Tag Archives: defamation

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.

———–

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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Filed under journalism education, Media freedom, media law, Media regulation, Uncategorized

Addressing the Sri Lankan Press Council on media law and mindful journalism

By MARK PEARSON

For the past two weeks I have been in Sri Lanka, where my speaking and interview schedule has been arranged by Dr Sugath Senarath, my co-author of our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015).

srilankawithsugath

Professor Mark Pearson (@journlaw) at the Sri Lanka Press Council event. Photo: Julie Pearson

The highlight was my address to the Sri Lankan Press Council last Wednesday (August 31) on the topic “Designing free expression models in communication with special reference to Commonwealth countries – a mindful Australian perspective”.

I offer the full text of the address to you here. [Please note that sections are excerpted from earlier work, including The Journalist’s Guide to Media Law (co-authored with Mark Polden, Allen & Unwin, 2015), Mindful Journalism (reference above) and my unpublished 2013 address to the Timor Leste National Congress for Journalists.]


Press Commissioner, Press Council Chair and board members, co-author and host Dr Sugath Senarath, academic and media colleagues, journalism and media students and young reporters and other honored guests…

Thank you sincerely for having me here today to talk about the important topic of free expression – a fundamental feature in a working democracy.

It is important that all citizens – particularly journalists and politicians – have a grasp of the principles of free expression, media freedom and their historical context.

Origins of free expression

The free expression of certain facts and views has always been a dangerous practice, with countless people put to death for expressing religious or political views throughout history. Many more have been imprisoned, tortured or punished for such expression. Socrates in 399 BCE elected to drink a poison—hemlock—rather than recant his philosophical questioning (Brasch and Ulloth, 1986, p. 9). The history of freedom of expression is as much a history of censorship, because when free expression has been threatened, intellectuals have been called upon to defend it. It was Johann Gutenberg’s invention of movable type in about 1450 and the massive growth in the publishing industry over the sixteenth and seventeenth centuries in the form of newsbooks and the activities of ‘pamphleteers’ that first triggered repressive laws, and then the movement for press freedom (Feather, 1988: 46). (It is interesting that these individuals were the forerunners of the citizen journalists and bloggers we know today—often highly opinionated and quick to publish speculation and rumour.)

srilankapcaddress

Delivering the Sri Lankan Press Council address in Colombo. Photo: Julie Pearson

The pamphleteers took umbrage at government attempts to impose a licensing system for printers from the mid-sixteenth century (Overbeck, 2001: 34). Political philosopher and poet John Milton took aim at this in 1644 with Areopagitica, a speech to the parliament appealing for freedom of the presses. He went on to utter the famous free speech principle: ‘Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.’ (Patrides, 1985: 241). Milton inscribed his name on the title page of his unlicensed work, in defiance of the law he was criticising. The notion of free expression had spawned its offspring: press freedom.

Part of Milton’s argument centred on the ‘marketplace of ideas’—the belief that truth will win over falsehood when the two compete. This proposition of a contest between truth and falsehood was often used during the seventeenth and eighteenth centuries to justify freedom of expression (Smith, 1988: 31). It continues in public discourse today.

srilankawithbanner

Two of the co-authors of ‘Mindful Journalism’, Professor Mark Pearson (left) and Dr Sugath Senarath from the University of Colombo.

Philosopher and political theorist John Locke took up the fight after Milton’s death. Under his social contract theory, governments are there to serve the people, and central to this is freedom of expression (Overbeck, 2001: 36).

Like Milton, Locke campaigned for the end of the English printing licence system, which expired in 1694 (Overbeck, 2001: 36). Those to speak out against restrictions on press freedom at the turn of the eighteenth century included novelist and journalist Daniel Defoe, who wrote ‘An Essay Upon the Regulation of the Press’ around 1704 (Brasch and Ulloth, 1986: 62), and John Trenchard and Thomas Gordon who, under the pen name ‘Cato’, wrote a series of letters about freedom in the 1720s (Brasch and Ulloth, 1986: 64–8).

England’s foremost philosopher of the late nineteenth century, John Stuart Mill, articulated the need for free speech in a liberal democratic society in On Liberty, first published in 1859 (Mill, 1991). He wrote:

The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. (1991: 20)

Mill’s On Liberty built on Milton’s ‘marketplace of ideas’ to define the boundaries of freedom of expression in the modern nation-state. One of the great legal minds of the eighteenth century, Sir William Blackstone, in his Commentaries on the Laws of England, had a great impact on the evolution of press freedom by defining it as the absence of ‘previous restraints upon publications’ (Blackstone, 1765–69: 151–2).

Blackstone’s notion of ‘prior restraint’ has underscored the development of media law in the United States. The idea was that freedom of the press could tolerate no restrictions before publication, such as licensing and taxes that had been imposed in Britain, but that the law should take its course after publication to punish those who abused this freedom. Publications should be tax and licence free, but subject to laws like defamation and contempt once published. In both Britain and its colonies, a common weapon for silencing the press had been the crime of ‘seditious libel’—any serious criticism of government or the Crown, whether or not the criticism was truthful. William Murray, Lord Chief Justice and Earl of Mansfield (1704–93), had coined the expression ‘the greater the truth, the greater the libel’ (Whitton, 1998), ensuring that truth would not stand up as a defence to seditious libel.

Despite these restrictions, basic press freedom had taken hold in Britain. Some thought the press had gone too far. In this context, the expression ‘the Fourth Estate’ was coined. At that time, there were said to be three ‘estates of the realm’—the Lords Spiritual, the Lords Temporal and the Lords Common. In 1790, English statesman Edmund Burke is said to have pointed to the press gallery in parliament and said: ‘There are three estates in Parliament but in the reporters’ gallery yonder sits a fourth estate more important far than they all.’ (Inglebart, 1987: 143).

