Tag Archives: confidentiality

An argument for more open courts in the digital era

By MARK PEARSON

My submission in response to the Supreme Court of Queensland’s comprehensive issues paper Electronic Publication of Court Proceedings argues that the advent of digital technologies means the courts should be more open to the public than ever before.

A committee of judges of the Supreme Court released the issues paper in June, seeking views on the potential for the audio-visual recording of court proceedings and possible livestreaming or broadcast of all or part of the proceedings.

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Whatever the outcome of the process, the report stands as an excellent contribution to the literature in the field and a useful resource for students and academics for its comparative and comprehensive coverage of the topic and for the currency of the material.

It backgrounded the fundamental principles of both open justice and the right to a fair trial before considering the potential impact of electronic publication on various personnel, particularly jurors, witnesses and judges. It reported upon international and interstate developments in the field and discussed recent experiences in both Queensland and other jurisdictions where some level of recording or publication has been permitted.

The ultimate outcome of the process will inevitably also be influenced by both human and technical resources available for recording, editing and courtroom management of the logistics.

My own submission was relatively brief and addressed a select few of the issues and suggested one approach for a way forward fully embracing open justice in the digital era.

  1. Changing notion of open justice for the public and the media

The issues paper addressed the principle of open justice  and quite rightly highlights the importance of proceedings being conducted in open court. It portrayed the media’s right to report upon proceedings as “an adjunct of the right to attend court”, using the oft-quoted expression of the media being the “eyes and the ears” of the general public in the courtroom.

While this traditional approach holds true, the advent of the Internet and social media mean that there are now many more “eyes and ears” of the general public witnessing and relaying information about court processes than there were in days of yore. Ordinary citizens, bloggers and ‘citizen journalists’ offer their own versions of courtroom events via microblogs on Facebook and Twitter as well as through extended blogging and commentary media.

Thus I suggested there were two key questions that could help shape the court’s deliberations:

  1. Does modern technology provide a cheap and simple mechanism for streaming ALL court rooms via a single website or interface? and
  2. Should the mainstream news media be privileged in certain situations by being allowed to film in the courtroom and broadcast sections of such footage?

The first question turned the tables on much of the report which seemed preoccupied with reasons for restricting access and publication. My question suggested the default situation should be to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically. It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location. The final point of my submission suggested a system for making this possible. My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.

My second question positions the mainstream media as a select group with special commercial and public interest needs for providing their audiences with edited footage in cases with a high level of newsworthiness. As explained below, such a level of access can be addressed on a case by case basis and the presiding judge could indeed retain the discretion on the level of access allowed and the conditions of its use.

  1. Concerns over selective reportage

On several occasions the paper expresses concern over the potential for the media’s highly selective use of camera angles, audio and sections of proceedings. I suggest this is the very nature of the news media and the government, the executive and the judiciary have voiced concern at this phenomenon in the centuries since the media first took on the role as the Fourth Estate in a democracy. It is the price for media freedom in systems where editors and news directors (rather than politicians and judges) decide upon the newsworthiness of a story. There are already numerous devices available to the courts to address the potential for sensationalised or inaccurate reporting in the domain of contempt of court (in its sub judice, disobedience and scandalising iterations) and via the loss of the fair and accurate reporting defence to resulting defamation actions. Further, media outlets need to be aware that such privileges might be withdrawn for selected outlets if they are not accompanied by the due level of responsibility detailed by the presiding judge in the granting of such permissions.

  1. Production standards required for mainstream media

While all mainstream media would prefer the highest quality of recorded material, all news media now broadcast both online and on radio and television much more citizen-generated content which is sometimes of the poorest amateur quality. The news priority of the material now takes precedence over the production quality of the audio and vision. Highly blurred and pixellated material now finds its way into even the most expensively produced programs if that is the only actuality available to help tell a compelling story. This means that if the general livestreaming option is the only one available to the media, and if they are allowed to record and rebroadcast it, then they will do so if the material is newsworthy enough.

  1. A relatively cheap and simple system of implementation

This preliminary discussion backgrounds my very simple proposal which I believe would address both the need for open justice and the concerns over the potential for interference with the administration of justice and the opportunity for accused persons to get a fair trial. It is as follows:

  1. Install inexpensive webcams in all courtrooms showing only the judge in the frame.
  2. Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
  3. Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
  4. Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
  5. Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
  6. Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.

In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).

It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.

© Mark Pearson 2015

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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How reliable are world press freedom indices?

By MARK PEARSON

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.

