Tag Archives: anti-terror laws

June 13, 2018 · 2:11 pm

Our surveillance chapter in the new book ‘In The Name of Security’

Friend and colleague Joseph Fernandez (Curtin University) and I teamed up to write a chapter on surveillance and the media for a new book published by Anthem Press.

New book on an important subject by @johanBalance and @DenisJMuller in which @JournLaw and I have a co-authored chapter. Pleasure working with you all. pic.twitter.com/0WRl6wyk4w

— Dr Joseph Fernandez (@DrJM_Fernandez) June 7, 2018

Ours is one of eleven chapters in the book In the Name of Security – Secrecy, Surveillance and Journalism (Anthem, 2018), edited by our journalism education colleagues Johan Lidberg (Monash University) and Denis Muller (University of Melbourne).

For full details and ordering information, please go to the Anthem Press site here.

The book description and our chapter abstract are as follows:

The terrorist attacks on the World Trade Center in New York on 11 September 2001 saw the start of the so-called war on terror. The aim of ‘In the Name of Security – Secrecy, Surveillance and Journalism’is to assess the impact of surveillance and other security measures on in-depth public interest journalism. How has the global fear-driven security paradigm sparked by 11 September affected journalism? Moves by governments to expand the powers of intelligence and security organizations and legislate for the retention of personal data for several years have the potential to stall investigative journalism. Such journalism, with its focus on accountability and scrutiny of powerful interests in society, is a pillar of democracy.

Investigative journalism informs society by providing information that enables citizens to have input into democratic processes. But will whistleblowers acting in public interest in future contact reporters if they risk being exposed by state and corporate surveillance? Will journalists provide fearless coverage of security issues when they risk jail for reporting them?

At the core of ‘In the Name of Security – Secrecy, Surveillance and Journalism’ sits what the authors have labeled the ‘trust us dilemma’. Governments justify passing, at times, oppressive and far-reaching anti-terror laws to keep citizens safe from terror. By doing so governments are asking the public to trust their good intentions and the integrity of the security agencies. But how can the public decide to trust the government and its agencies if it does not have access to information on which to base its decision?

‘In the Name of Security – Secrecy, Surveillance and Journalism’ takes an internationally comparative approach using case studies from the powerful intelligence-sharing group known as the Five Eyes consisting of the US, Canada, the UK, Australia and New Zealand. Chapters assessing a selection of EU countries and some of the BRICS countries provide additional and important points of comparison to the English-speaking countries that make up the Five Eyes.

The core questions in the book are investigated and assessed in the disciplines of journalism studies, law and international relations. The topics covered include an overview and assessment of the latest technological developments allowing the mass surveillance of large populations including the use of drones (Unmanned Aerial Vehicles).

Chapter 3. Surveillance and National Security ‘Hyper-Legislation’ – Calibrating Restraints on Rights with a Freedom of Expression Threshold, Mark Pearson and Joseph M Fernandez:

The post-11 September 2001, era has unleashed a plethora of laws invoking national security and antiterrorism justifications that have severely compromised a range of human rights and civil liberties, including freedoms associated with expression and information access. Roach has described such laws as ‘hyper-legislation’ (2011, 310). Such legislation has inflicted often-unjustified constraints upon journalists and journalism. The overly broad antiterrorism laws potentially ensnare reporters covering security matters and have inflicted repeated blows on investigative journalism in recent times (Weisbrot 2016). Insufficient attention, however, is paid to the potential for these constraints to be informed and moderated by the constitutional and human rights frameworks in which such laws are enacted. There has been inadequate resolve to protect the public interest by ensuring that journalists and journalism are able to properly perform their professional duties and obligations. This chapter uses archival research, analysis of statutes and case law to examine how freedom of expression constitutional and human rights provisions in the Five Eyes democracies have, in reality, offered minimal protection to journalists and their sources – particularly in Australia, where a constitutional protection for freedom of expression is lacking. The absence of strong protections or the rampant undermining of existing protections, in the face of what Agamben (2005, 1) describes as an ongoing ‘state of exception’ in the post–9/11 war on terror, presents the need for new mechanisms to provide journalists and their confidential sources adequate protection to enable them to fulfil their professional obligations.

The authors argue that the long-held importance of freedom of expression in democracies moots for workable and explicit public interest defences to allow for the reporting of national security matters without endangering journalists or the sanctity of their obligations to confidential sources. The chapter undertakes a case study of Australia which, unlike the other Five Eyes intelligence alliance members – New Zealand, Canada, the United Kingdom and the United States – has no explicit constitutional or human rights framework to compel the courts or the Parliament to recognize the adverse implications of legislation upon free expression or a free media. The Australian courts and the Parliament have, however, acknowledged free expression rights, drawing upon free expression jurisprudence through the common law; an implied freedom to communicate on matters of politics and government; and the protocols for a non-binding review of the implications of proposed legislation upon human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). This chapter considers these processes against the backdrop of the First Amendment obligations in the US Constitution, the UK’s free expression protection under Article 10 of its Human Rights Act 1998, guarantees on free expression, free media and free expression under the Canadian Charter of Rights and Freedoms, and the free expression protection in New Zealand’s Bill of Rights Act 1990. The authors argue that, while each of these jurisdictions has national security laws that impact upon the media, each enshrines stringent checks upon the impacts of proposed legislation on free expression. The ongoing onslaught against freedom of expression under the banner of the continued state of exception, however, shows that the free expression protections offered by such rights instruments provide minimal protection to journalists and their confidential sources.

