Tag Archives: defamation

November 26, 2011 · 12:55 pm

Pressures on the media in a Western democracy #RSF #pressfreedom #censorship

Each year I file a report on key incidents and developments in the areas of media law and censorship as Australia’s correspondent for Reporters Without Borders.

This data, when combined with submissions from several journalism and academic colleagues in Australia and throughout the world, feeds into RSF’s annual World Press Freedom Index where most nations’ levels of media censorship are compared in a league table format.

I have just filed my 2011 report with the assistance of research assistant Kiri ten Dolle and share some of the highlights with you here, in reverse chronological order.

November 2011:

By far the most important threat to media freedoms in Australia came in the form of at least five government inquiries into media regulation conducted throughout the year, which I have blogged on previously. Between them they raised the prospects of tougher regulation regimes for print, broadcast and online media; a new tort of privacy; tough new classification systems across media; and the conversion of some self-regulatory bodies to regulatory status. RSF was particularly concerned by suggestions at the hearings of the Independent Media Inquiry that journalists should be licensed or that the Australian Press Council should be given powers to fine media organizations for ethical breaches. See their release on the matter.

The trial of Victorian police officer Simon Artz for alleged leaks to The Australian newspaper about a counter-terrorism operation raised several media freedom issues, with Crikey senior journalist Andrew Crook allegedly breaching a suppression order by revealing the name of a former member of Victoria’s Special Intelligence Group involved in the hearing; warnings over Crikey journalist Margaret Simons live tweeting from the hearing; and The Australian’s Cameron Stewart being ordered to reveal his sources to the hearing.

In a separate matter Victorian Police were investigating an alleged hacking of an ALP electoral database by four journalists at The Age, including editor-in-chief Paul Ramage. The Age claims they received access to the private information of high-profile individuals through ‘appropriate journalistic methods’ and authorisation by a whistleblower.

October 2011

Leaks to the media were also central to a report by the Office of Police Integrity (OPI) found advisers to the Victorian police minister conspired to bring down the former police commissioner Simon Overland. Weston had allegedly leaked information to the media about Overland’s fallout with his former deputy, Ken Jones.

Government control over media access to detention centres prompted condemnation from the journalists’ union. Department of Immigration and Citizenship (DIAC) announced editorial control would be handed over to representatives of the immigration department under new guidelines introduced by DIAC that restrict reporting of and access to detention centres. Journalists and media organisations are required to sign a Deed of Agreement in accordance with the new policy which ultimately prohibits photography, film or interviews with individual detainees and rules that all footage must be submitted to department officials for approval before publication.

Defamation actions, even spurious ones, were alive and well despite uniform defamation laws introduced throughout Australia in 2005. Convicted killer Michael McGrane sought $30 million in damages from the Seven Network claiming he was defamed in a television show called “The Suspects: True Australian Thrillers”. A Queensland Supreme Court justice struck out the claim but gave McGrane leave to replead under a technical provision of the reformed laws.

The extent to which free expression should be trumped by hate speech laws was the subject of wide debate after a Federal Court judge ruled Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act when he wrote that some fair-skinned people used their indigenous identity to further their careers.

September 2011

Fairfax Media group general counsel Gail Hambly and the editor-in-chief and publisher of The Sydney Morning Herald Peter Fray were summonsed by the Police Integrity Commission to produce documents on September 23 in relation to articles by the Herald journalists Linton Besser and Dylan Welch about the NSW Crime Commission. The inspector sought information about sources of information.

Fairfax Radio broadcaster Michael Smith’s contract was suspended in September when he tried to air an interview a former union official who claimed alleged fraudulent conduct by a former boyfriend of Prime Minister Julia Gillard. Smith took Fairfax Radio to court, contesting his ‘planned dismissal’ under the Fair Work Act and alleging he was victimised over his political beliefs.

August 2011

Two Brisbane journalists and a producer were dismissed by the Nine Network for faking live crosses to the Daniel Morcombe search site and ‘unfair dismissal’ litigation was foreshadowed.