The libertarian ideals on which press freedom is based were not confined to Britain. The movement for civil rights and individual liberties spread throughout Western Europe during the seventeenth to nineteenth centuries, epitomised by the French Revolution in 1789, leaving a legacy of press freedom throughout that region and its colonial outposts.

In Western democratic societies, journalists often take their liberties for granted. But there has never been utterly unshackled free speech or a completely free media: we operate on an international and historical continuum of free expression through to censorship. It is only over the past half-century that the notion of free expression and a free media has gained traction on a broader international scale.

Free expression internationally

There is no enforceable worldwide agreement on free expression as a fundamental human right, although some nations and regions have entrenched free expression in their constitutions. The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

At face value, this statement seems to give all the world’s citizens a right to free expression. While a declaration of a lofty goal, it has many limitations, as we will see.

Stronger protections came internationally in 1966 when the United Nations (UN) adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduces a right to free expression for the world’s citizens, again at Article 19.

However, the right is limited because the covenant also recognises duties, responsibilities and restrictions covering respect for the rights and reputations of others, and the protection of national security, public order, public health or morals. Add to this the fact that many countries either have not ratified the covenant, or have not incorporated its provisions to make them part of their domestic law—as in the case of Australia.

At least three major democratic English-speaking nations in addition to the United States have bills of rights enshrining free speech. British and European liberal ideals found their way into the wording of the American Declaration of Independence in 1776, the US Constitution in 1789 and its Bill of Rights in 1791. Central to the Bill of Rights was the First Amendment to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

US government attempts to restrain publications in the national interest have usually failed on First Amendment grounds.

The Canadian Charter of Rights and Freedoms (1982), like the US First Amendment, recognises freedom of the press as part of section 2(b), which confers upon every citizen the following freedoms: ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. The United Kingdom and New Zealand legislation does not mention media freedom, opting instead for the broader term ‘freedom of expression’.

New Zealand’s Bill of Rights, enacted in 1990, states at section 14:Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. In 2011, the New Zealand Supreme Court found that the right protected Valerie Morse, an anti-war protester who burned her country’s flag during a dawn memorial service in Wellington. Her conviction for offensive behaviour was set aside.

Despite this, there are many nations with such a free expression clauses in their constitutions where their governments have chosen to ignore them to advance their own interests or to prevent scrutiny of their actions. This has sometimes led to the harassment, assault, imprisonment and even murder of journalists. I note that the Sri Lankan Constitution also enshrines “freedom of speech and expression including publication” and it is encouraging that your new government has taken some first steps towards honouring that right which appears to have been neglected in recent decades. The recent passage of a Right to Information Act is one such encouraging step. Of course, such freedom of information instruments in many countries are ineffective because of the large numbers of exemptions to the release of documents available to governments, the cost of making applications, and the glacial speed with which bureaucracies approve requests for government information – using refusals and appeals to wear down the journalists rightfully seeking facts and information on behalf of the citizenry.

For many truth-seekers and truth-tellers, the commitment to free expression has taken the form of physical injury or danger—even death. The Committee to Protect Journalists (CPJ) lists more than 1200 journalists confirmed as killed in the course of their work since 1992, including 27 in 2016 to date. As a former correspondent for Reporters Without Borders, I must highlight the fact that the world is watching the new Sri Lankan government to see how enthusiastically it pursues and prosecutes those responsible for the murder of 19 journalists in this country since 1992 – criminals who it seems have been able to conduct their assassination of this democracy’s messengers with complete impunity. I suggest the Press Council might consider keeping this issue on the agenda in the interests of media freedom and as a tribute to those who have paid the ultimate price for exercising their Constitutional right to free expression.

Throughout the Asia-Pacific region, many others have died, suffered violence or have been imprisoned for what they report. Some have suffered in other ways, as the victims of lawsuits by those who set out to gag them.

Australia

Australia’s early history was marked by considerable censorship of its media, although an early battle between Governor Darling and the Chief Justice in 1827 prevented the licensing of newspapers.

Australia has no equivalent to the US First Amendment enshrining freedom of the press. However, in recent decades the High Court of Australia has recognised an implied freedom to communicate on matters of politics and government.

Press systems and ethical frameworks are on the agenda in all societies, and we are challenged to accommodate free expression and its close relative, press freedom, within new regulatory, technological and cultural contexts.

Recent inquiries into media regulation in the United Kingdom (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have recommended major changes to the regulation of media corporations and the ethical practices of journalists. Their motivation stems, at least ostensibly, from public angst—and subsequent political pressure—over a litany of unethical breaches of citizens’ privacy over several years in the United Kingdom, culminating in the News of the World scandal and the subsequent revelations at the Leveson Inquiry (2012), all of which had an undoubted ripple effect in Australia.

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 might require statutory regulation at a national level. Four 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; a strengthened Australian Press Council policing both print and online media; and a government-appointed Public Interest Media Advocate.

All proposals for any such government intervention with media freedom by such a controlling body by a Press Council or News Council were rejected after considerable pressure from media organisations as anathema to free expression.

Both inquiries acknowledged—and rejected—the notion of a revamped Australian Press Council, proposed in various submissions and in appearances by its then chair. The Australian Press Council was established in 1976 as a newspaper industry ‘self-regulatory’ body—a purely voluntary entity with no powers under law.) Nevertheless, both during and after these two reports, and with new support from most of its members, the Press Council moved quickly to ramp up its purview and powers to address many of its documented shortcomings, such as the refusal of some member newspapers to publish its findings and the threat of withdrawal of funding from others (Simpson, 2012). It locked its members into four-year commitments and established an independent panel to advise on a review of content standards.

