Tag Archives: Facebook

May 19, 2012 · 9:17 pm

Doctors bury their mistakes. Lawyers jail theirs. But bloggers publish theirs for the world to see

An excerpt from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online:

—————-

Time warps on the Internet. It is one of the most important aspects of new media, and one of the most complicating in legal terms. On the one hand, pressing the ‘Send’ or ‘Publish” button makes your work instant and irretrievable. While the newspaper publisher could always pulp an offensive edition before the trucks left the factory, as a blogger or micro-blogger you have to live with the consequences of your digital publishing errors. Yes, you can remove your blog, tweet or Facebook status within seconds of posting it, and request that it be taken down from search engines. But you can never be sure someone hasn’t captured, downloaded, and forwarded it in the meantime.

This permanent quality of new media does not mix well with an online writer’s impulsiveness, carelessness or substance abuse. There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today. At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

British actor Stephen Fry learned this in 2010 when he tweeted his two million followers, insulting Telegraph journalist Milo Yiannopoulos over a critical column. “Fry quickly deleted the tweet once others started to latch on to it, but as we know that rarely helps when you’ve posted something injudicious online: the Internet remembers,” Yiannopoulos wrote.

This new permanence of stored material also creates problems for digital archives – because if the material remains on the publisher’s servers it may be considered ‘republished’ each time it is downloaded, as lawyer Steven Price has blogged. This means that even where there might be some statutory time limitation on lawsuits, the clock starts ticking again with each download so you do not get to take advantage of the time limit until you have removed the material from your site. The best policy is to take all steps to withdraw any dubious material as soon as possible. If others choose to forward or republish it, it has hopefully become their problem rather than yours.

…

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print format in Australia and New Zealand (UK release in July and US release in October) and as an ebook via Kindle, Google, Kobo and some other providers. [Order details here.]

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

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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Tagged as blogging, courts, defamation, Facebook, First Amendment, free speech, law, liability, malice, media, public interest, social media law, Twitter

May 12, 2012 · 8:21 am

Blurred lines for journalists and social media editors: Are you personally liable for an error?

By MARK PEARSON Follow @Journlaw

A short section of my new book – Blogging and Tweeting Without Getting Sued – has the heading ‘Who carries the can?’.

There, I write:

“Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. If you write for a larger organisation you share that responsibility with your employer or client. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger.

“In the 20^th century, large media organisations would usually pay the legal costs and damages awards against their journalists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream reporter or columnist thinking of going solo with your blog you might weigh this up first. Another advantage of writing for a large media group is that your work will be checked by editors with some legal knowledge and perhaps even vetted by the company’s lawyers before being published. Either way, you might investigate insuring yourself against civil damages, although even in countries where this is available premiums are rising with each new Internet lawsuit. Another option is to scout for liability insurance policies offered by authors’ and bloggers’ associations. Search to check your options.”

The issue has come into sharp focus with journalists’ own tweeting under their personal handles in recent times. My recent piece in The Australian, reproduced below, looked at the question of journalists’ standards of independence and fairness on Twitter compared with the expectations placed upon them in their ‘day jobs’.

Organisations have started to develop social media policies for their reporters’ and social media editors’ use. But a huge grey area is the question of personal liability for individuals.

If a journalist (or any other employee, for that matter) claims in their Twitter profile that the views expressed are private not those of their employer (a standard disclaimer) where does that place them if someone sues them personally over their tweets?

It would take a particularly generous proprietor to cover the legal expenses of their employee who has distanced their private comments so clearly from their work role. It would likely leave them high and dry, with their own house and savings on the line, defending a legal action over a tweet, blog or other posting.

Despite my long experience as a journalist and academic, I made a serious error in this very story commissioned by The Australian. It was only noticed by an astute sub-editor (copy editor) at the eleventh hour – saving the newspaper and myself significant embarrassment at the very least. Thank God for subs!

But the fact is that our private blogs and tweets do not have the expert eye of a copy editor scanning them pre-publication – which can leave us personally liable for our words.

That’s something worth pondering very carefully before we press that ‘Send’ button.