July 2011

Cancer-stricken Hinch was sentenced to home detention in July after being found guilty of breaching four suppression orders by naming two sex offenders on his website and at a crime rally in 2008.

June 2011

Fairfax Media announced it would outsource the sub-editing of news, sport and business content to Pagemasters, a subsidiary of the Australian Associate Press (AAP), with a loss 44 jobs at The Sydney Morning Herald and 38 at The Age, despite calls from the NSW Upper Tribunal to abandon the decision.

May 2011

The Australian Broadcasting Corporation used a programming exemption to FOI laws to deny The Weekend Australian and Herald Sun access to its audience data and employee salaries.

Fairfax’s deputy technology editor Ben Grubb, 20, was arrested after reporting on a conference presenter’s alleged hacking at the AUSCert IT security conference. During the week, Grubb had published a story explaining a demonstration shown at the conference of acquiring private photos from a Facebook user without being a ‘friend’. Police seized his iPad but released Grubb after questioning him.

Sixty Minutes reporter Liam Bartlett and his crew’s attempt to enter the main detention centre at Christmas Island led to a police investigation. Bartlett and refugee advocate Kate Gauthier were denied access to the centre after it was alleged Gauthier’s baby, who was with them, was fitted with a recording device.

March-April 2011

Fairfax Media, publisher of the Sydney Morning Herald, and two of its senior journalists Linton Besser and Dylan Welch were issued with subpoenas by the NSW Crime Commission demanding them to surrender mobile phone records, sim cards and other communication related to an investigation of organised crime and corruption in NSW. The Crime Commission dropped the subpoenas in April.

February 2011

The NSW Supreme Court considered forcing three journalists from The Age to reveal their sources in a defamation trial centred around a story about former businesswoman Helen Liu and former defence minister Joel Fitzgibbon.

The Australian Communications and Media Authority found there had been no breach of privacy when Channel Seven’s coverage of NSW Transport Minister David Campbell’s resignation included footage of him leaving a gay club. While the ACMA acknowledged the privacy rights of Campbell, they ruled public interest outweighed his personal privacy because he was a public figure.

———–

Have we missed some? Please email me at journlaw@gmail.com if you think there are other important threats to free expression in Australia during 2011 and I’ll add them to our brief for RSF.

© Mark Pearson 2011

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.

My top five media law topics for country newspaper editors

By MARK PEARSON Follow @Journlaw

Address to the annual conference of the Queensland Country Press Association at Palm Meadows Radisson, Gold Coast, October 15, 2011.

Big city newspaper editors might perceive their provincial peers as ‘oh so last century’, but their country cousins have the basic ingredients to outlast most other print media in the Web 2.0 era.

The 21^st century publishing environment is all about niche markets with a strong sense of community – real and virtual. And country newspapers already have that in spades.

But the Internet and social media present legal traps a 1980s provincial newspaper journalist could never have imagined.

These are my top five.