At the same time as these changes to media regulation were being proposed, several reformulations of existing media laws were being considered by state, territory and federal governments and their respective law-reform bodies. They covered such topics as privacy law, media classification, intellectual property, cyber-bullying, shield laws and national security laws. Of these, new shield laws have subsequently been introduced in most Australian jurisdictions. Media law and regulation constitute a field subject to continual scrutiny and change, which makes it all the more important for students and professional communicators to keep pace with developments.

It is noteworthy that the self-regulatory institution journal­ists fear most – more than the Press Council and other self-regulation tribunals, is the ABC’s weekly program Media Watch, which was first screened in 1989. Its website promotes it as follows: ‘Everyone loves it until they’re on it’ (www.abc.net.au/mediawatch/). Criticised for being sometimes trite, and often bitchy, Media Watch has exposed some of the nation’s most spectacular ethical breaches over the past two decades. These include blatant instances of plagiarism and privacy invasion and, most famously, an exposé of secret payments being made to talkback radio stars for their endorsement of products and services without the knowledge of their listeners. While Media Watch itself has no sanctions available, the power of the program lies in the fact that ethical breaches and glaring errors are screened on national television, when journalists know their colleagues are watching. The ultimate tool of media self-regulation can indeed be the media itself!

There are several ways journalists in other countries considering regulatory models can learn from this recent experience in Australia.

  1. Comparisons can be dangerous. Even in a democracy with a long history of relatively free expression politicians and governments will seek out and seize any opportunity to regulate the media. International comparisons can be dangerous because we operate within different political and cultural frameworks. When they were arguing for their media reforms, Ministers cited RSF’s World Press Freedom Index, using the argument that Finland remained in number one position there despite having a statutory mechanism for its press regulation. They failed to mention that Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws that impact on free expression in other countries like Australia.
  2. Beware of regulation creep. Existing laws such as defamation and contempt that apply to all citizens go a long way towards controlling media behavior. I have seen few serious ethical breaches that could not be handled by the existing laws. Once media laws have been introduced it is hard to wind those laws back to re-establish eroded freedoms. Australia passed more than 60 new anti-terror laws after the September 2001 attacks on the US – many impacting on the media – and few of those have been wound back. Media regulation is hard to undo because governments like to have that power.
  3. Don’t trade press freedom. Well meaning journalists and academics are sometimes willing to sacrifice media freedom because of the misbehavior of some media personnel. When you offer governments new powers to control the misbehaviour of some elements in the media you need to accept that those same powers might be used against you at some later stage.
  4. Beware de facto licensing. There is the temptation to issue journalists with accreditation and registration in actual or de facto licensing schemes. While journalists might like the idea of carrying an official card with privileged access, the narrow defining of journalists and journalism by governments presents a real danger to free expression because it privileges some citizens over others as communicators. This gives those issuing and revoking such licenses influence over the message itself. It is even less appropriate in a new era of blogging and social media because the nature of news and journalism is even harder to define. Citizens might become reporters temporarily because of the scale of an event or issue or on an ongoing basis in a narrow field of interest that might momentarily become of broader public interest. It is inappropriate that they should have to seek registration or licensing as a journalist or that they should be punished for reporting without such official licence. Rather, their words or actions should be subject only to the communication limitations placed on all citizens, and in a working democracy they should be limited to only extreme breaches.
  5. Judge a proposed law by its ultimate possible sanction. The best test when trying to gauge the potential impact of new media regulations is not the assurances of their proponents that they will be used only rarely and only in extreme cases, or perhaps not used against journalists. The real test is to look at the ultimate maximum sanctions available and if these involve the potential jailing or fining of journalists then they are anathema to press freedom in a democracy.
  6. Media freedom is above politics. Media regulation was certainly a long overdue debate in Australia, but it was politicised from the outset which undermined the likelihood of the implementation of any of the proposals. Some political parties supported tougher regulation of the media because they had been the target of adverse coverage. A basic human right like free expression should be above politics in a democracy, yet most governments will strive to limit it.
  7. Media freedom is above commercial interest. Opponents of media regulation need to be careful they are not being seen as simply protecting their own commercial enterprises. Criticism of the recommendations by the larger Australian media groups on free expression grounds – particularly by Murdoch executives – were dismissed as a defence of their vested interests (Meade and Canning, 2012). It helps to recruit other senior intellectuals in defence of media freedom – including academics, business leaders and other public intellectuals.
  8. Be wary of ethics codes imposed by governments. Too often governments use ethics codes as a Trojan Horse to push through tougher restrictions on journalists. Ethical codes should be SELF regulatory systems, not legally enforceable instruments carrying potential fines and jail terms.
  9. Training and education in law and ethics is crucial. 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 understanding of the important role of the media in a democracy.
  10. Educate the community about free expression and a free media. The constitutional right to press freedom and free expression need to be part of every school’s civics curriculum and media organisations need to remind their audiences of this constitutional right and its important history at every opportunity.

Mindful Journalism

Just as important as external regulatory and legal systems are the internal processes of journalists’ decision-making – their internal ‘moral compasses’. I have explored this phenomenon in developing the concept of ‘mindful journalism’ with colleagues Shelton Gunaratne and Sugath Senarath in a recent book – Mindful Journalism – published by Routledge in New York last year.

We explore the possibilities of applying some of Buddhism’s core principles to the secular phenomenon of journalism. It must be accepted that Buddhist practices such as ‘mindfulness’ and meditation have been adopted broadly in Western society in recent decades and have been embraced by the cognitive sciences in adapted therapeutic ways (Segal et al 2012).

