Scandalising the court – backgrounding the recent Victorian Court of Appeal matter

By MARK PEARSON

The ancient contempt charge of ‘scandalising the court’ appeared alive and well last month when the Victorian Court of Appeal formally stated its concerns about criticisms made by three Australian government Ministers, published in the national daily newspaper The Australian.

The statement noted:

Given that the court’s decisions in both cases were pending, the court is concerned that the attributed statements were impermissible at law and improperly made in an attempt to influence the court in its decision or decisions. Further, the court is concerned that some of the statements purported to scandalise the court. That is by being calculated to improperly undermine public confidence in the administration of justice in this state in respect of the disposition of the appeals that the court has presently under consideration.

The court was further concerned that the attributed statements were made by three ministers of the Crown. The statements on their face:

  • Fail to respect the doctrine of separation of powers;

  • Breach the principle of sub judice; and

  • Reflect a lack of proper understanding of the importance to our democracy of the independence of the judiciary from the political arms of government.

The newspaper and the three ministers narrowly escaped contempt by apologising for their comments criticising the judiciary in the midst of two major terrorism trials.

Given the fact that the contempt charge of scandalising the court was front and centre in the debate, I reproduce here my 2008 article from the Pacific Journalism Review explaining that charge, its origins, and recent application.


Pearson, M. (2008, April). Scandalising media freedom: Resurrection of an ancient contempt. Pacific Journalism Review, 14(1), 64-78.

Abstract

The ancient charge of “scandalising the court” (publications aiming at lowering the authority of the court) has had a resurgence in Australia over the past decade, at the very time judges and magistrates have developed an inclination to sue for defamation. The combined effect is to send a warning to media organisations to take care when criticising judicial officers or the judicial process, particularly if that involves implying some improper motive on the part of a judge or magistrate. In New Zealand there have been some isolated but significant threats and cases, particularly in the volatile area of family law. This paper reviews some recent Australian and New Zealand cases where a charge of scandalising the court has been either threatened or enforced and considers the implications for freedom of media expression in a new era of anti-terrorism when important questions are being asked about the fairness of justice processes.

The form of contempt of court known as ‘scandalising the court’ – defined as ‘any act done or writing published calculated to bring the court or a judge of the court into contempt or to lower his authority’ (R v. Gray, 1900) – has long been used by small African and Pacific Island states as a mechanism for silencing media criticism of the judicial process. (See, for example, Attorney-General v. Namoa, 2000; and Chaudhary v Attorney-General, 1999; where it was used recently in Tonga and Fiji). In Canada the offence has been found incompatible with that country’s Charter of Rights and Freedoms, in the United Kingdom it has not been prosecuted successfully against the media since 1931 and in the United States it does not exist at all (Weisenhaus, 2007, pp. 74-75). Sadly, it has been revitalised in Australia over the past decade at the very time members of the judiciary have begun to sue for defamation, presenting a dual affront to media freedom. It has also been used in a notable case in New Zealand and threatened in another. This is despite the fact that the legislature in New Zealand and the High Court in Australia have made moves to enshrine freedom of communication, in New Zealand with a Bill of Rights and in Australia within a series of decisions through the 1990s guaranteeing free speech on governmental and political matters. This paper considers briefly the background to scandalising contempt before reviewing the key cases in the field and considering the resulting implications for judicial critique in the media.

Background to scandalising the court

One of the most famous examples of scandalising the court was the attack in the Birmingham Daily Argus upon Crown Court Justice Darling at the turn of the last century. Editor Howard Alexander Gray was convicted of contempt for his tirade against the good justice, describing him as an “impudent little man in horse-hair, a microcosm of conceit and empty-headedness” (R. v. Gray, 1900).

The term ‘scandalising’ was described in the Australian High Court in 1935 as applying to:

publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office

(R. v. Dunbabin; Ex parte Williams, 1935, p. 442).

This type of contempt can be committed by publishing material scandalising the courts or judges by abusing them in scurrilous terms, alleging they are corrupt or lack integrity, or that they have bowed to outside influences in reaching their decisions (Pearson, 2007, p. 109). Historically, the courts have been tolerant of reasonable criticism. Lord Atkin summed up the approach with this quote in 1936: ‘Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, though outspoken, comments of ordinary men’ (Ambard v. Attorney-General of Trinidad and Tobago, p. 335). This statement reinforced the fact that in Britain the offence was considered to have become obsolete in 1899, as Butler and Rodrick note (2004, p. 282). But, they continue:

This declaration turned out to be premature. The offence remains extant in England, although it has been described as quiescent, as there have been no convictions for scandalising contempt for almost 70 years. In Australia there is no doubt that the offence continues to exist. In fact, prosecutions are relatively common.

As this paper sets out to establish, scandalising charges have become even more common in recent years, a disturbing development for media freedom.