You’re liable wherever you’re downloaded. It’s old news now that Australia’s High Court was the first to decide that you could be sued wherever your material is downloaded in the 2002 case of Dow Jones v. Gutnick. But the message has still not gotten through to many editors and journalists who continue to think locally when their defamation and contempt is actually sailing through the ether to litigants and prosecutors in other jurisdictions. It moots for small country newspapers keeping their news in their print edition – at least you can contain your circulation to just one or two jurisdictions that way and your parent company won’t be sued or charged somewhere else over your online oversight. That goes for contempt, defamation, breach of suppression orders and other reporting restrictions in other states and territories. (It might also add value to your print edition if readers know they can read all that saucy material about over-the-border happenings in your small local newspaper.)
Your website keeps you liable – take it down and boost the value of your print archives. There are, of course, all sorts of reasons why you want a Web or social media presence for your printed provincial newspaper. But you might think twice about leaving your news publicly available for too long after publication. That’s because if you leave the material on your servers it might be considered ‘republished’ each time it is downloaded, as Kiwi lawyer Steven Price has advised. Australia’s limitation period for defamation law suits is one year – but the clock starts ticking again every time someone downloads the story so you finish up having permanent liability if you leave it searchable within your site. This new permanence of stored material also creates problems for digital archives – as lawyers Minter Ellison have pointed out. Be especially careful not to link current matters – particularly court stories – to previous coverage. The best approach is to take all steps to withdraw any dubious material as soon as possible. If others choose to forward or republish your defamatory material, it has hopefully become their problem rather than yours.
In Australia, you’re liable for the comments of your ‘friends’ and correspondents. Some countries like the US offer publishers and bloggers complete immunity from the comments of others on their sites, and Internet Service Providers get some protection in most Western democracies. But you will normally be required to take offensive or illegal material down once it has been brought to your attention. That’s certainly the case in Australia. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its account in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. For country newspaper editors, this is a good argument for treating your website forums just like your good old fashioned letters pages – and vetting comments very carefully for legal issues before you post them. Moderate before publishing. Facebook makes this harder, but at the very least you should be deleting risky comments the instant they are posted. Queensland Police learned that lesson earlier this year when there was a spate of prejudicial comments from citizens about suspects on their Facebook wall. And just last week the Queensland Supreme Court ordered Google to reveal the identity of those behind a website defaming a Gold Coast entrepreneur and motivational speaker.
‘Pssst … off the record … source confidentiality is dead’. Much has been made of Australia’s new federal shield laws allowing journalists and bloggers to protect their confidential sources. For a start, it only applies to Commonwealth and NSW cases, and even there the courts still have a discretion to force journalists to reveal their sources if there is a greater public interest in the question being answered. But really, who can hope for any real level of confidentiality or secrecy in their dealing with sources in the modern era? The new surveillance regime means both the journalist and the whistleblower are traceable via a combination of technologies – phone calls, emails, location tracking, social media tagging and check-ins, and CCTV cameras to name just a few. It doesn’t take much for an organization or a government agency to be able to put two and two together to work out who was in communication with a reporter at a certain point in time. Even Bernstein and Woodward would have a hard time keeping Deep Throat confidential in 2011 with the phones in their pockets betraying their movements and the security cameras in the public park recording their secret rendezvous. Your top investigative reporters for national and international media outlets may have techniques to navigate all this, but I’d suggest your average provincial reporter deal with their sources on a strictly ‘on the record’ basis.
Your copyright … get over it! Intellectual property law can get seriously nasty and complex, so I certainly wouldn’t recommend country newspaper editors ramping up their plagiarism of the work of others or cut-and-pasting web-based material into your own stories. While there are generous defences available in fair dealing for the purposes of news, commentary and parody, you’d need an IP lawyer to tell you whether you are working within them. But in this rampant international free exchange of information you’re sending all the wrong messages when if you try litigation to pursue your own organisation’s copyright in your news material. US newspaper group the Denver Post has ended up with egg on its face after outsourcing its IP litigation to a so-called ‘copyright troll’ called Righthaven. Their pursuit of small players for thousands of dollars in damages has backfired and looks like costing them dearly in reimbursements, lawyers’ fees and bad PR. Unless you are part of a large group taking on the blatant commercial pirating of your IP by another major operator, I think you’d be best focusing your attention on building your print and online markets by being first with the local news that matters. If someone steals your material afterwards, send them a letter politely asking for acknowledgment. Better to be a caring and sharing corporate citizen in your town than the ogre that takes the locals to court.

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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September 6, 2011 · 10:01 am

Ancient lèse majesté laws an anachronism in the cyber era

By MARK PEARSON Follow @Journlaw

Australian writer Harry Nicolaides was about to board the midnight flight from Bangkok to Melbourne on August 31, 2008 for a job interview with a major hotel group.

Officers approached him at passport control and he was then arrested and interrogated.