Each of the constituent steps of the Noble Eightfold Path – understanding free of superstition, kindly and truthful speech, right conduct, doing no harm, perseverance, mindfulness and contemplation – has an application to the modern-day practice of truth-seeking and truth-telling – whether that be by a journalist working in a traditional media context, a citizen journalist or a serious blogger reporting and commenting upon news and current affairs.

We do not propose a definitive fix-all solution to the shortcomings in journalism ethics or their regulation. Rather, ‘mindful journalism’ is an acknowledgment that the basic teachings of one of the world’s major religions can offer guidance in identifying a common – and secular – moral compass that might inform our journalism practice as technology and globalization place our old ethical models under stress. Media coverage can be vastly improved with the application of such principles – working towards a journalism of wisdom and compassion.

One of the problems with emerging citizen journalism and news websites is that their proponents do not necessarily ascribe to traditional journalists’ ethical codes. In a global and multicultural publishing environment the challenge is to develop models that might be embraced more broadly than a particular country’s repackaging of a journalists’ code. However, codes of ethics have often failed to work effectively in guiding the ethics of the traditional journalists for whom they were designed, let alone the litany of new hybrids including citizen journalists, bloggers, and the avid users of other emerging news platforms. Core human moral principles from key classical teachings like the Noble Eightfold Path could form the basis of a more relevant and broadly applicable model for the practice of ‘mindful journalism’.

The recent international inquiries triggered by poor journalism ethical practices have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to explore new ways to recapture this. We should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary accommodating a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process. They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.

Journalists must tell uncomfortable truths for the benefit of society and for the proper functioning of democracies. Politicians particularly need to have thick skins in recognition of the transparency and accountability of the public positions they hold. Before they attack the media they need to reflect upon whether they are acting through craving, attachment or ego.

Even the Buddha allowed for such uncomfortable truths to be spoken. In the Abhaya Sutta, the Buddha addressed Prince Abhaya on the qualities of Right Speech. He related to the prince six criteria for deciding what is worth saying. The third represents how the mindful journalist might approach such criticism of public figures:

[3] “In the case of words that the Tathagata knows to be factual, true, beneficial, but unendearing and disagreeable to others, he has a sense of the proper time for saying them.

Mindful journalists should strive to get their timing correct, but there is no doubt that painful truths sometimes must be spoken. This requires reflection, meditation and insight in the planning and execution of a story to help alleviate suffering. A functioning democracy requires that such unendearing and disagreeable statements sometimes be made about our fellow citizens – particularly those entrusted with the public purse and special powers. It is no less than the role of the Fourth Estate to fulfil this function, and it is heartening to see that Sri Lanka is again investing in the fundamental freedoms that allow journalists to do so. I am sure the Sri Lankan Press Council can play an important role in advocating for press freedom and encouraging a robust journalism of truth, wisdom and compassion.

Thank you.

———–

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 2016

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Filed under blogging, Buddhism, citizen journalism, Eightfold Path, free expression, media ethics, mental health, social media

Crystal ball gazing 101: Media Club event triggers flashback to 1995

By MARK PEARSON

Huffington Post Australia CEO Chris Janz addressed the Gold Coast Media Club at Griffith University yesterday (17/6/16) and offered fascinating insights into how the leading international news brand is forging success in an ever-changing mediascape.

My Griffith University journalism and public relations colleagues and I quizzed him on the implications for our students and programs. His essential toolkit for the journalism graduate in the new era?  All the basics of good reporting (fairness, accuracy, fact-checking etc) plus a good measure of curiosity, enthusiasm and the ability to cope with change.

The event and topic triggered a flashback to my own address to what was then the Gold Coast Media Industry Club way back in 1995 when the “Net” was first taking off as a mainstream medium. As I recall, only the Melbourne Age had an online version. Amazingly, I just found an ancient text file of that speech in my backups folder, and thought I would reproduce it here for those interested in checking whether my  crystal ball gazing was accurate – or way off beam – two decades ago. (You’ll see how early it was in the growth of the Internet at the time, with fewer than 9,000 commercial websites in existence internationally.)

Apologies for the missing graphics. I’m not sure I had access to Powerpoint back then, and my ‘slides’ were transparencies displayed on an overhead projector [OHPs/OHTs] .

I hope you enjoy the journey back in time and would love to hear your reactions.

—-

“The Media and the Internet: Threat or Opportunity?”

Gold Coast Media Industry Club address by Mark Pearson

Gold Coast Arts Centre, July 14, 1995

Where do you think you’d find these things if you really needed to access them?

  • The share price for Zeolite
  • The weather in Nairobi
  • Program details for a Croatian film
  • Photographs of women in G-strings and in steamy shower scenes.
  • The value of the Cyprus pound
  • The world mosquito-killing record, as set in Finland.

The Internet? … No, actually all those things appeared in this issue of the Gold Coast Bulletin.

It’s amazing what you’ll find in your daily newspaper.

I’m a great fan of newspapers. My whole career has been built upon them. Production-wise it’s easy to see why they’re called the ‘daily miracle’. I still can’t fathom how those two rolls of paper arrive on my front lawn every morning… the human and physical resources that have gone into them … the efforts of correspondents in Finland relayed to news agencies, where sub-editors process copy and send it thousands of kilometres to other news agencies who forward it to newspapers where it is selected, edited and placed alongside photographs and advertisements which have been through equally complex processes. And somehow it’s all printed and transported and passed through many more hands before it arrives next to my letterbox and I have to fight my wife and 14 year old son to read it.

But that still doesn’t mean I’m interested in the weather in Nairobi or the value of the Cyprus pound. I find enough in the newspaper to keep me buying it and its advertisers must find enough buyers in the newspaper to keep sponsoring it.