———

Media twitters as Murdoch fronts Leveson

The Weekend Australian, April 28, 2012, p. 12

MARK PEARSON

THERE was a virtual sideshow alley to the circus of Rupert Murdoch’s appearance at the Leveson media inquiry in London – coverage of the event on Twitter.
The topic #rupertmurdoch trended briefly at 7th place worldwide on the social media network, remarkable given discussion was also running at #leveson, #NOTW and #hacking.
It augurs well for a future for journalism that the appearance of an important public figure at a judicial inquiry could hold its own in the Twittersphere with the rapper 2 Chainz, a reality program on teenage pregnancy and the hashtag #APictureOfMeWhenIWas.
The Twitter feed offered a warts-and-all view of the medium as a source of information and informed opinion on news and current affairs.
It also raises issues of relevance to the self-regulation of journalists’ ethical behaviour when democratic governments are proposing statutory media controls in the converged environment.
Frequent Twitter users are accustomed to the extremities of opinion expressed in 140 characters on controversial issues.
The very “social” nature of the medium means that the streaming commentary is not dissimilar to what you would hear from a crowd gathered around a pub television watching a major sports event or a breaking news event.
You get a smorgasbord of views, quips, snide remarks, venom, puns, one-liners and references to a whole lot more, often in the form of links or photos.
With retweets you can then get the “Chinese whispers” effect, as facts are massaged or adapted to fit the character count down the grapevine.
Journalists are supposed to offer audiences some meaning in the midst of this mess.
For journalism and media organisations to stand out from the crowd they need to be the source of reliable, verified and concise information and opinion based on proven facts – something we used to call “truth”.
This week’s coverage of the Murdoch appearance demonstrated that some prominent journalists seem to have formed the view that Twitter is so different a medium that they have licence to ignore some of the foundation stones of their ethical codes.
Murdoch’s appearance elicited a blood sports style of sarcasm from critics from rival organisations, most notably at the ABC and Crikey.
Crikey’s Stephen Mayne might argue that readers would expect his Twitter feed to reflect his years of confronting Murdoch at News Corporation annual general meetings. Fair enough.
But does that excuse his tweet suggesting counsel assisting Leveson ask Murdoch about his marriages and fidelity “to test whether he really agrees that proprietors deserve extra scrutiny”?
Surely it was that kind of tabloid privacy intrusion that prompted the whole sorry saga. Which was Mayne’s point, I guess, in “an eye for an eye” kind of way.
Of course, News Limited journalists are not ethical saints in their use of Twitter, but on this issue they were in defensive mode.
Many prominent News columnists do not have active Twitter accounts, but even The Australian’s Media team chose not to engage on this important international media issue.
The Daily Telegraph’s Joe Hildebrand showed that, in the Twittersphere, sarcasm is often the preferred line of defence: “Can’t wait until Rupert Murdoch resumes speaking at the Leveson inquiry. I haven’t known what to write for 10 minutes.”
News journalists can hardly look to their boss for leadership in seeking to be unbiased in their Twitter commentary.
Murdoch himself posted to his @rupertmurdoch handle on March 30: “Proof you can’t trust anything in Australian Fairfax papers, unless you are just another crazy.”
Amid the snipes and counterattacks there is a whole lot of banter too – journalists doing the virtual equivalent of talking in the pub after work.
It might be gratifying, clubby and intellectually stimulating, but is a very public media space the place to be doing it?
What message does this send the audiences who follow these journalists on Twitter because of their connection to their respective masthead?
Most offer the standard “views expressed here are my own” rider on their Twitter profiles.
But is that really enough, when beside that they trumpet their journalistic position and employer organisation?
It is symptomatic of a broader problem of corporate social media risk exposure that has triggered an industry of social media policy writing, in the wake of the harsh lessons for McDonald’s and Qantas when hostile customers converted their promotional hashtags to #bashtags in public relations disasters.
But in journalism it’s more complex, because reporters are encouraged to use social media for establishing and maintaining contacts, sourcing stories and engaging with their audiences.
Journalism should be all about transparency, so many would argue it does no harm for readers to know what a reporter really thinks about an issue, particularly in a converged postmodern world where objectivity is supposedly dead.
It might well be, but the ethical codes still speak of fairness, accuracy and respect for the rights of others.
And those very codes are meant to be followed by journalists and their organisations in their mainstream reporting.
Sadly, they might soon face a statutory tribunal and penalties for their unethical actions.
They can’t have it both ways. News organisations cannot sell themselves to readers as impartial, authoritative sources of news and informed commentary when on Twitter their journalists are either breaking their codes or staying mute about an important international news event involving their boss.
The citizenry deserves better if we are to rebuild its confidence in journalism as an important democratic institution.

© Mark Pearson 2012

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April 26, 2012 · 10:07 am

Social media legal risk: Are you ‘red alert’ on the @journlaw 6-point scale?

By MARK PEARSON Follow @Journlaw

It was only in planning, researching and writing my book ‘Blogging and Tweeting Without Getting Sued’ that I started to think about various levels of legal risk in the use of social media.

The book was never aimed to substitute for expert legal advice, but is designed for the serious blogger or social media user who wants to know the main areas of risk – basically when to sound the alarm bells so they either refrain from pressing that ‘publish’ or ‘send’ button or see a lawyer before doing so.

I have thought more about this, and the level of social media literacy in the community, and have developed these six-point lists to identify the levels of social media legal risk users and their organisations might be facing.

Looking at the lists, I feel my book is mainly targeted at Levels 1-4 in each category – individuals and organisations needing basic knowledge of social media legal risks to help avoid complete disasters and to blog, post and tweet with confidence – on legal advice when needed.

