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‘Self-regulation’ oxymoron heralds the era of ‘death by a thousand consent forms’ #mediareforms

By MARK PEARSON

The oxymoron in the name of the proposed media reform legislation says it all: It is the “News Media (Self-regulation) Bill 2013”. (See here).

Here we have a piece of legislation proposing a statutory mechanism for the supervision of industry-based self-regulation of print and online news media.

That, dear readers, is “regulation”.

Just as it is troubling when proposed legislation purports to be what it is not, it is of even greater concern when a government moves to rush such laws through Parliament in just one week.

This blog is about media and social media law and regulation and their impact on free expression – not about politics.

But it is politics that has cruelled this whole media regulation review over the past 18 months.

The Independent Media Inquiry, chaired by former Federal Court justice Ray Finkelstein, was mired in politics when it was announced in late 2011 against the backdrop of both Labor and Greens stoushes with Murdoch titles.

And it seems to be politics that is now driving the desire to enact ‘something’ in the life of this government.

But that ‘something’ is problematic on a range of measures.

The basic ‘self-regulatory’ proposal is that a Public Interest Media Advocate be appointed with the power to declare bodies like the Australian Press Council to be a suitable ‘news media self-regulation body’.

If such bodies do not meet the government-appointed Advocate’s criteria, their member media outlets would be stripped of their current Privacy Act exemptions – leaving them exposed to potential privacy compensation orders and a bureaucratic reporting regime that would cripple their news operations.

At present, media organisations just have to be signed up to the Press Council or an equivalent body and be ‘publicly committed to observe’ its privacy standards.

If a media company falls foul of the self-regulator, refuses to join one, or joins one that does not meet the requirements, then the new Public Interest Media Advocate would have the power to strip them of their Privacy Act exemption under Section 7B(4) – leaving them obliged to follow all the privacy protocols associated with ‘obtaining, keeping and disclosing of personal information’ related to any of their stories and photographs.

This would leave the newspaper or online news company having to get every person in a group photograph to sign consent forms and to refrain from publishing sensitive personal information about people like their financial dealings, medical conditions, employment history and a host of other material commonly appearing in news stories.

They would also have to go to the expense of safely storing all the personal information they gathered for news reports and deal with requests from individuals who might want to withdraw their permission for them to retain that information about them.

There is no ‘public interest’ exemption to this requirement under the Privacy Act – other than formally seeking a ‘public interest determination’ from the Privacy Commissioner in a specific case.

Of course, there may be other protections for investigative reporters – perhaps the permission to publish details already released under the privacy provisions of Freedom of Information laws, and of course privileges extending to material tabled in court or Parliament.

There might also be an argument that the High Court’s implied freedom to communicate on matters of government and politics might apply to some private information in limited circumstances, although recent decisions from that court seem to render that freedom problematic and dependent on the views of individual judges.

There is a long principle ‘against prior restraint’ in our legal system – shackles by governments and courts to stop the news media before they have the opportunity to publish something.

The most famous example were the attempts in earlier centuries to license the printing presses – government measures opposed by famous statesmen and jurists like John Milton, John Stuart Mill and our own colony’s first Chief Justice, Sir Francis Forbes.

This proposal is for a system of de facto licensing because the statutory alternative to joining the self-regulatory regime would almost guarantee financial ruin for a newspaper company in this environment, when they are already facing huge challenges retaining readership and winning advertising in the Web 2.0 era.

The Privacy Act provisions would only apply to media companies earning more than $3 million per year – which is the threshold for corporations – and the proposed bill also offers a ‘small business’ exemption to its requirements.

This would potentially leave us with a two-speed news media – small operators, bloggers, citizen journalists and social media users sharing private information willy-nilly while larger news organisations falling outside the ‘self-regulatory’ regime are left to expend valuable time and resources filling out all that privacy paperwork.

Unlike other Western democracies, Australia has no written constitutional protection of free expression in the form of a Bill of Rights or a regional human rights document. The explanatory notes to the proposed laws go through the usual routine of giving a ‘Statement of Compatibility with Human Rights’, in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

But the imposition of the proposals on free expression is dispensed with in just three paragraphs excusing it because of its capacity for respecting the privacy and reputations of other citizens.

There is no doubt Australia’s media self-regulation can be improved, and there is even scope for some fine-tuning of media laws.

It is also evident that the Australian Press Council has markedly improved its systems and funding under the leadership of its chair, Professor Julian Disney.

There are already several hundred media laws in this country – enough to fill at least three major journalism textbooks in the field and several more in the specialist areas of torts, criminal law and intellectual property.

Even a tort of privacy invasion with a strong public interest exemption for journalism would be preferable to this proposal for a system of ‘death by a thousand consent forms’ for struggling news organisations who should have the right to be lone wolves and refuse to play the government’s game.

Call it what you like, but this Bill is not ‘self-regulation’.

© Mark Pearson 2013

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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Terror is no laughing matter – lessons from the #twitterjoketrial

By MARK PEARSON

Twitter and Facebook are great outlets for one-liners and satire, but police and security agencies are not known for their sense of humour. Trainee accountant Paul Chambers, 27, learned that the hard way when he was arrested on UK terrorism charges for jokingly tweeting a threat to blow up a British airport. Air traffic was delayed by a heavy snowfall and Chambers was desperate to visit a female friend in Northern Ireland, so he light-heartedly tweeted to her and his 650 followers: ‘C***! Robin Hood Airport closed. You have got a week to get your s*** together, otherwise I’m blowing the airport sky high!’ Police swooped a week later and he was questioned on the terrorism charges before being convicted and fined £1,000 on a lesser charge of causing nuisance. He later won an appeal in the High Court when the Lord Chief Justice agreed it had been a humorous remark rather than a threat. The case became known as the ‘Twitter joke trial’. I’m fairly confident Chambers would not go through all that angst again over a not so witty one-liner.