There are a few lessons for us here when we start to think about a new technology like the Internet. And this talk’s devoted to three of those lessons:

  1. The value of information is relative. What’s trivia to me might be important to you. What’s fun to me might offend you.We can’t impose our own values on other people’s information.
  2. All media have their advantages and disadvantages.
  3. No matter what the medium, the audience comes first.

And I’m going to apply all of that to the Internet: discuss the material we find on it, talk about its pros and cons; and take a look at the demographics of its audience.

I’m going to try to do all that without using the hype that’s being bandied about when it is discussed. We’ll assess it as a medium, decide whether it’s useful to us, and have a bit of fun along the way.

  1. The Internet as a Medium

Technological developments such as the telegraph, radio and television prompted changes in both the gathering and distribution of news. But only the advent of the computer and advances in telecommunications have redefined mass communication. The convergence of media, computing and telecommunications is allowing audiences a degree of independence and interactivity not possible with traditional media.

Newspapers, magazines, radio and television were all one-to-many communication media, with single products or programs being distributed to mass audiences. Presenting news to such audiences was a matter of determining the topics of greatest interest to the largest number of readers, listeners and viewers. Audience choice was limited to the selection of the medium and the news product. From that point on audiences had to take what they were offered. The new media allow for a significantly greater degree of choice and interactivity, prompting questions about the suitability of mass media techniques of reportage and distribution.

What are the new media? Obviously, the “new” media will change with time. Newspapers comprised the “new medium” of the 18th century; television the “new medium” of the 1950s. To me, the new media are those which involve some convergence of traditional media to offer audiences a greater level of choice and interactivity. Examples include the Internet and its permutations (such as the World Wide Web and on-line discussion groups); broadband distribution services providing interactive television services in homes; and virtual reality technology offering the user some electronic experience which appears real.

The Internet is the linking of computers at thousands of academic, governmental and commercial institutions worldwide into a wide area computing network (WAN). Figures are in dispute, but conservative estimates put full Internet access at more than 30 million and simple electronic mail access at 120 million world-wide.

But it’s built on chaos. The whole system – originally a US defence initiative – was premised on the notion that no single link would be crucial to the network, so that if any single computer was taken out by a military strike the other nodes could still communicate. It’s this interconnectivity that makes the whole network so difficult to count – and just as difficult to regulate.

The most exciting part of the Internet today is the world wide web of computers using a common language to publish material to computers with different architectures throughout the world. Hundreds of traditional media outlets – newspapers, magazines, radio and television stations – are now producing Web versions of their products.

Other new players are creating tailor-made services for Web presentation. And hundreds of thousands of individuals are publishing their own Web pages as a hobby.

Whereas a newspaper might have previously been competing on the news stand against a handful of other newspapers and scores of magazines, on the Internet it is competing against hundreds, perhaps thousands of other newspapers and magazines and millions of independently initiated documents and multi-media presentations, each of which has varying relevance to its separate readers’ needs.

This makes the function and purpose of a traditional media provider problematic from both a communication and an economic perspective. For example, how useful and viable is the entity known as The Age newspaper when published in an electronic form on the World Wide Web? At the same time, how useful and viable does the print version of the same newspaper continue to be to its traditional audience? Such questions strike at the heart of the dilemma facing traditional providers as they confront the ramifications of a large-scale move towards the new media.

At the same time, traditional journalism can be enhanced by adept use of new technologies in reportage. New resources are now at the finger tips of the journalist wanting to use the Internet for reporting. Computer aided reporting involves electronic access to government documents, court reports, articles, and specialist opinions, adding to the depth of coverage of an issue and the discovery of angles on stories which might never have been contemplated. So, while new media might represent a threat to the medium in which the journalist currently works, the journalism itself can be enriched by using the new media proficiently.

Newspapers and the journalism which evolved through their pages owe their very existence to a technological innovation which, when harnessed by the intellectual pursuits of modern humanity, has provided the catalyst for the spread of knowledge. That invention was the printing press. The evolution of the printing process from the archaic machinery of the seventeenth and eighteenth centuries, through the era of hot metal type to computer typesetting and finally to electronic pagination and distribution has affected the time frames within which newspaper journalism has been expected to be conducted and the audiences which it has been able to reach.

The introduction of the telegraph, radio and television each brought their own challenges to media practices.

The fleeting 1980s technologies of videotext/teletext news services were a flop because they expected audiences to sit in front of television sets and read text over which they had no control.

The new media make no such mistakes. They are premised on interactivity and user choice. The theory is you get the information or entertainment you request … when and where you want it. The mass media is becoming individually tailored. That’s the main point of difference of both the Internet and the broadband interactive services promised with the next phase of digital television.

So, what does it look like?

Here’s a new publication I started with my students last week: the first daily journalism student production targeted exclusively at a Web audience…

Explain background to Bond student project. (OHPs1-3) (explain how it beat SMH with main news by 16 hours and television stations by 4 hours). People in Anchorage can be reading our news hours before Australians are accessing the mainstream media.

Ours is one site of more than 2000 Australian sites on the World Wide Web. There are more than 5 million of them internationally. Just like the daily newspaper, there’s a lot of guff out there in cyberspace. There’s the trivial and the bizarre…

(Read two from .net directory)

(Explain toilet one.)

There are entertaining sites: (Sound and video clips from the latest movies, fan club pages, even interactive chess – Daniel).

There are educational sites, places to do courses and research material for projects and essays. (Ancient Egypt page, Library catalogues, interactive classrooms.)

But is it useful???

Explain my usage: checking references, politicians’ names/contact numbers, multi-media course outline.

But for Mrs Allen over the road … probably not just yet. As the sites build up locally I could see her accessing catalogues, getting quotes and ordering products by email, downloading and printing a map of Fraser Island for her next trip, booking her camping permit there, and dragging some puzzles off the Net to entertain her kids on the long drive there.

