Tag Archives: court reporting

April 11, 2018 · 1:34 pm

Defamation research and social media mean it’s time to consider reform

The Sydney Morning Herald recently published my commentary welcoming the NSW Government’s rethink of defamation law in the light of recent research showing a large number of cases involve ordinary citizens (rather than celebrities) and social media posts (as distinct from media publications).

Social media gives people a wider audience for their bile – and defamation laws must reflect that https://t.co/BUm9gJZmgq via @smh #MLGriff

— Prof Mark Pearson (@JournLaw) April 11, 2018

It was titled ‘Social media gives people a wider audience for their bile – and defamation laws must reflect that’.

Here is the extended unedited version for those with a special interest:

The decision to review NSW defamation laws announced yesterday is overdue, and changes need to address several aspects of the legislation as well as the very human flaws of vindictive remarks, fragile egos and ignorance of the law.

NSW District Court defamation expert Judge Judith Gibson called for reform this week, pointing to the rise of Internet-related defamation cases, a phenomenon unanticipated when uniform defamation laws were introduced throughout Australia in a landmark 2005 reform.

Her argument was underscored by research released last week by the UTS Centre for Media Transition which found that more than half of defamation cases over the past five years involved reputational damage in a digital medium, up from 17 per cent in 2007 when social media was in its infancy.

The common perception that defamation cases typically involve celebrities suing the media for millions of dollars – like recent litigants Rebel Wilson and Geoffrey Rush – is a myth. The study showed that among the 189 decided cases from 2013-2017, only one third of defendants were media companies, and only about one fifth of those bringing the action were celebrities or public figures.

When you read the detail on the cases, it becomes clear that most defamation cases are contests between ordinary citizens over negative remarks they have made about each other on social media, websites, emails and other means of digital communication.

With the advent of social media, everyone is a publisher in the eyes of defamation law – and many more people in far-flung places can see or hear the nasty things we say about each other.

Broken friendships, business disagreements and political or moral debates escalate and get vindictive and personal.

There was the first Twitter case where a misguided former student posted a social media character assassination against a school teacher because he mistakenly thought she had cost his father his job.

And the disgruntled businessman who used the social media platform WeChat and targeted emails to tell the world a meat trader was a conman, corrupt and a criminal, with no factual basis.

And the Victorian junior football umpire with Asperger’s Syndrome who was taunted on a US autism website with falsities that he was a pedophile and was faking his condition.

For centuries there have been some people inclined to write poison pen letters, spread nasty rumours and to post sick messages on public noticeboards and toilet walls. The Internet and social media has given them a wide audience for their bile and some of these now result in defamation trials.

Prior to the 2005 reforms, defamation law in Australia was a complicated mess. Major variations existed across the states and territories on a host of issues, including the limitation periods in which people could bring an action and the defences available. ‘Forum shopping’ was rife, with plaintiffs selecting the jurisdiction where the law best suited their case.

The reforms were remarkable in that attorneys-general in eight states and territories reached agreement and forged the changes through their parliaments.

But those laws are desperately in need of reform if they are to catch up with the social and technological changes of the past decade.

The ‘offer of amends’ system introduced with the last reforms was a novel initiative to keep actions out of court with encouragement for an early offer of damages and an apology. But it is complex, often appealed, and other mediation incentives should be put in place to educate parties about settling their differences earlier to avoid the public and personal expense and distress of litigation. Alternative remedies to damages and injunctions would be a bonus.

The triviality defence is flawed and needs to include something of the flavor of the UK’s “serious harm” test – requiring serious reputational harm as a prerequisite to an action.

Changes also need to encourage public interest journalism rather than punish it.

Journalists deserve a stronger public interest (qualified privilege) defence which does not fail when they refuse to reveal their confidential sources and allows for minor errors in important exposés.

And the truth defence should be narrowed to focus on the single most obvious defamatory meaning to give certainty to the reportage so that lawyers do not generate more obscure meanings a journalist might never have anticipated when researching a story.

The implied freedom to communicate on matters of government – a welcome but technical initiative of the High Court – should be enshrined as a formal statutory defence and satirists should get their own defence to better protect robust political critique via parody and satire.

But in tandem with defamation reforms we need government investment in digital legal literacy. School and adult learning curricula must include the basic legalities of social media and Internet use – stressing the key risks posed by defamatory and contemptuous posts.

Teachers might use some of those moral aphorisms our mothers used to tell us.

They would scold us over our nasty comments with “Do not say to others what you would not want said to you”.

