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Book review: Hong Kong Media Law

By MARK PEARSON

[First published in Media and Arts Law Review (LexisNexis) in (2016) 21 MALR 119].

Book review

Hong Kong Media Law: A Guide for Journalists and Media Professionals

By Doreen Weisenhaus, with contributions by Rick Glofcheski and Yan Mei Ning (Hong Kong University Press, 2nd ed, 2014) 480 pp. ISBN 9789888208098.

Mark Pearson

hkmedialawcoverMost authors of media law texts would not expect their books to become important historical reference works for centuries to come.
But that is exactly what I predict will eventuate for the University of Hong Kong’s Doreen Weisenhaus with her Hong Kong Media Law: A Guide for Journalists and Media Professionals, now in its expanded second edition.
Unlike most of our texts explaining the media law in English language jurisdictions, based predominantly on the inevitable evolution of the common law and legislation in countries like the United Kingdom, Canada, Australia and New Zealand, the two editions of this book have captured communication law at that crucial historical juncture two decades after the People’s Republic of China resumed control of Hong Kong.
The compendium is an articulate explanation of media law still largely entrenched in the free expression of a former British colony, with a growing series of riders and consequences both within Hong Kong and for journalists who venture onto the mainland in their reporting and publishing.
For all those reasons, it is as fascinating as it is complex, making sense of a body of diverse laws spanning contrasting legal frameworks, press systems and languages in a unique historical moment.
Weisenhaus (and her contributing authors) have explained this clearly to journalists and students without falling for the temptation of over-simplifying what is undeniably a sophisticated and organic jurisprudence.
She does this by featuring chapters on the usual suspects in a media law text — the legal system, defamation, court reporting and contempt, privacy, access to information, copyright, and obscenity and indecency. Of course, all of those standard chapters also feature key cases and points of difference reflecting Hong Kong’s history, Chinese control, and the region’s cosmopolitan role as the financial hub of Asia.
However, important other chapters have a stronger Chinese influence on reporting the mainland, obscenity and indecency and media regulation in the age of convergence.
Appendices on key statutes and regulations, judicial practice directions, Access to Information, and useful links also feature an appendix by accomplished investigative journalists Chan Pui-king and Vivian Kwok on searching for public records of courts.
The instructional design of the text is also admirable. Each chapter starts with some frequently asked questions on the topic and directions to the section of the chapter where the answer might be found. The key chapters also feature a useful checklist for journalists on the subject at hand, clearly accessible as a quick refresher for a reporter on the run.
All this is enhanced by the author’s accomplished writing style — clear, concise and engaging — reflecting her earlier career as city editor of The New York Times, the first legal editor of The New York Times Magazine and later its law and politics editor, and her earlier stint as editor-in-chief of The National Law Journal.
Weisenhaus is now associate professor and director of the Media Law Project at the University of Hong Kong’s Journalism and Media Studies Centre, a regular panellist on international free expression and media law forums, and contributor to comparative works.
In this book she impresses upon the reader the strong independence of the Hong Kong courts and the entrenched values of media freedom, each under pressure from the same kinds of national security measures confronting journalism in Western democracies combined with special new tensions as Hong Kong continues its adaption to its role as a Special Administrative Region of the People’s Republic of China.
As the author explains in her overview, ‘those winds from the mainland have grown stronger, despite the “one country, two systems” principle that is supposed to govern relations between the mainland and Hong Kong’.
‘Thus, concern persists both within and beyond Hong Kong over the degree of its press freedom and the eventual contour of its media-law landscape, partly because of uncertainty about how much of a role the mainland will have in shaping (if not controlling) it’, she continues.
While the China question dominates thinking about the future of media law in Hong Kong, the problems of government surveillance, interference and downright censorship also worry journalists in Western democracies where press freedom was once valued much more highly.
A reflective reading of this important work by Weisenhaus and her colleagues brings this into sharp focus as we learn to appreciate that we all stand to lose many of our inherited media freedoms unless we find ways to apply a brake to government regulation and intrusion.
In that way, it is not just an important work for Hong Kong students and journalists and Sinophiles, but for all citizens and scholars with an interest in media law as the fine balance between free expression, other rights and the self-interest of states the world over.

© Mark Pearson 2016

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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Queensland judicial committee recommends some filming of proceedings and a new court information officer

By MARK PEARSON

A Supreme Court of Queensland committee has recommended a pilot program for the broadcasting of some sentencing remarks and appeal hearings and the appointment of a court information officer.

QldElectronicPubsReportApril2016The Electronic Publication of Court Proceedings: Report – April 2016 was released this month, the result of eight months of deliberations by five Supreme Court justices (chaired by Justice Margaret McMurdo, President of the Court of Appeal), with input from a further two District Court judges.

The report followed the release of an Issues Paper on the topic in June 2015 and the consideration of public submissions, including one from yours truly, which I detailed in an earlier blog.

The latest report reviews practices in other Australian jurisdictions and internationally. It stems from media requests to film the sentencing remarks in the trial of Brett Peter Cowan for the murder of school boy Daniel Morcombe.

