Tag Archives: Australian media

Australian metadata laws put confidential interviews at risk, with no protections for research

By MARK PEARSON

Interviews from a range of sensitive research topics may be at risk. These include immigration, crime and corruption.
Shutterstock

EACH year, academics and students make countless applications for research ethics approval, based on the promise of confidentiality to their interview subjects. Interviewees sometimes offer academic researchers information that might be self-incriminating or might jeopardise the rights and liberties of others they’re discussing.

But Australia’s metadata retention laws can lead to the identification and even incrimination of the very people whose identities academic researchers have promised to keep secret for their work.

Imagine, for instance, a criminologist conducting a project examining white collar crime in banking and financial services. The academic’s confidential interviews with former company directors and executives might elicit specific and revealing answers. It could lead to potential redundancy or even jail time, depending on their vulnerability and culpability.

Under the metadata laws, government agencies make hundreds of thousands of requests to Australian telcos each year for their customers’ phone and internet communications metadata.

For the criminologist, this means relevant agencies can ask telcos to access his or her metadata in the form of call records and computer IP addresses. This means they can identify whether a person of interest has been in communication with the researcher and is the possible source of incriminating material. Other investigations and legal steps might then follow.

Interviews about a range of sensitive research topics may be at risk. These include immigration, crime and corruption, national security, policing, politics, international relations and policy.

The impact of metadata laws on journalists and their sources have been well documented. But we can only wonder how many people will agree to participate in academic research if they are made fully aware of the real potential of being identified by investigators.

Interested?

READ my full article in The Conversation.

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 2019 – the moral right of the author has been asserted.

Leave a comment

Filed under free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, national security, open justice, Press freedom, sub judice, suppression, terrorism

Submission to inquiry shows journalism educators and students lack metadata source protection

By MARK PEARSON

Australian journalists have a narrow and inadequate protection under national security laws from government agencies accessing their metadata to discover the identity of their confidential sources.

I helped the Journalism Education and Research Association of Australia (JERAA) prepare a parliamentary committee submission that explains journalism educators and journalism students do not even qualify for that low level of protection, leaving their confidential sources open to revelation.

Our submission now sits with several others on the Parliamentary Joint Committee on Intelligence and Security site here.

We have asked that legislators focus on the public interest journalism involved when awarding such defences and protections rather than focussing simply on whether someone is a ‘journalist‘ – an occupation and term difficult to define in the modern era – and used as the default for the rare privileges given.

We have proposed that

existing and proposed protections for ‘journalists and media organisations’ be extended to apply to the research and outputs of journalism educators and their students when they are engaged in ‘public interest journalism’, whether or not they are paid to work as journalists and whether or not their work is published by a ‘media organisation’ in its traditional sense.

We have also asked that the Commonwealth lead a reform initiative to unify all state, territory an Commonwealth media laws across a range of publication restrictions to do away with anachronistic inconsistencies and introduce a public interest journalism defence or exemption so that courts are prompted to balance the various interests at stake before issuing a warrant against a journalist or taking criminal action.

The Committee is now entering the phase of public hearings. See their site here.

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 2019 – the moral right of the author has been asserted.

 

Leave a comment

Filed under free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, national security, open justice, Press freedom, sub judice, suppression, terrorism

Rare criminal defamation charge in Queensland – #MLGriff

By MARK PEARSON

QUEENSLAND police have charged a Sunshine Coast man with criminal defamation under a rarely used provision of the Criminal Code 1899.

They will allege he distributed pamphlets to neighbourhood homes claiming a former associate was a paedophile.

As Lord Denning, in the 1977 Goldsmith case, said, ‘A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself’ (at 485).

As we explain in the sixth edition of The Journalist’s Guide to Media Law (Pearson and Polden, Allen & Unwin, 2019, pp 298-299), instances of criminal defamation usually arise between ordinary citizens rather than in the media.

Examples include the Wineries case (1998), where a disgruntled businessman penned a letter, purportedly from his business partner’s wife, in which she described her husband as someone who ‘engages in adultery, deception, taxation fraud and is a confidence trickster’ who could be ‘compared to the worst, most infectious, bacterial parasite which can only be found at the bottom of the most unhygienic sewage scum swamp’.

The man sent the letter to at least one South Australian winery and pleaded guilty to criminal defamation.

In 2001, a quadriplegic woman and her mother were charged with six counts of criminal defamation after they allegedly posted notices accusing townsfolk of perjuring themselves in her compensation claim against the local council and its swimming pool operators (Quadriplegic case, 2001). Police later dropped the charges.

Horse racing identities Robert and William Waterhouse prosecuted the producer and reporter of an ABC Four Corners program. The NSW Director of Public Prosecutions eventually stepped in to prevent the defamation prosecutions from proceeding because the defence of qualified privilege was going to be available (Waterhouse case, 1988).

