Tag Archives: Australian media

Ten steps for assessing your social media risk

By MARK PEARSON

Colleague Susan Grantham and I have just co-written a new book, Social Media Risk and the Law – A Guide for Global Communicators, published in September 2021 by Routledge.  

Social Media Risk and the Law.inddIt presents a stakeholder-oriented approach to risk minimisation designed to help social media managers and moderators anticipate, identify, address and balance these dangers and opportunities.

As part of its launch we have written a blog on the Routledge site about the importance of understanding how to engage with online and social media conversations. We recommend ten steps to best establish a general social media legal risk assessment that applies to your overall professional social media use and the way it interacts with your organization’s policies and processes. You can find our blog on the ten steps here. Enjoy!


If you are a communication professional wanting to study in this area, please consider enrolling in our online courses Social Media Law and Risk Management (postgraduate, fully online) or Media Law (undergraduate, available online or on campus).

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 2021 – the moral right of the author has been asserted.

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Filed under censorship, communication, defamation, First Amendment, free expression, intellectual property, Internet, journalism, journalism education, libel, media ethics, Media freedom, media law, media literacy, Media regulation, national security, open justice, Press freedom, Privacy, public relations, reflective practice, risk, risk management, social media, sub judice, suppression

How to stay out of court while using social media in business

By MARK PEARSON

Social media offers unlimited opportunities, but professional communicators need effective risk analysis strategies to assess potential legal hazards when posting or hosting content.

Screen Shot 2021-04-09 at 2.15.24 pmA stakeholder-oriented approach to risk minimisation can help social media managers and moderators anticipate, identify, address and balance these dangers and opportunities.

In our new book, colleague Susan Grantham and I have identified ten key questions an organisation might ask in establishing its level of social media legal exposure.

I review these ten questions and a further five specific questions for analysing specific social media legal risks in my latest blog in Griffith University’s Professional Learning Hub’s Thought Leadership series here.


If you are a communication professional wanting to study in this area, please consider enrolling in our online courses Social Media Law and Risk Management (postgraduate) or Media Law (undergraduate).

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 2021 – the moral right of the author has been asserted.

Leave a comment

Filed under censorship, communication, defamation, First Amendment, free expression, intellectual property, Internet, journalism, journalism education, libel, media ethics, Media freedom, media law, media literacy, Media regulation, national security, open justice, Press freedom, Privacy, public relations, reflective practice, risk, risk management, social media, sub judice, suppression

Social media law resources for professional communicators

By MARK PEARSON

Colleague Susan Grantham and I have written a new book – Social Media Risk and the Law: A Guide for Global Communicators – now in production for publication by Routledge later this year.

We offer professional communicators strategies for taking advantage of social media while also navigating the ethical, legal, and organisational risks that can lead to audience outrage, brand damage, expensive litigation and communication crises.

We take a global approach to risk and social media law, drawing on case studies from key international jurisdictions to explain and illustrate the basic principles.

Of course, an international approach means we need to direct readers to more detailed information about social media laws in their own jurisdictions. We encountered many resources for this purpose along the way, and offer this compilation as a starting point for social media managers wanting to learn more …

Social media law resources for professional communicators – a starting point

Here are some starting points for further information about the main social media law topics covered in our book – Grantham, S. and Pearson, M. (2021, forthcoming). Social Media Risk and the Law: A Guide for Global Communicators. Routledge: Oxon and NY. Topics covered include general information, news, human rights and free expression, cases, business and corporate laws, crime and justice, defamation, intellectual property and privacy/confidentiality. [Thanks to inforrm.org for some useful suggestions. Many more media law blogs and UK resources are listed there.]