And they would soothe our fragile egos: and “Sticks and stones may break my bones, but names will never hurt me.”

Education and mediation encouraging mindful communication might resolve some defamation actions before they even start.

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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February 9, 2018 · 12:40 pm

Rare victory for truth defence in vocational education case – #MLGriff

By MARK PEARSON Follow @Journlaw

CASE REPORT: Charan v Nationwide News Pty Ltd [2018] VSC 3

The Australian newspaper had a rare victory using the truth (or justification) defence to defamation in a recent case involving a vocational education businessman.

Education boss found to be dishonest in losing defamation case https://t.co/pfGypDOq9f via @smh

— Prof Mark Pearson (@JournLaw) February 9, 2018

Pure truth defences rarely make their way through the courts because they are usually either settled or decided on other defences such as honest opinion, fair report, triviality or qualified privilege.

Plaintiffs will not usually undergo the pain of public defamation trials if there is some semblance of truth to the allegations against them which will be aired for all to see in media coverage.

Facts

On November 20, 2015, The Australian newspaper published a print article (‘Watchdog takes peak training college to court’) and a similar online version (‘ACCC to take top training college Phoenix Institute to court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network company (CAN) in the midst of a general crackdown on the sector over unscrupulous door-to-door marketing practices. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up and stated that the parent company was under investigation by both the Federal Department of Education and the Australian Skills Quality Authority and that its shares had been suspended from trade for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, “whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct” (para 2). Mr Charan had in fact left the company about a year earlier and The Australian the next day published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded eight imputations arose from the article, which the judge grouped into four headings:

Mr Charan was head of ACN, a company which engaged in unscrupulous business practices that took advantage of vulnerable consumers
Mr Charan was head of ACN, a company which engaged in misleading and deceptive conduct.
Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers
Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards (para 27).

The defendant Nationwide News – publisher of The Australian – argued successfully that imputations 2 and 3 did not arise and defended the imputations of unscrupulous business practices and significant noncompliance with quality standards successfully using the justification defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the unscrupulous conduct allegations it had to convince the court under the civil burden of proof – the ‘balance of probabilities’ – that there was ‘clear and cogent proof’. To do so it drew upon a host of material obtained after the publication, including:

(a) the oral testimony of a number of witnesses who had worked in the CTI group;

(b) the oral testimony of three “students” allegedly enrolled in CTI courses conducted by CTI companies;

(c) the contents of a series of audit reports, student interviews and file reviews (with associated documentation) of CTT and AMA, carried out in 2015 under the instructions of DET; and

(d) a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies” (para 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider Telstra.

Justice Forrest found the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para 111). He concluded with a concise summary of his 768 paragraph judgment:

(a) Mr Charan was defamed in both the written and online versions of the article;

(b) the article defamed him by conveying imputations that:

(1) Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2) Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations. (paras 762 -763).

Lessons for professional communicators

Several lessons arise from this rare but successful use of the justification (truth) defence by a publisher:

Considerable evidence can be required to prove the truth of imputations stemming from an article, and sometimes this has to be located after the reporting and publishing process has finished, although as much evidence as possible should be available at the time of publication;
A publisher defendant can still win a case on the pleaded imputations even if there is basic error in the story – in this case the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided).;
Defamation cases can be enormously expensive. In this case the 35-day trial was reported to have cost both side mores than $3.5 million in legal fees (Duke and Vedelago, 2018)

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March 30, 2017 · 1:38 pm

DEFAMATION CASE UPDATE: Zoef v Nationwide News Pty Ltd – identification and offer of amends appealed #MLGriff

By MARK PEARSON Follow @Journlaw

CASE UPDATE: Zoef v Nationwide News Pty Ltd – 2015, 2016 and 2017

I blogged in 2016 about a case where the mistaken identification of an innocent octogenarian tailor in place of his alleged gun-running son produced a useful case study for media law educators trying to explain the basic elements of defamation.

Indeed, the NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 remains an excellent introduction to defamation, although in October 2016 the NSW Court of Appeal overturned the publisher’s defence of “offer of amends” which was originally granted by the lower court, in the appeal case of Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, and awarded the plaintiff $150,000 in damages. The appellant, Mr Tony Zoef, also had a partial victory in a more recent appeal over the backdating of the damages award, costs and interest owing in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2.

The first appeal is useful for educators explaining identification issues in defamation and the “offer of amends” defence requirements under s 18 of the Defamation Act 2005 (NSW) (Defamation Act) – and its equivalent in other Australian jurisdictions – while the 2017 appeal holds little value for media law teachers.