The most famous instance in Australia was the politically motivated prosecution of leftist author Frank Hardy for criminal libel over his volcanic first novel Power Without Glory in August 1950, which he successfully defended.

Sadly, criminal defamation and seditious libel have often been used as political weapons against opposition groups and the media in many small Commonwealth countries.

For media law geeks, the Queensland legislation reads as follows:

—–

CRIMINAL CODE 1899 – SECT 365

Criminal defamation

365 Criminal defamation

(1) Any person who, without lawful excuse, publishes matter defamatory of another living person (the
“relevant person” )—

(a) knowing the matter to be false or without having regard to whether the matter is true or false; and

(b) intending to cause serious harm to the relevant person or any other person or without having regard to whether serious harm to the relevant person or any other person is caused;

commits a misdemeanour.

Penalty—

Maximum penalty—3 years imprisonment.

(2) In a proceeding for an offence defined in this section, the accused person has a lawful excuse for the publication of defamatory matter about the relevant person if, and only if, subsection (3) applies.

(3) This subsection applies if the accused person would, having regard only to the circumstances happening before or at the time of the publication, have had a relevant defencefor the publication if the relevant person had brought civil proceedings for defamation against the accused person.

(4) The prosecution has the burden of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused person.

(5) Whether the matter complained of is capable of bearing a defamatory meaning is a question of law.

(6) Whether the matter complained of does bear a defamatory meaning is a question of fact.

(7) A person can not be prosecuted for an offence defined in this section without the consent of the director of public prosecutions.

(8) In this section—
“defamatory” has the meaning that it has in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.
“modified statutory defence of justification” means the defence stated in the Defamation Act 2005 section 25 as if that section provided that it is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defamatory imputations carried by the matter of which the relevant person complains are substantially true; and

(b) it was for the public benefit that the publication should be made.

“publish” has the meaning that it has in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.
“relevant defence” means—

(a) a defence available under the Defamation Act 2005 other than—

(i) the statutory defence of justification; or

(ii) the statutory defence of failure to accept reasonable offer; or

(b) the modified statutory defence of justification; or

(c) a defence available other than under the Defamation Act 2005 , including under the general law.

“statutory defence of failure to accept reasonable offer” means the defence stated in the Defamation Act 2005 section 18 (1) .
“statutory defence of justification” means the defence stated in the Defamation Act 2005 section 25 .

JGML6eCOVERorange

 

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 2019

 

Leave a comment

Filed under defamation, free expression, journalism, media law, Media regulation

It’s here – our sixth edition ready for the 2019 academic year

By MARK PEARSON

An advance copy of the sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) which I co-author with Mark Polden just arrived in my letter box, ready for the 2019 academic year.

JGML6eCOVERorangeThe new edition has had major revisions. Some highlights of important new content covered in the sixth edition include:

  • consideration of several recent High Court decisions impacting on free expression, publication and media law defences
  • legal implications of ‘fake’ or false news
  • a new table summarising the mindful approach to media law practice, mapping situations against approaches
  • major criminal cases challenging the boundaries of open justice, including those involving high profile church figures and celebrities
  • new case studies in navigating crime reporting with a focus on the Yahoo!7 story that prompted the discharge of a jury in a murder trial
  • significant developments in defamation law, including record damages awards to actor Rebel Wilson (reduced after appeal) and barrister Lloyd Rayney
  • important new research showing that many more defamation actions are being brought by private individuals over internet and social media publications, as distinct from celebrities suing the media
  • examination of publisher liability for the comments of third parties in the wake of several new cases, with some holding publishers responsible
  • an update on confidentiality of sources, including some new breach of confidence actions and some cases testing the limits of new shield laws for journalists
  • a review of the suite of new anti-terrorism laws impacting the media’s reporting of crime and national security and jeopardising the confidentiality of their sources
  • key new intellectual property cases that have shed light on the media’s use of material sourced from the internet and social media
  • significant cases showing the rapidly developing body of privacy law in the digital era
  • new material in the law of freelancing, public relations and new media entrepreneurship showing the growing legal risks and responsibilities at the business end of communication practice.

There is also an increased emphasis on the higher pressure and pace of the 24/7 news cycle across a range of media, exacerbating the risks to communicators and publishers through their own work and the contributions of third-party commenters on their social media feeds and sites.

Like earlier editions, the book aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

As the publisher’s promo states:

A practical guide for journalists, public relations and marketing professionals, bloggers and social media experts to staying on the right side of the law.

We are all journalists and publishers now: at the touch of a button we can send our words, sounds and images out to the world. No matter whether you’re a traditional journalist, a blogger, a public relations practitioner or a social media editor, everything you publish or broadcast is subject to the law. But which law?

This widely used practical guide to communication law is essential reading for anyone who writes or broadcasts professionally, whether in journalism or strategic communication. It offers a mindful approach to assessing media law risks so practitioners can navigate legal and ethical barriers to publishing in mainstream and social media.