© Mark Pearson 2015

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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Drones and media law and ethics in Australia – our #ANZCA2015 paper

By MARK PEARSON

Postgraduate student Sam Worboys produced some excellent work for his research project looking at the state of news media use of drones in Australia and the regulatory, legal and ethical implications. I have worked with Sam to develop this into a conference presentation at the Australia and New Zealand Communication Association (ANZCA) conference in Queenstown, New Zealand, on July 8.

Image credit: Parrot AR Drone 2.0 – Wikimedia image

Image credit: Parrot AR Drone 2.0 – Wikimedia image

Abstract

‘Emerging dilemmas in the law and ethics of media use of ‘drones’ (unmanned aerial vehicles)’

Sam Worboys and Mark Pearson

Use of ‘drones’ [also known as Unmanned Aerial Vehicles (UAVs), ‘Unmanned Aircraft Systems’ (UASs) or ‘Remotely Piloted Aircraft’ (RPA) ] by the news media has prompted a host of ethical, legal and regulatory dilemmas internationally. While they have clear utility as newsgathering devices, their operation triggers ethical dilemmas of public safety and privacy, legal issues of trespass, nuisance, privacy and confidentiality, and regulatory challenges for aviation authorities tasked with defining and policing their safe use in civil airspace. This paper surveys international developments in the journalistic use of drones and categorises the key ethical, legal and regulatory considerations before applying them to the Australian legal and regulatory context and mapping the prospects for news media use of drones in Australia. It reports on the emergence of a ‘two-tier’ regulatory system where hobbyists and citizen journalists can effectively fly their drones ‘under the regulatory radar’ and gather footage during unfolding news events where regulations preclude media outlets and other commercial operators from drone operation. The paper discusses the resulting legal and ethical questions over whether journalists should take advantage of this loophole by appropriating – and taking commercial advantage of – the footage captured by citizen journalists under the pretext of unrestricted non-commercial use.

An expanded and revised version of the paper will be published in an upcoming edition of Australian Journalism Review.

© Mark Pearson 2015

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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Watergate revisited: Is it fundamentally unethical to guarantee a source confidentiality?

A shorter version was published 22-6-15 in The Conversation as:

How surveillance is wrecking journalist-source confidentiality

By MARK PEARSON

Washington Post reporter Bob Woodward famously used cloak and dagger methods to communicate with his secret source – “Deep Throat” – in the 1972 Watergate investigation which led to the Nixon administration’s downfall.

Woodward said he would move a pot plant on his balcony to signal to his confidential, high-level source that he wanted a meeting. If Deep Throat wanted a meeting, he would draw a clock face on page 20 of Woodward’s newspaper to indicate the time they should rendezvous in a disused underground car park.

These very 20th-century means of communication helped preserve the iconic source’s anonymity – until former FBI deputy director Mark Felt outed himself more than 30 years later.

It was significant, then, that Washington was the venue for the release of preliminary findings of a study by the University of Wollongong’s Julie Posetti into the threats to source confidentiality in a new era of sophisticated surveillance technologies and powers.

Leaving a trail

The study poses worrying questions about whether sources can ever be sure their communications with journalists remain confidential no matter how determined a reporter might be to protect them.

Journalists have a sacrosanct relationship with their confidential sources. It is enshrined in ethical codes internationally with some qualified protection under “shield laws” in Australia. Journalists don’t “rat” on their sources. In recent decades in Australia, three journalists have been jailed for refusing to reveal their sources in court – Tony Barrass, Joe Budd and Chris Nicholls.

Four decades on, in a digital era of surveillance and data storage, Watergate remains a useful yardstick for assessing the value of source confidentiality.

We can only speculate as to whether Woodward would have been able to preserve Deep Throat’s confidentiality with the surveillance tools and legislative reach agencies have at their disposal today. Some have argued that modern journalists need to return to those analogue means of communicating if they are to have a hope of protecting their sources, particularly when investigating national security, high-level corruption and matters embarrassing to governments.

Recently departed Guardian editor-in-chief Alan Rusbridger said:

I know investigative journalism happened before the invention of the phone, so I think maybe literally we’re going back to that age, when the only safe thing is face-to-face contact, brown envelopes, meetings in parks.

Associate editor at The Australian Cameron Stewart told me that investigative journalists had to leave their smartphones at the office when heading out to meet confidential sources. The 1970s Watergate methods were again becoming necessary.

However, following Woodward’s approach with Deep Throat would not, on its own, be enough in the digital surveillance era. CCTV footage and geolocation technology on mobile devices carried by either party could potentially link the journalist with their source.

As security expert Bruce Schneier explained, security agencies can also use device inactivity in a process of elimination to identify a source.