International

General, miscellaneous and news

Guardian media law blog – https://www.theguardian.com/media/medialaw

International Forum for Responsible Media blog – https://inforrm.org/

Shear on Social Media Law – https://www.shearsocialmedia.com/media_opportunities

Human rights and free expression

Universal Declaration of Human Rights – https://www.un.org/en/universal-declaration-human-rights/

Article 19 – article19.org

Reporters Without Borders – https://rsf.org/en

IFEX – International Free Expression – https://ifex.org/

Index on Censorship – https://www.indexoncensorship.org/

Transparency International – https://www.transparency.org/en

Media Defence – https://www.mediadefence.org/about/

Cases and news

World Legal Information Institute – http://www.worldlii.org/countries.html

Business laws and regulators

International Consumer Protection and Enforcement Network (ICPEN) https://icpen.org/

Consumers International – https://www.consumersinternational.org/

International consumer protection agencies – https://www.ftc.gov/policy/international/competition-consumer-protection-authorities-worldwide

List of securities regulators internationally – https://www.iosco.org/about/?subsection=membership&memid=1

Crime and justice

UN Global Programme on Cybercrime – https://www.unodc.org/unodc/en/cybercrime/global-programme-cybercrime.html

Defamation

International Press Institute – International Standards on Criminal and Civil Defamation Laws – http://legaldb.freemedia.at/international-standards/

Intellectual property

World Intellectual Property Organisation – https://www.wipo.int/portal/en/index.html

Directory of intellectual property offices – https://www.wipo.int/directory/en/urls.jsp

 Privacy and confidentiality

Global Privacy Enforcement Network – https://www.privacyenforcement.net/

International Association of Privacy Professionals (IAPP) – https://iapp.org/

Africa

General and miscellaneous

Collaboration on International ICT Policy in East and Southern Africa (CIPESA) – https://cipesa.org/

Human rights and free expression

African Freedom of Expression Exchange (AFEX) – https://www.africafex.org/

African Union – Democracy, Law and Human Rights – https://au.int/en/democracy-law-human-rights

Freedom of Expression Institute – http://www.fxi.org.za/component/option,com_frontpage/Itemid,36/

Case law databases

African case law databases – http://www.worldlii.org/cgi-bin/gen_region.pl?region=250

African Legal Information Institute – https://africanlii.org/

Veritas Zimbabwe – http://www.veritaszim.net/

Business laws and regulators

National Consumer Commission (South Africa) – https://www.thencc.gov.za/

Financial Sector Conduct Authority – https://www.fsca.co.za/

Crime and justice

Institute for Security Studies – https://issafrica.org/

International Justice Resource Centre – Africa – https://ijrcenter.org/regional/african/

Defamation

INFORRM – South Africa – https://inforrm.org/category/south-africa/

Intellectual property

Department of Deeds Companies and Intellectual Property (Zimbabwe) – http://www.dcip.gov.zw/

Privacy and confidentiality

Data Protection Africa – https://dataprotection.africa/

Asia-Pacific

General and miscellaneous

Asian Media Information and Communication Centre (AMIC) – https://amic.asia/

Pacific Media Watch – https://pmc.aut.ac.nz/profile/pacific-media-watch

Asian Law Network Blog – https://learn.asialawnetwork.com/

Law and Other Things blog (India) – https://lawandotherthings.com/

Human rights and free expression

Free Speech in China – http://blog.feichangdao.com/

Case law databases

Asian case law (WorldLII) – http://www.worldlii.org/cgi-bin/gen_region.pl?region=2647

Pacific Islands Legal Information Institute – http://www.paclii.org/index.shtml

Business laws and regulators

The ASEAN Committee on Consumer Protection (ACCP) – https://aseanconsumer.org/

Singapore Competition and Consumer Commission – https://www.cccs.gov.sg/

Asia Law Network Blog – Consumer Law – https://learn.asialawnetwork.com/cat/personal/consumer-law/

Crime and justice

International Justice Resource Centre – Asia – https://ijrcenter.org/regional/asia/

Asia Law Network Blog – Criminal and Litigation – https://learn.asialawnetwork.com/cat/personal/criminal-and-litigation/

Netmission.asia – https://netmission.asia/

Defamation

Asia Law Network Blog – Defamation – https://learn.asialawnetwork.com/cat/personal/defamation/

Slater and Gordon – Destination Defamation, South-East Asia – https://www.slatergordon.com.au/blog/business-law/destination-defamation-south-east-asia