For Mrs Allen, it will be a matter of being educated as to its possibilities. For her children, it or some version of it will be second nature.

You’ve seen our fairly modest news production. Here’s the kind of product being produced exclusively for Web distribution…

[OHP: Hotwired home page.]

  1. Commercial potential

Commercial use of the World Wide Web can take three main forms:

  • Passive presence

A Web site used for PR or low-key corporate presence. This might simply give information about the company and its activities and structure.

  • Spot advertising

Actual display advertising on someone else’s Web site. (OHP: MacMillan site).

(Explain Infoseek’s search page: Cathay Pacific giveaway, Alamo freeways online rentacar, Species, the sci-fi thriller from MGM/UA, Sun Microsystems, Metricom Wireless Data Technologies, MacMillan Information Superlibrary, Internet Shopping Network, NECX Direct computer products, Dealernet – the source of new car information)

  • Designated sales site

A whole Web site specifically designed to sell a product. (OHP: First National example.)

US market research group ActivMedia has produced one of the first reports on Internet marketing.

It reported there were 588 commercial World Wide Web (www) sites at the end of September 1994. Eight months later, the index listed more than 6,000, an average monthly growth rate of 34%. Even if growth slows considerably, 9,000 commercial websites will exist before the end of August, 1995. ActivMedia surveyed 195 of these active Internet marketers, and projected the responses to reveal an industry worth more than $300 million.

(OHP: Activmedia graph)

Interestingly, it showed that the average website was generating more than US$7000 per month in sales for the average active marketer, with 18 per cent reporting five figure turnover generated to their websites.

  1. Demographics

Cyberspace (Show William Gibson Neuromancer book cover).

Cyberspace…. A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding…

Gibson’s cyberspace was an incredibly violent and masculine place, with the direct neural connection between humans and computers both exhilarating and painful.

The non-fiction cyberspace is rarely violent, often exhilarating, but is notably masculine.

The Graphics, Visualization, & Usability Center at the College of Computing, Georgia Institute of Technology surveyed 13,000 Web users and came up with the following demographic data:

  • Average age across all users was 35.
  • More than 80% of users were men, but female use was increasing.
  • More than half of the users were married or had been.
  • 60% of users had no dependents.
  • Average income of users was US$69,000
  • 70% used their computers for “fun” for more than five hours per week. (Time they might otherwise be watching television.)
  • Women did less fun computing than men.
  • 30% had been on the Internet for less than 6 months.
  • Almost half owned only one computer.
  • Only 31% were in the computing profession, with the next largest occupational groups education, professional and management.
  • 22% said they would not pay fees to access Web sites.
  • 85% of users shared their computers with others.
  • About 20% use their computer for work for more than 30 hours per week.

The advertising and marketing people will know much more about that demographic than I do. I’ll make two blatantly obvious comments: They’re not all tech-heads, or nerds, as they have been portrayed, and they have money to spend. You can figure out the rest.

  1. Problems

[OHP] Load: technical difficulties of speed and quality.

Access: Information rich vs. information poor

Control: large vs. small players. Delphi on line within month. Microsoft to launch its exclusive Web access under the long awaited Windows 95 release.

Legal hazards: Copyright and stealing images, Defamation (WA academic who sued over Internet libel), trade practices (consumer fraud), and the common legal problem of trans-jurisdictional infringements.

Pornography

Down side – rape in cyberspace, child pornography arrest.

Fun side: ‘teledildonics’; erotica.

In conclusion ………………

Some say this whole Web thing is like the gold rush era: the only ones who’ll make any money out of it will be those who supply the miners with rations, rum and rump.

Others call it the ‘world’s largest zero billion dollar industry’.

Experts who claim to predict the future have only one thing in common – they’re always wrong.

But I’ve got a feeling there’s gold in them there hills for any media player with a good eye for an audience and the right product to market.

Just remember that audiences are human beings with their own problems and passions. Technology on its own holds no power. The power is in your ability to use it to help people solve their problems and to ignite their passions.

The Internet will prove to be a threat to those of you who don’t understand your audiences. And perhaps an opportunity to those who do.

© Mark Pearson 1995 and 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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Ethical lessons from the 60 Minutes abduction saga

By MARK PEARSON

International readers of this blog might be unaware of the national debate in Australia over the involvement of an Australian 60 Minutes television current affairs crew in last month’s abduction of two children in Lebanon who were the subject of a parental custody dispute.

The Australian mother of the child – Sally Faulkner – and the reporter Tara Brown and her three crew were jailed for two weeks along with the alleged abduction contractor Adam Whittington who remained in jail seeking bail this week.

The Nine Entertainment Company announced an investigation into the circumstances surrounding its flagship current affairs program’s involvement in the failed abduction attempt.

Following that announcement (April 21, 2016) ABC Gold Coast’s Matt Webber interviewed me about the ethical dimensions of the saga.

Here is the recording of that interview. [Transcription below by Virginia Leighton-Jackson].

SoundcloudInterviewScreenshot

Interview with ABC Gold Coast’s Matt Webber

Matt Webber: Let’s concentrate on the Nine Network for now. What are the main questions it needs to answer?

Mark Pearson (@journlaw): Well Matt, I think in your introduction you started to hit upon the main questions, and I think they’re questions that need [answering] – I mean hindsight is a wonderful thing and it’s very easy for an academic like me to be looking at this in hindsight and saying all the things that should have been done. But the sorts of questions that you were just asking [are relevant] – Who is involved? Who are the stakeholders? Who are those who might get hurt through such a story? The first thing Channel Nine should be doing, I believe, is setting up accountable systems where those questions are actually asked before stories are embarked upon. And that involves…

MW: Are we naive to think that wouldn’t happen?