The case centred upon an article published in The Daily Telegraph on 22 August 2013.

It appeared a relatively straightforward case of confused identity, where the reporter mistakenly attributed to the older Mr Zoef – a suburban Sydney tailor – the alleged crimes of his son who lived at the same address. At trial, the sole basis on which Mr Zoef’s claim was dismissed was the newspaper’s defence that Mr Zoef had failed unreasonably to accept its offer of amends.

The article in the Telegraph (22-8-13, p. 9) carried the heading “Tailor’s alter ego as a gunrunner”, which might also make an interesting topic of discussion for students around the issue of sub judice contempt: Does such a heading carry a presumption of the accused’s guilt when accompanying a report of a preliminary court appearance? [The article in question is attached to the judgment as a pdf file.]

The article portrayed a then 81-year-old suburban tailor (with a distinctive surname ‘Zoef’) as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

As I blogged in 2016, the trial judgment by District Court Judge Leonard Levy is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

imputations – how they are worded and presented
the misidentification’s impact on the plaintiff’s relationships, business and emotional state
the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first [*** considered on appeal].
whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age]. [*** considered on appeal].
whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff [***the trial judge’s decision which was subsequently overturned on appeal].

The trial judge had held that, despite the serious errors in the reporting of the story and a dispute over whether the publisher’s offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

In the leading appeal judgment, Justice Fabian Gleeson stated:

Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent’s defence under s 18 of the Defamation Act. (at para 78).

His reasons for that decision involved a step-by-step appraisal of the offer of amends defence and thus make useful instructional material for educators wanting to explain this defence to students. It should also serve to remind journalists that the offer of amends is very much a ‘lawyers’ defence’ – not something that should be handled by journalists or editors independent of legal advice – and given its time constraints it means that counsel from lawyers on the efficacy and wording of any such offer should be sought promptly.

The publisher also challenged the trial judge’s findings on whether the plaintiff had been identified in the article when it carried a photograph of his son and stated his age as 43 years old.

The Court of Appeal affirmed the trial judge’s decision that Mr Zoef Sr had been identified in the article despite those countering factors. Justice Gleeson ruled:

The article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a “43 year old” which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person’s name, profession and locality in the foregoing paragraph.

In respect of the photograph, his Honour’s finding that it was “immaterial” is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, “less than distinct”. Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant’s customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant. (paras 159-160).

So there you have it. The Zoef case – both at trial and on appeal – holds valuable lessons for media law students and educators are encouraged to use it as a case study. I have done so successfully with both journalists and tertiary students.

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March 11, 2016 · 3:22 pm

Identification error leads to a useful case for teaching the basic elements of defamation

**See UPDATE after appeal**

By MARK PEARSON Follow @Journlaw

[research assistance from Virginia Leighton-Jackson]

The morphed identification of an innocent octogenarian tailor and his alleged gun-running son produces a useful case study for teachers and trainers trying to explain the basic elements of defamation.

The NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 centred upon an article in Sydney’s Daily Telegraph (22-8-13, p. 9) with the heading “Tailor’s alter ego as a gunrunner”. [The article in question is attached to the judgment as a pdf file.]

The article portrayed an 86-year-old suburban tailor with a distinctive name as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

The case is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

imputations – how they are worded and presented
the misidentification’s impact on the plaintiff’s relationships, business and emotional state
the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first
whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age].
whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff.

On the question of identification, Judge Leonard Levy ruled:

Para 37   …where a plaintiff has actually been named in a defamatory publication it is not necessary for the plaintiff to show that those to whom the material was published knew the plaintiff: Mirror Newspapers Ltd v World Hosts Pty Ltd (1978 – 1979) 141 CLR 632, at 639.

38   Even so, the plaintiff must establish that the defamatory matter should be understood to be referring to him: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91. The determination of that question of identification is not to be decided by a consideration of what the publisher intended: Hutton v Jones [1910] AC 20.

39   In cases where a defamatory publication names one person but another person of the same name has been defamed, this can give rise to more than one claim: Lee v Wilson and Mackinnon (1934) 51 CLR 276, as cited in Australian Defamation Law and Practice, Volume 1, TK Tobin QC, MG Sexton SC, eds, 2003, at [6050].