No standard procedures existed in Queensland to film sentencing remarks and the court was rare among Australian jurisdictions in that it had no designated information officer to assist in making arrangements. The delay deemed necessary to make suitable arrangements was one of the reasons that the application to film the judge’s sentencing remarks was refused.

As a result of the report’s findings, the courts will develop a pilot program for broadcasting of sentencing remarks and appeal hearings.

The committee noted  that most respondents were concerned about the risk that recording and broadcasting witnesses and others in court would compromise the administration of justice.

As with similar reviews in other countries, the report does not favour broadcasting of witnesses’ evidence. However, the option will remain open for the judge in a particular case to allow the evidence of witnesses to be broadcast, with special consideration given to the position of victims and vulnerable witnesses.

The pilot program will require the development of suitable Practice Directions, logistical arrangements and guidelines to assist the judges and the media. Guidelines will address matters such as the exclusion of certain categories of cases and the location and field of view of cameras.

The decision on whether to allow the recording of sentencing remarks will remain the decision of the presiding judge in each case.

The report also recommends additional ways to better inform and educate the public, including:

  • improved public and media access to court decisions, case summaries and documents to allow fair and accurate reporting; and
  • the appointment of a Court Information Officer to assist the Supreme Court and the District Court in better informing and educating the public about the courts and the justice system.

When appointed, the officer will be responsible for the development of guidelines for the recording and publication of court proceedings, paving the way for the pilot program to start.

My own submission called for the installation of webcams in all courtrooms 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.

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 submission featured these six hallmarks:

  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.

The committee gave my suggestion due consideration but rejected it on the basis of expense and for tipping the scales too far in favour of open justice over a fair trial and the due administration of justice. The report stated:

“Professor Pearson and others have advocated the introduction of a system whereby proceedings which are held in open court are recorded on webcams that are installed in all courtrooms and live-streamed. A variation on this is for the court to have its own dedicated internet channel for live-streaming.

It may be argued that, with new and relatively inexpensive technology to record and live-stream proceedings, all proceedings should be live-streamed. This simply would enable members of the public to view what would be seen by them if they exercised their right to attend a proceeding in open court. It may be relatively inexpensive to install webcams in most courtrooms showing the judge and to live-stream the images from this single camera angle to a designated court website which citizens can access. However, such a system would not regulate what was to be broadcast. Guidelines and procedures, and judges and court staff in individual cases, would need to address the evidence of witnesses, including vulnerable witnesses, which may be affected by the knowledge that what they say is being broadcast to the world. Any new system would need to control the transmission of certain evidence to the general public, including the identity of victims and children whose identification is subject to statutory prohibitions. It also would need to control the broadcasting of the horrendous details of certain crimes. Monitoring the recording and transmission of evidence under a system which live-streamed all proceedings in all courtrooms would entail a very substantial cost to the community.

Many cases in the superior courts are of no real interest to the general public. Few members of the general public attend them, the media do not report them and it seems unlikely that more than a few members of the general public would wish to view them if they were live-streamed. The resources required to establish a system to record and live-stream all proceedings and to apply appropriate restrictions on what is communicated to the general public cannot be justified in the light of anticipated demand.”

© Mark Pearson 2016

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

By MARK PEARSON

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

ASIO headquarters, Canberra. Photo: Maps

ASIO headquarters, Canberra. Photo: Maps

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

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

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

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

So what might be “reckless” disclosure?

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

5.4   Recklessness

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It continued:

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

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

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

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

© Mark Pearson 2016

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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The main national security laws affecting journalists and sources

By MARK PEARSON

[with research assistance from Virginia Leighton-Jackson]

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

ASIOActScreenshot

  1. ASIO Act 1979

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

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

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

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

  1. Crimes Act 1914 (Cth)

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

  1. Telecommunications (Interception and Access) Act 1979

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

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

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

Other laws to consider when covering a national security story:

Discrimination and vilification laws

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

Defamation

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

Contempt of court

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

Suppression orders

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

Sources:

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

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

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

© Mark Pearson 2016

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

By MARK PEARSON

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

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

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

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

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

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

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

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

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

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

Credits:

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

Production: Henry Cook, Griffith Learning Futures

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

© Mark Pearson 2016

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

By MARK PEARSON

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

Journalist Peter Greste receives his honorary doctorate at Griffith University

Journalist Peter Greste receives his honorary doctorate at Griffith University

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peter Greste with his Griffith lecturers Dr Dan Halvorson and Professor Andrew O'Neill.

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

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

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

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

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

© Mark Pearson 2015

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

By MARK PEARSON

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

The Guardian's Martin Chulov addressing #jeraa15

The Guardian‘s Martin Chulov addressing #jeraa2015

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

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

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

This presented enormous risks to journalists and their sources.

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

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

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

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

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

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

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

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

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

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

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

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

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

Journalists also faced attacks on their reputations.

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

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

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

© 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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