The two best-known cases in this area in Australia in the late 20th century were called the ‘BLF cases’, as both involved officials of the militant union, the Builders’ Labourers Federation — Jack Mundey and Norm Gallagher — a decade apart. In each case, the accused had made comments (picked up by the media) implying that judges had bowed to union pressure in reaching their decisions. The first, Attorney-General (NSW) v. Mundey (1972), occurred during the heat of the anti-apartheid protests against South Africa in the early 1970s. Members of the Builders’ Labourers Federation had sawn off the goalposts at the Sydney Cricket Ground in the prelude to a rugby Test match between Australia and South Africa’s Springboks. After their trials, a union official, Jack Mundey, told the media the judge should have allowed evidence of broader political material in their defence, such as United Nations documentation on South Africa’s race policies. Mundey claimed there had been a miscarriage of justice and that the judge was a racist. Mundey was charged with contempt for these comments, but the charges were dismissed in the Supreme Court because Mundey’s comments about the judge being a racist needed to be considered in the broader context of his comments about racism throughout Australian society. The court ruled that Mundey would have been in contempt if he had implied that the judge had been motivated by some racist bias against the accused in reaching his decision.

The second BLF case, Gallagher v. Durack (1983), a decade later, had a different result. There, Builders’ Labourers Federation federal secretary Norm Gallagher won a Federal Court appeal against one contempt charge, but his comments about the judicial process landed him in contempt on a new charge of scandalising the court. Gallagher told the media that industrial action by his union members had exerted enough pressure to force the court to reverse the decision to jail him over the first contempt charge. He told one television channel: ‘the rank and file of the union … has shown such fine support of the officials of the union and I believe that by their actions in demonstrating in walking off jobs … I believe that has been the main reason for the court changing its mind’ (Gallagher v. Durack, 1983, p. 239). The Federal Court held that the statement was contemptuous and sentenced Gallagher to three months’ jail. (The court justified the jail sentence on the basis that Gallagher had boasted that if he had been fined the union would pay it for him.) The decision was appealed to the High Court, which upheld the contempt conviction. The court said the whole area of scandalising involved balancing the principle of free speech against the need to maintain public confidence in the judicial system. Gallagher’s insinuation that the Federal Court had bowed to outside pressure in reaching its decision was calculated to undermine public confidence in the Federal Court. Justice Murphy dissented, saying the case raised important principles of both free speech and justice.

In a more recent case, the Anissa Pty Ltd v. Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria, (1999, at para. 19), Justice Cummins of the Supreme Court of Victoria summed up the three basic principles of contempt by scandalising the court:

First, proceeding for contempt of court is not and must not be in diminution of free speech. Second, proceeding for contempt of court is to preserve the administration of justice. Third, proceeding for contempt of court is not to protect the individual person of the judge.

A turning point in the law of scandalising was reached with one of the Australian High Court’s famous free speech decisions in 1992 — Nationwide News Pty Ltd v. Wills. There, a newspaper group challenged the federal government’s power to legislate against criticism of the Industrial Relations Commission or its members. The High Court held there was an implied constitutional right to criticise important public institutions and that this legislation infringed that right. However, the court also ruled that the crime of scandalising the court was not obsolete and that two defences applied to it: truth and fair comment (Chesterman 2000: 68). (In other words, it would be a defence to a charge of scandalising the court if you could prove that the substance of your criticisms was true or that your criticisms were made in good faith, were honestly held, fairly conducted and did not imply improper motives on the part of the judiciary.)

In Nationwide News Pty Ltd v. Wills, Mason CJ described scandalising as a ‘well recognised form of criminal contempt’ (at para 21) but suggested there was no contempt at common law ‘if all that the defendant does is to exercise his or her ordinary right to criticise, in good faith, the conduct of the court or the judge’ (at para 21). He stated the judiciary should be open to criticism and cited US Supreme Court Justice Hugo Black stating in Bridges v. California in 1941:

The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. … an enforced silence, however
limited, solely in the name of preserving the dignity of the bench,
would probably engender resentment, suspicion, and contempt much more
than it would enhance respect (pp. 270-271).

Burrows and Cheer (2005, pp. 384-387) offer six danger zones for scandalising the court:

  • Extravagant and scurrilous language;
  • Vendettas against judges;
  • Criticism based on inaccuracies;
  • Accusations of bias or impartiality on the part of the judiciary;
  • Suggestions judges are susceptible to pressure; and
  • The social conditions of the times.

The key recent New Zealand case of scandalising the court, Solicitor-General for NZ v. Smith (2004), also raised issues of free expression in relation to that country’s Bill of Rights Act. The case was explained well by Cheer (2004). The High Court found MP Nick Smith had made several inflammatory media statements about a custody dispute before the Family Court which undermined public confidence in the court and had the potential to interfere with the administration of justice by placing public pressure upon the court. As Burrows and Cheer (2005, p. 386) noted, ‘whichever way the Family Court judge decided the case, the public perception would be affected by seeing the pressure that had been so publicly applied’. It also convicted TV3 and Radio NZ of the same charge and found the freedom expression provisions of section 14 of the Bill of Rights did not offer protection against a charge of scandalising the court. Justices Wild and MacKenzie stated:

We do not accept that the offence of scandalising the Court cannot be justified as a reasonable limitation upon freedom of expression… The rights guaranteed by the BORA [Bill of Rights Act] depend upon the rule of law, the upholding of which is the function of the Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the BORA, but is ultimately necessary to ensure that they are upheld. (Solicitor-General for NZ v. Smith, 2004, p. 568, cited in Burrows and Cheer, 2005, p. 384).