The chapter also reviews the use of specific devices to deny journalists and their work appropriate protections in fulfilling their professional duties and responsibilities, and weighs their efficacy in a national security and counterterrorism context. It identifies relevant terminology from case law and legislative instruments including defamation law, consumer law and privacy and shield laws, and assesses their potential value as exemptions or devices to better protect journalists in a national security context. In doing so, it draws upon some examples and cases from those jurisdictions.

Finally, the chapter reviews the extent of journalist and source protections in recent Australian national security laws and draws upon survey research to indicate their impact upon journalists. It recommends a key aspirational threshold that should underpin an objective public interest test to apply to journalism in a counterterrorism legislative context so as to better safeguard free expression, transparency in governance and protection for journalists’ confidential sources.

© Mark Pearson 2018

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

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Tagged as anti-terror laws, contempt, courts, fair trial, journalism law, judges, media freedom, media law, national security, open justice, shield laws, surveillance

May 9, 2017 · 1:01 pm

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

By MARK PEARSON Follow @Journlaw

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:

Julie Posetti’s commentaries on the report in The Conversation and The Age.
My piece from 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2017

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Tagged as anti-terror laws, COAG, confidentiality, contempt, counter-terror, courts, Fourth Estate, hate speech, impunity, Internet intermediaries, journalism law, media freedom, media law, national security, natsec, Posetti, press freedom, shield laws, sources, surveillance, terrorism, UNESCO, watchdog

April 27, 2016 · 6:10 pm

Stay Out Of Jail 101: Phone a spy before breaking a national security scoop

By MARK PEARSON Follow @Journlaw

You have information that police and intelligence agencies are about to launch Australia’s biggest counter-terror operation. Or perhaps they already have.

ASIO headquarters, Canberra. Photo: Maps

The story could be the biggest scoop of your journalistic career.

Your news instinct might be to rush to publication or broadcast without giving government agencies the chance to shut your story down and without risking the news being leaked to your competitors.

But if your story meets the definition of a “special intelligence operation” under the Australian Security Intelligence Organisation (ASIO) Act 1979 then you could face up to five years in jail for ‘unauthorised’ disclosure of information, and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’.

Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

So what might be “reckless” disclosure?

For that, we look to Section 5.4 of the Commonwealth Criminal Code, which reads:

5.4 Recklessness

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

When it comes to reckless disclosure, the Australian Law Reform Commission has stated:

“If the offence was framed to cover reckless disclosure, the prosecution would be required to prove that the accused was aware of a substantial risk that disclosure would occur as the result of the accused’s conduct and, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.”

So, whether you view it under the existing Section 35P, or under the proposed reforms the Turnbull Government has agreed to enact, there is a strong argument that the only way to ensure you will not be charged with reckless disclosure is to first phone ASIO.

And that’s exactly the advice I was given when I phoned the ASIO media section and asked an (obviously) anonymous media liaison officer about the spy agency’s policy in dealing with journalists’ queries about whether the breaking news event they were trying to cover was in fact a “special intelligence operation”.

He said ASIO tried to strike a balance between what was appropriate to report and what was inappropriate.

He explained that soon after s35P had been passed in 2014 there had been a number of inquiries from journalists and that his office was not sure whether they were legitimate concerns about whether operations were SIOs or whether it was just “journalists being smart about the new laws”.

He said ASIO’s normal policy was to decline to comment when a media inquiry related to an individual or an operational matter, and that blanket ban made it hard to confirm or deny whether a particular operation was an SIO.

I later sent these specific questions to the officer at media@asio.gov.au:

What steps should journalists take to ascertain whether their story (e.g., terror arrest, investigation, etc) relates to an SIO (special intelligence operation)?
How do you respond to journalists’ inquiries about SIOs when ASIO’s normal practice is not to comment on matters related to individuals or operations?
How many journalists’ inquiries as to whether an operation is an SIO have you had since the legislation was enacted?
How many such inquiries have you had this year?
What steps do you take to prevent/warn journalists about reporting the details of an SIO?
What steps do you take to prevent/warn journalists about revealing the ID of an ASIO officer?
How many instances of either (journalists giving SIO details or naming an officer) have you dealt with, and how have you handled them?

In a reply email, he referred me to ASIO’s responses to questions posed by the acting Independent National Security Legislation Monitor Roger Gyles QC when he was conducting his inquiry into the legislation, publicly released in February 2016.