Journalist, blogger, tweeter and lawyer David Allen Green ( @DavidAllenGreen ‘Jack of Kent’ ) spoke recently on the issue to the Open Rights Group.

Across the English Channel, 23-year-old unemployed Frenchman François Cousteix was surprised one evening to find French police and US FBI agents arrive at his front door. Operating under the name ‘Hacker Croll’, he had made it his hobby to access celebrities’ social media accounts just for fun. He had accessed the social media account of celebrity Britney Spears but came to international security agencies’ attention when he hacked into the Twitter account of US President Barack Obama. He escaped with a five month parole sentence.

There is a simple lesson from these cases: do not joke about national security matters.

Governments throughout the world ramped up their national security laws in the wake of the terrorist attacks on the US in September 2001. Even in countries with a high regard for civil liberties and free expression, new powers were handed to security agencies and police to aid in the detection and arrest of suspected terrorists. Pressure mounted in western democracies for even tougher laws after the Bali bombings in 2002 and 2005 and the 7/7 London attacks in 2005.

Publishing restrictions in the name of national security existed long before 9/11. Sedition and treason laws encouraging public unrest, violence and the overthrow of rulers date back to feudal times when governments tried to enforce loyalty upon ordinary citizens. While many countries have phased out these ancient crimes, such laws are still used in some places as mechanisms for intimidation and repression. Anti-terrorism laws were also used in western democracies well prior to 2001. The UK passed special laws to respond to Irish Republican Army terrorism throughout the 20th century, while New Zealand introduced new restrictions after the French bombing of the Greenpeace boat the Rainbow Warrior in 1985.

But the early 21st century attacks on the West triggered a wave of new anti-terror laws impacting on the free expression of journalists and Internet users. Hundreds of anti-terror laws were introduced in the first decade of the 21st century under the banner of the so-called ‘War on Terror’.

America led the way with its USA ‘Patriot’ Act of 2001, in which the letters stand for: ‘Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism’. President Barack Obama’s administration extended the legislation for a further four years from 2011.

Others followed suit, including the UK, Canada, Australia and New Zealand. Ottawa software developer Momin Khawaja became the first person charged under Canada’s anti-terror laws but in 2011 challenged his conviction on constitutional grounds. In Australia, Belal Saadalah Khazaal was sentenced to 12 years in jail in 2009 for ‘making a document connected with assistance in a terrorist act’ after he created an e-book titled “Provisions on the Rules of Jihad” which allegedly targeted foreign governments and leaders. The High Court upheld his conviction in 2012.

There were too many anti-terror laws introduced internationally to detail here, but some can impact upon you if you are a cyber-journalist or blogger. They include:

  • Increased surveillance powers for spy agencies and police;
  • New detention and questioning regimes;
  • Seizure of notes and computer archives;
  • Exposing confidential sources to identification;
  • Closing certain court proceedings so they are unreportable;
  • Exposing bloggers to fines and jail if they report on some anti-terror operations;
  • Making it an offence to merely ‘associate’ or ‘communicate’ with those suspected of security crimes; and
  • Exposing bloggers and social media users to criminal charges if you publish anything seen as inciting terrorism.

Governments also go straight to search engines and ISPs and demand they remove material and, as Google’s Transparency Report documents, they often comply. But some have complained Google and Youtube have not responded quickly enough when asked to take down terrorism material. Burst.net certainly acted fast when the FBI advised it that some blogs it hosted under the free WordPress blogetery.com site contained terrorist material suspected of being used by the group al-Qaeda. It shut the site down, along with the 70,000 blogs it hosted. Blogetery resurfaced a month later under a different host.

The United Nations introduced a range of protocols that countries adopt minimum standards for combating terrorism. At the same time, the OECD acted to encourage Internet freedom by asking nations to open up cyberspace to freer and speedier communication. To the average blogger, the two positions might seem at odds.

A Mexican radio commentator and a maths tutor were jailed and faced a maximum 30 year prison sentence in 2011 on terrorism and sabotage charges after they tweeted false reports that gunmen were attacking schools in the city of Veracruz. The misinformation prompted parents to panic and some were involved motor accidents as they rushed to fetch their children.

“Here, there were 26 car accidents, or people left their cars in the middle of the streets to run and pick up their children, because they thought these things were occurring at their kids’ schools,” an official told Associated Press. The false reports followed weeks of gangland violence in the city.

“My sister-in-law just called me all upset, they just kidnapped five children from the school,” tutor Gilberto Martinez Vera allegedly tweeted. He followed that message with: “I don’t know what time it happened, but it’s true.” The other accused had retweeted the false reports to her followers. Experts described the tweeting as poor use of the medium, but not deserving of terrorism charges.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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 2012

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Counter-terror laws under review – our appearance at COAG

By MARK PEARSON

Griffith University colleague Associate Professor Jacqui Ewart (@jacquiewart) and I appeared before the Council of Australian Governments (COAG) hearing into the review of counter-terrorism laws conducted in Brisbane yesterday.

We explained our collaborative research on the subject, and called upon the committee to take account of the importance of free expression, open justice and transparency of process to a democracy like Australia.

The laws under review are listed here.

I began by explaining that national security laws introduced since September 2001 affected the ability of journalists to investigate into and report upon particular incidents, identify and communicate with sources of information for such reportage, preserve the confidentiality of such sources, report fairly and accurately court proceedings related to counter-terrorism, expose miscarriages of justice, and  to draw upon actual examples when covering the broader issues of national security and counter-terrorism.

Australia differed from other democratic nations in that it lacks written constitutional protection of free expression.