Thus, in both countries, despite the legislature and the highest courts enshrining free expression about politics and government, the courts have decided this ancient punishment should still be available to the judiciary.

 

The resurgence of scandalising the court

Over the past 10 years in Australia and New Zealand there have been several charges or threats of scandalising the court involving the media in a variety of ways, all containing extreme statements about the judiciary. These include:

  • Re South Australian Telecasters Limited (1998). The Family Court of Australia stopped Channel Seven in Adelaide from broadcasting a current affairs story about a custody battle between the natural parents of two children and their foster mother. As well as identification issues related to the dispute taking place in a small semi-rural town, and the risk of sub judice contempt related to the upcoming custody hearing, Chief Justice Nicholson expressed concern about the potential for scandalising the court. He said the report risked bringing the court into contempt and lowering its authority.
  • Alice in Wonderland case (2001). As Burrows and Cheer (2005, p. 387) report, an Environment Court judge asked counsel for argument over whether a contempt by scandalising had been committed when a local body politician criticised an Environment Court decision as ‘Alice in Wonderland’ in an issued statement. He also called upon landowners to state their disapproval to the judge. The matter was eventually resolved with an apology where the politician withdrew the comments.
  • Hoser & Kotabi Pty Ltd v. The Queen (2003). The author of two books about police corruption in Victoria was fined $3000 and his publishing company fined $2000 for making malicious and baseless allegations of bias and impropriety against two County Court judges who had tried earlier cases involving the author. A defence that the statements were fair comment made in good faith failed.
  • Bell v. Umina Beach Bowling Club Ltd (No 2) (2003). Directors of a New South Wales bowls club were disgruntled that their suspension of a fellow director had been ruled void by NSW Chief Judge in Equity Justice Young. The Central Coast Herald wrote a report of the decision, ending with the sentence: ‘Two of the club directors indicated an appeal against Justice Young who they accused of bias.’ The judge warned the comment was a contempt by scandalising, but handled it with a warning. Justice Young said: ‘Of course there is a wide range of legitimate criticism that can be made of courts and their decisions. However a statement to a newspaper of wide circulation that the only reason the spokesman lost was because the judge was biased goes beyond legitimate criticism, weakens the authority of the court in the eyes of the public and is a contempt.’
  • Website case (2003). A New Zealand-based web site listed 14 judges it was purportedly investigating for ‘corruption, incompetence and suspect character’ and threatened to release further information proving these allegations. Burrows and Cheer (2005, p. 385) report that the publication prompted a letter from the Solicitor-General and the material was subsequently removed from the site.
  • Attorney-General for State of Queensland v. Colin Lovitt QC (2003). Barrister Colin Lovitt was so frustrated with a Queensland magistrate’s ruling in a high-profile case, he turned to journalists covering the hearing and declared: ‘This bloke’s a complete cretin. Surely they can’t all be like this.’ The comments were reported and journalists testified they had heard him. Queensland Supreme Court Justice Richard Chesterman fined him $10000, saying the statement constituted both ‘scurrilous abuse and an attack upon the authority of the court’.
  • Mills & Ors v. Townsville City Council & Anor (No. 2) (2003). Planning and Environment Court Judge Clive Wall considered charging three Townsville councillors with contempt by scandalising when they were quoted criticising his decision to reject their approval of a nursing home development. One accused him of making decisions on design and aesthetics and another suggested the judge had ‘usurped the role of council’. Mayor Tony Mooney was quoted as saying: ‘Those appointed to the bench are not appointed by divine intervention [and] they don’t always get it right.’ Judge Wall decided the comments did not amount to contempt by scandalising because they could not be said to be of a character calculated to interfere with the administration of justice or to undermine the public confidence in the proper functioning of the Courts’. ‘Courts should not rush to be overly critical of criticism, even discourteous, wrong and mistaken criticism, as the present is’, he said.
  • Solicitor-General v. Smith (2004). MP Nick Smith was fined $5000, TV3 $25,000 and Radio New Zealand $5000 by the New Zealand High Court over comments he made about a Family Court custody case which were broadcast on the television and radio stations. The comments were inaccurate, applied pressure on the court, undermined confidence in the judicial process and had the potential to interfere with the administration of justice, the court held.
  • DPP v. Francis & Anor (No. 2) (2006). Veteran Adelaide broadcaster Bob Francis was given a nine week suspended jail sentence and fined $20,000 over a 2005 program in which he criticised a magistrate for considering granting bail to a man accused of possessing child pornography. (Magistrate Gary Gumpl was obliged under legislation to hear a bail application.) Francis told his audience: ‘Oh, smash the judge’s face in.’ The magistrate also settled out of court for a reported $110,000 defamation payout (McGarry 2006).
  • Environment Protection Authority v. Pannowitz (2006). Steepleton Pty Ltd and its director Kenneth Pannowitz were convicted and fined by the Environment Protection Authority in New South Wales for unlawful transport and disposal of waste. Part of their sentence was an order to place an advertisement in the Newcastle Herald newspaper with stipulated wording announcing their conviction. The director changed the notice in various ways and added the sentence ‘This matter has been referred by Steepleton to ICAC for further investigation’. Land and Environment Court Justice Lloyd found the suggestion that a corruption body was being called upon to investigate the court had ‘an inherent tendency to scandalise the court’. He also ruled Pannowitz had interfered with the course of justice by changing the size, position and wording of the notice.

