Tag Archives: defamation

Lessons in ‘Right Speech’ and mindful communication in Queensland defamation case

By MARK PEARSON

THE comedians on the Ten network’s ‘The Project’ had some fun with defamation last Friday when they used a fairly sobering Queensland case as the reason to interview me on the basics of that law.

First up, a clarification. Near the end of the segment they seemed to imply quite incorrectly that I am a lawyer which, of course, I am not!

Mark Pearson (@journlaw) interviewed on The Project about defamation 24.4.15 [At 33 mins 15 secs]

Mark Pearson (@journlaw) interviewed on The Project about defamation 24.4.15 [At 33 mins 15 secs]

There is a serious side to this. The Queensland case they used as the segue to my very rudimentary explanation of defamation law was Sierocki & Anor v Klerck & Ors (No 2) [2015] QSC 092 where Justice Flanagan had ordered a total of $260,000 in damages be awarded to the plaintiff and his company over various Internet slurs against them by his former business partner and others.

The defendants had earlier failed in their attempt to prove the truth of the imputations that the plaintiff was fraudulent; was a conman; had committed adultery; had used illegal drugs; was evil; was a thief; was a liar; and preyed on the innocent and that his company’s services were disreputable; unprofessional and encouraged threatening behaviour. Quite a slur indeed.

33671_GAZThe Courier Mail reported earlier that the plaintiff was also suing Google for $2.6 million over its search results linking him to the sites containing those imputations.

The case is interesting for media law students for a range of reasons – the large award of damages, the fact that they were Internet publications, and for the proposed action against Google.

But I find the most instructive lesson is the extent to which a dispute between business partners can escalate so far out of control that one should take to the Internet to cast these kinds of aspersions against the other.

Justice Flanagan noted in the judgment that the cause of the original dispute was unknown, but the result has been enormous financial and emotional cost to all parties.

Our new book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY) examined some of the causes of such disputes and the damage that language can cause to reputations and relationships.

I take this further in a forthcoming article in a special issue of the academic journal International Communication Gazette, edited by my Mindful Journalism lead editor Shelton Gunaratne.

In that article I examine the religious origins of defamation law and proceed to link it to the Buddhist concept of “Right Speech”, writing:

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.

The basic premise of Right Speech in Buddhism is that words should not be spoken (or written or published) if they are not factual or true, or if they are unbeneficial, unendearing or disagreeable to others. All of these elements seemed to apply in this case, or at least that was the tenor of the judgment. Of course, sometimes hard truths do need to be told, but we need to ensure they are provable as true or that we can operate under some other defence excusing their publication.

The Internet offers inordinate opportunities to those seeking to defame others. This is the latest in a series of judgments demonstrating that even when one side wins a record damages payout for defamation, nobody is really a winner when reputations are damaged for no defensible reason.

We need to look to our moral compass when speaking or writing ill of others and ask whether we have an ethical foundation for doing so.

———–

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 2015

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New course helps manage social media risk

By MARK PEARSON

Griffith University has issued the following release on our fully online global social media law course which I will be teaching from March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

New course helps manage social media risk

Managing your social media risk and protecting your brand is the focus of a fully online global social media law course to be offered at Griffith University from March 2015.

Social Media Law and Risk Management is aimed at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management.

“It addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies,’’ says course convenor Professor Mark Pearson.

“The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in averting communication crises.

“It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business and the general public.”

Professor Pearson is the author of Blogging and Tweeting Without Getting Sued – A Global guide to the Law for Anyone Writing Online, co-author (with Mark Polden) of The Journalist’s Guide to Media Law and the Australian correspondent for Reporters Without Borders. His Twitter handle is @journlaw.

Social Media Law and Risk Management is offered online as a stand-alone course or as part of a suite of four courses in the Graduate Certificate in Crisis Communication for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

Media Contact: Deborah Marshall, 0409 613 992, d.marshall@griffith.edu.au

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Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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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Course outline for global social media law course starting in March

By MARK PEARSON

WE have now posted the course profile for our fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

 

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course outline, including the learning activities and assessment, can be viewed here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2015

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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Griffith Uni to offer online global social media law course

By MARK PEARSON

WE are now taking applications for a fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

 

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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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‘Mindful Journalism’ – the topic of our forthcoming book with Routledge

By MARK PEARSON

THE term ‘mindful journalism’ is a concept I introduced more than a year ago in the inaugural UNESCO World Press Freedom address at AUT University Auckland.