If they can account for the location of nine possible government sources’ phones over a set period – but the tenth has either been turned off for a long period or left at home – then that employee becomes the prime whistleblowing suspect. Despite their limitations, such primitive contact methods might make a one-off leak harder to trace than it would if there were email records and stored telco and internet provider metadata such as phone tower locations, call durations and IP addresses. These are all easily accessible under Australia’s new data retention laws. Stewart explained:

The thing I’ve got to my ear now [a smartphone] is your biggest enemy in every single sense, as the Snowden revelations have shown. The ability of authorities to track movements of journalists is really of great concern as far as protecting sources goes.

Veteran investigative journalist Ross Coulthart offered detailed insights into the detectable trail of communications between reporters and sources last month. He explained a major problem was the “first contact” from a whistleblower with a story.

If they contact me by phone or email now, though, I now warn them they’re compromised.

Coulthart also explained his use of encrypted communications and secure platforms in his efforts to disguise his contacts with sources or to expunge records of his contacts with sources. Guardian Australia’s Paul Farrell recently ran a masterclass on source and data protection for journalists teaching them about surveillance, encryption and freedom of information laws.

Paying the price

However, recent research by Curtin University associate professor Joseph Fernandez has shed light on how ignorant many journalists are of the risks of compromising their source confidentiality and even of whether recently legislated shield laws offer them any protection in the states or territories where they work. His survey of 154 journalists found that while almost all journalists expressed unreserved commitment to the confidentiality of their sources, three quarters were uncertain about the extent to which shield laws might cover them and almost half expressed no alarm at official surveillance of their communications. The price of a detected link can be high and many whistleblowers have paid the price of their liberty or careers.

They include the most infamous – Chelsea Manning – serving what is likely to be the rest of her life in a US military prison for her releases of information to Wikileaks.

In Australia, the list of discovered sources include former customs officer Allan Kessing, Victorian detective Simon Artz and design college part-timer Freya Newman.

If journalists are to have any hope of protecting confidential sources into the future it will require a multi-faceted approach along the lines recommended by Posetti in her UNESCO study.

It proposes an ambitious 11-point framework for enhancing free expression, strengthening legislative and policy shields for journalists and whistleblowers, and training reporters.

In 1989 Janet Malcolm used her long-form article ‘The Journalist and the Murderer’ in the New Yorker to question the ethics of the journalistic interview. She wrote:

“Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance or loneliness, gaining their trust and betraying them without remorse.”

A quarter of a century later, the fundamental question facing journalists is whether the very act of promising confidentiality to a source (particularly a government whistleblower) is unethical, given the likelihood that agencies have the power, the will and the technology to detect and identify sources.

A 2015 Deep Throat would be unlikely to survive a week without detection, regardless of whether a journalist has promised them and even if a shield law allows the reporter to refuse to identify the source in court.

Sadly, despite such undertakings, the trail of metadata would likely produce enough evidence to nail the confidential source, further damaging the public’s right to know.

An abridged version of this article was originally published on The Conversation.

Read the original article.

© Mark Pearson 2015

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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Journalists, whistleblowers and the law – the end of the era of the confidential Watergate-style source? My #AusCERT2015 address

By MARK PEARSON

My speech to the AusCERT2015 conference on the Gold Coast, Queensland, on Friday June 5.

Abstract

The practicalities of protecting confidential sources are a huge challenge for journalists in the modern era. New shield laws excusing journalists revealing the identity of a whistleblower in court seem pointless if litigants or government agencies have already been able to detect them using the surveillance regime that is ubiquitous in modern society. It prompts the serious questions: Could the Watergate investigation by the Washington Post three decades ago happen in the modern era? How long would Carl Bernstein and Bob Woodward’s White House source ‘Deep Throat’ remain anonymous today? This presentation considers the toll of the era of geo-locational tracking, phone and social media e-records, CCTV in private and public spaces, email logs, surveillance technologies and drones on journalists and their sources. It reviews the key laws in the field of confidentiality, privacy and national security to assess the level of whistleblower and journalist protection they really offer.

Audio available here:

© Mark Pearson 2015

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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Forthcoming Pacific Journalism Review covers political journalism in the region

By MARK PEARSON

The May special edition of Pacific Journalism Review will include revised and refereed papers from the PJR2014 conference held in Auckland last November.

I was honoured to collaborate with Associate Professor Joseph Fernandez (@DrJM_Fernandez) from Curtin University on two of the articles in this forthcoming edition –  one on censorship in Australia and the reflection of this in world press freedom indices; and the other on recent developments in shield laws in Australia and on journalists’ attitudes to them and their confidential sources.

