influence of prejudicial publicity upon jurors, offering a comprehensive review of theories and cases.

Bond University legal scholars Elizabeth Greene and Jodie O’Leary apply this in the Web 2.0 environment and call for the introduction of the option of judge alone trials in jurisdictions that do not yet permit them to deal with extreme cases of prejudicial publicity.

Bond University journalism academic and leading ethics text author Roger Patching has kept abreast of the News of the World scandal and assesses the extent to which it has fuelled calls for a new tort of privacy invasion in Australia.

Federal Court director of public information Bruce Phillips traces that court’s use of technology through live broadcasts in the 1990s through live Internet streaming and more recently the use of social media for reportage from some cases.

Criminologists Alyce McGovern and Murray Lee examine the ways Australian police media units have embraced social media and conclude it has offered them a direct channel of communication with the public on a par with their more traditional media liaison.

Former court media officer, journalist and member of the Australian Press Council Prue Innes reviews courts’ use of suppression orders two years after her authorship of Report of the Review of Suppression Orders and the Media Access to Court Documents for Australia’s Right to Know Coalition and makes some other insightful observations about media access to court information.

Finally, academics Geraldine Mackenzie, Caroline Siranovic and Kate Warner from Bond University and the University of Tasmania share findings from their ARC Discovery project researching the association between Australian citizens’ media consumption habits and their level of confidence in the courts and the sentencing process.

Such a work, particularly in print format, could never provide a comprehensive account of the state of the courts-media-technology nexus as it stands today. And neither should it. That relationship is a dynamic, attempting to balance a range of rights and interests of all stakeholders against the important and historic notion of open justice.

While the technologies might change and fresh cases might test the boundaries, this book will have served its purpose if it helps us understand the core principles at stake and if it aids judges, policymakers and journalists as they try to adapt to each innovation and news scenario.

——————-

* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

——–

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.

Inquiry’s #Finkelstein was judge who fined company for contempt over comments by its Facebook fans

By MARK PEARSON Follow @Journlaw

Independent Media Inquiry chair Ray Finkelstein had already broken new legal ground and fined an online publisher for contempt for hosting misleading comments on its Facebook page before he was appointed to the inquiry last year.

His decision as a Federal Court judge in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 in January 2011 established the leading Australian precedent on publishers’ responsibility for the comments of others on their websites, Facebook pages and Twitter feeds.

He found the alternative health company’s actions in not removing ‘misleading and deceptive’ claims about its allergy treatments by ‘fans’ on its Facebook page (and ‘Twitter pages’) was in breach of earlier court orders to desist from making claims that it could ‘diagnose and treat allergies’.

As Crikey reported at the time, he fined both the company and its director, Mr Paul Keir, $7500 each for the disobedience contempt.

He has now chaired an inquiry which has a core recommendation with exactly that potential outcome – along with possible jail terms – for news bloggers and media outlets that refuse to publish corrections or apologies as directed by a new statutory News Media Council.

Of course there are key differences here, too. Allergy Pathway was not a news publisher – and it was disobeying an earlier court order under consumer law.

However, then Justice Finkelstein broke new ground on an issue where other jurisdictions like the US and the UK have offered protection to ISPs and blog hosts over the words of commenters on their sites.

Until a higher court decides otherwise, his decision means every Facebook user and website host (and Twitter user! – see below) is legally responsible for ‘publishing’ the comments of others on their sites.

The extent to which they might be immediately liable for an offending comment or whether they would be protected by taking it down within a ‘reasonable’ time has not yet been determined.

Certainly, Justice Finkelstein’s decision established that they would need to take reasonable steps to remove any such comments the instant they had been brought to their attention.

The Allergy Pathways decision goes to some lengths (paras 14-17) to define a Facebook ‘profile’ and ‘fan page’ and a Twitter feed.

But at paragraph 18 Justice Finkelstein seems to show a misunderstanding of Twitter by stating the ACCC’s argument as “once Allergy Pathway is aware of the statement having been placed on its Facebook or Twitter page and does not remove it, then it is liable for contempt”.

Call me an ignoramus, but I am left wondering: What is my “Twitter page”, and how can someone else post something there? Does he mean my own list of tweets, for which I am clearly responsible myself? Does he mean a #hashtag I have established on a topic? Surely I could not be responsible for others’ comments there? Or does he mean someone putting my handle in their tweet, for which I could surely not be held responsible?

He proceeds to track the legal precedents for host liability through defamation posted on golf club noticeboards, through to bulletin board hosts and Internet Service Provider liability.