I fleshed it out further in a paper delivered to the International Association for Media and Communication Research (IAMCR) conference in Dublin in July 2014, which was revised for publication as a forthcoming article in Ethical Space to be published in December.

Screen Shot 2014-09-19 at 4.18.23 PM

Our book preview on the Routledge website

My esteemed colleague, Emeritus Professor Shelton Gunaratne has been working for decades on the intersection between of Buddhism and journalism, and I was honoured to be invited onto a book project he was developing with Sri Lankan colleague Dr Sugath Senarath [pdf file] from the University of Colombo.

We were delighted when Routledge New York accepted our proposal for hard cover publication in March 2015 as part of its Research in Journalism series.

Our book is titled Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach and it features chapters by several scholars from Asia, North America, Australia and Europe.

As outlined in the publisher’s synopsis:

“This book aims to be the first comprehensive exposition of “mindful journalism”—drawn from core Buddhist ethical principles—as a fresh approach to journalism ethics. It suggests that Buddhist mindfulness strategies can be applied purposively in journalism to add clarity, fairness and equity to news decision-making and to offer a moral compass to journalists facing ethical dilemmas in their work. It comes at a time when ethical values in the news media are in crisis from a range of technological, commercial and social factors, and when both Buddhism and mindfulness have gained considerable acceptance in Western societies. Further, it aims to set out foundational principles to assist journalists dealing with vulnerable sources and recovering from traumatic assignments.”

My chapter on ‘The Journalist and Mental Cultivation’ addresses the application to journalism of the final three steps of the Buddha’s Noble Eightfold Path – the mental cultivation (or concentration) dimension of the magga; namely Right Effort (samma vayama), Right Mindfulness (samma sati) and Right Concentration (samma samadhi).

The section on Right Effort calls for journalists to apply a steady, patient and purposeful path to the achievement of ethical practice. It suggests the need for an effort to find and implement sound perspectives and practices that one lacks and to shore up those that one already possesses.

The section on Right Mindfulness explains how journalists might take time out of a stressful situation to focus upon breathing; to pause to meditate upon the rationale for pursuing a story in a certain way, to weigh implications of reportage on stakeholders and to find peace for strategic planning and clarifying context for one’s role and career trajectory.

The section on Right Concentration compares the phenomenon the expression “grace under fire” that is required of consummate professionals in the midst of covering a major news event. It is at this time that top journalists actually enter “the zone” and are able to draw on core ethical values and ingrained professional skills to report within deadline.

The chapter offers several examples from journalism to illustrate the approach and suggests techniques that can be implemented in a secular way by journalists from a range of cultural and religious backgrounds to enhance their ethical practice and the public significance of their reportage.

We are excited at the potential for the project – particularly in a period when journalists and bloggers are accused of having lost their ‘moral compass’ – and we are on track to submit all chapters within the publisher’s October 1 deadline.

———–

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 2014

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‘Right speech’, media law and mindful journalism – a work in progress

By MARK PEARSON

Media law is much more than a set of edicts in the form of cases and legislation as presented in many texts and as taught in many courses.

Professional communicators and students can gain insights into the law as it stands – and into how it might be reformed – by tracing it to its origins, revisiting it in its modern context, and by applying fresh perspectives to its analysis. It can also inform their newsroom decision-making on legal and ethical matters.

Screen Shot 2014-02-08 at 10.44.34 AM

Gunaratne’s seminal text – The Dao of the Press. A Humanocentric Theory

Defamation is a good example. Historically, people’s reputations were seen as part of their spiritual beings. As such, defamation proceedings were often brought in the ecclesiastical courts of the Church of England before the Reformation (Rolph, 2008, pp. 39-48.