Intellectual property

Intellectual Property Office of Singapore – http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home

Privacy and confidentiality

Asia Pacific Data Protection and Cyber Security Guide 2020 – https://iapp.org/resources/article/311636/

Australia

General and miscellaneous

Communications and Media Law Association – https://www.camla.org.au/

Gazette of Law and Journalism – https://glj.com.au/

Professor Mark Pearson’s blog – www.journlaw.com

Human rights and free expression

Australian Human Rights Commission – Social Media – https://humanrights.gov.au/quick-guide/12098

MEAA media freedom reports – https://www.meaa.org/category/mediaroom/reports/

Case law databases

Australasian Legal Information Institute (AustLII) – http://www.austlii.edu.au/

Federal Register of Legislation – https://www.legislation.gov.au/

Business laws and regulators

Australian Competition and Consumer Commission – Social Media – https://www.accc.gov.au/business/advertising-promoting-your-business/social-media

Australian Communications and Media Authority – https://www.acma.gov.au/

Australian Securities and Investments Commission – https://asic.gov.au/

Law Society of NSW – Guidelines on Social Media Policies – https://www.lawsociety.com.au/resources/resources/my-practice-area/legal-technology/guidelines-social-media

Fair Work Commission – https://www.fwc.gov.au/

 Crime and justice

High Court of Australia – www.hcourt.gov.au

Australian Attorney-General’s Department – Courts – https://www.ag.gov.au/legal-system/courts

The Australian Constitution – https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/

Defamation

Defamation Watch (Justin Castelan) – http://defamationwatch.com.au/about/

Intellectual property

Copyright Office – https://www.communications.gov.au/what-we-do/copyright

Copyright Agency – https://www.copyright.com.au/

Australian Copyright Council – https://www.copyright.org.au/

IP Australia – https://www.ipaustralia.gov.au/

Privacy and confidentiality

Office of the Australian Information Commissioner – Social Media Privacy – https://www.oaic.gov.au/privacy/your-privacy-rights/social-media-and-online-privacy/

Australian Privacy Foundation – https://privacy.org.au/

Canada

General and miscellaneous

Department of Justice – Canada’s System of Justice – https://www.justice.gc.ca/eng/csj-sjc/index.html

Canadian Bar Association – https://www.cba.org/Home

Legal Line Canada – https://www.legalline.ca/

Human rights and free expression

Canadian Charter of Rights and Freedoms – https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/index.html

Canadian Journalists for Free Expression – https://www.cjfe.org/

Case law databases

Canadian case law (WorldLII) – http://www.worldlii.org/catalog/51528.html

Supreme Court of Canada – https://www.scc-csc.ca/case-dossier/index-eng.aspx

Canadian Media Lawyers Association – https://canadianmedialawyers.com/

Business laws and regulators

Canadian Advertising and Marketing Law – http://www.canadianadvertisinglaw.com/

Office of Consumer Affairs – http://consumer.ic.gc.ca/eic/site/oca-bc.nsf/eng/home

Canadian Bar Association – Social Media Policies in the Workplace – https://www.cba.org/Publications-Resources/CBA-Practice-Link/2015/2014/Social-media-policies-in-the-workplace-What-works

Canadian Securities Administrators – https://www.securities-administrators.ca/

Crime and justice

Supreme Court of Canada – https://www.scc-csc.ca/home-accueil/index-eng.aspx

Media Smarts – Online Hate and Canadian Law – https://mediasmarts.ca/digital-media-literacy/digital-issues/online-hate/online-hate-canadian-law

The Court.ca – blog on Canadian Supreme Court – http://www.thecourt.ca/

Defamation

Mondaq Canada – A Primer on Defamation – https://www.mondaq.com/canada/libel-defamation/725558/a-primer-on-defamation

Intellectual property

Canadian Intellectual Property Office – http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home