 

Family Court criticism

Family law cases can be particularly volatile and the Family Court in both countries has been subject to harsh criticism by both litigants and the media, some of which have led to scandalising contempt charges as noted above in the Re South Australian Telecasters Limited (1998) and Solicitor-General v. Smith (2004). Other scandalising charges have been pursued against Family Court litigants without involving the media. Disaffected fathers who have lost custody of their children have often been scathing in their criticism of the court. As Lane (2000, p. 14) reported, the Family Court brought scandalising charges against four of its strident critics who protested with placards and leaflets outside its building in Melbourne in 1998, but the cases fell over when a judge threw out the case against the first, ‘PT’. In New Zealand, such individuals have faced other charges. For example, Rowan (2007) reports that the founder of the HandsOnEqualParent Trust, Jim Baily, was charged with disorderly conduct over his protest against the Family Court by driving a van with a loudspeaker around the streets of Tauranga. The charges were withdrawn.

Heads of the Family Court in both countries took public stances in 2006 to address such critics. New Zealand’s Principal Family Court Judge Peter Boshier said the media’s reportage of men’s groups’ gripes about the court’s alleged secrecy, biases and unfair processes was itself often biased and undertaken without reporters actually attending the court proceedings. “The reporting of the father’s groups’ protests shows that the more strident and extreme the claims made the more likely the media will give them publicity – and uncritical publicity,” he said (Boshier, 2006, p.5). In Australia, the Chief Justice of the Family Court, Diana Bryant, went public to counter criticism that her court was biased by announcing the court would be collecting statistics including those showing the percentage of arrangements involving or excluding fathers (Porter, 2006, p. 6).

When magistrates and judges sue

Complicating the scandalising cases is the fact that members of the judiciary have become more inclined to sue for defamation in recent years, as evidenced by the award of $246,500 in damages in 2002 to Victorian Deputy Magistrate Jelena Popovic over a Herald Sun article by Andrew Bolt (Popovic v Herald & Weekly Times Ltd and Anor, 2002), and the 2005 victory over the Sydney Morning Herald by NSW magistrate Pat O’Shane (John Fairfax Publications Pty Ltd v O’Shane, 2005). Burrows and Cheer (2005, p. 383 footnote 29) also record a New Zealand newspaper report of a judge settling a defamation action against a media organisation. The propensity of the judiciary to sue means media organisations potentially face both criminal and civil responses to their harsh critique of the administration of justice in the form of a scandalising contempt charge and a defamation suit.

Conclusion and directions

All this is not to say that judges in either country jump at the opportunity to charge media organisations with contempt by scandalising. Media outlets do indeed publish quite harsh criticisms of the judiciary and get away with it. For example, the editor of Sydney’s Daily Telegraph, David Penberthy, almost challenged the courts to charge him with contempt when he reported that District Court Judge Ian Dodd had developed quite a reputation for going to sleep while presiding over cases. Penberthy started his piece as follows:

This might constitute a contempt of court. But we thought we’d run it anyway, as there’s every chance the judge in question will be curled up under his judicial sombrero, oblivious to any slur against his name. (Penberthy, 2005, p. 21).

While Penberthy went ahead and published his humorous exposé of the sleeping judge, the point for this article is more that he was ‘chilled’ enough by the contempt laws to verbalise the risk in his very first sentence. An ancient law hangs like a guillotine over fair and open reportage in the modern era.

Twenty years ago the Australian Law Reform Commission (1987) criticised the law of scandalising on two main grounds and recommended its common law version be abolished. The first criticism was that there was no need to prove the accused intended to impair public confidence in the administration of justice; it was enough that the accused published the remarks intentionally (para 414). Secondly, there was no formal defence of justification available to the accused; the truth or falsity of the published remarks was irrelevant (para 415). Of course, as noted above, the High Court indeed decided truth would be a defence to scandalising in Nationwide News Pty Ltd v. Wills (1992).

While the Commission recommended scandalising be abolished from the common law, it suggested it be replaced by a limited offence which prohibited the publication of an allegation imputing misconduct to a judge if it was likely to cause serious harm to the judge’s reputation in his or her official capacity (para 460). Liability would lie with each officer of the media organisation in a position to exercise control over the publication (para 261) and the initial maker of the scandalising statement if he or she knew, or should have known, the allegation would be published (para 264). The Commission also recommended the defence of justification (if the accused proved the allegation was true or believed it was true on reasonable grounds) and the defence of it being made as part of a fair and accurate report of court or parliament (para 460). The offence would be tried by jury except when all concerned had consented to have it tried summarily by a magistrate (para 476, 479).