A stab at someone’s reputation was viewed as an attack on their soul – to be judged only by God’s earthly adjudicators, the clergy. 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, p. 173). Yet 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’.

Modern defences to defamation – like truth and qualified privilege – have been shaped by changing cultural, philosophical and political values, with truth as a defence heavily influenced by libertarians like Locke, Mill and Jefferson.

My recent work has involved the investigation of the ways Buddhist ethics might offer a useful framework for both journalism and media law. You can find an excerpt on my paper on ‘mindful journalism’ I presented to last year’s IAMCR convention in Dublin here.

I am not a Buddhist but I have seen the value of its application to modern phenomena and clinical situations like ‘Mindfulness Based Cognitive Therapy’ where meditation techniques have assisted with the treatment of anxiety and depression (Segal et. al, 2013).

Back in 2005 I attempted to use the Tibetan Buddhist mandala as a device to explain the complex competing interests involved when weighing up an issue involving privacy in the newsroom. (Pearson, 2005, see here.)

I have recently attempted to apply a Buddhist framework to the contexts of political blogging and election reportage. Colleague Tom Morton from UTS and I are using mindful journalism as a framework for examining a case study of an individual who wants a ban on his identity overturned by the Mental Health Review Tribunal in NSW.

My interest has come to the attention of a pioneer in the application of Buddhist systems theories to journalism – Professor Shelton Gunaratne – who wrote the seminal work in the field – The Dao of the Press – A Humanocentric Theory – in 2005.

He has compared his designated goals of Buddhist journalism with many of the traits of modern Western journalism in his insightful article in Javnost – The Public in 2009: ‘Buddhist goals of journalism and the news paradigm’.

Prof. Gunaratne has generously asked me to collaborate in a new project on mindful journalism also involving Dr Sugath Senarath from the University of Colombo.

Meanwhile, I will be attempting to articulate some of these principles – particularly the relationship between Buddhist notions of ‘right speech’ to defamation and celebrity journalism – in a paper I’ll be delivering to the Media Talk Symposium to be hosted by Associate Professor Jacqui Ewart in Brisbane on April 23-24 (schedule TBA).

That paper will be titled “Mindful media talk: exploring a Buddhist ‘right speech’ ethic in journalism and social media”. Its abstract reads:

Defamation and privacy laws – and journalism ethics codes – are problematic as guidance tools for news communication in the globalised, multi-cultural and multi-jurisdictional Web 2.0 era. This paper draws upon systems methodology (Gunaratne, 2005) to foreshadow an application of the Buddhist ethic of ‘right speech’ to journalistic and social media communication. The path of ‘right speech’ (samma vaca) was one step in Buddha’s Eightfold Path to enlightenment. However, taken at a secular level, it offers a useful theoretical framework by which to analyse media talk and guidance for those engaging in reportage and citizen journalism. Right speech invokes the avoidance of falsehood, divisive and abusive speech and gossip mongering. This paper explains its elements, distinguishes them from media laws and professional ethical codes, and uses examples to examine the extent to which it might accommodate ‘public interest’ / Fourth Estate journalism and celebrity news.

Watch this space for more posts on ‘mindful journalism’ as we explore its value as an analytical device and – perhaps more importantly – as a newsroom tool for ethical decision-making.

——————–

Key references

Gunaratne, S. A. (2005). The Dao of the Press: A humanocentric theory. Cresskill, NJ: Hampton Press.

Gunaratne, S. A. (2007). A Buddhist view of Journalism: Emphasis on mutual causality. Communication for Development and Social Change 1 (3): 17-38. (Paper originally presented at the University of Queensland on March 8, 2006.)

Gunaratne, S. A. (Feb. 15, 2009). Buddhist principles can revolutionize news and journalism. The Buddhist Channel.  Available at <http://www.buddhistchannel.tv/index.php?id=70,7781,0,0,1,0#.UuMttWTnb-k&gt;

Morison, W.L. & Sappideen, C. (1989) Torts: Commentary and Materials, 7th edn.

Sydney: Law Book Company.