Privacy and confidentiality

Office of the Privacy Commissioner of Canada – https://www.priv.gc.ca/en/

Privacy Canada – https://privacycanada.net/

David T.S. Fraser’s Privacy Law Resources – http://privacylawyer.ca/

Europe (see below for UK)

General and miscellaneous

Droit de technologies (France) – https://cours-de-droit.net/droit-des-ntic-droit-des-nouvelles-technologies-de-l-information-et-de-a121602690/

Human rights and free expression

ECHR blog – https://www.echrblog.com/

The Irish for Rights – http://www.cearta.ie/

Case law databases

Eastern Europe case law (WorldLII) – http://www.worldlii.org/cgi-bin/gen_region.pl?region=2210

Western Europe case law (WorldLII) – http://www.worldlii.org/cgi-bin/gen_region.pl?region=251

Business laws and regulators

European Consumer Centre Network (ECC-Net) – https://ec.europa.eu/info/live-work-travel-eu/consumer-rights-and-complaints/resolve-your-consumer-complaint/european-consumer-centres-network-ecc-net_en

Citizens Advice – https://www.citizensadvice.org.uk/

Crime and justice

European Justice – Courts – https://e-justice.europa.eu/content_eu_courts-15-en.do

Court of Justice of the European Union – https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en

Defamation

Council of Europe – Defamation – https://www.coe.int/en/web/freedom-expression/defamation

Czech Defamation Law – https://czechdefamationlaw.wordpress.com/

Intellectual property

European Commission – Intellectual Property Rights – https://ec.europa.eu/info/business-economy-euro/doing-business-eu/intellectual-property-rights_en

Manual on European Defamation Law – Media Defence – https://www.mediadefence.org/resources/manual-on-european-defamation-law/

Privacy and confidentiality

General Data Protection Regulation – EU – https://gdpr.eu/

Europe Data Protection Digest – https://iapp.org/news/europe-data-protection-digest/

New Zealand

General and miscellaneous

Ministry of Justice – Harmful digital communications – https://www.justice.govt.nz/courts/civil/harmful-digital-communications/

NZ Law Society – Social media’s legal criteria – https://www.lawsociety.org.nz/news/lawtalk/issue-812/social-medias-legal-criteria/

Human rights and free expression

NZ Government – Human rights in NZ – https://www.govt.nz/browse/law-crime-and-justice/human-rights-in-nz/

Human Rights Commission – https://www.hrc.co.nz/

New Zealand Bill of Rights Act 1990 – https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html

Case law databases

New Zealand Legislation – https://www.legislation.govt.nz/

New Zealand Legal Information Institute Databases – http://www.nzlii.org/databases.html

Courts of NZ Judgments – https://www.courtsofnz.govt.nz/judgments

Business laws and regulators

Commerce Commission – https://comcom.govt.nz/

Consumer Protection – Online safety laws and rules – https://www.consumerprotection.govt.nz/general-help/consumer-laws/online-safety-laws-and-rules/

Crime and justice

Ministry of Justice – Courts – https://www.justice.govt.nz/courts/

Courts of NZ – https://www.courtsofnz.govt.nz/

Defamation

Defamation Update NZ – https://defamationupdate.co.nz/

Intellectual property

NZ Intellectual Property Office – https://www.iponz.govt.nz/

Privacy and confidentiality

Office of the Privacy Commissioner – https://www.privacy.org.nz/

Ministry of Justice – Key Initiatives – Privacy – https://www.justice.govt.nz/justice-sector-policy/key-initiatives/privacy/

Privacy Foundation NZ – https://www.privacyfoundation.nz/

South America

General and miscellaneous

Marco Civil Law of the Internet in Brazil – https://www.cgi.br/pagina/marco-civil-law-of-the-internet-in-brazil/180

Human rights and free expression

American Convention on Human Rights – Article 13 – http://www.oas.org/en/iachr/expression/showarticle.asp?artID=25&lID=1

Article 19 – Brazil and South America regional office – https://www.article19.org/regional-office/brazil-and-south-america/

Case law databases

Legal Information Institute – World legal materials from South America – https://www.law.cornell.edu/world/samerica