He recounted in The Monthly what happened next:

“In a dark, damp cell I stripped off my clothes and laid them on the floor, fashioning a bed with my shoes as a pillow. Sleep was impossible: I was thirsty and hungry, confused and alone.

“In the morning I made a short court appearance, before being handcuffed and shuffled onto an overcrowded prison bus bound for the Bangkok Remand Prison.”

Nicolaides was carrying no drugs or firearms and was not laundering money for international crime syndicates. As I wrote in The Australian at the time, his crime was that he had written a just few sentences deemed to be insulting to Thailand’s crown prince in a self-published work of fiction that had sold just a handful of copies.

Those words typed on a computer keyboard earned him a traumatic six month stay in an overcrowded ‘Bangkok Hilton’ as he tried to navigate court appearances and brief lawyers and diplomats trying to negotiate his freedom. He was ultimately released on a royal pardon.

Welcome to the law of lèse majesté – a crime dating back to Ancient Rome punishing a range of behaviours seen as insulting to a sovereign.

Other nations have lèse majesté laws or similar. Journalist Bashar Al-Sayegh spent three days in jail in 2007 just because someone else had posted insulting comments about the emir of Kuwait on his website. And Australian woman Nasrah Al Shamery spent five and a half months in prison in the same country in 2009 because she had allegedly insulted the emir during an argument in an airport terminal.

Brunei, Denmark, Netherlands, Spain and Morocco also have lèse majesté and each has used them to prosecute insults to their royal families in recent years.

Poland, Germany, Switzerland, the Maldives, Egypt, Syria, Kazakhstan, Belarus, Zimbabwe and Greece have crimes related to the denigration of heads of state of foreign countries or their own. They have been used several times this century, as the BBC has reported.

But the country most active in its lèse majesté prosecutions has been Thailand, a nation with an otherwise free and vibrant media.

As many as 100 people a year have been charged with the offence there in recent years, with several unsuspecting foreigners languishing in jail because of their published criticisms of royalty. US-Thai resident Joe Gordon from Colorado was formally charged in August after being detained for 84 days on a charge of translating an unauthorised biography critical of the king.

The prosecutions are so harsh and random that foreign academic experts who have criticized the law have decided not to visit Thailand for fear of arrest over their publications and statements.

US academic David Streckfuss has written a book on the issue and has criticised the political nature of the charge in the modern era, describing it as anachronistic and “a tawdry and naked attempt to use the institution to suppress views”.

He has called for its use only with the king’s consent because it directly contradicts the Thai constitution’s guarantee of free expression.

“Otherwise, the lèse majesté law in Thailand will ever be ready at hand to serve as a weapon in the political arena, always to the detriment of the institution the law intends to protect,” he wrote.

The critics point out that it is not the monarchy itself that pursues the lèse majesté charges, but rather the government of the day via its agencies.

Thailand has a complex political structure, with democracy, the military and royalty all in the mix. Its citizens have such a strong devotion to the royal family that lèse majesté arrests can be used as political devices to win popular support for those pressing the charges.

In an era of globalised products and a certain sameness about many travel experiences we celebrate distinctive cultural differences about countries like Thailand.

But sometimes we must take an international stand against laws that are depriving both the citizens of these countries and visiting foreigners of their liberty because something they have written or said has been targeted for political purposes.

In the meantime, if you are an author, academic, blogger or journalist who has written about lèse majesté – or, worse still, if you have criticised the monarchy in any of these countries – you should review your next travel itinerary carefully. Like Harry Nicolaides, you might not rate your stay at the ‘Bangkok Hilton’ very highly.

© Mark Pearson 2011

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August 29, 2011 · 10:58 am

Why I just wrote my last #LinkedIn recommendation

The trendy online reference seems flawed – both professionally and legally.

By MARK PEARSON Follow @Journlaw

I see it as an important responsibility of my position as a professor to act as a referee for my former students and colleagues when they are job hunting.

I stopped writing formal general references many years ago because the practice seemed to have lost almost all credibility with employers.