That submission confirmed the approach the media officer had outlined, stating:

“Media inquiries received by ASIO are managed in accordance with standard operating procedures. To perform its statutory functions, ASIO must employ a conservative approach to media engagement with respect to operational matters. ASIO does not confirm details relating to individuals, investigations or operations as a matter of course. This includes inquiries in relation to special intelligence operations or other operationally sensitive information.

If journalists contact ASIO Media regarding an operational matter they intend to report on, ASIO advises the relevant line-area within the Organisation before responding to the journalist. When ASIO has concerns about the sensitivities around the subject being reported on, ASIO does not provide a public comment, but may decide to speak with the journalist on a confidential basis to provide context on that sensitivity. In this instance, the journalist may be contacted by the Director-General or a Deputy Director-General to explain how Australia’s national security would be prejudiced if the subject was reported on publicly.

All media inquiries, and responses, are logged and retained for accountability and future reference.”

It continued:

“In practice, if a journalist approached ASIO for comment on information they believed to be operationally sensitive, and which ASIO knew to be related to a special intelligence operation, ASIO would consider speaking with the journalist on a confidential basis to explain the sensitivities of the information. A number of considerations would go to determining whether to inform the journalist of the existence of a special intelligence operation, including whether a person might be harmed should the existence of a special intelligence operation be revealed. If, after receiving a confidential briefing by ASIO, the journalist still intended to publish the information, ASIO would advise the journalist that to do so may breach 35P. It would then be for the journalist to decide whether or not to proceed with publishing the information.”

So there you have it, the national spy agency recommends the Ghostbusters approach to journalists wanting to avoid a decade in jail for reckless disclosure of a special intelligence agency: “Who you gonna call? ASIO.”

And we might never know how many journalists have already been tapped on the shoulder and ‘advised’ not to publish.

—

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

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Tagged as anti-terror laws, confidentiality, contempt, counter-terror, courts, Fourth Estate, hate speech, journalism law, media freedom, media law, national security, natsec, press freedom, shield laws, sources, surveillance, terrorism, watchdog

February 15, 2016 · 12:38 pm

The main national security laws affecting journalists and sources

By MARK PEARSON Follow @Journlaw

[with research assistance from Virginia Leighton-Jackson]

Among more than 50 national security laws and amendments passed in Australia since 9/11, these four stand out as presenting the greatest threat to journalists …

ASIOActScreenshot

ASIO Act 1979

Section 25A focuses on ASIO powers and access to computer networks, with one warrant now covering an entire computer network using third party computers to access target systems.

Section 34 gives ASIO powers to seek ‘questioning’ warrants and ‘questioning and detention’ warrants (detention for up to seven days) with five years’ jail possible for any revelation of the existence of the warrant itself or of any operation related to the warrant for up to two years after the warrant has expired. There are no public interest or media exemptions to the requirement, although disclosures of operational information by anyone other than the subject of a warrant or their lawyer requires the discloser to have shown ‘recklessness’ (s. 34ZS (3)).

Section 35P provides for up to five years in jail for ‘unauthorised’ disclosure of information related to a ‘special intelligence operation’ – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’. Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

Section 92 provides for 10 years’ imprisonment for anyone who identifies an ASIO officer or affiliate (or anyone connected with them) other than any who have been identified in Parliament (such as the director-general). Former ASIO employees and affiliates can be identified if they have consented in writing or have generally made that fact be known.

Crimes Act 1914 (Cth)

Section 3ZQT makes it an offence to disclose the fact that someone has been given notice by the Australian Federal Police (AFP) to produce documents related to a serious terrorism offence. Journalists could face up to two years in prison for doing so.

Telecommunications (Interception and Access) Act 1979

After amendments in 2015, the Act requires telecommunications providers to retain customers’ phone and computer metadata for two years so they can be accessed by criminal law enforcement agencies (State and Commonwealth) on the issue of a warrant. Information required to be stored includes: subscriber/ account information, the source and destination of a communication, the date, time and duration of a communication or connection to a service. A ‘journalist information warrant’ scheme was designed to prohibit the disclosure of journalists’ confidential sources without special precautions. These require approval of the Minister, who may act on the advice of a ‘public interest advocate’, though the processes are secret and disclosure of the details of any warrant for telecommunications data can incur imprisonment for two years.

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSI’)

National security has long been cited as one of the exceptions to the principle of open justice, but new laws give judges and magistrates more reason to close a court in a terrorism trial. The NSI Act allows for evidence to be suppressed in court hearings if it contains disclosures prejudicial to national security. Part 3 of the Act allows prosecutors and courts to use national security information in criminal proceedings while preventing the broader disclosure of such information, sometimes even to the defendant. Section 29 gives courts the power to decide whether to close the court for such matters.

Other laws to consider when covering a national security story:

Discrimination and vilification laws

Laws apply at state, territory and Commonwealth levels prohibiting racial and religious discrimination and the vilification of people because of their race, religion, or other factors. They vary in their scope and application, with debate over whether the law against offensive behaviour because of race, colour or national or ethnic origin in Section 18C the Racial Discrimination Act (Clth) would apply to discriminatory media coverage of Muslims. All media codes of practice and ethical codes counsel against discriminatory or vilifying coverage. Social media comment moderation presents special challenges.