Business laws and regulators

OECD – Corporate Governance in Latin America – https://www.oecd.org/daf/ca/corporategovernanceinlatinamerica.htm

Crime and justice

Legal Information Institute – World legal materials from South America – https://www.law.cornell.edu/world/samerica

Wilson Center – The Brazilian Judicial System – https://www.wilsoncenter.org/publication/the-brazilian-judicial-system

Defamation

Committee to Protect Journalists – Criminal Defamation Laws in South America – https://cpj.org/reports/2016/03/south-america/

Intellectual property

BizLatin Hub – Overview – Intellectual Property Regulations in Latin America – https://www.bizlatinhub.com/overview-intellectual-property-regulations-latin-america/

Intellectual Property Magazine – South America – https://www.intellectualpropertymagazine.com/world/south_america/

Privacy and confidentiality

Bloomberg BNA – Privacy Law in Latin America and the Caribbean (Cynthia Rich) – https://iapp.org/media/pdf/resource_center/Privacy_Laws_Latin_America.pdf

United Kingdom

General and miscellaneous

International Forum for Responsible Media blog – https://inforrm.org/

Brett Wilson Media Law blog – http://www.brettwilson.co.uk/blog/category/media-law/

Information Law and Policy Centre – https://infolawcentre.blogs.sas.ac.uk/

Human rights and free expression

Transparency Project – http://www.transparencyproject.org.uk/blog/

Case law databases

British and Irish Legal Information Institute (BAILII) – https://www.bailii.org/

Business laws and regulators

Competition and Markets Authority – https://www.gov.uk/government/organisations/competition-and-markets-authority

ACAS – Unfair Dismissal – https://www.acas.org.uk/dismissals/unfair-dismissal

Financial Conduct Authority – https://www.fca.org.uk/

Crime and justice

Courts and Tribunals Judiciary – Structure of the courts and tribunal system – https://www.judiciary.uk/about-the-judiciary/the-justice-system/court-structure/

The Supreme Court – https://www.supremecourt.uk/

Defamation

BBC News – Defamation cases – https://www.bbc.co.uk/news/topics/cxwke9d43kkt/defamation-cases

Scandalous blog – https://www.fieldfisher.com/en/services/dispute-resolution/defamation-and-privacy/defamation-blog

Carruthers Law – Defamation definitions – https://www.carruthers-law.co.uk/our-services/defamation/defamation-definitions/

Intellectual property

UK Intellectual Property Office – http://www.ipo.gov.uk/

UK Copyright Service – https://copyrightservice.co.uk/

Privacy and confidentiality

Gov.UK – Data Protection – https://www.gov.uk/data-protection

Information Commissioner’s Office – https://ico.org.uk/

United States

General and miscellaneous

Social Media Law Bulletin – https://www.socialmedialawbulletin.com/

HG.org Law and Social Media – https://www.hg.org/legal-articles/the-law-and-social-media-31695

Technology and Marketing Law Blog – Eric Goldman – https://blog.ericgoldman.org/

Human rights and free expression

Center for Internet and Society (Stanford University) – http://cyberlaw.stanford.edu/

Committee to Protect Journalists – cpj.org

US Courts – What does free speech mean? – https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does

Freedom Forum Institute, First Amendment Center – https://www.freedomforuminstitute.org/first-amendment-center/

Case law databases

US case law (WorldLII) – http://www.worldlii.org/us/

Justia US law – https://law.justia.com/

Legal Information Institute – Cornell University – https://www.law.cornell.edu/

Internet cases – Evan Law blog – http://evan.law/blog/

Business laws and regulators

Federal Trade Commission – https://www.ftc.gov/

US Department of Health and Human Services – Social media policies – https://www.hhs.gov/web/social-media/policies/index.html

US State Consumer Protection Offices – https://www.usa.gov/state-consumer

Crime and justice

Supreme Court of the United States – https://www.supremecourt.gov/

United States Courts – https://www.uscourts.gov/

Cybersecurity and Infrastructure Security Agency – https://www.cisa.gov/cybersecurity