This sixth edition has been substantially revised to reflect recent developments in litigation, and the impact of national security laws and the rising gig economy where graduates might work in the news media, PR, new media start-ups, or as freelancers. It covers defamation, contempt, confidentiality, privacy, trespass, intellectual property, and ethical regulation, as well as the special challenges of commenting on criminal allegations and trials. Recent cases and examples from social media, journalism and public relations are used to illustrate key points and new developments. 

Whether you work in a news room, in public relations or marketing, or blog from home, make sure you have The Journalist’s Guide to Media Law at your side.

‘Whether you’re an MSM editor or reporter, a blogger, a tweeter or a personal brand, this book might save your bacon.’ – Jonathan Holmes, former ABC Media Watch host

‘The leading text book from which most journos learned their law’ – Margaret Simons, associate professor in journalism, Monash University

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who should soon have printed copies available.

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 2018 – the moral right of the author has been asserted.

 

4 Comments

Filed under citizen journalism, contempt of court, free expression, journalism, journalism education, media ethics, Media freedom, media law, Media regulation, mindful journalism, online education, reflective practice, social media, sub judice

Case study shows the legal pros and cons of a media release

By MARK PEARSON

MEDIA releases are meant to enhance brand reputation but they can sometimes have the reverse effect, as we explain in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019).


JGML6eCOVERorange

We profile the Born Brands case (2013), where two media releases had vastly different consequences for the manufacturers of a device to help better position infants during sleep.

The first was particularly successful, generating a news segment on Brisbane Extra about its Babywedge product and an appearance on national morning television (Born Brands case, para. 8).

But the second media release—this time emanating from the US Consumer Product Safety Commission (CPSC)—caused unexpected damage because it warned consumers against using infant sleep positioners.

Babywedge then featured on a Channel 9 news segment among other such products in a story about the potential dangers of infant sleep positioners (at para. 14).

As part of the fallout from the crisis, Born Brands sued the Nine Network for both defamation and injurious falsehood, claiming the news item damaged its reputation as a small corporation (fewer than 10 employees) and that it contained false statements, published with malice, which had caused it actual financial loss (injurious falsehood).

However, the company found no relief because the television network managed to defend both actions successfully, with the court finding the statements were not false and that no malice had been proven (paras 184–9).

—-

Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

Leave a comment

Filed under defamation, free expression, journalism, media law, Media regulation, public relations

Defending truth: case study from our new edition

By MARK PEARSON

DEFENDING a defamation action using the truth or justification defence can have its hurdles, but this case we profile in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) demonstrates how a major publication used it effectively.

—-

The Vocational Education case

Charan v Nationwide News Pty Ltd [2018] VSC 3

Facts

In late 2015, The Australian newspaper published a print article (‘Watchdog Takes Peak Training College to Court’) and a similar online version (‘ACCC to Take Top Training College Phoenix Institute to Court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up, and stated that the parent company was under investigation by both the federal Department of Education and the Australian Skills Quality Authority (ASQA) and that its shares had been suspended from trading on the stock exchange for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated that he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, ‘whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct’ (para. 2). Mr Charan had in fact left the company about a year earlier and the next day The Australian published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded that eight imputations arose from the article, which the judge grouped into four headings (para. 27):

  1. Mr Charan was head of ACN, a company that engaged in unscrupulous business practices that took advantage of vulnerable consumers.
  2. Mr Charan was head of ACN, a company that engaged in misleading and deceptive conduct.
  3. Mr Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers.
  4. Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards.

The defendant, Nationwide News—publisher of The Australian—argued successfully that imputations 2 and 3 did not arise in the articles and defended the imputations of unscrupulous business practices and significant non-compliance with quality standards using the justification (truth) defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the substantial truth of the unscrupulous conduct allegations, it had to convince the court under the civil burden of proof—the ‘balance of probabilities’—that there was ‘clear and cogent proof’. To do so, it drew upon a host of material obtained after the publication, including:

  • the oral testimony of a number of witnesses who had worked in the Community Training Initiatives (CTI) group
  • the oral testimony of three ‘students’ allegedly enrolled in CTI courses conducted by CTI companies
  • the contents of a series of audit reports, student interviews and file reviews (with associated documentation), carried out in 2015
  • a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies (para. 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider, Telstra.

Justice Forrest found that the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para. 111). He concluded with a concise summary of his 768-paragraph judgment:

(a)   Mr Charan was defamed in both the written and online versions of the article;

(b)  the article defamed him by conveying imputations that:

(1)       Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2)       Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations (paras 762–3).