I suggested that given the absence of any such free expression protection here, there was a crucial need for public interest or media exemptions to provisions threatening free expression.

Perhaps the committee could appoint an independent adviser or a representative from a body such as the Australian Press Council to review any proposed legislation with an eye to its implications for free expression.

Dr Ewart made the following points in our submission:

When the anti-terrorism legislation was introduced in 2004 and 2005 there was much discussion about the potential impacts these laws would have on journalists and the public right to know about terrorism cases, but much of that discussion was at the time speculation. Since then we have seen demonstrable evidence of the impacts of those laws on the ability of journalists to report on national security matters and to inform the public. These impacts include but are not limited to:

  • Suppression orders are now routinely invoked in terrorism-related court cases to prevent journalists’ from reporting details of cases that may be in the public interest and may not be against national security interests. While there was recently a move towards cooperation between the media and the judiciary in relation to suppression orders (Operation Pendennis court trials under J Bongiorno), this is not standard practice.
  • Sedition laws have restricted freedom of expression in the media. The legal provisions regarding journalists reporting the detention of suspects under the ASIO Act have implications for journalists, and much broader consequences for individuals’ freedom of speech.
  • Media reliance on official spokespeople has increased because of arrest, questioning and detention restrictions once a suspect has been arrested, as evidenced by the controls of information flows by the Australian Federal Police in the arrest and charging of Dr Mohamed Haneef.
  • Recent demands by judges for journalists to reveal their sources of counter-terror stories, evidenced by the making of such demands upon The Australian’s Cameron Stewart regarding leaks from the Federal Police over the Holsworthy Barracks raids.
  • Further to the preceding point, the freezing of information about counter-terror operations by government agencies after the above incident where The Australian published an account of one operation before it started. This led to police/media protocols for future counter-terrorism stories.
  • The potential for the confidentiality of a journalist’s source being compromised through the investigative powers of anti-terror agencies. This may erode the public’s confidence in the media, preventing members of the public from approaching journalists with stories or information.
  • The readiness of counter-terror agencies and prosecutors to make use of raw footage and interview material captured by journalists as prosecution evidence in their cases against terror suspects, as per the Jack Thomas trial.
  •  A warning from an Attorney-General to an academic about his research involving the interviews with suspected terrorists overseas renders journalists’ interviews with terrorists on foreign territory problematic.

We are also unaware of potential problems for those arrested or questioned under the ASIO Act because of the restrictions placed on individuals in relation to telling others including the media they have been arrested or questioned and those restrictions extend to journalists.

This means that the ability of the media to freely – real national security implications notwithstanding – fairly and accurately report terrorism cases has been at times severely hindered by the legislation.

We concluded by recommending the review of the legislation specifically examines the question of the impacts of the legislation on journalists’ ability to cover terrorism cases and terrorism-related court cases, in order to ensure the protection of the public interest in such cases. We provided the committee with an extended explanation in the form of an article on the topic we recently submitted to an international refereed journal.

© Mark Pearson and Jacqueline Ewart 2012

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The media regulation debate in a democracy lacking a free expression guarantee

By MARK PEARSON

The latest edition of Pacific Journalism Review is out – a special issue edited by Chris Nash, David Robie and Johan Lidberg on ‘Rebuilding Public Trust’.

My contribution carries the same title as this blog. Here are the abstract and conclusion, but if you’re really interested you’ll need to get PJR for the body of the article and the references – and, of course, another 13 articles by some of the region’s top journalists and researchers.

Abstract

Two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level.  Three regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; and the status quo with a strengthened Australian Press Council policing both print and online media. This article reviews the proposals and explores further the suggestion that consumer laws could be better utilised in any reform. It concludes with an assessment of the impact of the inquiries and their recommendations upon free expression in a Western democracy lacking constitutional protection of the media.

 ——

Conclusion

The Convergence Review report cleverly proposed the removal of some existing protections instead of the imposition of draconian new regulations, but then failed to flesh out their possibilities. It needed to position its mechanism of privacy and consumer law exemptions for signatories to its new pan-media self-regulatory body as much more than hypothetical and to detail its plans for the implementation of these proposals.

Australia already has one statutory regulator with powers to punish ethical transgressions – the Australian Competition and Consumer Commission (ACCC). In an era of increasingly commercialised and converged media, it seems reasonable that at least some forms of irresponsible journalism might be addressed via the legislative mechanism prohibiting misleading and deceptive conduct by any corporation against media consumers.

Such a legislative solution already exists, as identified by the Convergence Review – and it only requires an amendment to the existing news organisation immunity from prosecution under the ‘misleading and deceptive conduct’ provisions at Section 18 of the Competition and Consumer Act 2010. The proposal to take away media exemptions from prosecution under this section would leave them accountable for misleading and deceptive claims and behaviour in their editorial functions.

While misleading and deceptive conduct does not take in all unethical behaviour by news organisations or the journalists who act as their agents, it could well be read to cover such sins as lies, inaccuracy, subterfuge, and lack of verification of the false claims of others. The amendment would mean both the ACCC (and private citizens) could launch prosecutions over such behaviour, with the force of the regulatory powers it already holds. The key to this would be an amendment of the ‘prescribed information provider’ exception (Section 19) so that news organisations would no longer have the blanket, almost unchallengeable protection for misleading and deceptive conduct which was introduced after their lobbying in the late 1970s and early 1980s. They would only earn this exemption if they were signatories to the new self-regulatory body and abiding by its requirements.

I have previously backgrounded this news media exemption to consumer law provisions under the predecessor to the existing legislation, the Trade Practices Act 1974 (Pearson, 2000). The media operated for more than a decade under that law without special exemptions from its misleading and deceptive conduct provisions. In 1984, Section 52 (the ‘misleading and deceptive conduct’ clause under the TPA) caused concern in the case of Global Sportsman v. Mirror Newspapers (1984) 2 FCR 82 when it was held that the publication of statements – including statements of opinion made in the ordinary course of news – could constitute conduct which was “misleading or deceptive”.