40   In determining the question of identification, the question is, would a sensible reader reasonably identify the plaintiff as the person defamed: Morgan v Odhams Press Ltd [1971] 1 WLR 1239. …

49   In my view, the combined context … serves to adequately identify the plaintiff….

52   …the article strings together the plaintiff’s name, his profession, the fact that he lives in his home in the Sutherland Shire, and has a business altering the clothes of locals all point strongly to the article mentioning the plaintiff by his name and is sufficient of his personal situation to indicate it was him who was the subject of the article.

53   Those details all follow the sensational headline “Tailor’s alter ego as a gunrunner” thereby making a connection between the plaintiff and the described illegal activity concerning the cache of weapons and ammunition found at the premises.

54   The fact that an unclear undated photograph of Tony Zoef appears in the article (at par 38) is immaterial. The fact the article identifies the age of the person the subject of the article as being a 43 year old does introduce an element of possible confusion (par 30) along with the indistinct photograph (at par 38), but inaccuracy of some details appearing in a newspaper article is not an unknown phenomenon.

55   The salient feature is that the plaintiff was named in the article with sufficient of his personal details to suggest he was thereby identified, although the latter details are not essential to that finding.

56   As the article in question named the plaintiff, in my view thereby identifying him, this forms the basis of his right to bring the proceedings without more being shown by him. The fact that there were two persons at the premises named Tony Zoef is immaterial. Both persons of that name could bring proceedings for defamation in their own names: Lee v Wilson and Mackinnon (1934) 51 CLR 276.

59   …I am nevertheless satisfied that the material complained of should be understood as referring to the plaintiff even though the publisher may not have intended that to be so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91.

60   I consider that … an ordinary sensible reader would identify the plaintiff as the person the subject of the material complained of because of the specific of his name, profession, and locality as already explained. Such a reader… would not read such a sensational article as the one in question with critical and analytical care.

61   The article would be approached by such a reader with the permissible amount of loose thinking, and that reader would be reasonably entitled to draw the conclusion that the article was referring to the plaintiff, even though there were some elements of confusion such as a less than distinct photograph and a different age mentioned to that of the plaintiff. An ordinary reasonable reader would not necessarily know the plaintiff’s age or his level of interest in matters to do with space. The headline of “Tailor’s alter ego as a gunrunner” would catch the attention of such a reader and permit the general impression of the story being a reference to the plaintiff: Mirror Newspapers Limited v World Hosts Proprietary Limited [1978 – 1979] 141 CLR 632, at p 646; Morgan v Odhams Press Ltd [1971] 1 WLR 1239.

The judge also considered the important question of the impact of headlines:

44 In cases involving headlines, it must be borne in mind that the ordinary reasonable reader will draw conclusions from general impressions when reading the matter complained of. Such general impressions are necessarily formed by the technique of using prominent headlines to communicate the principal message of the publication, and it must be recognised that in that process, such material may diminish the reputations of those affected: Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, at p 575.

A large portion of the judgment centred upon whether a defence of ‘offer of amends’ should be upheld under s 18(1)(c) of the Defamation Act. The judge held that, despite the serious errors in the reporting of the story and a dispute over whether the offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

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August 21, 2014 · 12:19 pm

Court restrictions on identifying children in Australia – a guide for journalists

By MARK PEARSON Follow @Journlaw

We have removed the comparative reporting restrictions tables from the fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) which will be published later this year.

Order through Booktopia at http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

Co-author Mark Polden and I have decided to move these comparative tables on reporting restrictions throughout Australia across to this blog – journlaw.com – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

As I upload them over coming weeks I would appreciate any students or colleagues using the comments section below to advise of any updates in your jurisdictions and I will act to update the tables accordingly.

Looking forward to your collaborative input!

——

Restrictions on reports of proceedings involving children

Note: NO identification of parties or witnesses in any way under the Commonwealth Family Law Act s. 121.