Interested? Here are the abstracts and citation details for both articles. 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.

Australia has ranked among the top 30 nations in recent world press freedom surveys published by Reporters Without Borders (RSF) and Freedom House and is broadly regarded as a substantially free Western liberal democracy. This article considers how the methodologies of those organisations assess the impact upon media freedom of a range of recent decisions and actions by Australian politicians, judges and government agencies. There is considerable evidence of a shift towards official secrecy and suppression of information flow. However, according to this analysis such developments are unlikely to impact significantly on Australia’s international ranking in media freedom indices. This article uses the methodologies of RSF and Freedom House to explore whether the international free expression organisations’ criteria are justifiably weighted towards violence against journalists, their imprisonment and formal anti-press laws and might allow for a nuanced comparison of other evidence of constraints on the news media in developed democracies.


Fernandez, J. M., and Pearson, M. (2015). Shield laws in Australia: Legal and ethical implications for journalists and their confidential sources. Pacific Journalism Review, 21(1): 61-78.

This article examines whether Australia’s current shield law regime meets journalists’ expectations and whistleblower needs in an era of unprecedented official surveillance capabilities. According to the peak journalists’ organisation, the Media, Entertainment and Arts Alliance (MEAA), two recent Australian court cases ‘despite their welcome outcome for our members, clearly demonstrate Australia’s patchy and disparate journalist shields fail to do their job’ (MEAA, 2014a). Journalists’ recent court experiences exposed particular shield law inadequacies, including curious omissions or ambiguities in legislative drafting (Fernandez, 2014c, p. 131); the ‘unusual difficulty’ that a case may present (Hancock Prospecting No 2, 2014, para 7); the absence of definitive statutory protection in three jurisdictions—Queensland, South Australia and the Northern Territory (Fernandez, 2014b, p. 26); and the absence of uniform shield laws where such law is available (Fernandez, 2014b, pp. 26-28). This article examines the following key findings of a national survey of practising journalists: (a) participants’ general profile (b) familiarity with shield laws: (c) perceptions of shield law effectiveness and coverage: (d) perceptions of story outcomes when relying on confidential sources; and (e) concerns about official surveillance and enforcement. The conclusion briefly considers the significance and limitations of this research; future research directions; some reform and training directions; and notes that the considerable efforts to secure shield laws in Australia might be jeopardised without better training of journalists about the laws themselves and how surveillance technologies and powers might compromise source confidentiality.


© Mark Pearson 2015

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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Greste release is welcome, as would be a free media in Australia #FreeAJStaff

By MARK PEARSON

My contribution to the Griffith Red Couch blog, first published here. Follow the Red Couch Blog for commentary from Griffith University academics.

Australian Prime Minister Tony Abbott celebrated the release of journalist Peter Greste after 400 days in an Egyptian prison with these words at the National Press Club in Canberra on February 2:

 “…sometimes as Australians we do take our most precious freedoms for granted. And as a former journalist myself it would be remiss of me at such a gathering of journalists not to express my personal delight and our nation’s relief at the overnight release of Peter Greste and to reiterate our support as a government and as a people for a free media and a free press.”

Peter_Greste_2012_WikiCommons

Australian journalist Peter Greste – jailed for a year in Egypt. Photo: Wikimedia Commons

GlobalFreeAJSTAFFactionThe Prime Minister was quite correct in stating Australians often take free expression for granted, but they might take the lead from both his government and the former Labor government in doing so. The Paris-based NGO Reporters Without Borders (RSF) ranked Australia 28th of 180 countries on its World Press Freedom Index last year.

That is relatively high in the league table, and Australia rarely jails its journalists and has never murdered them. Such acts are more common in nations much lower down the press freedom ladder.

According to the Committee to Protect Journalists, Peter Greste and his al Jazeera colleagues were among 221 imprisoned globally in 2014 and already this year 15 journalists have lost their lives in the course of their work.

However, Mr Abbott’s expressed “support as a government and as a people for a free media and a free press” rings somewhat hollow in the context of recent moves by Australian governments to shackle that freedom.

It is ironic that in the same week he made that statement the Prime Minister was calling for bipartisan support for his data retention laws which would force telecommunications companies to retain – and make available to government agencies – metadata including the time and location of phone calls, texts, emails, internet browsing, social media discussions and webcam communications.

That step alone – taken in the name of better national security – stands to damage irreparably the confidentiality of journalists’ sources.