“The effect of these cases is that merely facilitating the commission of a wrong will not result in liability but it is another thing to procure or conspire in the commission of the wrong, in which case liability may be imposed, particularly if the procurer is aware of the material being published and has accepted general responsibility for its publication,” Justice Finkelstein wrote.

He concluded: “It has been shown, indeed it was not disputed, that Allergy Pathway knew that persons had published testimonials on its Twitter and Facebook pages and that it took no steps to have them removed. …

“While it cannot be said that Allergy Pathway was responsible for the initial publication of the testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway’s Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them.

“Hence it became the publisher of the testimonials. In any event it is clear that it caused them to continue to be published from the time it became aware of their existence, which is enough to put Allergy Pathway in breach of the second limb of its undertaking.”

I might be missing something here, but the good judge appears to have bundled the company’s responsibility for comments by others on its “Twitter page” in with responsibility for comments on its Facebook page.

I can live with the latter – and as a result of this decision media organisations and public sector groups like the Queensland Police are now monitoring their Facebook comments very carefully – but how on earth can we control the former? And what is a ‘Twitter page’ upon which others might comment?

Please enlighten me in the comments section below.

Another theory is that Mr Finkelstein and his advisers were not quite as expert on the workings of the Internet and social media as punters might expect from a $1 million-plus government inquiry. The have already been criticized for using the term ‘hits’ rather than ‘page views’.

As for the fact that Mr Finkelstein already had ‘form’ in the fining of publishers for contempt is not that great a surprise. It is what senior judges are sometimes called upon to do.

However, it puts into context his core recommendation for a statutory solution with appeal to a judge like him with the power to fine or jail a news publisher or relatively small blogger for disobedience contempt.

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

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Tagged as ACCC, Australian media, censorship, consumer law, convergence, Finkelstein, free expression, journalism, law, media, media inquiry, media law, Media Report, News of the World, NOTW, Press Council, press freedom

March 11, 2012 · 12:05 pm

Attack by The Australian supports case against ‘enforced self-regulation’ #Finkelstein

By MARK PEARSON Follow @Journlaw

The Australian’s associate editor Cameron Stewart has argued that the immediate endorsement of the proposal for a statutory media regulator by some media academics was indicative of the irrelevance, ineptitude and Leftist bias of journalism educators generally.

Like any piece of attack journalism, it used carefully selected truths and sources to develop a positional and very political assault on the journalism education sector and the former (and current) journalists who teach, research and publish there. It is an old and flawed argument.

While I disagree with this kind of journalism and its use by a leading masthead, I think it presents a unique lesson on why Finkelstein’s core proposal for a News Media Council with statutory powers to order corrections and apologies is so wrong.

Journalism educators have quite rightly taken umbrage at the article in the Weekend Australian and, as I blog, are composing a unified response to the attack.

This is the right course of action – to first seek redress and a right of reply from the publisher of the offending article.

If the identified individuals felt strongly enough about the imputations it contained about them – and if they had the resources available to them – they might take legal advice and perhaps sue for defamation.

For reasons I have outlined previously in Crikey, most principled journalists and editors do not resort to this measure because they value the free exchange of ideas too highly and do not wish to set such an example for others.

If the aggrieved journalism educators are dissatisfied with The Australian’s response, under the current regime they might instead make a complaint to the Australian Press Council over any unfairness, bias or inaccuracies in Stewart’s article they feel breaches that body’s Statement of Principles.

If the Council is unable to mediate a resolution, this would then be adjudicated by its complaints panel of (mainly) non-affiliated citizens and journalists, chaired by legal academic Julian Disney (or its vice-chair).

If the Council found The Australian had indeed been unfair, biased or inaccurate, or had unfairly refused to run a right of reply, the Council might decide to uphold the complaint and demand The Australian run its adjudication in full. As that newspaper’s parent company, News Limited, is an abiding member of the Council, it is likely that adjudication would be published. If not, it would at least appear on the Council’s website and among its regular releases on adjudications.

As outlined in several submissions to the Finkelstein inquiry, and noted at length in its final report, these processes could do with considerable improvement.

But consider the course of events under the proposed statutory body detailed in the report.

The early steps in the process would be fairly similar to the Council’s system, although the proposal would have the whole matter conducted ‘on the papers’, without legal representation, within a few days.

The ‘independent’ panel would be chaired by a retired judge or eminent lawyer appointed by the government of the day, and would have a different constituency with fewer media members.