Successful lobbying by the media led to the government of the day introducing the exemption from the provision for “prescribed information providers” unless the deception occurred in relation to the publication of advertisements or in articles promoting the information providers’ own commercial interests. “Prescribed information providers” included “…a person who carries on a business of providing information” and included obviously newspapers, holders of broadcasting licenses, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service Corporation (SBS).

The exemption – known as the ‘media safe harbour’ – acknowledged the fact that news organisations could not vouch for every claim made by those quoted in their news columns or stories (Applegarth, 2008). However, the instant news material was sponsored, or run in return for some compensation in cash or kind, or was used to promote the news organisation’s own operations (such as in a promo), it fell within the Act and left any misleading content open to prosecution of the media proprietor.

This rendered journalists and their organisations particularly vulnerable in the realm of advertorials, if it could be shown that space had been devoted to the promotion of a company’s products or services just because they happened to be advertising or they had reached some arrangement or understanding with some corporation to that effect.

If such claims were proven to be misleading or deceptive the media outlet was held responsible and could face an injunction preventing publication or a damages claim from those adversely affected.

The provision raised serious questions about media companies’ cross-promotion of their related corporate interests, particularly in an age where concentrated conglomerates had substantial shareholdings and sponsorships across industries. The exemption has been struck down by superior courts in two recent cases. The High Court found against a media organisation under the former Trade Practices Act in ACCC v. Channel Seven Brisbane Pty Ltd [2009] HCA 19.  That decision related to false claims on the tabloid television current affairs program ‘Today Tonight’ about goods and services. The reform would extend this to other ethical breaches. The NSW Court of Appeal had earlier ruled that Nine’s ‘A Current Affair’ did not qualify for the exemption over misleading claims made by their staff who posed as prospective customers in an expose of a home construction company. Their false claims were made in the course of their investigation – not while carrying on the business of providing information – and they had failed to reveal that they were in the information provision business during their inquiry. As Justice Applegarth has noted: “Statements made in the course of an investigation are said to lack such correspondence because they do not occur ‘in the course of carrying on’ a business of providing information.” (2008, p. 3).

Of course, the consumer laws apply to corporations rather than individuals, so journalists themselves would not be liable personally, well exemplified in the Current Affair case cited above. However, it is likely their employer organisations would pressure them to comply when faced with the prospect of ACCC prosecutions and contempt charges for disobeying any resulting orders.

The Convergence Review’s suggestion that a similar ‘carrot’ be applied to the exemptions to privacy law is more problematic. The ‘Journalism’ exemption to the Privacy Act 1988 at s. 7B(4) references privacy standards issued by the Australian Press Council as newspaper organisations’ ticket to a waiver (APC, 2011). Media organisations simply have to avow they are ‘publicly committed to observe standards’ on privacy as documented by their representative organisation. However, the proposed reform would require more of them than simply being ‘publicly committed to observe standards’ and to have published them.

If they refused to sign up for the Convergence Review’s ‘self-regulator’ they would have to follow in their journalism all of the privacy protocols applying to other corporations and marketers. Permissions would need to be sought and documented every time a citizen was named or identified visually in a news story or column and every time ‘private’ details about them and their lives were being published. It would be a logistical nightmare for a news organization. There are already a myriad of laws of defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright controlling the news media’s handling of private information. The recommendation comes at a time the government is also considering a proposal for a ‘statutory cause of action for a serious invasion of privacy’ – giving citizens the right to sue over a privacy breach and receive either an award of damages or an injunction to stop publication. If the statutory tort were introduced, then the removal of the Privacy Act exemption for media companies would appear to be overkill given the array of other laws in the field.

Reactions to the suggestion of a statutory regulator have certainly been strident and at times histrionic. Assistant to the Finkelstein inquiry, Professor Matthew Ricketson, responded in The Age to accusations that “… we would all be living in Stalinist Russia or even Hitler’s Nazi Germany with its Reich Press Chamber if the government acted on this recommendation”. He continued:

Really? What is actually recommended differs from the existing system in only one key aspect, namely government would fund the News Media Council. (Ricketson, 2012).

While he quite rightly took offence at such reactive rants, Ricketson was wrong to suggest that government funding of his proposed News Media Council was the only point of difference from the status quo.

Arms-length government funding of a self-regulator certainly sounds some alarm bells, but there may well be mechanisms to secure its independence, just as the ABC is publicly funded yet independent. The greater concern is with the body’s ultimate power to refer disobedient media outlets to courts with the distinct possibility they might face fines or a jail term if they continued to disobey the council’s order. Such powers place strong emphasis on the word ‘enforced’ in Finkelstein’s system of ‘enforced self-regulation’ and pushes it a long way towards the full government regulation its critics fear. The proposal would effectively convert ethical codes into laws – ultimately enforceable in the courts.

This has certainly been a long overdue debate in Australia, but it has occurred in a politicised context that has been counter-productive and has undermined the likelihood of the implementation of any of the proposals.  Several academics and small publishers stepped up to give the Finkelstein model their approval (The Conversation, 2012). Labor and Greens applauded it and pushed for its enactment, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage about them in News Limited publications locally (Kitney et.al, 2012).

Criticism of the recommendations by the larger media groups on free expression grounds were dismissed as a defence of their vested interests. It surprised nobody that News Limited chief executive Kim Williams opposed statutory regulation (Meade and Canning, 2012), but such pigeon-holing of Finkelstein’s serious critics is misplaced. History is littered with examples of politicians withdrawing citizens’ rights to free expression because they did not like what they had been saying about them at a particular moment in history.