The Commission’s recommendations, the free speech cases in the Australian High Court in the early 1990s, the higher public profile of the judiciary and the fact that more judicial officers were pursuing defamation actions to defend their reputations all raised hopes that the authorities would not pursue charges of scandalising the court. Such hopes were reinforced in 2005 when Federal Court Justice Ronald Sackville delivered the 13th Lucinda Lecture at Monash University (Sackville, 2005). Sackville asked ‘How fragile are the courts?’ and traced the history of criticism of the courts, including a critique of scandalising contempt. He supported the ALRC by suggesting courts should be able to resort to some powers ‘in the rare cases where verbal attacks pose a genuine threat to the standing of the judiciary’. He also suggested that, like politicians and other public officials, judges should be able to sue for defamation where their reputations have been unfairly damaged. He concluded:

But the independence of the judiciary does not justify conferring on judges greater protection than those representatives or officials enjoy. It is to be hoped that the High Court will interpret the scope of the implied freedom of communication more broadly than recent decisions might suggest.  If the High Court does not do so, there is a strong case for legislation to bring the principles governing criticism of the Australian judiciary into line with those of other liberal democracies (Sackville, 2005, p. 24).

Despite Justice Sackville’s refreshing perspective reinforcing the recommendations of the ALRC 20 years ago, it seems that in recent years such charges have had somewhat of a resurgence in Australia and, to a lesser extent, in New Zealand.

Whether or not this has resulted in a debilitating ‘chill’ upon media critique of the courts is a moot point, but journalists certainly need to ensure that any criticism of the judiciary and the legal system is carefully phrased and measured so that it does not unfairly imply any wrongdoing that might erode public confidence. Journalists should note that, while some of the media organisations mentioned above escaped contempt charges when they reported the contemptuous statements of others (such as disgruntled fathers on the steps of the Family Court) it is open to the authorities to prosecute both the individuals who make contemptuous comments (at a press conference, for example) and the media outlet that reported the comments, as they did in Solicitor-General v. Smith (2004) in New Zealand. Litaba (2003) noted that while scandalising the court should not be used to protect individual judges against reputational attacks, there were numerous examples where judges seemed to have ‘stood on their personal dignity’. Further, Litaba questioned whether under the existing law truth as a defence applied, despite the High Court’s statements on the matter in Nationwide News Pty Ltd v. Wills (1992), a disturbing possibility given that part of the democratic process should surely be the right to make legitimate, well founded, criticism of the judicial process.

The slim risk of being charged with scandalising the court should not prevent journalists partaking in fair, well-reasoned criticism of the administration of justice. It is only when the criticism is personal, scurrilous abuse of a judge, which brings the judicial system into disrepute, or when it implies some improper motive on the part of the judiciary that it is more likely to overstep the mark. Nevertheless, all in the media would argue that judges and the judicial process should be open to such criticism. This has been even more the case in recent years when judges themselves have spoken about their decisions in public forums. Family Court and High Court justices, particularly, have been vocal on broader policy issues affecting the workings of the justice system. Many welcome such a public profile of the judiciary, but argue that judges cannot adopt such a stance and later hide behind the protections of ancient laws, such as scandalising the court, to punish those who have publicly disagreed with them.

The need for unshackled critique is even more pressing in an era when anti-terrorism laws leave so many court processes open to criticism and when the sentencing of criminals is such a heated political topic.

Media groups, such as Australia’s Right to Know lobby, and the press councils in both countries, should press for greater clarity in the law of scandalising. It would have the advantage of allowing reasoned public criticism of judges and the court system and sound investigative reporting of suspicious judicial practices without fear of reprisal from an irate judge wielding summary powers. Media freedom should not be held to ransom by impudent little men in horsehair, microcosms of conceit and empty-headedness nor, for that matter, by snoring wigs curled up under their judicial sombreros.

 

References

Australian Law Reform Commission (ALRC). (1987). Report no. 35 — contempt,

Australian Government Publishing Service, Canberra. [Electronic version.]

Boshier, P. (2006, August 9). Fair deal for Family Court. Dominion Post, p. 5.

Burrows, J. and & Cheer, U. (2005). Media law in New Zealand. (5th ed.). South Melbourne: Oxford University Press.

Butler, D. & Rodrick, S. (2004). Australian media law. (2nd ed). Sydney: Thomson Law Book Company.

Chesterman, M. (2000) Freedom of speech in Australian law: A delicate plant. Aldershot: Ashgate Dartmouth.

Cheer, U. (2004). New Zealand media law update. Recent developments – defamation, censorship and contempt. Media and Arts Law Review. 9 (3): 237-246.

Lane, B. (2000, March 8). Street protester beats judges at own game. The Australian. p. 14.

Litaba, O. (2003). Does the ‘offence’ of contempt by scandalising the court have a valid place in the law of modern day Australia? [Electronic version]. DeakinLRev 6.

McGarry, A. (2006, 3 August) Jail for Bob the broadcaster? The Australian,

  1. 14.

Pearson, M. (2007). The journalist’s guide to media law. Dealing with legal and ethical issues. (3rd ed.). Allen & Unwin, Sydney.

Porter, L. (2006, December 24). Family Court fights back over bias claims. Sunday Age. P. 6.

Rowan, J. (2007, January 26). Family Court protester avoids conviction. New Zealand Herald.