Pearson, M. (2005) The privacy mandala: Towards a newsroom checklist for ethical decisions. Refereed paper presented to the Journalism Education Conference, Griffith University, Tuesday 29th November – Friday 2nd December, 2005, Gold Coast International Hotel, Surfers Paradise, QLD Australia. Available: http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1263&context=hss_pubs

Rolph, D. (2008). Reputation, Celebrity and Defamation Law. Ashgate: Aldershot. Available: http://books.google.com.au/books?id=d7YO44MvD8QC&source=gbs_navlinks_s

Segal, Z., Williams, M., Teasdale, J. and Kabat-Zinn, J. (2013). Mindfulness-Based Cognitive Therapy for Depression, Second Edition. Guilford Publications: NY.

———–

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 2014

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

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

By MARK PEARSON

The 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.

1827: NSW Chief Justice Francis Forbes rejects Governor Ralph Darling’s proposal for legislation licensing the press, stating: “That the press of this Colony is licentious may be readily admitted; but that does not prove the necessity of altering the laws.” (Historical Records of Australia, Series 1, Vol. 13, pp. 290-297)

PrivacySydneyGazetteExtract1830

The extract from the Sydney Gazette in 1830

1830: The Sydney Gazette and New South Wales Advertiser publishes an extract from London’s New Monthly Magazine on the prying nature of the British press compared with its European counterparts, stating: “The foreign journals never break in upon the privacy of domestic life”. But the London newspapers would hound a ‘lady of fashion’ relentlessly: “They trace her from the breakfast table to the Park, from the Park to the dinner-table, from thence to the Opera or the ball, and from her boudoir to her bed. They trace her every where. She may make as many doubles as a hare, but they are all in vain; it is impossible to escape pursuit.”

1847: NSW becomes the first Australian state to add a ‘public benefit’ element to the defence of truth for libel – essentially adding a privacy requirement to defamation law (ALRC Report 11, p. 117)

1882: First identified use of the phrase ‘right to privacy’ in an Australian newspaper. Commenting on a major libel case, the South Australian Weekly Chronicle (22.4.1882, p.5) states: “A contractor having dealings with the Government or with any public body has no right to privacy as far as those dealings go.”

1890: In a landmark Harvard Law Review article, the great US jurist Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis announce a new ‘right to privacy’ in an article by that very name. There is a ripple effect in Australia with several mentions of the term in articles between 1890-1900.

1937: A radio station used a property owner’s land overlooking a racecourse to build a platform from which it broadcast its call of the horse races. The High Court rules the mere overlooking of the land did not consti­tute an unlawful interference with the racing club’s use of its property. The decision viewed as a rejection of a common law right to privacy: Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479.

1948: Universal Declaration of Human Rights is proclaimed in Paris. Article 12 provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (United Nations Universal Declaration of Human Rights, GA. Res 217A(III), UN Doc A/Res/810 (1948).)

1966: The International Covenant on Civil and Political Rights (ICCPR) is proclaimed, protecting privacy at Article 17. (16 December 1966, [1980] ATS 23, entered into force generally on 23 March 1976)

1972: Australia signs the ICCPR.

1979: Australian Law Reform Commission releases its first major report on privacy – Unfair Publication: Defamation and Privacy, ALRC 11. It recommends a person be allowed to sue for damages or an injunction if ‘sensitive private facts’, relating to health, private behaviour, home life, and personal or family relationships, were published about him or her which were likely in all the circumstances to cause distress, annoyance or embarrassment to a person in the position of the individual. Wide defences were proposed allowing publication of personal information if the publication was relevant to the topic of public interest. (pp. 124-125).

1980: Australia ratifies the ICCPR and the Organisation for Economic Co-operation and Development (OECD) expert group led by Australian Justice Michael Kirby issues its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

1983: Australian Law Reform Commission releases its Privacy (ALRC Report 22), recommending the establishment of a Privacy Act to establish information privacy principles and the appointment of a Privacy Commissioner.

1984: Australian Journalists’ Association (AJA) revises its 1944 Code of Ethics to include a new clause (9) requiring journalists to “respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them”.