And, while the concerns of the Left at Murdoch media treatment might have helped trigger the inquiries, despite public protestations against the proposals by Opposition figures (Kerr, 2012), it is questionable whether a Conservative government would act to dismantle a new statutory regulator and its ‘independence’ could well be tested. The Howard conservative government lacked an impressive free expression record. It famously appointed arch conservatives to the ‘independent’ ABC board, ramped up anti-terror laws and cynically exploited exemptions to freedom of information requests. That government’s foreign minister, Alexander Downer, confessed to newspaper publishers in 2006: “Freedom of information always seems a great idea when you are in Opposition but less so when you are in Government” (McNicoll, 2006).

The Australian Press Council – with a suitable name change – could become an effective pan-media self-regulator and fulfil similar functions to the one proposed by the Convergence Review. That review’s suggestion of encouraging membership with the carrot of consumer law exemptions is also a mechanism worth considering.

A uniform code of practice across all news media is a vital reform. It is essential that media outlets and journalists conform to ethical codes. It is in their interests that they do so, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. But Australia has a confusing array of self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets. No single journalist could possibly be expected to understand and operate effectively within deadline, paying heed to all that might apply to him or her, including the MEAA Code of Ethics, an in-house code, an industry code and the related laws and formal regulations that might apply.

This moots strongly for a single code of ethics applying to journalists and their employers across all media, similar to the existing MEAA Code of Ethics, addressing fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern. Of course, this could be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty, along the lines of the Australian Press Council’s guidance releases. As Ricketson (2012) has suggested, media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their level of media literacy.

Australia is rare among Western democracies in that it does not have free expression or media freedom enshrined in its Constitution and no federal bill of rights with such a protection. Other countries like the UK and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence. The closest Australia has come to any such protection came in a series of decisions through the 1990s, starting with the Australian Capital Television Pty Ltd v. Commonwealth and Nationwide News v. Wills cases in 1992, where the High Court introduced and developed a so-called “implied freedom to communicate on matters of politics and government”. The court held this principle was fundamental to the system of representative government, but it demonstrated recently in Wotton v. Queensland (2011) that it was in no rush to progress this implied freedom. The Australian Capital Territory and Victoria have enacted limited charters of rights in the form of human rights acts, both of which enshrine free expression at the state and territory level, but neither applies to other jurisdictions and each is problematic even in its application in to its own jurisdiction (Pearson and Polden, 2011, pp. 38-39).

The lack of any formal written guarantee of a free media makes proposals for statutory regulators even more of a threat to democracy in Australia than in most comparable nations and this fact did not appear to weigh heavily enough with the architects of the Finkelstein report or those who rushed to support it. ‘Enforced self-regulation’ is not a suitable solution – at least not until free expression earns stronger protection from a more enthusiastic High Court or in a national bill of rights. Stronger self-regulation with the carrot of consumer law exemptions for compliant media outlets would strike the appropriate balance of freedoms and responsibilities in the interim.

© Mark Pearson 2012

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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Lost cause? The Convergence Review model for news media self-regulation

By MARK PEARSON

Australia’s news media regulatory framework has been the subject of two recommendations for major overhauls in recent months.

It was the $2.7 million Convergence Review, announced in late 2010, that was meant to develop the definitive regulatory model in its final report released in April, 2012.

But along the way political pressures (or opportunism, depending on who you want to believe) prompted the announcement last September of an offshoot – the $1.2 million Independent Media Inquiry – specifically briefed to deal with the self-regulation of print media ethics.

Its architects – former Federal Court judge Ray Finkelstein and journalism professor Matthew Ricketson – argued they could not decouple print news self-regulation from broadcast ‘co-regulation’ in the digital era, so came up with a statutory model including both.

Their News Media Council, proposed in their report of February 28, 2012, would take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court and ultimately face a hefty fine or a jail term.

I have written previously on my concerns about the implications of these recommendations on Australia’s international standing as a democratic nation with a free media, particularly in light of our lack of any written constitutional protection of free expression.

The ‘Finkelstein report’ – as it became known – was only ever meant to be an advisory to its parent Convergence Review, which ultimately acknowledged but rejected its simplistic model in favour of its own innovative and less draconian one.

But the Convergence Review left it to others to put flesh on its more complex reform proposals, leaving the Finkelstein statutory regulation model to fill the void for Labor and Green politicians riding the wave of concern about media ethics in the wake of the UK’s News of the World inquiry and arguing that ‘something must be done’ in Australia.

According to news reports, the parliamentary winter recess will be used by Prime Minister Julia Gillard, Communications Minister Stephen Conroy and the Greens to rally support for the enactment of a version of the Finkelstein model.

Experts argue they will lack the numbers to drive it home, and it is unlikely a 2013 conservative government would take up the cause, given the antipathy of leading Opposition figures Malcolm Turnbull and George Brandis.

Meanwhile, the Convergence Review’s innovative ‘carrot and stick’ model of self-regulation has all but disappeared from public commentary, overshadowed by the stark divide over Finkelstein’s statutory regulation proposal between the Opposition (and major media players) and the Government, Greens and anti-Murdoch intellectuals.

It is a shame the debate has been reduced to this black and white (red versus blue) battle.

I am working on a longer academic article examining the Convergence Review’s novel but sparsely articulated attempt at dealing with the evolving regulatory demands of Web 2.0 (and 3.0 and 4.0…), but I will share some preliminary thoughts here.

First, to review the Convergence Review’s proposed model. While its final report shared Finkelstein’s concerns about shortcomings with existing regulatory systems, it proposed that ‘direct statutory mechanisms … be considered only after the industry has been given the full opportunity to develop and enforce an effective, cross-platform self-regulatory scheme’. In other words, it was offering the media industry ‘drinks at the last chance saloon’ for a three year period under its model (p. 53).