Sackville, Justice R. (2005). How fragile are the courts? Freedom of speech and criticism of the judiciary. 13th Lucinda Lecture. Monash University, 29 August 2005. Retrieved March 10, 2008, from http://www.wbde.org/documents/2005_Aug_29_Justice_Sackvill_%20Re_Criticism_of_Judiciary.pdf

Weisenhaus, D. (2007). Hong Kong media law. A guide for journalists and media professionals. Hong Kong: HK University Press.

 

Cases cited

Ambard v. Attorney-General of Trinidad and Tobago [1936] AC 322.

Anissa Pty Ltd v. Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria [1999] VSC 430. Retrieved March 10, 2008 from www.austlii.edu.au//cgi-bin/disp.pl/au/cases/vic/VSC/1999/430.html.

Attorney-General v. Namoa [2000] TOSC 13 Retrieved March 10, 2008 from http://www.paclii.org/to/cases/TOSC/2000/13.html.

Attorney-General NSW v. Mundey [1972] 2 NSWLR 887.

Attorney-General for State of Queensland v. Colin Lovitt QC [2003] QSC 279. Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/qld/QSC/2003/279.html.

Bell v. Umina Beach Bowling Club Ltd (No 2) [2003] NSWSC

846 Retrieved March 10, 2008 from www.austlii.edu.au/au/cases/nsw/supreme_ct/2003/846.html.

Bridges v. California (1941) 314 US 252.

Chaudhary v Attorney-General [1999] FJCA 23, [17] (Fiji Court of Appeal). Retrieved March 10, 2008 from http://www.paclii.org/fj/cases/FJCA/1999/27.html.

DPP v. Francis & Anor (No. 2) [2006] SASC 261 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2006/261.html.

Environment Protection Authority v. Pannowitz [2006] NSWLEC 219 Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2006/219.html.

Gallagher v. Durack (1983) 152 CLR 238.

Hoser & Kotabi Pty Ltd v. The Queen (ex parte The Attorney-General for the State of Victoria); The Queen (ex parte The Attorney-General for the State of Victoria) v. Hoser & Kotabi Pty Ltd [2003] VSCA 194 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VSCA/2003/194.html.

John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164. Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2005/164.html.

Mills & Ors v. Townsville City Council & Anor (No. 2) [2003] QPEC 18 Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/qld/QPEC/2003/18.html.

Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1.

Popovic v Herald & Weekly Times Ltd and Anor [2002] VSC 174 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VICSC/2002/174.html.

Re South Australian Telecasters Limited (Publication Injunction) [1998] FamCA 117 Retrieved March 10, 2008 from www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/family_ct/1998/117.html

R v. Dunbabin; Ex parte Williams (1935) 53 CLR 419.

R v. Gray [1900] 2 QB 36.

Solicitor-General v. Smith [2004] 2 NZLR 540.

 

© Mark Pearson 2008 & 2017

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

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Submission to Public Interest Journalism Committee calls for new defence to gag laws

By MARK PEARSON

My submission to an Australian parliamentary committee examining the future of journalism proposes a new defence to give genuine public interest journalism a market advantage over fake news, celebrity gossip and other unethical infotainment products.

The Australian Senate established the Select Committee on the Future of Public Interest Journalism – known as the ‘Public Interest Journalism Committee’- on May 10, 2017. The committee is  inquiring into the future of public interest journalism.

The closing date for submissions is June 15, although the committee’s site explains that late submissions will be considered.

Here is my submission.


I hereby offer my personal submission to your committee’s important inquiry into the future of public interest journalism.

My research and expertise includes media and social media law, ethics and regulation. I am lead author of The Journalist’s Guide to Media Law[i], now in its fifth edition, and have been author or editor of numerous other books and scholarly articles and research projects intersecting with your broad terms of reference. My current position is as Professor of Journalism and Social Media at Griffith University as a member of both the Law Futures Centre and the Griffith Centre for Social and Cultural Research. However, this submission represents my own opinions and does not purport to represent the views of my university or of those research centres.

While I have views on several aspects of your inquiry I will restrict this submission to a proposal to amend the media laws and regulations within the direct or indirect control of the Commonwealth Parliament which serve to shackle the enterprise of ‘public interest journalism’ in Australia and ineffectively distinguish it from ‘fake news’[ii] and other misleading, deceptive and sometimes harmful communication products. In summary, I propose that in light of the lack of constitutional protections for public interest journalism in Australia, the Commonwealth should build into every identified restriction on media freedom a “public interest journalism” defence, which would excuse a “legitimate and demonstrated public interest in freedom to communicate on this occasion”, where the court would take evidence on the importance of the matter of public concern, the publisher’s genuine track record of adherence to professional ethical standards, its resolve to remedy past breaches (if any), and its commitment to train their staff in legal and ethical issues. It should encourage other Australian jurisdictions to take a uniform approach.