Jurisdiction	Law	Exceptions	Legislation
ACT	Reports of proceedings: Media allowed to report. ID: Cannot be identified. Cannot publish account of family group conference—	None mentioned.	Criminal Code 2002, s. 712A. Children and Young People Act 2008, s. 77.
NSW	Reports of proceedings: Media allowed to stay and report. ID: No ID of child mentioned or otherwise involved (including victims and witnesses) living or dead, during or after proceedings, or their siblings.—	Court may close proceedings. Court may allow ID or children aged 16 or over can authorise.(Seek legal advice on this.) Or senior next of kin or court (if deceased).	Children (Criminal Proceedings)Act 1987, s. 15A; Children and Young Persons (Care and Protection) Act 1998, ss. 104 and 105; Young Offenders Act 1997, s. 65.
NT	Reports of proceedings: Open court and reports allowed. ID: No restriction.—	Magistrate may close court or order suppression.	Youth Justice Act 2005, ss. 49, 50.
Qld	Reports of proceedings: No. ID: No ID of child accused without court’s permission. No ID of child witness in sexual matter. ID of child witness okay in other matters unless ordered otherwise. Cannot ID authorised officer or police officer in matters with child witnesses. No ID info about child victims. No ID of children subject to allegations of harm or risk of harm or in state custody or guardianship.—	Judge may order publication of identifying information for heinous crimes. Court can permit reporting when otherwise prohibited.Child victim can consent after becoming adult if fully informed of publication matter, audience and reason.	Youth Justice Act 1992, ss. 234, 301. Child Protection Act 1999, ss. 189, 192, 193.
SA	Reports of proceedings: Court open to ‘genuine representatives of news media’. No family care proceedings reports. ID: No ID of child parties, witnesses or victims,or other persons other than in official capacity without their permission, including name, address or school. Documentaries may be approved under strict conditions.—	Courts can authorise some reports and ID.	Youth Court Act 1993, s. 24; Young Offenders Children’s Protection Act 1993, s. 59, Children’s Protection Act 1993, s. 13; 59A.
Jurisdiction	Law	Exceptions	Legislation
Tas.	Reports of proceedings: No provision for media to be present without permission of court. ID: No ID of youths or youth witnesses.—	Permission of court.	Youth Justice Act 1997, ss. 30, 31; Magistrates Court (Children’s Division) Act 1998, ss. 11, 12.
Vic.	Reports of proceedings: Open court and media allowed to report. ID: No identification of child accused or any witnesses to case. No mention of court venue. Long list of banned ID particulars for children and witnesses including: name, title, pseudonym, alias of the person, home or work address or localit0, school or locality; physical description or style of dress; occupation or calling; relationship to identified others; interests or beliefs; real or personal property. No photos.—	Permission of court.	Children, Youth and Families Act 2005, ss. 523, 534.
WA	Reports of proceedings: Yes ID: No ID on child involved in proceedings in any way. No ID of child subject of a protection application or order.—	Court can exclude persons. Supreme Court can authorise ID of child.	Children’s Court of Western Australia Act 1988, ss. 31, 35, 36, 36A. Children and Community Services Act 2004, s. 234

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© Mark Pearson 2014

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August 13, 2014 · 8:47 pm

Sexual offences publishing restrictions in Australia – a guide for journalists

By MARK PEARSON Follow @Journlaw

Our fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) goes to the printer this week for publication later this year.

Order through Booktopia at http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

Co-author Mark Polden and I have decided to move some of the comparative tables on reporting restrictions throughout Australia across to this blog – journlaw.com – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

Looking forward to your collaborative input!

Sexual offences publication restrictions

Jurisdiction	Law	Exception	Legislation
ACT	Complainant must not be identified by name, ‘reference or allusion’, including allowing someone to find out their ‘private, business or official address, email address or telephone number’.	Complainant may consent. (Seek legal advice on proving consent.)	Evidence (Miscellaneous Provisions) Act 1999, s. 40.
New South Wales	Complainant must not be identified, even after proceedings disposed of.	With permission of court. Consent of complainant aged over 14. (Seek legal advice.) With consent of court for complainants aged under 16.	Crimes Act 1900, s. 578A; Children (Criminal Proceedings) Act 1987, s. 15A.
Northern Territory	Complainant must not be identified at all. Accused cannot be identified until after committal. No mention of ‘name, address, school or place of employment’ for either.	With permission of court.	Sexual Offences (Evidence and Procedure) Act 1983, ss. 6, 7 and 11(2).
Queensland	Complainant must not be identified at all. Accused cannot be identified until after committal. No mention of ‘name, address, school or place of employment’ for either.	With permission of court.Protection for accused only applies to ‘prescribed sexual offences’: (a) rape; (b) attempt to commit rape; (c) assault with intent to commit rape; (d) an offence defined in the Criminal Code, section 352.1. Seek legal advice about other offences.	Criminal Law (Sexual Offences) Act 1978, ss. 6 and 7.
South Australia	Case and related proceedings including identity of accused cannot be reported until accused has been committed for trial. Complainant must not be identified at any stage.Publishers must publish prominent report of result of proceedings they have covered at earlier stage when accused has been identified.	Pre-committal reports can be made with permission of accused. (Seek advice.) Complainant can be identified with his/her permission or order of court unless child victim.	Evidence Act 1929, ss. 71A and B.
Tasmania	Complainant and witnesses other than defendant must not be identified, even if dead. Also bans ‘any picture purporting to be a picture of any of those persons’.	Court may allow identification ‘in the public interest’.	Evidence Act 2001, s. 194K.
Victoria	Complainant must not be identified, even if proceedings not pending.	If proceedings not pending, with permission of court or complainant (seek legal advice) or on proof that no complaint of offence had yet been made to police. If proceedings pending, with permission of court only.	Judicial Proceedings Reports Act 1958, s. 4.
Western Australia	Complainant and their school must not be identified.	With authorisation in writing by complainant aged over 18 and mentally capable of making decision. (Seek legal advice.)	Evidence Act 1906, s. 36c.