MP: I don’t think so; I think people would get carried away, and particularly in a highly emotionally charged story like a custody battle it’s very easy to hear one party’s side of the story. Another issue here is of course is the simple fact of obeying laws. Now, there seems to be like a cultural view that has come through this story that going to another place, the ‘other’, a place like Lebanon, excuses journalists from doing what would be absolutely illegal for them to be doing here in Australia. I mean only a couple of years ago one of the leading news stories was a custody battle over children in Queensland where the Italian father had won custody of the children, and the family – the grandparents and the mother – were fighting the order of the court that the children be taken back to Italy. What if that had happened in that case? Just say the order had gone the other way and the father and an Italian TV crew was here and the children were grabbed on the streets of the Gold Coast and taken, and the plan was to take them to a boat at Southport, and somehow the TV crew had helped fund the abduction. Can people imagine what would have happened there? So what Channel Nine needs to be asking is what is going on there culturally in their mindset about these sorts of stories to think that it’s okay to do that in Lebanon, but it’s not okay to do it in Australia. What’s their view of another country’s legal system that allows that to happen?

Now there’s still a lot of this story to come out, facts that we will hear about – you just played a part of the father’s version of whether or not people are being paid or whatever. The truth of all of that will eventually come out. But I think what Channel Nine needs to do is actually follow the privacy guidelines of ACMA, the Broadcasting Authority, but follow them to the letter. They are not obligatory, but they need to actually look at them; where it says that children are more vulnerable, and the privacy of children is something that really needs close scrutiny. And in public interest – what they might call public interest doesn’t outweigh the rights of children to be considered. A story like this has ripple effects across a whole range of stakeholders, and they need to actually have a formalised process which goes through considering the potential impact on all of those involved – including in this case, the news crew.

MW: Indeed. Mark Pearson, a professor in journalism at Griffith University. Often ‘journalistic ethics’ is a pair of words that is tossed around fairly liberally. The Code of Ethics that journalists need to adhere to, are they sufficiently aware of it? Or are they far too ignorant of it, either wilfully or otherwise?

MP: Well, journalists do know about the Code of Ethics, and most journalists these days have been through some journalism program, like a degree or whatever and have learned about the Code of Ethics. But the big problem with the Australian journalists’ Code of Ethics, and most others, is that there is a whopping ‘get-out’ clause. What it says is that all of these are things that should be strived for, but if the public interest, or if the story is of such public concern then that excuses journalists, outweighing those ethical considerations. But it does make specific reference to chequebook journalism – now I’m not saying that’s happened in this case, is it chequebook journalism to help fund an operation? Well, that’s something we’ll be able to discuss once more facts come out. But also things like dealing with children and the vulnerable, and thinking of those potential implications.

So I think it’s more than just journalists’ ethics: it’s a basic moral code that most humans think twice before they do something that is related to or can impact badly on children’s lives. And so if anything comes of this, I would hope that people take special care, and newsrooms implement practices that ring extra alarm bells if there are going to be children involved in any story.

MW: What about those who will argue that look, commercial television is, particularly commercial TV Current Affairs, is a wild and woolly old world, boundaries will always be pushed; that’s the nature of capitalism in many regards. This shouldn’t come as any surprise that this sort of thing is happening. What do you say to those types?

MP: Well if there is a commercial or a capitalism argument for breaching ethics I think you can counter that with another equally commercial or capitalist argument: and that is the only thing that journalism has left these days, compared with its internet rivals, compared with the jungle of news breakers out there who might be citizen journalists or people doing it simply for a commercial imperative, the only thing that we have remaining to sell news is credibility and respect in the community. And that comes through having an ethical code that journalists adhere to. I think 60 Minutes has lost a lot of credibility out of this, and I think Channel Nine will be reviewing that because there is a commercial loss involved when you’ve overstepped the mark and you lose respect in the eyes of the community. 60 Minutes used to be a wonderful news brand, and Channel Nine will be asking what’s happened to that in the wake of this episode.

MW: Interesting observations, Mark Pearson, I really appreciate your time. Thank you.

MP: Thanks Matt

MW: Mark Pearson, Professor of Journalism and Social Media at Griffith University’s School of Humanities (Languages, and Social Science).

—-

RELATED:

Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015)  explored the possibilities of applying mindfulness techniques to journalism practice.

Interested? You can listen to my 10 minute interview on Radio National’s Media Report here.

Screen Shot 2015-09-04 at 9.46.24 am

See also my account of the basic principles of mindful journalism in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

———–

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 2016

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Filed under blogging, Buddhism, citizen journalism, Eightfold Path, free expression, media ethics, mental health, social media

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

**See UPDATE after appeal**

By MARK PEARSON

[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.

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.

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.

———–

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 2016

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Filed under blogging, courts, defamation, free expression, journalism education, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

‘Right Speech’ and media law – mindful journalism as an analytical tool

By MARK PEARSON

Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015)  explored the possibilities of applying mindfulness techniques to journalism practice.

Screen Shot 2015-05-29 at 3.08.59 pm

I  recently wrote an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

The article backgrounds important critiques of the Western approach to communication  studies, and considers how globalized communication and media studies has become, before exemplifying how a secular Buddhist perspective might offer 2,500 year-old analytical tools that can assist with media analysis, law and ethics.

The article proposes the Buddha’s Four Noble Truths and their associated Noble Eightfold Path (magga) can be fruitful tools for informing communication theory and analysis, and media law and ethics.

In media analysis, it suggests the Buddha’s teachings on Right Speech (samma vaca) offer key understandings to assist with the deconstruction of media texts. In media law and ethics, it extends the application of Right Speech principles to comparing defences to libel (defamation) as they have developed in four Western jurisdictions.