Legal impediments to public interest journalism

Free expression and a free media should be foundational principles in any democratic society, and the principle of open justice should be equally foundational to any country with respect for the rule of law. Each is enshrined in its own way in international human rights instruments.[iii] Almost all democratic nations other than Australia include a right to free expression or a free media in their Constitutions or ancillary documents. However, the closest Australia has to any such constitutional recognition is the High Court’s so-called implied freedom to communicate on matters of politics and government, which has evolved in a qualified fashion through a series of cases since the 1990s.[iv] The proof of the inadequacy of the principles of media freedom and open justice in Australia can be found in the exceptions to those liberties in a litany of laws across Australia’s nine jurisdictions which serve to impede attempts at public interest journalism. They are evident in both the common law and in legislation in areas including (but not limited to) defamation (despite purported uniformity), contempt, trespass, surveillance, confidentiality, privacy, source protection, court and tribunal suppressions and identification restrictions, along with a host of national security and anti-terror laws.

Even measures designed to allow greater freedoms to those engaged in public interest journalism suffer from jurisdictional inconsistency, with significant differences apparent in whistleblower protections, journalists’ shield laws and the courts’ tolerance of journalists’ use of new communication technologies. Some, like freedom of information laws, have been abused and eroded by your colleagues across the political spectrum as they have exploited the numerous exemptions to their own protection and advantage, prompting cynics to call them ‘freedom from information’ laws. As former foreign minister Alexander Downer once told newspaper publishers: ‘Freedom of information always seems a great idea when you are in Opposition but less so when you are in Government’.[v]

This leaves public interest journalism battling this array of laws at State, Territory and Commonwealth levels limiting free expression and a free media because of competing rights and interests – often without free expression or a free media being acknowledged in the wording of certain statutes or in their interpretation in cases. The Senate must bear the responsibility for passing some of these laws and the various attorneys-general across jurisdictions and political affiliations must accept culpability for failing to work to ensure their uniformity.

Exceptions and journalist/news media privileges

There a few privileges, exemptions or defences available to journalists and news organisations, which vary markedly in their wording, including:

  1. The Privacy Act, which at s7B(4) which exempts ‘media organisations’ which are ‘publicly committed’ to privacy standards published by themselves or their representative organization;
  2. The Australian Consumer Law (detailed at Schedule 2 to the Competition and Consumer Act 2010), which offers a broad ‘media safe harbour’ (Section 19) to ‘information providers’ under the ‘misleading and deceptive conduct’ provisions (Section 18).
  3. Shield laws, which at Commonwealth level offer a discretion to the courts to excuse a journalist from revealing a source, in consideration of “the public interest in the communication of facts and opinion to the public by the news media”[vi];
  4. Metadata retention laws, which offer a limited and opaque protection to professional journalists under protocols detailed at Telecommunications (Interception and Access) Act 1979 at Division 4C. The protocols were famously breached in 2017 when the AFP admitted a journalist’s call records had been accessed without following the procedures.[vii]
  5. A fair dealing defence for the purpose of news under the Copyright Act, itself subject to a judicially determined reasonableness test.[viii]
  6. Uniform state and territory defamation laws, which make available a qualified privilege ‘public interest’ defence;[ix]
  7. A common law ‘public interest’ defence to sub judice contempt (known as the ‘Bread Manufacturers’ defence);[x]
  8. A range of other limited exemptions available in journalistic or public interest grounds (sometimes at the discretion of the court) in various jurisdictions including the use of recording devices in court, contacting jurors, publishing secretly recorded conversations, reporting upon closed court cases, interviewing prisoners or parolees, identifying sexual assault victims with their permission, etc.[xi]

While such limited exemptions offer some acknowledgement of the importance of public interest journalism, free expression and open justice, their wording is ad hoc and their application across jurisdictions is unpredictable. This is farcical in an era of global publication to 24/7 deadlines by a large variety of organisations and individuals engaged in public interest journalism in its multiple forms – many of whom might not even call themselves ‘journalists’ in a traditional sense of the term, but who might nevertheless be engaging in the practice[xii].

Some statutes offer blanket exemptions which in some ways encourage the creation and republication of fake news, celebrity gossip and click bait misinformation. The Australian Consumer Law is a prime example, where the ‘media safe harbour’ (Section 19) offered to ‘information providers’ under the ‘misleading and deceptive conduct’ provisions (Section 18) allows news organisations have a blanket, almost unchallengeable protection for misleading and deceptive conduct. I proposed to the Independent Media Inquiry in 2011 that there should be a rebuttable presumption that corporations publish responsible news and current affairs material of legitimate public interest in accordance with a journalism code of practice to earn this exemption[xiii].

A ‘public interest journalism’ exemption or defence

A simple and effective measure to reduce this imposition on public interest journalism would be for the Senate to require all Commonwealth legislation imposing a demonstrable limitation upon the enterprise of public interest journalism to include a ‘public interest journalism’ exemption or defence. This would confer a discretion to a court to make an exception to the operation of the particular measure in instances where there may be a public interest in the communication of a matter of genuine public concern which at least balances, or perhaps outweighs, other rights and interests in the particular circumstances.