No such list is perfect of course, and I would welcome your suggestions for improvement either as comments to the blog below or as tweets citing my handle ‘@journlaw’.

So here they are, open for your comment:

Individuals

Level 1 (highest risk) RED ALERT! –Totally ignorant of the legal risks of social media and reckless in your use of it

Level 2 – Blissfully ignorant of the legal risks of social media but basically cordial, polite and well meaning in your social media interactions

Level 3 – Vaguely aware of the legal risks of social media but happy to tweet and post regardless

Level 4 – Aware enough of the legal risks of social media to show some caution in your use of social media and to know when to seek legal advice. (Suffering the ‘legal chill’ factor through fear of risks.)

Level 5 – Fully expert in social media legal risks and strategies and aware enough of your rights and defences to be bold in your expression

Level 6 (lowest risk) – Legally qualified and up to date with media law and the numerous emerging additional laws affecting social media use internationally.

Organisations

Level 1 (highest risk) RED ALERT! – ‘Twit What?’ Still in the 20^th century with no social media policy (or many other policies for that matter) and employees can post whatever they like with no distinction between their corporate and private roles

Level 2 – Reasonable corporate communication policies hopefully applicable to, but not yet expressly incorporating, social media use.

Level 3 – Good corporate communication policies and a series of directives on social media use forming a good platform for a social media policy which has not yet been created.

Level 4 – A specific social media policy covering the main bases, but developed by HR department without expert legal input and lacking organisational follow-through with training and management awareness.

Level 5 – A specific social media policy developed on legal advice, but lacking in a key aspect such as currency or in-house training and awareness.

Level 6 (lowest risk) – Fully developed, monitored and routinely updated social media policy, with expert legal, HR and employee input, allowing for active but sensible social media presence with a clear firewall between employees’ private and corporate use. Regular training and briefing of management and staff on policy and changes.

© Mark Pearson 2012

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April 2, 2012 · 9:33 am

Anti-social racism in social media is unwise and illegal

By MARK PEARSON Follow @Journlaw

Two recent cases stand out as examples where racist commentary has landed online writers in legal trouble.

The first was in the UK where a student was jailed for 56 days for Tweeting offensive remarks about a stricken footballer.

Another was in Australia where a Federal Court judge fined the News Limited website PerthNow $12,000 over comments posted by readers to its website featuring racial abuse of four indigenous teenagers who died in a stolen car. It reinforces the Australian law that you are legally responsible for the moderated comments of others on your social media or web sites.

I take up the issue of discriminatory abuse in my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online.

The chapter is titled ‘The fine line between opinion and bigotry’. Here’s a short excerpt:

—————-

The fine line between opinion and bigotry

Sadly, human beings have found the negative energy to hate each other since time immemorial. Hatred of one form or another explains most of the wars and acts of violence throughout history. While the Internet and social media has allowed us to communicate with countless new friends and form all kinds of new professional and personal relationships, we do not just attract the attention of the ‘like-minded’.

There is a war going on in our pockets and handbags in each and every smartphone and on every home computer connected to the Internet. There are people so possessed with hatred and revenge that they are conducting a cyberwar on the objects of their disdain.

No matter who you are and where you live, there are others who might not know you personally but hate you for the category of human being you are: black, white, Asian, Hispanic, male, female, gay, straight, conservative, liberal, environmentalist, climate change denier, Muslim, Jew, Christian, obese, American, British, Pakistani, teenager, rich, poor, lawyer, politician or used car salesman. (Lucky there’s not a ‘hate’ button on Facebook, hey?)

Sometimes even some fun turns sour. A satirical swipe at redheads on the Simpsons television series prompted a 14-year-old Canadian boy to set up a Facebook ‘Kick a Ginger’ campaign in 2008, rapidly ‘friended’ by more than 5000 fans. As the Telegraph reported, dozens of children posted comments on the page claiming to have attacked redheads, with a 13-year-old girl from Alberta and her sister among the victims of the schoolyard bullies.

Such people judge you based on the labels they apply to you rather than who you really are or your life experiences that inform your views and values. And they are online and angry.

If you also have strong opinions and express them without fear or favour, your challenge is to avoid becoming one of them. Because if you do, the force of the law in most places can be brought down upon you.

Some individuals just cannot back away from a fight in real life or cyberspace. They become so obsessed with their causes or grudges that they launch poisonous online assaults on others that can leave their targets as traumatised as they would have been if they had been assaulted physically. Tragically, some victims have become so despairing and fearful that they have been driven to take their own lives.

In the eyes of the law, such attacks go under a range of names according to their type, scale, and jurisdiction. They include: cyberbullying, cyberstalking, online trolling, malicious online content, using carriage services to menace, harassment, hate speech, vilification, discrimination and even assault. Some are criminal offences where offenders can be fined or jailed and others are civil wrongs where courts can award damages to victims. Some are litigated under actions we have already considered such as defamation, privacy and breach of confidentiality.