Instead, I now agree to be a ‘referee’ and will only write a formal reference when an employer requests one.

But over the past couple of years I have been getting more requests for ‘recommendations’ from my connections on the social-professional network LinkedIn.

Not wanting to offend my former students and colleagues, I have obliged. Until now. I’ve investigated it further and have just written my final LinkedIn recommendation.

There are all the standard HR reasons why such recommendations are not worth a pinch of salt: they are time consuming, too general, and always glowing.

In 2009, Silicon Valley web strategist Jeremiah Owyang described LinkedIn recommendations as ‘puffery’.

“When I see recommendations on LinkedIn, my alarm goes off,” he blogged.

“I know most are not objective.”

LinkedIn responded to his criticisms on their official blog, with Adam Nash highlighting the benefits that can come from recommendations. He claimed the process could be mutually rewarding for the recommender and recommendee.

Perhaps so, but others have explored the employment law issues of the practice.

Employment attorney Shay Zeemer Hable offers a host of reasons why such references are fraught in labor law – with claims of defamation and unfair dismissal heading the list.

“Every discrimination plaintiff seeks to prove his employer is lying about the reason for the firing,” he writes.

“As a result, savvy attorneys will search the Internet for any comment that is inconsistent with the company’s official message about the reason for the termination.

But the area that concerns me most is defamation.

It’s not because of the risk of defaming the person you are recommending. My understanding is that they have to approve your recommendation before posting it, so I can’t imagine someone letting a disparaging comment slip through.

My concern is more with the impact of a glowing LinkedIn recommendation on the defamation defence you need to protect your harsh comments in the real reference you give later.

What happens if you later contradict your original glowing recommendation in your frank verbal or written advice to the employer when they contact you about this person you have recommended?

Australian law provides a strong qualified privilege defence for the negative job reference -restricted to those who have a genuine legal interest in knowing the your truthful opinion about a prospective employee.

But, as the Legal Services Commission of South Australia explains, it requires the ‘publisher’ – he or she who has written the reference – to have acted in good faith and without malice. You also need to believe in the truth of the material you are providing about the individual.

That could be damaged in a major way if the plaintiff can point to your contradictory glowing recommendation on LinkedIn, particularly if it covers the same aspects of their character.

A court would be hard pressed to find you have acted in good faith if you have offered conflicting versions of your opinion about the employee in separate ‘publications’. Exactly when were you giving your honest opinion?

I might be drawing a long bow here – and perhaps some readers can point me to some cases where this has been tested – but for the moment I certainly won’t be writing any more LinkedIn recommendations, and I will be directing my colleagues and students to this blog to read my reasons.

I’d be interested to hear your views.

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August 23, 2011 · 9:48 am

First Amendment doesn’t have a passport #law #blogging #media #defamation #censorship

By MARK PEARSON Follow @Journlaw

It might only be 45 words long, but if you are an American journalist, blogger or social media user you can’t pack the First Amendment in your luggage when you travel abroad.

The famous 14 word portion protecting free expression in the United States – ‘Congress shall make no law … abridging the freedom of speech, or of the press’ – does not travel well when your Web 2.0 material is viewed in foreign lands.

That shouldn’t worry you if you have published within US law and are happy to sit at home in North Dakota or Hawaii tapping away on the device of your choice.

But you should think twice before stepping on an aircraft and touching down in a jurisdiction where there are tougher gags on free expression.

Of course, you don’t have carte blanche at home, either. Even the US draws the line at criminal publications involving prohibited materials like child pornography or engaging in criminal activity such as fraud or terrorism.

But there are many things you can publish on social media or on blogs in America that can trigger lawsuits, harsh fines or jail terms in some countries.