Homeland Security – Cybersecurity – https://www.dhs.gov/topic/cybersecurity

Defamation

Legal Information Institute – Defamation – https://www.law.cornell.edu/wex/defamation

Freedom Forum Institute – Quick guide to libel law – https://www.freedomforuminstitute.org/first-amendment-center/primers/libellaw/

Intellectual property

US Copyright Office – https://www.copyright.gov/

US Patent and Trademark Office – https://www.uspto.gov/

Privacy and confidentiality

Data protection law – HG.org – https://www.hg.org/data-protection.html

US Department of State – Privacy Office – https://www.state.gov/bureaus-offices/under-secretary-for-management/bureau-of-administration/privacy-office/


If you are a communication professional wanting to study in this area, please consider enrolling in our online courses Social Media Law and Risk Management (postgraduate) or Media Law (undergraduate).

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 and Susan Grantham 2021 – the moral right of the author has been asserted.

Leave a comment

Filed under censorship, communication, defamation, First Amendment, free expression, intellectual property, Internet, journalism, journalism education, libel, media ethics, Media freedom, media law, media literacy, Media regulation, national security, open justice, Press freedom, Privacy, public relations, reflective practice, risk, risk management, social media, sub judice, suppression

Legal risks of Facebook comments

By MARK PEARSON

Social media offers countless benefits to organisations, but an emerging legal risk is prompting many communication professionals to reassess their exposure.

Several superior court cases in Australia and internationally have decided that hosts of Facebook pages must bear responsibility for defamatory comments posted to their sites by other people.

The latest – involving Australian indigenous activist and former juvenile detainee Dylan Voller – has left major news organisations potentially liable in his defamation action over comments posted in response to articles about him on their corporate Facebook sites.

For the full article on this topic, please go to the Griffith University Thought Leadership series of articles.

If you are a communication professional wanting to study in this area, please consider enrolling in our online courses Social Media Law and Risk Management (postgraduate) or Media Law (undergraduate).

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 2021 – the moral right of the author has been asserted.

Leave a comment

Filed under free expression, journalism, journalism education, libel, Media freedom, media law, Media regulation, Press freedom, Privacy, reflective practice, social media

Our chapter in Comparative Privacy and Defamation

By MARK PEARSON

Colleague Virginia Leighton-Jackson and I teamed up to write a chapter on Australian defamation and privacy law in the newly released book Comparative Privacy and Defamation from Edward Elgar Publishing. 

Comparative Privacy and DefamationThe book [ ISBN: 978 1 78897 058 7; 480pp ] forms part of the Research Handbooks in Comparative Law series and is edited by András Koltay (Professor of Law, National University of Public Service and Pázmány Péter Catholic University, Hungary) and Paul Wragg (Associate Professor of Law, University of Leeds).
It provides comparative analysis that examines both Western and non-Western legal systems, and offers commentary on issues of theory and doctrine, including the impacts of privacy restrictions, defamation reforms and new technologies on the law.
Our chapter (pp 381-398) is titled ‘Privacy and defamation in Australia – a post-colonial tango’.
It considers defamation and privacy law in its uniquely Australian context, where statutory and case law have evolved without explicit protections of free expression in its Constitution.
After offering an Australian constitutional, legislative and common law context, our chapter surveys the laws of defamation and privacy since English colonial settlement in the late eighteenth century.
Emphasis in the discussion of defamation is upon its relationship with privacy through various statutory iterations of the truth/justification defence which has at times featured privacy protections.
The focus of the survey of privacy law is the story of reform momentum over four decades towards an actionable tort for the serious invasion of privacy, which remains unfulfilled.
The chapter explains how this has impacted on celebrity plaintiffs’ preference for defamation when the media has scrutinised their private lives.
The case law and statutory and regulatory dimensions of both defamation and privacy are covered, with the chapter comparing and contrasting Australian defamation and privacy law with some key aspects of that jurisprudence in the United States (US) and the United Kingdom (UK).

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 2020 – the moral right of the author has been asserted.