Defamation

If you are about to publish something damaging to someone’s reputation, ensure you work carefully within one of the main defences – truth (evidence to prove both the facts and their defamatory meaning), honest opinion / fair comment (based on true provable facts on a matter of legitimate public interest), or fair report (a fair and accurate report of a court case, parliament or another protected public occasion or document).

Contempt of court

The sub judice period (limiting prejudicial coverage about a suspect) starts from the moment someone has been arrested or charged. From that instant you should take legal advice before publishing anything other than what has been stated in open court, with special care to avoid any material giving an assumption of guilt (or even innocence), visual identification of the accused if their identification might be at issue, witness accounts, character background, confessions or prior charges or convictions. You can also face contempt charges over refusing to reveal a source or provide your data or notes when ordered to do so, thus techniques for source protection are paramount.

Suppression orders

Courts have special powers to issue suppression orders in national security cases. These might prohibit identification of certain people, restrict coverage of certain parts of a hearing, or even ban coverage of the total proceedings. Reporters and bloggers have been fined and jailed for breaching such suppression orders.

Sources:

Australian Human Rights Commission 2008, A Human Rights Guide to Australia’s Counter-Terrorism Laws, AHRC, Sydney, <www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws>.

Evershed, N., Safi, M., 19.10.2015, “All of Australia’s National Security Changes since 9/11 in a Timeline”, The Guardian Australia, available: http://www.theguardian.com/australia-news/ng-interactive/2015/oct/19/all-of-australias-national-security-changes-since-911-in-a-timeline

—

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

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February 2, 2016 · 1:09 pm

Journalist Peter Greste explains why it is important to cover Islam ethically

By MARK PEARSON Follow @Journlaw

Australian journalist Peter Greste – released last year after 400 days in an Egyptian jail – has outlined why it is so important for journalists to be fair and accurate in their coverage of Islam and Muslim communities.

I interviewed Greste for our Reporting Islam project on the eve of him receiving an Honorary Doctorate from Griffith University for his service to journalism and delivering the annual Griffith Lecture at the Queensland Conservatorium in Brisbane last December.

Greste started reporting on the Islamic world in 1995 as Kabul correspondent for the BBC.

“I think it is absolutely vital that journalists anywhere understand as much as they can about Muslims and the Islamic world largely because when we talk about that world we speak about it as if it is in the singular when in fact it isn’t,” Greste said.

“It’s an incredibly complex, multifaceted group of individuals, of sects, of smaller schools of thought.

“The greatest danger is that we conflate everything into one.

“We’ve got to be very careful to understand the subtleties and nuances of the Islamic world and make sure we avoid that same mistake.”

The interview will appear as part of a set of research-based resources colleague Associate Professor Jacqui Ewart and I are developing with our team as part of our Commonwealth-funded Reporting Islam project.

The project is national in its ambit, funded under a competitive grants scheme, facilitated by the Attorney General’s Department and managed by the Queensland Police Service who have contracted us to undertake the work as independent researchers.
Stage 1 of the project was conducted over the 2014-2015 financial year involving a review of the literature on news media coverage of Islam and Muslim people, case studies of media reportage across media types at national and community levels, interviews with experts in the field, distillation of international studies to develop a schema for assessing reportage against world best practice in the area, and a compilation of a report on these findings with recommendations for the development of a suite of resources and training programs.

We are now in Stage 2 of the project (2015-2016) which requires the development and trial of a suite of research-based training and education resources for Australian media practitioners and students to encourage more mindful reporting of Muslims and the Islamic faith.

Credits:

Camera: Ashil Ranpara, Griffith University School of Humanities, Languages and Social Science

Production: Henry Cook, Griffith Learning Futures

—

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality; and on journlaw.com from November 13, 2014 titled: International studies point to best practice for reporting Islam and stories involving Muslims.

© Mark Pearson 2016

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December 4, 2015 · 7:10 pm

Freed journalist Peter Greste gets honorary doctorate then calls for free speech in the age of terror

By MARK PEARSON Follow @Journlaw

The Australian journalist jailed for 400 days in Egypt called for greater freedom for the media during the war on terror after being awarded an honorary doctorate by Griffith University tonight (December 4).

Journalist Peter Greste receives his honorary doctorate at Griffith University

Greste received an Honorary Doctorate from Griffith University for his service to journalism before delivering the annual Griffith Lecture at the Queensland Conservatorium in South Bank Brisbane.

His arrest with Al Jazeera colleagues, Mohamed Fahmy and Baher Mohamed, by Egyptian authorities on false terrorism charges, triggered international demands for their release from 2013 to 2015.

“If I’d known it was this easy to get a doctorate I would have been arrested years ago,” he joked. “It’s a great honour to receive this award. I take it as a mark of recognition, not just for what we went through but also for what it represents…for those 400 days of prison.’