1988: The Privacy Act 1988 is enacted, applying initially only to the protection of personal information in the possession of Australian Government departments and agencies.

1999: Media Entertainment and Arts Alliance (MEAA) issues another revised Code of Ethics preserving the grief and privacy elements in clause 11.

2000: Privacy Act 1988 provisions are extended to larger private sector organisations, and 10 National Privacy Principles (NPPs) are introduced, determining how companies must collect, use and disclose, keep secure, provide access to and correct personal information. Media organisations are exempted from the provisions as long as they ascribe to privacy standards published by their representative bodies.

2001: High Court rejects an argument for a company’s right to privacy after animal liberationists trespass to film the slaughter of possums in a Tasmanian abattoir and someone gives the footage to the ABC, but the court leaves the door open for a possible personal privacy tort: Australian Broadcasting Corporation v. Lenah Game Meats (2001) 208 CLR 199.

2003: A Queensland District Court judge rules the privacy of the former Sunshine Coast mayor Alison Grosse had been invaded by an ex-lover who continued to harass her after their affair had ended. She is awarded $108,000 in damages: Grosse v. Purvis [2003] QDC 151.

2007: Victorian County Court Judge Felicity Hampel SC holds that a rape victim’s privacy was invaded when ABC Radio broadcast her identity in a news report despite state laws banning the identification of sexual assault complainants. She is awarded $110,000 damages: Jane Doe v ABC & Ors [2007] VCC 281.

2008: Australian Law Reform Commission releases its For Your Information: Australian Privacy Law and Practice (ALRC Report 108) recommending a cause of action for breach of privacy where an individual has a ‘reasonable expectation of privacy’, with a cap for non-economic loss of $150,000.

2011: Federal Government releases an Issues Paper floating a proposal for a Commonwealth cause of action for a serious invasion of privacy.

2012

  • The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Privacy Amendment Act) passed, to take effect in 2014, featuring new Australian Privacy Principles (APPs), more powers for the Australian Information Commissioner, tougher credit reporting rules and new dispute resolution processes. Media exemption remains unchanged.
  • Independent Media Inquiry (Finkelstein Review) releases its report recommending a News Media Council take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court. Privacy breaches cited as a reason for the move.
  • Commonwealth Government’s Convergence Review releases its final report rejecting the Finkelstein model but instead proposing a ‘news standards body’ operating across all media platforms, flagging the withdrawal of the privacy and consumer law exemptions from media outlets who refuse to sign up to the new system.

2013

  • The federal attorney-general directs the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era. The inquiry will address both prevention and remedies for serious invasions of privacy with a deadline of June 2014.
  • At the same time the government introduces legislation to establish a Public Interest Media Advocate with the power to strip media outlets of their Privacy Act exemptions. That part of the legislation is later withdrawn.
  • The federal attorney-general seeks state and territory input on the regulation of drones following the Privacy Commissioner’s concerns that their operation by individuals was not covered by the Privacy Act.

2014

  • The Australian Law Reform Commission (ALRC) releases a Discussion Paper, Serious Invasions of Privacy in the Digital Era (DP 80, 2014)The proposed elements of the action include that the invasion of privacy must occur by: a. Intrusion into the plaintiff’s seclusion or private affairs (including by unlawfulsurveillance); or b. Misuse or disclosure of private information about the plaintiff. The invasion of privacy must be either intentional or reckless. A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstance. The court must consider that the invasion of privacy was ‘serious’, in all the circumstances, having regard to, among other things, whether the invasion was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff. The court must be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest in the defendant’s conduct.

———–

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 2013/2014

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Media law basics for election bloggers

By MARK PEARSON

[This blog was first published on the citizen journalism election site No Fibs, edited by Margo Kingston.]

Countless laws might apply to the serious blogger and citizen journalist because Web 2.0 communications transcend borders into places where expression is far from free.  

Even in Australia there are nine jurisdictions with a complex array of laws affecting writers and online publishers, including defamation, contempt, confidentiality, discrimination, privacy, intellectual property and national security.

