Tag Archives: defamation

Case study shows the legal pros and cons of a media release

By MARK PEARSON

MEDIA releases are meant to enhance brand reputation but they can sometimes have the reverse effect, as we explain in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019).


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We profile the Born Brands case (2013), where two media releases had vastly different consequences for the manufacturers of a device to help better position infants during sleep.

The first was particularly successful, generating a news segment on Brisbane Extra about its Babywedge product and an appearance on national morning television (Born Brands case, para. 8).

But the second media release—this time emanating from the US Consumer Product Safety Commission (CPSC)—caused unexpected damage because it warned consumers against using infant sleep positioners.

Babywedge then featured on a Channel 9 news segment among other such products in a story about the potential dangers of infant sleep positioners (at para. 14).

As part of the fallout from the crisis, Born Brands sued the Nine Network for both defamation and injurious falsehood, claiming the news item damaged its reputation as a small corporation (fewer than 10 employees) and that it contained false statements, published with malice, which had caused it actual financial loss (injurious falsehood).

However, the company found no relief because the television network managed to defend both actions successfully, with the court finding the statements were not false and that no malice had been proven (paras 184–9).

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Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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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Defending truth: case study from our new edition

By MARK PEARSON

DEFENDING a defamation action using the truth or justification defence can have its hurdles, but this case we profile in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) demonstrates how a major publication used it effectively.

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The Vocational Education case

Charan v Nationwide News Pty Ltd [2018] VSC 3

Facts

In late 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. 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 (ASQA) and that its shares had been suspended from trading on the stock exchange for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated that 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 next day The Australian published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded that eight imputations arose from the article, which the judge grouped into four headings (para. 27):

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

The defendant, Nationwide News—publisher of The Australian—argued successfully that imputations 2 and 3 did not arise in the articles and defended the imputations of unscrupulous business practices and significant non-compliance with quality standards using the justification (truth) defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the substantial truth of 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:

  • the oral testimony of a number of witnesses who had worked in the Community Training Initiatives (CTI) group
  • the oral testimony of three ‘students’ allegedly enrolled in CTI courses conducted by CTI companies
  • the contents of a series of audit reports, student interviews and file reviews (with associated documentation), carried out in 2015
  • 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 that 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 762–3).

Lessons for professional communicators

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

  • Considerable evidence can be needed to prove the truth of imputations stemming from an article, and sometimes this has to be located after publication and before trial, 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 a 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 sides more than $3.5 million in legal fees (Houston, Duke and Vedelago, 2018)

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Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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, defamation, free expression, journalism, media law, Media regulation

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

By MARK PEARSON

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).

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.

© Mark Pearson 2018

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

By MARK PEARSON

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.

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:

  1. Mr Charan was head of ACN, a company which engaged in unscrupulous business practices that took advantage of vulnerable consumers

  2. Mr Charan was head of ACN, a company which engaged in misleading and deceptive conduct.

  3. Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers

  4. 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)

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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INFORRM a highly recommended resource for journalists and media law students #MLGriff

By MARK PEARSON

Congratulations to UK-based media law blog INFORRM (INternational Forum for Responsible Media) on reaching an impressive 4 million hits since it started seven years ago.

The site – international but with an understandable UK orientation – boasts more than 5,500 followers including  3,500 on Twitter @inforrm.

INFORRM has just listed its Top Twenty Posts of all time (in descending order of popularity):

From time to time over recent years they have been kind enough to repost my blogs or commentary pieces, including these:

Australia: Whither media reform under Abbott? – Mark Pearson

25 11 2013

Where will the new Liberal-National Coalition government led by Prime Minister Tony Abbott head with the reform of media regulation? Communications Minister Malcolm Turnbull and Attorney-General George Brandis were vocal opponents of the former Gillard Government’s proposals to merge press self-regulation with broadcast co-regulation into a new framework.

Read the rest of this entry »

Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones – Mark Pearson

13 10 2013

Australia MapThe interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension. Read the rest of this entry »

 

Privacy On Parade – Mark Pearson

12 05 2012

The right to privacy is a relatively modern international legal concept. Until the late 19th century gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright in some steamy images of Dumas with the ‘Paris Hilton’ of the day – 32-year-old actress Adah Isaacs Menken. Read the rest of this entry »

 

Australia: News Media Council proposal: be careful what you wish for – Mark Pearson

10 03 2012

The Finkelstein (and Ricketson) Independent Media Inquiry report released on 28 February 2012 is a substantial and well researched document with a dangerously flawed core recommendation.

An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least Aus$2 million of government funding annually. Read the rest of this entry »

 

Consumer law holds solution to grossly irresponsible journalism – Mark Pearson

9 11 2011

This post originally appeared on the Australian Journlaw blog.  It suggests an interesting new approach to media regulation which, as far as we know, has not been suggested in debates in this country.  We are reproducing it with permission and thanks to provide a further perspective on those debates.

Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.  It already has one – in the form of the Australian Competition and Consumer Commission (“ACCC”). Read the rest of this entry »


… as well as occasional snippets in their useful Law and Media Roundup section and this review of my book Blogging and Tweeting Without Getting Sued by media lawyer Leanne O’Donnell:

Book Review: Mark Pearson “Blogging and Tweeting Without Getting Sued” – Leanne O’Donnell

11 04 2012

Professor Mark Pearson’s Blogging & Tweeting Without Getting Sued will be welcomed by anyone writing online … Melbourne media lawyer Leanne O’Donnell reviews this timely legal guide to a rapidly evolving media landscape

Mark Pearson’s new book Blogging & Tweeting Without Getting Sued: A global guide to the law for anyone writing online – is very accessible guide to laws relevant to the all those writing online. Read the rest of this entry »


I find the INFORRM “Blogroll” is a particularly useful resource – regularly updated and featuring these media law blogs from throughout the world. Together they provide a wonderful resource for media law students, journalists and researchers. (Thanks for including journlaw.com,  INFORRM!)

Surely sufficient bedtime reading for even the most avid media law geek!

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

By MARK PEARSON

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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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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Book review: Hong Kong Media Law

By MARK PEARSON

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

Book review

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

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

Mark Pearson

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

© Mark Pearson 2016

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

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