Its mechanism centres upon the establishment of a new ‘news standards body’ operating across all media platforms – reinforcing the overall review’s preference for ‘platform neutrality’ (p.51).

The news standards body ‘would administer a self-regulatory media code aimed at promoting standards, adjudicating complaints, and providing timely remedies’ (p. 153).

The Convergence Review decided not to be prescriptive about the constitution or operational requirements for such a body, beyond some broad requirements.

The largest news media providers – those it deemed ‘content service providers’ – would be required by legislation to become members of a standards body. Most funding for the new body should come from industry, while taxpayer funds might be drawn upon to meet shortfalls or special projects. (p. xiv). It should feature:

–       a board of directors, with a majority independent from the members;

–       establishment of standards for news and commentary, with specific requirements for fairness and accuracy;

–       implementation and maintenance of an ‘efficient and effective’ complaints handling system;

–       a range of remedies and sanctions, including the requirement that findings be published on the respective platform. (p. 51)

The review’s definition of ‘content service enterprises’ (control over their content, a large number of Australian users, and a high level of revenue drawn from Australia) would catch about 15 media operators in its net.

Others might be encouraged to join the body with a threat to remove their current news media exemptions to privacy laws and consumer law ‘misleading and deceptive conduct’ provisions.

To my mind, this is the most innovative element of the Convergence Review’s proposal, and is something I proposed in my personal submission to the Independent Media Inquiry and blogged about at the time.

The review only deals with this aspect as a hypothetical, and refers readers in a footnote to pages 127-136 of the Independent Media Inquiry report for extended explanation of the exemptions. The review offers just a single sentence by way of explanation:

“In particular, it seems reasonable that only those organisations that have committed to an industry self-regulatory scheme for upholding journalistic standards of fairness and accuracy should be entitled to the exemptions from the provisions of the Competition and Consumer Act 2010 concerning misleading and deceptive statements and from the obligations of the Privacy Act 1988 that would otherwise apply to those organisations.” (p. 51).

My article will explore these further, going into the history of the exemptions and important case law covering on their application.

Take these away, and the review’s recommendations are relatively meek, and unlikely to appease those wanting stricter controls over news content.

The Australian Press Council has been moving quickly to ramp up its purview and powers over its members, and can meet most of the requirements except these. It has already locked its members into four year commitments and has established an independent panel to advise on its review of its content standards.

It is poised to apply this across all media if broadcasters and online providers decide it offers the simplest mechanism to meet the Convergence Review’s recommendations. Either way, it can quite rightly argue that newspaper and online news readers are being serviced by a superior complaints handling system than that which existed before the inquiries.

In my view, the Convergence Review report needed to position its privacy and consumer law exemptions as much more than hypotheticals and to detail its plans for the implementation of these proposals.

But I suspect its members were caught short on time and resources when the Independent Media Inquiry went too far for its liking with its statutory regulation solution.

It’s a shame that a multi-million dollar inquiry like this one has left it to academics like me to dot its i’s and cross its t’s on detail.

It’s a greater shame that politicians wish to capitalise on a moment of public antipathy to the media to introduce a draconian, simplistic solution in a democratic nation with no documented right to free expression.

© Mark Pearson 2012

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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Regulating the interaction between journalists and the vulnerable

By MARK PEARSON

This week I am in Shah Alam, Malaysia, for the 2012 Asian Media Information and Communication Centre Conference. The paper I am presenting Thursday is titled ‘Regulating the interaction between the news media and the vulnerable – the Australian experience’.

It will eventually be published in an academic journal, but I provide a summary here.

It reports on a selection of findings from a national collaborative research project examining the interaction between the Australian news media and so-called ‘vulnerable sources’.

It surveys the codes controlling journalists’ behaviour via in-house industry-based codes of practice and those administered by the Media Entertainment and Arts Alliance (MEAA), the Australian Press Council (APC) and the Australian Communications and Media Authority (ACMA).

It looks particularly at codes and regulations controlling privacy, intrusion, grief, children, mental illness and discriminatory reportage. It considers the vulnerable source issue in stories collected during a year’s selective sampling of the national daily newspaper, The Australian.

Special attention is paid to three years of decisions by the APC and the ACMA which have been coded and analysed according to the type of vulnerability involved, the guideline allegedly breached, and the result of the complaint.

It explains that there are many ‘moments of vulnerability’ that escape the hard and fast letter of laws and codes that seem to be left to the moral and ethical judgment of individual reporters and editing teams, demanding a fresh approach to in-house self-regulation.

I collaborated with five other academics and industry partners (listed below) in a $92,000 Australian Research Council Linkage project over two years to examine how journalists interacted with those who might belong to a ‘vulnerable group’ (such as the disabled, indigenous, children, those who have undergone trauma or grief, or those with a disability or mental illness) or those who might simply be ‘vulnerable’ because of the circumstances of the news event.

We decided instead to direct our inquiries, particularly during the newspaper content analyses, to identifying potential ‘moments of vulnerability’ rather than restricting our search to mentions of the pre-identified source groups.

Similarly, the analysis of the complaints decisions of the APC and the ACMA worked to the principle of moments of vulnerability rather than being driven particularly by a source’s membership of a pre-determined vulnerable group.

Taken at its broadest definition, all citizens are ‘vulnerable’ when they engage in any media interview. There is a potential for that interview or its resulting publication to go wrong, with associated embarrassment, emotional pain and in extreme cases even physical retribution from hostile audience members.