If you plan on taking the ‘publish and be damned’ approach coined by the Duke of Wellington in 1824, then you might also take the advice of Tex Perkins from The Cruel Sea in 1995: “Better get a lawyer, son. Better get a real good one.”

(A quick disclaimer: My words here do not constitute legal advice. I’m not a lawyer.)

The problem is that most bloggers can’t afford legal advice and certainly don’t have the luxury of in-house counsel afforded to journalists still working for legacy media.

So if you’re going to pack a punch in your writing you at least need a basic grasp of the main areas of the law, including the risks involved and the defences available to you.

Defamation remains the most common concern of serious writers and commentators because blog posts so often risk damage to someone’s reputation – but it does have some useful defences.

Political commentary has been much livelier over the past two decades since the High Court handed down a series of decisions conveying upon all citizens a freedom to communicate on matters of politics and government.

However, it is still refining its own decisions on the way this affects political defamation, and most of us aren’t as fortunate as Darryl Kerrigan in The Castle – we don’t all befriend a QC willing to run our High Court appeal pro bono.

That leaves us trying to work within the core defamation defences of truth and ‘honest opinion’ (also known as ‘fair comment’). (Of course there is also the defence protecting a fair and accurate report of court, parliament and other public occasions if you are engaging in straight reporting of such a major case or debate and a range of other less common defences).

Truth as a defence has its challenges because you need admissible evidence to prove the truth of defamatory facts you are stating – and you also need evidence of defamatory meanings that might be read into your words (known as ‘imputations’).

That can be difficult. You might have the photograph of a shonky developer handing a politician some cash – but you’d need more evidence than that to prove she is corrupt.

Serious allegations like these need to be legalled.

Harsh criticism of public figures can usually be protected by the defence of honest opinion or fair comment if you review the criteria carefully each time you blog.

This defence is based on the idea that anyone who has a public role or who puts their work out into a public forum should expect it to be criticised and even lampooned by others.

To earn it you will normally need to ensure that the target of your critique is indeed in the public domain. This covers criticism of such things as the quality and service of hotels and restaurants; reviews of creative works like music, books and artworks; critiques of sports and entertainment performances; and reflections on the role and statements of politicians and other public officials.

Your defamatory material needs to be your honest opinion, based upon provable facts stated in the material.

While facts might be provable, you obviously can’t prove the truth or falsity of opinions themselves, which are much more subjective in their nature.

As I explain in Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012) the law will not allow you to parade a fact as an opinion. For example, you could not write “In my opinion, Jones is a rapist and the judge must be demented”. In such a case, the court would view both allegations as statements of fact, and you would need to prove the truth of each. However, if you had drawn on provable facts to prove Jones had indeed committed serious sexual offences and had just been convicted of rape, you might write your honest opinion.

You might write something like: “The one year jail sentence Jones received for this rape is grossly inadequate. It is hard to imagine how someone who has caused such damage to this woman will walk free in just 12 months. Judge Brown’s sentencing decision is mind-boggling and out of all proportion to sentences by other judges for similar crimes. His appointment is up for renewal in February and, if this sentence is any indication, it is high time he retired.” This way you can express a very strong opinion within the bounds of this defence as long as you are basing your comments on a foundation of provable facts.

That is not to say that you can just say what you like and just add the clause ‘This is just my opinion’. The defence will succeed only where the opinion clearly is an opinion, rather than a statement of fact.

It must be based on true (provable with evidence) facts or absolutely privileged material (for example, parliamentary debate) stated or adequately referred to in the publication.

It must be an honestly held opinion, the subject to which it relates matter must be in the public domain or a matter of public interest, and the comment must be fair (not neces­sarily balanced, but an opinion which could be held, based on the stated facts).

Matters like the private conduct of a public official do not earn the defence unless the conduct affects the official’s fitness for office.

If the facts on which the opinion is based are not provable as true or not protected in some other way, you stand to lose the case. The facts or privileged material on which the opinion is based should normally appear in our piece, so the audience can see clearly where the opinion has originated and judge for themselves whether they agree or disagree with it. They can also be based on matters of ‘notoriety’, not expressed in the publication, although it is safer to include them.