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Tagged as Australian media, contempt, court reporting, ethics, free expression, journalism, law, mark pearson, media, media law, mental health, mindfulness, open justice, press freedom, publishing, restrictions, sexual offences

April 15, 2014 · 9:14 am

Barrister and co-author Mark Polden chats with @journlaw on #defamation defences: #MLGriff

By MARK PEARSON Follow @Journlaw

Defamation laws can be intimidating for journalists, bloggers and other professional communicators. The key, according to barrister Mark Polden, is in researching and writing to the basic defences.

Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

In this 11 minute interview with @journlaw, he outlines in simple terms the three ‘bread and butter’ defences used by writers and publishers – truth, fair report and honest opinion (fair comment).

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Tagged as Adrian Bayley, contempt of court, court reporting, courts, Derryn Hinch, disobedience contempt, Jill Meagher, judges, juries, law, legal education, media law, press freedom, social media, social media law, sub judice, suppression orders, Supreme Court of Victoria

April 8, 2014 · 9:21 am

On Skype with @journlaw – barrister and co-author Mark Polden on #defamation basics: #MLGriff

By MARK PEARSON Follow @Journlaw

Exactly what is defamation and how does it apply to your average journalist or blogger?

That’s what I asked barrister Mark Polden in this short interview on defamation basics. Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

Here he offers a lay definition of defamation and gives some examples of how journalists, bloggers and other professional communicators might write to minimise the threat of legal action.

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April 3, 2014 · 9:45 am

15 mins with @journlaw – Peter Gregory on the art of court reporting #MLGriff #medialaw

By MARK PEARSON Follow @Journlaw

What is the secret to good court reporting? Highly experienced court reporter and academic Peter Gregory [@petergregory17] – author of Court Reporting in Australia (Cambridge University Press, 2005) – tells @journlaw the essential techniques needed by a journalist wanting to cover the court reporting round.

Gregory explains how he recently returned to duty when he filled in to cover the sentencing of Adrian Bayley for the murder of Jill Meagher – in a marathon 12 hour shift!

He discusses the court reporter’s difficulties in writing fair and accurate reports of trials, particularly when they might be unfolding in different courtrooms at the same time.

He also gives tips on how a journalist might stand up in court to oppose a suppression order being imposed by a judge or magistrate.

Useful viewing for journalism and law students – and for anyone wanting an insight into the work of the court reporter.

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Tagged as Adrian Bayley, contempt of court, court reporting, courts, disobedience contempt, Jill Meagher, judges, juries, law, legal education, media law, press freedom, social media, social media law, sub judice, suppression orders, Supreme Court of Victoria

March 24, 2014 · 11:28 am

15 mins with @journlaw – Peter Gregory on ‘contempt and the court reporter’ #MLGriff #medialaw

By MARK PEARSON Follow @Journlaw

We hear about the many types of contempt affecting the role of the court reporter – but how does a journalist manage this in practice?

That is exactly the issue I raised with veteran court reporter (now academic) Peter Gregory [@petergregory17] in this interview covering the main types of contempt of court affecting court reporting – contempt in the face of the court, disobedience contempt, sub judice (prejudicial reporting) and interference with the deliberations of jurors.

Gregory – author of Court Reporting in Australia (Cambridge University Press, 2005) – explains how court reporters might be affected by such forms of contempt, offers examples from his own career, and suggests how journalists might adjust their own practice to minimise risk.

He looks at the impact of new technologies – particularly social media – in the courtroom. Finally, he assesses the dynamics of social media and traditional media at play in the major Victorian trial of the murderer of Irishwoman Jill Meagher (Adrian Bayley) which resulted in the jailing of blogger Derryn Hinch on a contempt charge after disobeying a suppression order.

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