This is just one of several indicators that Australia has recently embarked upon a shift towards a “state of secrecy”.

It comes against the backdrop that, unlike the United States, the United Kingdom, Canada, New Zealand and even Papua New Guinea, Australia has no national Bill of Rights or written constitutional or legislative protection of free expression or a free media.

Australia has only an “implied freedom” that our High Court justices have sadly read down over many decisions.

In its first year in office, the Abbott Government:

This is not simply an Abbott Liberal-National conservative government phenomenon. Governments have a natural inclination to control public debate. If they have the resources, mechanisms and opportunities available to them they will do so.

Australia’s previous Labor government wanted a new mechanism of media accountability because they were copping so much unfair criticism from the Murdoch press. Their knee-jerk reaction was to try to install a regulatory mechanism that any government of whatever political persuasion could use in the future.

All these measures undermine the role of Australia as a beacon of free expression in the Asia-Pacific region.

Whistleblowers are being snared by the various surveillance laws and the technologies available to detect them. They are being found and they are going to court. The proposed data retention laws will increase that likelihood.

In the area of spin, the media finds it very hard to gain access to and report upon asylum seekers and detainees – stories that are really an international human rights issue of legitimate public interest.

Australia has at least purported to be some sort of exemplar to the region of media freedom, transparency and good governance. It has spent millions on aid projects designed to enhance such values internationally. But sadly Australia is moving towards a “state of secrecy” with no constitutional brake on censorship.

A perfect storm of factors has contributed to this including the rise of spin (we now have more PR practitioners than journalists), the demise of traditional media and its budgets to defend and lobby for media freedom, and the political capital available to parties of all political persuasions in getting tough on terrorism and immigration.

We can quite rightly celebrate free expression with the release of Peter Greste after more than a year of imprisonment for simply doing his job as a journalist.

But my great fear is that fragile freedom is seriously under threat in the very country he calls home.

© Mark Pearson 2015

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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Is Australia an emerging Secret State?

By MARK PEARSON

My speech to the Pacific Journalism Review 20th Anniversary conference in Auckland, on November 27, 2014 was titled: ‘Suppression, sentences, surveillance, security and cynical spin: Is Australia an emerging Secret State?’

PJR Review Conf Notice 2014 550wideYou can read an abridged version of that speech in The Conversation here.

You can also hear the full audio of my presentation here.

In it I track the first year in office the Abbott Government, where it has:

  • blocked the media from information on the important human rights issue of the fate of asylum seekers
  • initiated major budget cuts on the publicly funded ABC
  • used anti-terror laws to win a ‘super injunction’ on court proceedings that might damage its international relations
  • ramped up surveillance powers of national security agencies and banning reporting of security operations
  • proposed increased jail terms for leaks about security matters
  • moved to stop not-for-profits advocating against government policy in their service agreements
  • abolished the Office of the Information Commissioner for abolition, promising tardy FOI appeals
  • proposed the taxing of telcos to pay for its new surveillance measures, potentially a modern version of licensing the press.

Australia has at least purported to be an exemplar of media freedom, transparency and good governance throughout the region, but continues to censor those who teach and counsel on those initiatives throughout the region. Here is the standard gag clause from the most current ($3 million Transparency International) contract:

Gagclause

My conclusion is that Australia might not be a secret state like North Korea but it is certainly moving towards a “state of secrecy” and it is doing so with no constitutional brake in our country on censorship.

It is now sending a mixed message to the region on free expression, transparency and good governance.

You can read an abridged version of that speech in The Conversation here.

You can also hear the full audio of my presentation here.

© Mark Pearson 2014

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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See @ConversationEDU for @journlaw’s five reasons the Australian #natsec laws damage media freedom

By MARK PEARSON

The Abbott government’s latest tranches of national security and counter-terrorism laws represent the greatest attack on the Fourth Estate function of journalism in the modern era. They are worse than the Gillard government’s failed attempts to regulate the press.

Unlike most other Western democracies, Australia has no constitutional instrument protecting free expression as a human right. Few politicians can resist the temptation to control the flow of information if the law permits.

Here are five reasons that this latest move is damaging the democratic cornerstone of press freedom:

  1. It is legislative over-reach
  2. It gags reportage of a key public issue
  3. It compromises the separation of powers
  4. It spells the end for the confidential source
  5. Exemptions effectively license old media over new media.

See The Conversation today for the full article.

[Thanks to media freedom interns Jasmine Lincoln and Satoshi Horiuchi for their research assistance.]

© Mark Pearson 2014

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.

Leave a comment

Filed under national security, terrorism, Uncategorized