The defence is defeated by malice or a lack of good faith, so forget it if you’re a disgruntled former staffer trying to take revenge on your old boss.

Do all that and you can give that pollie the serve they deserve.

Fail to do it and you could lose your house and savings.

On a brighter note, the Media, Entertainment and Arts Alliance offers its freelance members professional indemnity and public liability insurance. See the details here.

———–

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 2013

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A taste of PR law #publicrelations #auslaw

By MARK PEARSON

I have just completed a legal chapter for a public relations text edited by colleague Jane Johnston. In researching the chapter I came across several Australian cases where PR practitioners had found themselves in legal tangles. Here is a taste of them, but you’ll have to wait for Jane’s new book to get more detail!

According to the Australasian Legal Information Institute (www.austlii.edu.au), the term ‘public relations’ has only been spoken 10 times in High Court judgments, with none of the cases having public relations as a key factor in the decision-making. The mentions did, however, give some indication of the way our leading justices viewed the profession and some hints of the legalities of PR. For example, the 2004 case of Zhu v Treasurer of NSW [2004] 218 CLR 530 involved a dispute between the Sydney Organising Committee of the Olympic Games (SOCOG) in 2000 and a sub-contractor who had been licensed to market an “Olympics Club” package to residents of China. ‘Public relations’ formed part of the intellectual property he was licensed to use, which included “letterheads, stationery, display materials and other advertising, promotional and public relations materials approved by SOCOG to promote the Olympic Club” (para 59).  The case establishes both contract law and intellectual property law as important to the role of PR professionals.

In Sankey v Whitlam (1978) 142 CLR 1, the High Court identified the importance of keeping secrets and confidentiality in government media relations.  Acting Chief Justice Gibbs quoted an earlier British case where Chief Justice Lord Widgery had acknowledged the practice of ‘leaking’ as a PR tool: “To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable.”(para 41).

The term ‘public relations’ has been used much more frequently in other courts and tribunals, with Austlii returning 1387 mentions of the term across all its case law databases. It was used in a host of contexts, including defamation, confidentiality, industrial relations, PR advice as lawyer-client privilege and whether public relations expenses could be claimed as part of a damages claim.

Here is a sampler:

Defamation

Words spoken at a media conference in Adelaide were at the centre of a defamation action in 2012. A Hindley Street nightclub owner sued a neighbouring travel agency operator over a statement she had uttered almost two years earlier in the midst of a media conference he had called to announce an initiative to increase public safety and reduce violence in the central Adelaide precinct. He alleged the travel agency owner had announced loudly to the media gathered at the conference that he – the nightclub owner – was responsible for all the violence in Hindley Street. After hearing from several witnesses (including the nightclub’s public relations consultant) the District Court judge found for the defendant. He said it was more likely the interjector had not made such a blatant defamatory allegation against the nightclub owner and, even if she had, he would only have awarded $7500 in damages. There was no evidence of any actual recording of the words she had spoken despite numerous media representatives being present at the time: Tropeano v. Karidis [2012] SADC 29.

In a Western Australian case in 2006, the consultancy Professional Public Relations (PPR) was ordered to provide all records they had about a DVD recording criticising a proposed brickworks which the director of a building materials company claimed made defamatory statements about him and his company. He suspected a rival building materials company – a client of PPR – was behind the production, and wanted this confirmed so that he could commence legal action: Bgc (Australia) Pty Ltd v Professional  Public Relations  Pty Ltd & Anor [2006] WASC 175.

Contempt

The most famous sub judice breach in a PR context came in 1987 when former NSW Premier Neville Wran called a media conference where he stated that he believed his friend – High Court Justice Lionel Murphy – was innocent of serious charges he was facing. Sydney’s Daily Telegraph published the comments under the heading ‘Murphy innocent—Wran. Court orders retrial’. Both Wran and the Daily Telegraph were convicted of contempt, with Wran fined $25,000 and the newspaper $200,000: Director of Public Prosecutions (Cth) v. Wran (1987) 7 NSWLR 616.