A total of 33 items were identified as depicting ‘moments of vulnerability’ from the coverage analysed for The Australian newspaper on the selected day in each of the 12 months of the 2009 calendar year. The sample was too small for quantitative analysis, so no statistical breakdown of the findings will be provided other than a simple count on some criteria. The analysis mainly takes the form of a qualitative study of the items, selecting key examples to explore the ‘moments of vulnerability’ and to offer a backdrop to the matters raised before the complaints bodies examined in the subsequent section.

We identified 33 ‘moments of vulnerability’ identified in the published stories, based upon 31 stories on the selected 12 days’ coverage in The Australian.

The 33 moments of vulnerability were categorised into PTSD/grief (14), mental illness/suicide (9), children (3), disabled (3), privacy (2), aged (1) and discrimination (1). All such moments were also assessed for the level of competing public interest/social importance value evident in the matter being reported to eliminate examples where the public interest arguments were so strong that it could be seen that editors could easily argue their decisions were driven by legitimate matters of social importance.

A process of elimination left us with seven key ‘moments of vulnerability’, centred on Australia-based stories, where public interest issues did not clearly excuse the type of coverage or interaction with vulnerable sources as presented.

The seven selected are summarised in Table 1, grouped according to the type of vulnerability, and each is then considered as a brief case study.

Table 1: ‘Moments of vulnerability’ identified in The Australian on selected days during 2009

Date Page Headline Type of vulnerability Summary and issues
3-2-09 3 DOCS urges fugitive mother to return Child This was a custody issue where a mother had allegedly kidnapped her son and fled overseas. Potential impact of comments by child welfare expert upon mother’s decision to remain at large.
9-4-09 16 D’Arcy puts head down amid crisis Mental illness/suicide Both articles juxtapose champion swimmer’s axing from the national team with that week’s suicide of top cyclist.
9-4-09 16-15 No repeat of headline acts which delivered day of shame Mental illness/suicide
6-6-09 43-44 The night Symonds was cut adrift / Symonds comes to end of the road Mental illness/suicide Links champion cricketer’s alcohol problems with allusions to suicide possibility, with risk of prompting that outcome.
13-11-09 3 Suspect may have killed himself Mental illness/suicide Speculates murder suspect may have self-harmed or suicided, potentially triggering that course of action.
11-8-09 3 Son dead, mother acute PTSD/grief Clearly a ‘death knock’ telephone attempt to speak to family or close colleagues after murder-suicide attempt.
9-9-09 3 Sandilands offends again Discrimination Story repeats a radio host’s offensive remarks about the weight and race of a female comedian in its own recount of the matter.

 

The conference paper explores each in detail. It then goes on to analyse five years of APC decisions between 2006-2010 and three years of ACMA decisions in 2008-10 in a similar approach to that undertaken for The Australian newspaper analysis, with interesting results.

Australian Press Council does not use the word ‘vulnerable’ or ‘vulnerability’ in its Statement of Principles, which addresses other criteria, many of which go to the issues we address in our study. Thus, we are placing (retrospectively) a different lens of analysis on the items of complaint.

The fact that we identified only 12 complaints regarding journalists’ interaction with ‘vulnerable sources’ adjudicated by the Australian Press Council over the 2006-2010 period indicated either:

  • News media interaction with vulnerable sources is not as negative as portrayed by inquiries such as the Independent Media Inquiry;
  • Alternative dispute resolution techniques offered by the APC in the earlier stages of the hundreds of complaints it receives annually are effective; or
  • Complainants are not pursuing their complaints or are withdrawing them at an earlier stage.

Vulnerable sources may well have a desire to complain, but not the energy or competence at the time to do it. Reforms to the Australian Press Council’s structure processes recently announced by its chairman, Professor Julian Disney, might consider some of these concerns.

Our study also examined the reports of the ACMA investigations in the 2007-10 period and identified the following 11 as pertinent to our study of the interaction between the news media and vulnerable sources.

A key problem of the ACMA process is that journalists are working under a variety of codes of practice controlling similar behaviours. Added to this are various ‘guidelines’ documents issued by the ACMA providing further counsel for broadcasters in their handling of sensitive issues. One such set of guidelines is the Privacy Guidelines for Broadcasters. These were reviewed during 2011 and our ARC team made submissions to that review on issues of interactions with the vulnerable, and particularly with issues of consent and withdrawal of consent by the vulnerable, particularly children. Their revised guidelines addressed these issues.

The regulatory, co-regulatory and self-regulatory mechanisms in operation in Australia have been under serious review in 2012, with new models proposed by the Independent Media Inquiry for a statutory News Media Council and by the Convergence Review for an independent self-regulatory news standards body.

There is a separate government proposal for statutory tort of privacy which extends beyond the news media but may include media or public interest exemptions. All acknowledge public concern at the confusing array of ethical codes and processes across media platforms and workplaces.

The news media interact with vulnerable sources in a range of circumstances, but the rules controlling that interaction vary markedly across media platforms and employment groups. The small sample of case studies from The Australian newspaper serves to demonstrate that some interactions with the vulnerable are not prevented by in-house codes and escape the attention of the relevant self-regulatory bodies unless a complaint has been made and remains unresolved. The APC and ACMA cases show that the outcomes of complaints are far from predictable and that sometimes elements of vulnerability appear obvious but are not even examined by the inquiring body. The examples demonstrate there are many ‘moments of vulnerability’ that escape the hard and fast letter of laws and codes that seem to be left to the moral and ethical judgment of individual reporters and editing teams.

Whatever new regulatory system is put in place requires a simple statement of ethical principles covering the usual fairness and accuracy elements, with an additional responsibility placed upon journalists and editors to identify individuals who are particularly ‘vulnerable’ in a news media interaction so that warning bells sound and informed decisions are taken on issues like consent and privacy.