Lessons for professional communicators

Several lessons arise from this rare successful use of the justification (substantial truth) defence by a publisher:

  • Considerable evidence can be needed to prove the truth of imputations stemming from an article, and sometimes this has to be located after publication and before trial, although as much evidence as possible should be available at the time of publication;
  • A publisher defendant can still win a case on the pleaded imputations even if there is a basic error in the story—in this case, the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided.)
  • Defamation cases can be enormously expensive. In this case, the 35-day trial was reported to have cost both sides more than $3.5 million in legal fees (Houston, Duke and Vedelago, 2018)

JGML6eCOVERorange

—-

Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

1 Comment

Filed under citizen journalism, defamation, free expression, journalism, media law, Media regulation

New edition of media law text available in early 2019

By MARK PEARSON

The sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) which I co-author with Mark Polden is well into production so it will be ready for the 2019 academic year.

We are making corrections and last minute updates to the first proofs of pages which were delivered for our scrutiny last week.

JGML6eCOVERorangeIn it we try to offer a mindful approach to assessing media law risks so practitioners can navigate legal and ethical barriers to publishing in mainstream and social media.

The sixth edition has been substantially revised to reflect recent developments in litigation, and the impact of national security laws and the rising gig economy where graduates might work in the news media, PR, new media start-ups, or as freelancers. It covers defamation, contempt, confidentiality, privacy, trespass, intellectual property, and ethical regulation, as well as the special challenges of commenting on criminal allegations and trials. Recent cases and examples from social media, journalism and public relations are used to illustrate key points and new developments.

One of the most exciting aspects of media law is its dynamic and ever-evolving nature. It is shaped by the changing face of communication careers, rapid developments in technologies and the social dynamics of politics, economics and culture.

In no period of human history have such changes come about as quickly as in these first two decades of the twenty-first century. We have updated this book to reflect the many changes that have occurred in media law and its interpretation since our last edition in 2015.

Our target audience has broadened with each edition as technologies such as the internet and social media have combined to transform journalism and its allied professional communication careers, including public relations, strategic communication, social media management, professional blogging and their many hybrids.

While the book is Australian in its orientation, media law is now international in its application as the internet and its resultant communication platforms leave Australian communicators and their employers subject to publishing laws across hundreds of jurisdictions internationally. The book tries to offer a taste of such risks faced by those working internationally, while still detailing the most important restrictions and defences in Australia’s nine jurisdictions at the national, state and territory levels.

Professional communicators are now working in the so-called ‘gig economy’. Their contract work might see them working as a freelance journalist on one assignment, as a media adviser in the next stage of their career, or perhaps as a new media entrepreneur hosting public comments on some innovative news platform. At a secondary level, they are also in a ‘gig economy’ because their outputs can involve many gigabytes of communication in an instant—presenting dangers for those ignorant of the laws and regulations that might apply.

The new edition retains the basic chapter structure of its predecessor, but the content within those chapters has been revised to include fresh and ground-breaking new cases, legislative amendments and important new laws and interpretations of some issues. Recent research has shown that media law is no longer a contest between large media organisations and the rich and famous of society. There is a much larger proportion of litigation between ordinary citizens over what they have said about each other on social media or on private websites. This is also reflected in the kinds of cases we profile.

Some highlights of important new content covered in the sixth edition include:

  • consideration of several recent High Court decisions impacting on free expression, publication and media law defences

  • legal implications of ‘fake’ or false news

  • a new table summarising the mindful approach to media law practice, mapping situations against approaches

  • major criminal cases challenging the boundaries of open justice, including those involving high profile church figures and celebrities

  • new case studies in navigating crime reporting with a focus on the Yahoo!7 story that prompted the discharge of a jury in a murder trial

  • significant developments in defamation law, including record damages awards to actor Rebel Wilson (reduced after appeal) and barrister Lloyd Rayney, and litigation involving actor Geoffrey Rush

  • important new research showing that many more defamation actions are being brought by private individuals over internet and social media publications, as distinct from celebrities suing the media

  • examination of publisher liability for the comments of third parties in the wake of several new cases, with some holding publishers responsible

  • an update on confidentiality of sources, including some new breach of confidence actions and some cases testing the limits of new shield laws for journalists

  • a review of the suite of new anti-terrorism laws impacting the media’s reporting of crime and national security and jeopardising the confidentiality of their sources

  • key new intellectual property cases that have shed light on the media’s use of material sourced from the internet and social media

  • significant cases showing the rapidly developing body of privacy law in the digital era

  • new material in the law of freelancing, public relations and new media entrepreneurship showing the growing legal risks and responsibilities at the business end of communication practice.

There is also an increased emphasis on the higher pressure and pace of the 24/7 news cycle across a range of media, exacerbating the risks to communicators and publishers through their own work and the contributions of third-party commenters on their social media feeds and sites.

Like earlier editions, the book aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

7 Comments

Filed under citizen journalism, contempt of court, free expression, journalism, local government, media ethics, media law, Media regulation, social media, sub judice