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Filed under free expression, journalism, journalism education, libel, Media freedom, media law, Media regulation, Press freedom, Privacy, reflective practice, social media

Five media law essentials for journalists, publishers and students #MLGriff #auspol #medialaw #auslaw

By MARK PEARSON

Much has happened in the field of media and social media law, even since the sixth edition of our Journalist’s Guide to Media Law (Pearson & Polden) was published in 2019.

As media law students start their academic year at Australian institutions, this calls for a quick update of the five most important risks facing journalists in the digital era.

  1. Defamation: Reforms to Australian defamation laws appear imminent, but the basic principles will remain the same. Pause before publishing anything criticising or ridiculing anyone and consider your language, evidence base, intended meaning, motivation and working knowledge of the defences available to you. If in doubt, seek legal advice. If you can’t afford that advice, then modify the material or leave it out – unless you have considerable defamation insurance. Society needs robust journalism, but remember it can also need deep pockets to defend it. The 2019 case of Voller v. Nationwide News underscores the decision in Allergy Pathway almost a decade ago: publishers may be responsible for the comments of others on their social media sites, particularly when posting articles on inflammatory topics or people. Ashurst law firm has produced a useful flow-chart to explain the steps a publisher should take to minimise the risks of liability for comments by third parties on their social media sites.
  2. High profile trials: Regardless of the fate of the 30 journalists and news organisations still facing contempt action over their reporting of last year’s trial of Cardinal George Pell, the episode reinforces the dangers facing those reporting and commenting upon major court matters. As we show in our crime reporting time zones flowchart in our text, a criminal case involves an interplay of risks including defamation, contempt and other restrictions. Courts and prosecutors take suppression orders seriously, so it is wise to pause to reflect and to take legal advice when navigating this territory.
  3. National security risks: Many of the 70-plus anti-terror laws passed in Australia since 2001 impact on journalists, with jail terms a real risk for those reporting on special intelligence operations, ASIO, suppressed trials, and any matter using insider government sources, along with a host of other risks as identified by Australia’s Right To Know’s submission to the Parliamentary Joint Committee on Intelligence and Security in 2019. The laws present a minefield for journalists covering national security, defence, immigration and related topics. It is a specialist field requiring a close familiarity with the numerous laws.
  4. Breach of confidence: Journalists are reluctant to reveal their own confidential sources, but they are keen to tell the secrets of others – particularly if matters of public interest are being covered up. Actions for breach of confidence allow individuals and corporations to seek injunctions to prevent their dirty linen being aired. Further, the Australian Law Reform Commission has recommended a new action of serious invasion of privacy and the future development of the action for breach of confidence with compensation for emotional distress. The Parliament has not yet embraced the proposal but judge-made law on privacy and confidentiality remains a possibility.
  5. Compromising sources: The journalist-source relationship is one where the journalist’s ethical obligation to preserve confidentiality is threatened by a number of laws. Most Australian jurisdictions now have shield laws giving judges a discretion to excuse a journalist from revealing a source after weighing up various public interest factors. This is far from a watertight protection and journalists face potential jail terms for ‘disobedience contempt’ for refusing a court order to reveal a source or hand over materials. Further, as two ABC journalists and News Corporation’s Annika Smethurst discovered last year, journalists can also face criminal charges for just handling or publishing confidential or classified materials given to them by whistleblowers, even if the matter relates to an important matter of public interest. The validity of the warrants to raid them over ‘dishonestly receiving stolen property’ (Commonwealth documents) was upheld by a Federal Court earlier this year, despite a range of arguments including shield laws and the constitutional implied freedom to communicate on political matters. Such action, combined with the far-reaching powers of authorities to access communications metadata and the proliferation of public CCTV footage presents huge challenges to journalists trying to keep their whistleblower sources secret. It is one thing to promise confidentiality to a source, but quite another to be able to honour that promise given modern surveillance technologies and the legal reach of agencies.

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 2020 – the moral right of the author has been asserted.

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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.
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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.

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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.

 

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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

 

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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.

 

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