This can only be achieved via genuine newsroom-driven training programs, accompanied up by routine protocols for assessing individual cases of vulnerability as they arise in the field and in the production process. Decisions taken in such circumstances should be documented thoroughly for later review and any rationale on ‘public interest’ grounds should carry justification well beyond audience curiosity, going to serious matters of public importance that could not be offered by less intrusive or traumatising ways.

Line-ball decisions should be made only after consultation with an independent psychologist and an explanation for the decision should be published on the outlet’s website. Only then – when ethical decision-making can be audited in a publicly accountable way – can Australian media organisations lay legitimate claim to effective self-regulation.

Research team

Professor Kerry Green from the University of South Australia led the ARC Linkage Project LP0989758. Other chief investigators on the project included Professor Michael Meadows (Griffith University), Professor Stephen Tanner (University of Wollongong), Dr Angela Romano (Queensland University of Technology) and this author, Professor Mark Pearson (Bond University). Industry partner investigators were Ms Jaelea Skehan (Hunter Institute of Mental Health) and Ms Cait McMahon (Dart Centre for Journalism and Trauma- Asia Pacific). Mr Jolyon Sykes was the research assistant for the larger project, while Mr John Burns, Mr Jordan Lester, Mr Roger Patching, Ms Kiri ten Dolle and Mrs Leisal DenHerder provided research assistance for my AMIC paper.

© Mark Pearson 2012

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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Inquiry’s #Finkelstein was judge who fined company for contempt over comments by its Facebook fans

By MARK PEARSON

Independent Media Inquiry chair Ray Finkelstein had already broken new legal ground and fined an online publisher for contempt for hosting misleading comments on its Facebook page before he was appointed to the inquiry last year.

His decision as a Federal Court judge in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 in January 2011 established the leading Australian precedent on publishers’ responsibility for the comments of others on their websites, Facebook pages and Twitter feeds.

He found the alternative health company’s actions in not removing ‘misleading and deceptive’ claims about its allergy treatments by ‘fans’ on its Facebook page (and ‘Twitter pages’) was in breach of earlier court orders to desist from making claims that it could ‘diagnose and treat allergies’.

As Crikey reported at the time, he fined both the company and its director, Mr Paul Keir, $7500 each for the disobedience contempt.

He has now chaired an inquiry which has a core recommendation with exactly that potential outcome – along with possible jail terms – for news bloggers and media outlets that refuse to publish corrections or apologies as directed by a new statutory News Media Council.

Of course there are key differences here, too. Allergy Pathway was not a news publisher – and it was disobeying an earlier court order under consumer law.

However, then Justice Finkelstein broke new ground on an issue where other jurisdictions like the US and the UK have offered protection to ISPs and blog hosts over the words of commenters on their sites.

Until a higher court decides otherwise, his decision means every Facebook user and website host (and Twitter user! – see below) is legally responsible for ‘publishing’ the comments of others on their sites.

The extent to which they might be immediately liable for an offending comment or whether they would be protected by taking it down within a ‘reasonable’ time has not yet been determined.

Certainly, Justice Finkelstein’s decision established that they would need to take reasonable steps to remove any such comments the instant they had been brought to their attention.

The Allergy Pathways decision goes to some lengths (paras 14-17) to define a Facebook ‘profile’ and ‘fan page’ and a Twitter feed.

But at paragraph 18 Justice Finkelstein seems to show a misunderstanding of Twitter by stating the ACCC’s argument as “once Allergy Pathway is aware of the statement having been placed on its Facebook or Twitter page and does not remove it, then it is liable for contempt”.

Call me an ignoramus, but I am left wondering: What is my “Twitter page”, and how can someone else post something there? Does he mean my own list of tweets, for which I am clearly responsible myself? Does he mean a #hashtag I have established on a topic? Surely I could not be responsible for others’ comments there? Or does he mean someone putting my handle in their tweet, for which I could surely not be held responsible?

He proceeds to track the legal precedents for host liability through defamation posted on golf club noticeboards, through to bulletin board hosts and Internet Service Provider liability.

“The effect of these cases is that merely facilitating the commission of a wrong will not result in liability but it is another thing to procure or conspire in the commission of the wrong, in which case liability may be imposed, particularly if the procurer is aware of the material being published and has accepted general responsibility for its publication,” Justice Finkelstein wrote.

He concluded: “It has been shown, indeed it was not disputed, that Allergy Pathway knew that persons had published testimonials on its Twitter and Facebook pages and that it took no steps to have them removed. …

“While it cannot be said that Allergy Pathway was responsible for the initial publication of the testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway’s Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them.

“Hence it became the publisher of the testimonials. In any event it is clear that it caused them to continue to be published from the time it became aware of their existence, which is enough to put Allergy Pathway in breach of the second limb of its undertaking.”

I might be missing something here, but the good judge appears to have bundled the company’s responsibility for comments by others on its “Twitter page” in with responsibility for comments on its Facebook page.

I can live with the latter – and as a result of this decision media organisations and public sector groups like the Queensland Police are now monitoring their Facebook comments very carefully – but how on earth can we control the former? And what is a ‘Twitter page’ upon which others might comment?

Please enlighten me in the comments section below.

Another theory is that Mr Finkelstein and his advisers were not quite as expert on the workings of the Internet and social media as punters might expect from a $1 million-plus government inquiry. The have already been criticized for using the term ‘hits’ rather than ‘page views’.

As for the fact that Mr Finkelstein already had ‘form’ in the fining of publishers for contempt is not that great a surprise. It is what senior judges are sometimes called upon to do.

However, it puts into context his core recommendation for a statutory solution with appeal to a judge like him with the power to fine or jail a news publisher or relatively small blogger for disobedience contempt.

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

© Mark Pearson 2012

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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