“We fought hard for our own freedom, but I think it’s important that people also see the bigger picture of due process and freedom of speech.

“I’m being recognised more for the things we came to represent, than anything that I’ve done.”

He argued large parts of the media had given up on their public responsibility to keep the public informed with fair and accurate reporting. The war on terror was a battle of ideas and journalists were active participants.

The media should be properly be part of a functioning democracy in its role as the fourth estate, checking the functioning on the other arms of government.

“In the war of terror we seem to be losing sight of that key idea,” he said. “Governments the world over are using that ‘t’ word to clamp down on those freedoms.”

He gave recent examples from other countries of journalists being arrested on trumped-up terror charges just as he and his two colleagues had been in Egypt.

Australians should not feel smug because of legislation introduced in recent years targeting those disclosing special intelligence operations, the Foreign Fighters Bill and metadata retention laws.

These restricted the reporting on important events, the main story of the era about international terrorism, and seriously damaged the confidentiality of journalists’ sources.

“It makes confidential whistleblowing almost impossible without risking a prison term,” he said.

“Each has an effect on journalists being able to do the job the public demands of us.”

However, he criticised news media organisations and journalists for not being proactive enough in fighting the introduction of such laws.

“We the media have become increasingly slack in challenging and questioning governments,” he said.

He said journalists should not accept the rhetoric of governments engaged in the war on terror. Rather, questioning that misuse of language would be “one of the most patriotic things to do”.

“Panicked and hyped up language” played into the hands of Islamic State, he said.

“We the media have a responsibility to uphold our end of the bargain as well.”

He said the #FreeAJStaff hashtag calling for the release of him and his colleagues attracted billions of supporters and indicated a high level of public belief that journalism was fundamental to democracy.

During his 400-day detention in an Egyptian prison he studied international relations with Griffith University.

Greste turned 50 this week. He grew up in Brisbane and has reported on political events all over the world. As a correspondent, between 1991 and 1995, he reported from many locations including London, Bosnia and South Africa where he worked with Reuters, CNN, WTN and the BBC.

Following the September 11, 2001 attacks, he returned to Afghanistan to cover the war there. In 2011, he received a prestigious Peabody Award for his BBC documentary Somalia: Land of Anarchy. In December 2013, his employer Al Jazeera sent him from his base in Nairobi to Cairo to cover the bureau for three weeks. It was then he was arrested.

In June 2014, after more than six months in Cairo’s infamous Tora Prison, a court found Greste and his colleagues guilty and sentenced them to seven years imprisonment.

Peter Greste with his Griffith lecturers Dr Dan Halvorson and Professor Andrew O’Neill. Photo: Michael Cranfield

He said presenting the Griffith Lecture on December 4 was a way of validating what he and his colleagues went through retrospectively. “It’s a way of applying meaning to what we went through. Those 400 days weren’t wasted.

“I learned a lot about myself in prison but that time has also given me the credibility to talk about those issues around press freedom. I feel a responsibility to talk about these issues, partly because so many of my friends, so many journalists, fought so hard for me, that’s why people backed us.”

While his colleagues Mohamed Fahmy and Baher Mohamed were pardoned by the Egyptian president Abdel Fattah el-Sisi in September, Mr Greste still carries a criminal conviction and an outstanding prison sentence which his legal team is fighting.

—

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2015

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November 30, 2015 · 8:59 am

Dangerous journalism – new threats to journalism in the Middle East: @MartinChulov #jeraa2015

By MARK PEARSON Follow @Journlaw

Almost every nation in the Middle East has the surveillance capability rivaling that of the Five Eyes group of countries, Guardian Middle East correspondent Martin Chulov (@MartinChulov) told the Journalism Education and Research Association of Australia 40^th anniversary conference in Bathurst today (November 30).

The Guardian's Martin Chulov addressing #jeraa15

The Guardian‘s Martin Chulov addressing #jeraa2015

“The digital dragnet is very much a tool of persecution,” he said.

He explained how the Internet and social media in the region had shifted from communication forms of change and liberation to tools of suppression.

“Regimes simply ended up doing social media better than the young activists in the region,” he said.

This presented enormous risks to journalists and their sources.

He said journalists now faced risks they had not previously when they were viewed as non-combatants.

“We can no longer afford to be naïve,” he said.

“I’ve often found myself being in a situation where you don’t have the access of your organisation and are relying on your wits.

“We have to be very careful in calculating when to push forward and when to go back.”

Chulov said propaganda issued by Middle Eastern states was also a major risk to truth-telling about the region.

“There are far too many journalists in the region – even veteran correspondents – whose work is no more than dogma,” he said.

“I’ve lost count of the number of young reporters who have told me how disillusioned they have become with journalists who were once their heroes.

“Conflict reporting is not simply about muddying the waters. We should never be afraid of fact, no matter where it may lead us.”

Source protection had become a major issue. He said one of his sources was a senior figure in Islamic State.