Trespass

Nine Network’s A Current Affair program had to pay $25,000 in damages to a property owner in 2002 after they had been invited by the Environment Protection Authority to accompany them when raiding his property for suspected environmental offences. The crew had cameras rolling as they entered the property and confronted the owner. The court held there was an implied licence for journalists to enter the land to request permission to film, but not to film without permission. The court also warned public authorities not to invite journalists on such raids, known as ‘ride-alongs’: TCN Channel Nine Pty Ltd v. Anning [2002] NSWCA 82.

Contract law

A West Australian District Court case involved a consultant to a South African mining company considering buyouts or mergers with other mining companies. The dispute surrounded a “partly written, partly oral and partly implied” agreement to provide “public relations, lobbying, consulting, networking, facilitating and co-ordinating” services: Newshore Nominees Pty Ltd as trustee for the Commercial and Equities Trust v. Durvan Roodepoort Deep, Limited [2004] WADC 57. The problem was that very little was detailed in the agreement, forcing the judge to look at previous work done by the consultant and to come to an estimate of the number of hours he had worked and their value on this occasion. He accepted that an agreement had been reached, and concluded that $250 per hour was a reasonable sum for the services provided, but could not accept that the consultant had worked 14 hour days for 64 days. Instead, he awarded him $830 per day for eight weeks, totalling $33,200 plus expenses.

Consumer law

The public relations consultancy Essential Media Communications used Victorian consumer law to win a Supreme Court injunction to stop another PR firm – EMC2 – from using that abbreviation of their name. They claimed it could ‘mislead and deceive’ their clients, some of whom knew them by that acronym. The court also accepted Essential Media Communications’ argument that EMC2 might have been ‘passing off’ their business as that of the plaintiff:  Essential Media Communications Pty Ltd v EMC2 & Partners [2002] VSC 554. The Federal Court issued an injunction in similar circumstances in an earlier case to stop a public relations company using the name “Weston”, when an existing consultancy was already operating under that name: Re Weston Communications Pty Ltd v Fortune Communications Holdings Limited and the Weston Company Limited [1985] FCA 426.

© Mark Pearson 2013

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

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I’m heading to Griffith U as Professor of Journalism and Social Media

By MARK PEARSON

After 24 fulfilling years at Bond University I am leaving to take up a position as Professor of Journalism and Social Media at neighbouring Griffith University.

This Friday, December 21, will be my last day at Bond U and I will take a few device-free weeks of long service leave before starting at Griffith U on February 4, 2013.

You would appreciate my mixed emotions after almost a quarter of a century at the one institution.

I was lucky to be part of the foundation staff at Australia’s first private university in 1989 and have worked with a host of great people over those years to build a credible Journalism program, culminating in the wonderful ‘J-team’ of colleagues I’m leaving this week.

That said, I’m excited by the role I’ll be taking up at Griffith U and am looking forward to joining the faculty there. I’ve collaborated with at least four of my Griffith colleagues on research projects previously and am keen to resume old friendships and start new ones.

As a journalist I am hesitant to claim ‘firsts’, but I can’t find another “Professor of Journalism and Social Media” on a Google-search, although there are a few professors of social media internationally. Please let me know if you find one out there! Of course, I’ll be specialising in the social media law, ethics, risk and policy space in my social media research and teaching and make no claim to be expert in all things social media.

My teaching timetable has already been decided and I’m able to devote my first semester to lecturing and tutoring in my primary field of media law.

My new email address will be m.pearson@griffith.edu.au , but meanwhile you can contact me at journlaw@gmail.com.

I’ve packed 24 years worth of books and papers into boxes to move up the motorway to my new office at Griffith U’s Gold Coast campus, just a 30 minute drive away.

Then it’s Christmas festivities with the family and three weeks of R&R in our motorhome exploring the north coast of New South Wales over summer.

It’s a great life, and I wish you a peaceful and safe festive season.

My journlaw.com blog will resume in February and I’ll also return to the Twittersphere about then @journlaw from my new home at Griffith U.

Best wishes!

Mark (@journlaw)

© Mark Pearson 2012

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