Here is a brief extract showing the potential for exploring media law using a Buddhist/mindful journalism framework:

The ultimate contest over media talk and Right Speech happens in the courts when media texts face charges for their criminality or are the subject of civil suits over their alleged infringement on citizens’ rights like copyright, confidentiality and defamation. There is also value in applying a mindful, Buddhist approach to the study of communication and media law. We can hardly reject the teachings of the founder of one of the world’s greatest religions as inappropriate in a communication law context on exclusively secular grounds because that would imply our so-called secular approaches to communication and media theory and ethics have no religious roots. No Western academic could deny deep-seated Abrahamic influences upon the cultural origins of media law and its scholarship. A whole body of literature on the philosophy of science and religion attests to it. In media law and ethics, libertarian approaches to press freedom espoused by the likes of Milton, Mill and Jefferson arose in an era when political, cultural and religious notions of rights were intertwined. For example, the most famous treatise against licensing of the press – Milton’s Areopagitica – was prefaced with an explanation that Moses, David and Paul the Apostle were all learned because they were able to read widely. Milton wrote:

…as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God, as it were in the eye (Milton, 1644).

The U.S. Supreme Court cited Areopagitica in the landmark defamation case of New York Times v. Sullivan (1964) 376 US 254, when explaining why it would be counter-productive to move the burden of proving truth to the defendant (NY Times v. Sullivan, Footnote 19). Thus, by only two degrees of separation, we find Judeo-Christian teachings informing a key decision on news media talk in one of the most purportedly secular of institutions – the U.S. Supreme Court. Related to this, as Rolph (2008: 38-43) notes, defamation as the tort used to contest objectionable speech, first arose in England in 1222 in the ecclesiastical (church) courts where it remained a spiritual offence for about four centuries. Damage to a reputation was seen to be an offence to the target’s soul – a right that only God should possess – to be judged only by God’s earthly adjudicators, the clergy. There was even recourse for appeals from English ecclesiastical court judgments to the Pope (Rolph, 2008: 45). From the 16th century, defamation actions were increasingly brought in the common law courts, with the courts developing a list of allegations with which they would deal, without needing proof of actual damage being caused by the defamation (Morison & Sappideen 1989: 173). Even today the Catechism of the Catholic Church lists ‘detraction’ (essentially gossip – or disclosing ‘another’s faults and failings to persons who did not know them’) as a sin – or an ‘offense against truth’ (Catechism of the Catholic Church, para 2477). Thus, defamation action – the legal action available to those subjected to damaging media talk – has a traceable Christian genealogy.

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

Analysis of the development of defamation defences in Canada, the UK, Australia and the U.S. benefit from a Buddhist reading. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada developed a ‘responsible communication’ defence to defamation for matters which might not have been able to be proven absolutely as true, but were still diligently reported and were clearly in the public interest to be aired within the spirit of the Canadian Charter of Rights and Freedoms protection of free expression. Chief Justice McLachlin summed up the relevant factors of the ‘responsible communication’ defence on a demonstrable matter of public interest in these terms:

  • seriousness of the allegation
  • public importance of the matter
  • urgency of the matter
  • status and reliability of the source
  • whether the plaintiff’s side of the story was sought and accurately reported
  • whether the inclusion of the defamatory material was justifiable
  • whether a defamatory statement’s public interest lay in the fact that it had been made rather than whether it was truthful
  • other relevant circumstances

The court drew upon similar criteria to those developed earlier in the UK case of Reynolds v. Times Newspapers Ltd [2001] 2 AC 127 as part of the common law qualified privilege defence and elements of the statutory qualified privilege defence in Australia’s uniform Defamation Acts 2005.

The most significant First Amendment case in recent decades was New York Times v. Sullivan (1964) 376 US 254 where it was ruled that public of­ficials had to meet tough new tests before they could succeed in a defamation action even if the allegations in the article were proven false. It established that plaintiffs who were ‘public officials’ had to prove a media defendant had acted with ‘actual malice’ if they were to win a defamation action, even if the defamatory allegation was untrue. The test has since been expanded to apply to any ‘public figure’— essentially anyone who is well known to the public, has taken on some public role or who has participated voluntarily in some controversy. While the prin­ciple has some difficulties in definition and application, it has meant the media in the United States have been free to publish criticism of virtually anyone in the public domain, even if the criticism proves to be unfounded, just so long as they have not acted maliciously or in ‘reckless disregard’ of the truth.

It is possible to implement a Buddhist approach using the Right Speech teachings from the Noble Eightfold Path to conduct an analysis in this area of communication law. The author proposes to do this more thoroughly in future work. However, for the purposes of this argument we might return to the Abhaya Sutta … and contrast these defences as they have been developed in these jurisdictions (Thanissaro, 1997). Crucial to the Canadian ‘responsible communication’ defence and its qualified privilege cousins in the UK and Australia is the extent to which reporters and publishers honestly believe in the truth of the defamatory material published, even though they might not have the firm evidence to prove this in court. They would pass the Buddhist (mindful journalism) test if they had an honest belief the material was “factual, true, beneficial” while perhaps being “unendearing and disagreeable to others”, as long as they had chosen the “proper time” for reporting it (Thanissaro, 1997). However, the U.S. defences driven by the First Amendment takes this liberty a step too far under this schema, because it allows unbeneficial, unendearing and disagreeable material to be published about public figures as long as it has not been done with malice. It also allows for untruthful gossip-mongering, as identified earlier in the Saleyyaka Sutta (Nanamoli, 1994) as ethically problematic. Such analysis shows promise in the field of media law analysis, reform and policy development because it provides a working ethical framework to apply to legislation and the fact scenarios of particular cases.

I’ve also written a shorter account of the basic principles of mindful journalism in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

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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 2016

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