“There has been no digital communication at all. We have to beware of street cameras and any digital communication at all.

“Every time I do go to see him I have to wonder whether it is going to be the last time for him and potentially the last time for me.

“Of course shrouding ourselves in secrecy does nothing to dispel the notion we are not spies in the first place.

“I’m on the bad boy list but I haven’t been hit so far. But I do try to ensure not everything I try to transmit is not secure.” This avoids a detectable regime.

Journalists also faced attacks on their reputations.

“If truth be told, it sometimes works,” he said.

“All of us who have covered the region for a living have regularly woken up to Twitter feeds full of bile.”

—

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

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November 5, 2015 · 1:11 pm

UNESCO study by @julieposetti uses research to shed light on source protection in the surveillance era

By MARK PEARSON Follow @Journlaw

UNESCO’s flagship publication World Trends in Freedom of Expression and Media Development was launched in Paris, London and New York this week, as part of events marking the International Day to End Impunity For Crimes Against Journalists.

It features an important chapter highlighting 13 key recommendations from a global study on the protection of journalism sources in the digital age – ably chaired and written by University of Wollongong journalism educator Julie Posetti during her World Editors Forum/WAN-IFRA Research Fellowship in 2014-2015.

As the World Trends publication explains, the ‘Protecting Journalism Sources in the Digital Age’ study draws on research covering 121 UNESCO Member States, updating an earlier study of these countries by the NGO Privacy International in 2007.

The chapter shows how legal frameworks that support protection of journalistic sources, at international, regional and national levels, have come under substantial strain since then.

“They are increasingly at risk of erosion, restriction and compromise,” the report notes.

“This is a trend that signifies a direct challenge to the established universal human rights of freedom of expression and privacy, and one that constitutes a particular threat to the sustainability of investigative journalism.

“A recommendation for consideration from this research is the proposal of an 11-point research tool for assessing the effectiveness of legal source protection frameworks in the digital age.”

Recommendations and findings from Protecting Sources of Journalism in the Digital Age https://t.co/sD8xjGQM5H @NewspaperWorld @julieposetti

— media.eu (@MediaEu) November 2, 2015

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 to the study, along with 11 research assistants from a range of countries.

I was honoured to serve on the eight-member international advisory panel. Other advisory panellists were: Julie Reid, Media Studies Senior Lecturer, Department of Communication Science, UNISA (University of South Africa); Lillian Nalwoga, President, Internet Society’s Uganda Chapter; Policy Officer, Collaboration on International ICT Policy in East and Southern Africa (CIPESA); Dan Gillmor, Director of the Knight Center for Digital Media Entrepreneurship at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication; Prisca Orsonneau, Lawyer at the Paris Bar, specializing in Media Law and Human Rights; Chair, Reporters Without Borders Legal Committee; Gayathry Venkiteswaran, Executive Director, Southeast Asian Press Alliance; Mario Calabresi, Editor-in-Chief, La Stampa; and Mishi Choudhary, Legal Director, Software Freedom Law Centre and SFLC.in.

Julie Posetti advises the full study will be published by UNESCO early next year but meanwhile she has blogged about the chapter in the World Trends Report here: http://blog.wan-ifra.org/node/16301. However, she has supplied these 13 recommendations and findings:

1. 84 UNESCO Member States out of 121 studied (69 per cent) for this report demonstrated noteworthy developments, mainly with negative impact, concerning journalistic source protection between 2007 and mid-2015
2. The issue of source protection has come to intersect with the issues of mass surveillance, targeted surveillance, data retention, the spill-over effects of anti- terrorism/national security legislation, and the role of third party internet companies known as ‘intermediaries’
3. Legal and regulatory protections for journalists’ sources are increasingly at risk of erosion, restriction and compromise
4. Without substantial strengthening of legal protections and limitations on surveillance and data retention, investigative journalism that relies on confidential sources will be difficult to sustain in the digital era, and reporting in many other cases will encounter inhibitions on the part of potential sources
5. Transparency and accountability regarding both mass and targeted surveillance, and data retention, are critically important if confidential sources are to be able to continue to confidently make contact with journalists
6. Individual states face a need to introduce or update source protection laws
7. It is recommended to define ‘acts of journalism’, as distinct from the role of ‘journalist’, in determining who can benefit from source protection laws
8. To optimise benefits, source protection laws should be strengthened in tandem with legal protections extended to whistle-blowers, who constitute a significant set of confidential journalistic sources
9. Source protection laws need to cover journalistic processes and communications with confidential sources – including telephone calls, social media, and emails – along with published journalism that depends on confidential sources
10. Journalists are increasingly adapting their practice in an effort to partially shield their sources from exposure, but threats to anonymity and encryption undermine these adaptations
11. The financial cost of the digital era source protection threat is very significant (in terms of digital security tools, training, and legal advice), as is its impact on the production and scope of investigative journalism based on confidential sources
12. There is a need to educate journalists and civil society actors in digital safety
13. Journalists, and others who rely on confidential sources to report in the public interest, may need to train their sources in secure methods of contact and information-sharing

Importantly, World Trends in Freedom of Expression and Media Development contains three other chapters on important media issues:

Countering Online Hate Speech provides a global overview of the dynamics of hate speech online and some of the measures that have been adopted to counteract and mitigate it, highlighting trends in good practices that have emerged at the local and global levels. There is a comprehensive analysis of the international, regional and national normative frameworks developed to address hate speech online, and their repercussions for freedom of expression, and there is emphasis on social and non-regulatory mechanisms that may be considered to help to counter the production, dissemination and impact of hateful messages online.