The current exemptions within the control of the Commonwealth (privacy law, consumer law, shield laws, etc) would be simplified where possible to meet such a test. In some cases this would require those exempted under current legislation to do more to demonstrate they are worthy of such an exemption (under the Privacy Act s7B(4), for example, ‘media organisations’ are automatically exempted if they are ‘publicly committed’ to privacy standards published by themselves or their representative organization.) In other cases the existing laws should be broadened to the advantage of others who demonstrably engage in public interest journalism. (For example, academics, non-government organisations, journalism students and serious bloggers might then qualify for shield laws which at Commonwealth level are currently restricted to “journalists” being people “engaged and active in the publication of news”.[xiv] This would attach the exemptions to those engaging in the enterprise of ‘public interest journalism’ instead of trying to define who might qualify as a ‘journalist’ in the modern era).

I have deliberately not ventured into the wording of any such defence or exemption because that is not my area of expertise and the particularities of the restrictions will inevitably require slightly different wording in each situation. While its definition of ‘journalist’ at s 126K should be broadened, the Evidence Act 1995 s. 126K (2) is a useful starting point where it states:

(2)  The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

(a)  any likely adverse effect of the disclosure on the informant or any other person; and

(b)  the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3)  An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

The uniform Defamation Act[xv] offers guidance within its qualified privilege defence to the kinds of factors a judicial decision maker might take into account when deciding whether or not to allow such a public journalism exemption:

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c) the seriousness of any defamatory imputation carried by the matter published, and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant operates, and

(g) the sources of the information in the matter published and the integrity of those sources, and

(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and

(j) any other circumstances that the court considers relevant.

Such other circumstances could include the legal and ethical track records of the individuals and organizations seeking the exemption and their demonstrable commitment to legal and ethical standards and training.

If the Commonwealth takes the leadership in such a simplification of the approach to a ‘public interest journalism’ exemption, then I am confident it can impose its considerable weight upon the states and territories via the Law, Crime and Community Safety Council and the Council of Australian Governments to mirror this approach in their myriad of publishing restrictions. Such a measure would help foster a real backbone of encouragement of genuine public interest journalism – whether created by large traditional media, freelancers, activists or new media entrepreneurs – in the absence of a constitutional right to free expression and a free media enshrined in a Bill of Rights, which appears to be an unrealistic aspiration at this stage. It would also offer genuine public interest journalism a market advantage over fake news, celebrity gossip and other unethical infotainment products.

I sincerely hope your committee is able to improve the standing of public interest journalism and wish you well in your deliberations.

Notes:

[i] Pearson, Mark and Mark Polden (2015). The Journalist’s Guide to Media Law. Allen & Unwin, Sydney.

[ii] Please note that some parts of this submission are explained further in my recent article in the journal Asia Pacific Media Educator’. Pearson, Mark (2017) ‘Teaching media law in a post-truth context – strategies for enhancing learning about the legal risks of fake news and alternative facts’ Asia Pacific Media Educator, 27(1) 1–10.

[iii] See, for example, Articles 11 and 19 of the Universal Declaration of Human Rights.

[iv] See: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520; Wotton v Qld [2012] HCA 2.

 

[v] McNicoll, D. D. (2006, 31 August). The diary. The Australian [Media section]. p. 18.

[vi] Evidence Act 1995, s. 126K.

[vii] Royes, Luke (2017) AFP officer accessed journalist’s call records in metadata breach. ABC News online. Available: http://www.abc.net.au/news/2017-04-28/afp-officer-accessed-journalists-call-records-in-metadata-breach/8480804

[viii] Copyright Act 1968 ss40 and 103B.

[ix] See Defamation Act NSW 2005 s. 30.

[x] Pearson & Polden, op. cit., p. 147.

[xi] See Pearson & Polden, op. cit., Chapter 6, ‘Covering Court’

[xii] See Slater v Blomfield [2014] NZHC 2221, at paras 47-55.

[xiii] Pearson, Mark. (2011). ‘Consumer law holds solution to grossly irresponsible journalism’. Journlaw blog. Available: https://journlaw.com/2011/11/07/consumer-law-holds-solution-to-grossly-irresponsible-journalism/

 

[xiv] Evidence Act 1995 ss. 126J and 126K

[xv] See Defamation Act NSW 2005 s. 30.

 

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

© Mark Pearson 2017

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

By MARK PEARSON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

© Mark Pearson 2017

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Mindful journalism explained in Q&A style

By MARK PEARSON

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

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

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

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

Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015)  explored the possibilities of applying mindfulness techniques to journalism practice.

Screen Shot 2015-05-29 at 3.08.59 pmI  recently wrote an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

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

I’ve also written a shorter account of the basic principles of mindful journalism in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

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

© Mark Pearson 2017

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Alternative media values offer hope in a ‘post-truth’ media world, says journalism academic

By MARK PEARSON

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

Associate Professor Susan Forde delivers the 2017 AEL Professorial Lecture

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

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

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

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

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

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

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

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

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

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

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

“They provide what we call mobilizing information.”

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

© Mark Pearson 2017

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

By MARK PEARSON

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

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

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

The publication is available here.

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

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

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

The report’s key recommendations for nations were:

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

Its main recommendations for journalists were:

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

Related:

© Mark Pearson 2017

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

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Changes to drone laws force a rethink of their risks

By MARK PEARSON

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

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

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

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

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

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

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© Mark Pearson 2017

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

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