However, rather than being told to publish the decision, The Australian might well be ordered under statutory powers to publish a correction, apology, retraction or right of reply.

The Australian might feel so strongly about its claims that it refuses to do so. After all, to ‘correct’, ‘apologise’ or ‘retract’ something over which you hold the heartfelt belief is true, however misguided, is itself an affront to those who hold such beliefs so strongly. Indeed, to be forced to apologise when you do not mean it is to be compelled to state a falsity.

The Australian’s refusal would be the disobedience of a statutory body and, under the Finkelstein proposals, would trigger a charge of contempt to be adjudicated by a court of law, with the usual penalties for contempt available to a judge – a fine or a jail term. (The report flags some opportunity to appeal the Council’s decision within that process – with all the accompanying legal costs for both sides.)

Some of my journalism education colleagues might be feeling so angry about the article that they might want Stewart or his editor-in-chief Chris Mitchell fined or jailed over this story. I suspect, however, that most would share my disdain for the possibility of such an outcome in a free democratic society which has no protection for free expression in its Constitution or Bill of Rights.

However, no matter how misleading and misplaced we may feel Cameron Stewart’s piece may be, there is no disputing the fact that some journalism academics immediately supported the proposal for a statutory regulator with such powers and potential consequences.

The ground seems to be shifting somewhat on that front. One of those attacked, Johan Lidberg from Monash University, initially (cautiously) supported the core recommendation but now states “A statutory based media regulator is highly problematic” (email to journalism educators, 10.3.12).

UTS Professor Wendy Bacon, and Swinburne’s Margaret Simons, have each written strong and well documented endorsements of Finkelstein’s criticisms of the mainstream media’s ineffective self-regulation, but have stopped short of endorsing the statutory enforcement option.

And so they should.

Wind the clock back to late 2010, and we had this very editor-in-chief of The Australian, Chris Mitchell, threatening to sue journalism educator Julie Posetti for defamation over her tweets covering comments made by a former staffer from The Australian at a Journalism Education Association conference – the now infamous #twitdef episode.

Allow me a little licence with the scenario because the Finkelstein reforms might not cover tweets and the actual case was contentious partly because of its twitter brevity.

But let’s say a UTS student had reported the comments in that university’s student newspaper, and Mitchell had not sued, but had instead complained to the proposed ‘independent’ News Media Council about the article, on the same grounds of unfairness, inaccuracy and bias.

And what if, like Posetti, the student newspaper had stood by its article and refused to publish a retraction, correction or apology?

Well – assuming the newspaper met the definitional criteria of the new body as ‘news media’ which are far from clear – then we might well be facing the prospect of a journalism student or editor being jailed for what would otherwise may have been a defamation damages payment, and for which a defamation defence might well have applied.

Hypotheticals I know, but you need them to flesh out the potential implications of a new media regulator that would instantly convert ethical codes into punishable laws.

Only by using examples close to home can we understand the intransigence of both complainants and publishers. An analysis of both APC and ACMA complaints over recent years will reveal complaints over political views – a disproportionate number related to the Israel-Palestine dispute – where opinions are held so strongly that some proponents would face jail rather than retract or apologise.

One of the academics informing the Finkelstein inquiry, Denis Muller, has written a defence of the proposal on smh.com.au. It is worth quoting his final two paragraphs in full:

“It is proposed that the new council would have power to order corrections, apologies and rights of reply, and say where they should be published. The question of fairness arises here: if wrongful harm was done in a page one story, why shouldn’t at least the first two or three paragraphs of the remedial material also appear on page one? If a sanction was ignored or refused, the council would have the right to apply to a court for an order of compliance. The media company concerned could argue its case. Only if it lost and still refused to comply would it become legally liable — not to the council but to the court for contempt.

“Ideally, the media would do all this themselves: make a legally binding arrangement to set up an accountability body, properly funded, with transparent processes, credible sanctions and agreement to comply. History tells us it is unlikely, but maybe this report will act like a cattle prod on their collective hide.”

I might be wrong, but I read that final sentence as a hint that the whole statutory regulator proposal might be a trumped up threat to the mainstream media to get their regulatory house in order – not unlike David Calcutt’s 1990 warning to the British tabloids that they were ‘drinking at the last chance saloon’.

That may well be the case, and if so it seems to be already having an effect, with publishers meeting last week to discuss a revamp of the Press Council.

But if it is true, what a shame that Finkelstein should send such a message of endorsement of statutory media regulation to the regimes throughout the world who have already adopted it.

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