Fostering Freedom Online: The Role of Internet Intermediaries sheds light on internet intermediaries – the services that mediate online communication and enable various forms of online expression. It shows how they both foster and restrict freedom of expression across a range of jurisdictions, circumstances, technologies and business models. The report states: “According to the UN Guiding Principles for Business and Human Rights, while states have the primary duty to protect human rights, businesses have a responsibility to respect human rights, and both should play a role in providing remedy to those whose rights have been violated. This chapter applies the ‘protect, respect, and remedy’ framework to the policies and practices of companies representing three intermediary types (internet service providers, search engines, and social networking platforms) across 10 countries. The three case studies highlight challenges and opportunities for different types of intermediaries within the trend of their increasing importance.”

Safety of Journalists examines recent trends in the safety of journalists, presenting UNESCO statistics for 2013 and 2014, and tracking other developments up to August 2015. The report explains: “It follows the framework of the previous UNESCO report World Trends report, including physical safety, impunity, imprisonment of journalists, and a gender dimension of the issues. Additionally, the chapter examines the unprecedented trend of the strengthening of normative international standards, as well as new developments in practical mechanisms, improvement in UN inter-agency cooperation, greater collaboration with the judiciary system and security forces, and research interest in the subject.”

—

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

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September 1, 2015 · 3:24 pm

Investigative reporter and foreign correspondent Jess Hill (@jessradio) talks media law and censorship

By MARK PEARSON Follow @Journlaw

We were honoured to have investigative reporter and former Middle East correspondent Jess Hill (@jessradio) visit Griffith University to talk about foreign correspondence and the use of social media in journalism.

She was obliging enough to agree to this studio interview with me on media law, censorship and freedom of the press.

Thanks to Bevan Bache and Ashil Ranpara for their camera work, production and technical support.

[Recorded 2.4.14, 11:13 mins].

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Tagged as ABC, anti-terror laws, censorship, confidentiality, contempt, counter-terror, courts, foreign correspondence, Fourth Estate, Global Mail, Jess Hill, journalism law, media freedom, media law, national security, natsec, press freedom, RSF, sources, surveillance, terrorism, watchdog, whistleblowers

July 21, 2015 · 4:49 pm

How reliable are world press freedom indices?

By MARK PEARSON Follow @Journlaw

The recent special edition of Pacific Journalism Review included an article I co-authored with Associate Professor Joseph Fernandez (@DrJM_Fernandez) from Curtin University looking at censorship in Australia.

It was titled “Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar.”

Part of the article considered the reliability of world press indices collated each year by international organisations like Reporters Without Borders and the Freedom Forum.

Here is a short abridged extract of our article to give you a background to the RSF approach and a sense of our argument:

Two main media freedom indices are cited internationally as indicators of the relative state of press freedom and free expression internationally. They are issued by the Paris-based Reporters Sans Frontières (RSF – Reporters Without Borders) and by the US-based Freedom House. Each has fine-tuned its rankings system over time and we summarise their methodologies here. The RSF World Press Freedom Index was first published in 2002. On its launch it explained:

The index was drawn up by asking journalists, researchers and legal experts to answer 50 questions about the whole range of press freedom violations (such as murders or arrests of journalists, censorship, pressure, state monopolies in various fields, punishment of press law offences and regulation of the media). The final list includes 139 countries. The others were not included in the absence of reliable information (RSF, 2002a).

It went on to detail its methodology as essentially a qualitative one based on its contacts in each country assessed and its headquarters staff. The index measured the ‘amount of [media] freedom’ in each country and the respective governments’ efforts to observe that freedom (RSF, 2002b). Its questionnaire sought details on: direct attacks on journalists (e.g. murders, imprisonment, physical assaults and threats) and on the media (e.g. censorship, confiscation, searches and other pressure); the degree of impunity enjoyed by those responsible for such violations; the legal environment for the media (e.g. punishment for press offences, state monopoly and existence of a regulatory body); the state’s behavior towards the public media and the foreign press; threats to information flow on the Internet; and the activities of armed movements and other groups that threaten press freedom (ibid).

Clearly, RSF’s emphasis from that early stage was on clear physical threats against journalists and major legal measures taken against the media in the surveyed countries. Australia ranked 12 out of 139 countries ranked in that first survey. New Zealand and other Pacific Island nations were not ranked because of a lack of information collected on them. The following year New Zealand debuted at position 17, while Australia had been demoted to 50 of 166 nations ranked (RSF, 2003).