Here are some situations where your First Amendment won’t help out:

Hate speech: A US District Court decision in 2011 reinforced the strong protections for angry and inflammatory words under the First Amendment. Judge Lynn Adelman had to consider the free expression rights of neo-Nazi Bill White who was charged over using a website to advocate violence against the ‘enemies’ of white supremacy, including a juror in the trial of a fellow extremist. Judge Adelman allowed his appeal on the grounds that he had not made a direct call to violence against the juror and that White’s speech had First Amendment protection. Judge Adelman explained that the US Constitution ‘…protects vehement, scathing, and offensive criticism of others, including individuals involved in the criminal justice system, such as Juror Hoffman’. He ruled that even speech advocating law-breaking was protected unless it was directed at inciting immediate lawless action and likely to prompt it. The decision sits with earlier Supreme Court hate speech judgments which have found that all but communications integral to criminal conduct – fighting words, threats and solicitations – have free expression protection in America. This is not the case in most other countries, where such comments can see you fined or jailed under laws of blasphemy, vilification or race hate. Australian historical revisionist Fredrick Toben was jailed in Germany for publishing Holocaust denial material on the Internet. In Nigeria, Algeria, Egypt, Tunisia, Sudan and some Middle Eastern countries offenders can be jailed or even executed for blasphemous statements or actions.
Immunity for comments of others: In the US, s. 230 of the US Communications Decency Act (1996) gives immunity to anyone hosting the comments of third parties. It states clearly: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Internet service providers (ISPs) and bloggers are protected from actions over material published without their knowledge on sites they host. This is not the case in many other countries. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its accounts in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. The company and its director were fined $7500 each. In the Middle East, anonymous political comments by a blogger on the website of Bashar Al-Sayegh landed the Kuwaiti journalist in jail for three days in 2007. He was charged with insulting the emir of Kuwait and called upon to explain how he allowed the comments to remain on his site for several hours.
Defamation: Under special US protections, you can get away with false publications about celebrities and other public figures as long as you are not being malicious in your attacks. Again, you need to be wary of less forgiving laws in other places, particularly if the celebrity has a reputation they wish to defend elsewhere – people like British actor Hugh Grant or New Zealand film-maker Peter Jackson. The strong US defence stems from New York Times v. Sullivan (1964), where the Supreme Court invoked the First Amendment to rule that public officials had to meet tough new tests before they could succeed in a defamation action, even if the allegations were false. In the US, plaintiffs need to prove the falsity of the material, while in the UK and its former colonies the burden is on the publisher to prove the truth of libellous material. ‘Public figures’ in the US also have to prove the publication was malicious before they can win their cases. All this means you face much less chance of libel action in the US over your writing on important public matters, but you need to be careful if you are posting scandalous material about private citizens, particularly if you know the allegations are untrue. Rock icon Courtney Love learned this $430,000 lesson earlier this year. In Canada, the UK and Australia the ‘responsible communication’ or ‘qualified privilege’ defence requires the publisher to demonstrate that they made proper inquiries in the lead-up to their defamatory expose of an issue of public concern, even though they were ultimately unable to prove its truth.
Exotic foreign laws: The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority. This is when the blogger becomes a ‘dissident’ and any use of new media for political expression – or even the use of certain media at all – can land the offender in jail. Reporters Without Borders has released a list of enemies of free Internet speech (pdf file): Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so. Even Thailand, a nation with a relatively free and vibrant media, issues lengthy jail terms under its ‘lese majeste’ laws for any material critical of its royal family. Colorado resident Joe Gordon was detained for 84 days in Thailand this year and faces a charge of translating an unauthorised biography critical of the king.

So, what does it all mean for the average American journalist, blogger or microblogger? Quite simply: think before you publish, and think before you travel.

You won’t be extradited and tried by aliens if you keep within the law of your own country. But you should revise your travel itinerary to avoid countries whose governments or citizens may have been offended by your blogs or postings.

If you have been particularly provocative in your writing and you really must travel then consider your other 54 US state and territory jurisdictions or perhaps pack your bags for a Scandinavian vacation. While they don’t have a First Amendment, those countries usually come in well ahead of the US on the Freedom House and RSF free expression rankings.

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