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Be wary of the legal risks of a media conference

By MARK PEARSON

Press conferences might seem fairly straightforward opportunities for a source or client to get their side of the story across, but they can have considerable legal risks attached.

We explore these situations in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) and I share some of those here.

Words uttered at media conferences in Adelaide and Perth were at the centre of defamation actions in 2012 and 2017. In the Nightclub case, a Hindley Street nightclub owner called a press conference to announce an initiative to increase public safety and reduce violence in the central Adelaide precinct. Almost two years later, he sued a neighbouring travel agency operator over a statement he alleged she had uttered in the midst of that media conference. He claimed the travel agency owner had announced loudly to the media gathered at the conference that he—the nightclub owner—was responsible for all the violence in Hindley Street. After hearing from several witnesses (including the nightclub’s public relations consultant), the District Court judge found for the defendant. He said it was more likely the interjector had not made such a blatant defamatory allegation against the nightclub owner and, even if she had, he would only have awarded $7500 in damages. There was no evidence of a recording having been made of the words she had spoken.

However, words spoken by a detective in a media conference resulted in Western Australia’s highest award of defamation damages in 2017. Detective Senior Sergeant Jack Lee had described Perth barrister Lloyd Rayney as the ‘prime’ and ‘only’ suspect in widely broadcast press conferences about the investigation into his wife Corryn’s 2007 murder (Barrister’s wife case, 2017). Rayney was acquitted of her murder in 2012 in one of the state’s highest profile cases. He then proceeded to sue the state over the detective’s comments in those media conferences back in 2007 and won $2.623 million in damages. The Western Australian Supreme Court held that the state should not qualify for the qualified privilege defence because Detective Lee had gone far beyond what was appropriate in the circumstances with which he was confronted, and, especially having regards to the seriousness of the offence being investigated and the obvious professional damage that loose language would inflict on Mr Rayney (para. 165). Errors and misstatements meant the detective had not exercised reasonable care in his responses to questions, losing the statutory qualified privilege defence, and went beyond a police officer’s duty to keep the public informed, thus forfeiting the common law qualified privilege defence (para. 173). (The quantum of damages may be subject to appeal.)

This followed the line of reasoning by the South Australian Supreme Court’s Full Court when it rejected the SA Police use of the qualified privilege defence in a defamation case brought by a former newspaper photographer who was a suspect in a murder (Murder suspect case, 2015). The court held that a media release and a press conference hosted by police ‘fell wholly outside the interest or duty of the police to provide information necessary to obtain such assistance from the public as may potentially be available and outside the interest of members of the public to receive such information’. There was no public interest to be served by police going into the details of the crime or the state of their investigation or the fact of their suspicions at that time in relation to the suspect (at paras 437–8).

The NSW Supreme Court held in the Councillor’s case (2017) that giving an interview to a journalist or hosting a press conference renders whoever is speaking responsible for any defamatory material conveyed in that interview or press conference because they ‘both intended its republication and understood it would be republished, either in whole or in part’ (at para. 64). The court ruled that, ‘In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary’ (at para. 65).

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2018

 

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

Media law for local government communications officers

By MARK PEARSON

A host of media laws might arise in the work of local government communications and media relations personnel, as I explained to a team from a large council recently.

With councils hosting inquiries and debates among ratepayers on social media platforms, and some even publishing their own news products to supplement a weaker suburban and regional media sector, they are facing many of the same media law risks that journalists encounter in their work.

These include defamation, contempt, breach of confidence, privacy, freedom of information/right to information, intellectual property and discrimination laws among others.

Yet while the news media have been described by some as “not just another business” because of their Fourth Estate role in a democracy, councils are clearly “not just another publisher” because of the special role local government plays in our political system.

A news organ published by the communications department of a local government body faces existential questions about their purpose and responsibilities which, in turn, feed into media laws and their defences.

A central question is: “Whose interests should come first, the citizen-ratepayer’s or the council’s?”

The reality is that most topics covered – such as extended library hours and the Carols in the Park coverage – would not trigger a dilemma here.

But push comes to shove when citizens are strongly critical of a council, its officers or its elected representatives over a decision or a proposal.

This is where the editor of any council-owned news organ and the moderator of comments on its social media feed face this fundamental dilemma over who is their real master – which in turn can feed into their position on several media law issues, most notably about whether defamation defences might be defeated by a lack of good faith or a perceived bias.

But there are also fundamental issues over the extent to which councils can shackle both the common law right to free expression and of course the implied freedom to communicate on matters of politics and government – both clarified in relation to local government bylaws by the High Court in Attorney-General (South Australia) v Corporation of the City of Adelaide (2013) 249 CLR 1.

While that case found Adelaide Council’s restrictions on preaching in Rundle Mall were a reasonable restriction on those freedoms, the decision prompts questions about other restrictions some councils may exercise upon their staff and elected officers.

Some, for example, have banned councilors from speaking publicly against decisions of their councils by narrowly interpreting some provisions of local government acts.

Early in 2017 the Redland City Council in Brisbane was criticized by the Queensland Ombudsman for threatening two citizens with defamation action over alleged defamatory comments about council, council officers and the Mayor, Karen Williams on social media websites. Legal letters from the Council demanded the complainants remove their comments and post apologies. The Ombudsman concluded the threats were not a reasonable or proportional response to what was relatively minor criticism of council’s decisions and were an unreasonable expenditure of public funds. He recommended training for councils in defamation law.

There are many other areas of the law beyond media laws that are likely to impact on local government media relations and communications personnel – both because of their public relations role and because of their function as part of the third tier of government.

These might include contract law, negligence, professional liability, HR law, whistleblower legislation and a host of regulations and common law obligations over transparency in council processes.

The recommendation by Queensland’s Ombudsman that council officers need training in defamation could well be extended to numerous media laws and several other legal and regulatory restrictions.

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 2017

 

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