RSF changed its ranking methodology significantly in 2013, when it ranked Australia at 28 out of 179 countries, and it is that revised approach which will be used for our discussion here about the potential assessment of Australia’s performance. It explained a shift to a new questionnaire and approach, with Paris-based staff quantifying the numbers of journalists killed, jailed, exiled, attacked or arrested, and the number of outlets directly censored (RSF, 2013). Other important criteria formed the basis of questionnaires sent to outside experts and members of the RSF network, including ‘the degree to which news providers censor themselves, government interference in editorial content, or the transparency of government decision-making’. Legislation and its effectiveness, concentration of media ownership, favouritism in subsidies and state advertising and discrimination in access to journalism and training were the subject of more detailed questions (RSF, 2013).

RSF then uses a complex algorithm to assign a score out of 100 to every country, drawing first on six general criteria of pluralism, media independence, environment and self-censorship, legislative framework, transparency and infrastructure; and then factoring in a special ‘violence score’ with a weighting of 20 per cent, calculated using a formula taking account of violence against journalists in the following declining weightings: death of journalists, imprisonments, kidnappings, media outlets attacked and ransacked, journalists who have fled the country, arrests, and attacks (RSF, 2013). An additional co-efficient takes account of respect for freedom of information in a foreign territory. In short, the algorithm strives to add quantitative mathematical rigour to a process that is largely qualitative, with a stronger weighting on acts of violence than upon legislative and systemic anti-media features. The approach incorporates difficult and problematic comparisons of the value of the murder of a journalist vis a vis laws of censorship.

[The article then backgrounds the Freedom House ‘Freedom of the Press’ reports methodology.]

The respective RSF and Freedom House indices are cited internationally in political speeches and academic works (Burgess, 2010, p. 4). For example, Belgian scholar Dirk Voorhoof linked high media freedom rankings with global reputation for human rights protection when he wrote:… the countries with a high level of press freedom, as shown in the international ratings of Reporters without Borders (RSF) or Freedom House, are countries in which democracy, transparency, respect for human rights and the rule of law is strongly rooted, institutionalised and integrated in society (2009).

However, despite assurances from both RSF and Freedom House that their reports and indices were undertaken with independence and rigor, they have come in for criticism from some quarters. For example, Schönfeld (2014) took issue with Russia’s rankings in both indices on the basis of a potential Western bias. She cited rumours that the Freedom House index was sponsored by the US government (p. 99):

The whole questionnaire presumes a comprehensive concept of media freedom, claiming that the media have to be embedded in a democratic society (p. 100).

She raised similar concerns about the RSF index, again citing a rumour that ‘the organisation contents itself with three or four completed questionnaires per country to the same target group’ (p. 100). She drew comparisons between the RSF and Freedom House approaches:

The conformity between these two indices is not astonishing, as the underlying concept of media freedom, methodology, and the target group are nearly the same (Schönfeld, 2014, p. 100).

Burgess (2010) canvassed the academic literature on media freedom indices and found a host of criticisms, including poor survey design, and recommended they ‘should continue to work to increase technical sophistication, validity across time, and transparency of sourcing, wherever possible without creating threats to the security of people who help in compiling them’ (Burgess, 2010, p. 50). Pearson (2012a) offered reasons as to why the RSF index could not be 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. If it was purely quantitative, for example, there would be an in-built bias against the world’s most populous countries because the sheer numbers of journalists and media organisations involved would increase the statistical likelihood media freedom breaches or incidents involving journalists.

Further, the individual rankings of countries in any particular year are subject to the performance of the nations above and below them. In fact, a country might well decline in the real state of its media freedom but be promoted in an index because of the even worse performance of countries ranked above it the year prior. As Burgess noted, however, the indices were cited widely on their release each year and thus represented a useful tool for promoting the value of media freedom internationally (Burgess, 2010, pp. 6-7). Pearson (2012a) stated:

Governments might take issue with the methodology and argue over their precise rankings, but the index draws on the energies and acumen of experts in RSF’s Paris headquarters and throughout the world; 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.

Of course, any press freedom index is really only a continuum because media freedom is not an absolute, scientifically measureable criterion and there is no haven of free expression or press freedom internationally. Indeed, established international instruments reflect the non-absolute nature of free speech. For example, the Universal Declaration of Human Rights provides that everyone has a right to freedom of expression (Article 19). However, this right is qualified. For example, Article 12 provides that noone no one shall be subjected to attacks upon ‘honour and reputation’. Likewise, the International Covenant on Civil and Political Rights qualifies the freedom of expression right in Article 19(2), with a provision stipulating that that freedom ‘carries with it special duties. It may therefore be subject to certain restrictions…such as are provided by law and are necessary’.

Interested? Here is the citation for the full article. Order your PJR copy now.

Pearson, M., and Fernandez, J. M. (2015). Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar. Pacific Journalism Review, 21(1): 40-60.