Some are difficult to explain because the motivations are beyond the imagination of ordinary citizens. Australian ‘troll’ Bradley Paul Hampson served 220 days in jail in 2011 for plastering obscene images and comments on Facebook tribute pages dedicated to the memory of two children who had died in tragic circumstances. He had entered the sites to depict one victim with a penis drawn near their mouth and offensive comments including “Woot I’m Dead” and “Had It Coming”.

At about the same time the US Appeals Court in Virginia was dealing with a suit by former high school senior Kara Kowalski who had been suspended for five days for creating a MySpace page called ‘S.A.S.H’. She claimed it stood for ‘Students Against Sluts Herpes’, but the court found it really aimed to ridicule a fellow student named Shay. She had also incurred a social suspension for 90 days, preventing her from cheerleading and from crowning her successor in the school’s ‘Queen of Charm’ review. Kowalski felt aggrieved at the suspension because she claimed it had violated her constitutional speech and due process rights as it had not happened during a school activity but was really ‘private, out of school speech’. But the court disagreed.

“Kowalski’s role in the ‘S.A.S.H.’ webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful,” judge Niemeyer wrote. “The webpage called on classmates, in a pack, to target Shay N., knowing that it would be hurtful and damaging to her ability to sit with other students in class at Musselman High School and have a suitable learning experience.” The court agreed with the school and the trial judge that ‘such harassment and bullying is inappropriate and hurtful’ and denied her damages claim. A ‘Queen of Charm’ indeed!

…

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print format in Australia and New Zealand (US release in October) and as an ebook elsewhere via Kindle, Google, Kobo and some other providers. [Order details here.]

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

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February 15, 2012 · 8:45 am

Order form for @journlaw book ‘Blogging and Tweeting Without Getting Sued’ and contacts for review copies.

By MARK PEARSON Follow @Journlaw

Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online (RRP A$22.99) is now available.

Australian purchasers can buy direct from the author at a 10% discount with free postage by emailing journlaw@gmail.com. (Note, no credit cards, just direct bank account transfers, cheques, money orders or corporate/government purchase orders.)

Here is the order form from Allen & Unwin:

Blogging & Tweeting Without Getting Sued A5 Flyer

Online orders can be placed with Booktopia.

The A&U catalogue entry is here.

The book is not aimed at lawyers or academics. It’s meant to be an accessible read for the lay blogger or social media user who wants an introduction to the main pitfalls in the law of online writing and publishing.

While there was considerable research involved, I prefer to see it as a work of journalism than of legal or media scholarship – explaining and interpreting the law for the ordinary global citizen.

Here is the cover and blurb:

“What you post on a blog or tweet to your followers can get you arrested or cost you a lot of money in legal battles. This practical guide shows you how to stay out of trouble when you write online.

“Every time you post a blog or tweet you may be subject to the laws of more than 200 jurisdictions throughout cyberspace. As more than a few bloggers or tweeters have discovered, you can be sued in your own country, or arrested at the airport heading off to a holiday in another country. Just for writing something that wouldn’t raise an eyebrow at a bar.
“In this handy guide, media law expert Mark Pearson explains how you can get your message across online without landing yourself in legal trouble. In straightforward language, he explains what everyone writing online needs to know about reputation, privacy, secrets, bigotry, national security, copyright and false advertising.
“Whether you host a celebrity Facebook page, tweet about a hobby, or like to try your hand at citizen journalism, you need this guide to keep on the right side of cyberlaw.”

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

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January 17, 2012 · 3:16 pm

April release for @journlaw book ‘Blogging and Tweeting Without Getting Sued’

By MARK PEARSON Follow @Journlaw

Allen & Unwin has now listed my forthcoming book in its 2012 catalogue and it will be available in both print and ebook formats from April.

It’s called Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online.

The A&U catalogue entry is here.

And here’s the cover:

It’s not aimed at lawyers or academics. It’s meant to be an accessible read for the lay blogger or social media user who wants an introduction to the main pitfalls in the law of online writing and publishing.

While there was considerable research involved, I prefer to see it as a work of journalism than of legal or media scholarship – explaining and interpreting the law for the ordinary global citizen.

Here’s the blurb:

Stay tuned for more as the April release date approaches.

[Media: Please contact the publisher direct for any requests for advance copies for review.]

© Mark Pearson 2011

Judges and social media – lessons from the Canadian CJ’s oration: #law

By MARK PEARSON Follow @Journlaw

My journalism law students were treated to a rare excursion in their first week of semester last Thursday (September 15) when we took the train to Brisbane to hear Canadian Chief Justice Beverley McLachlin speak on ‘Courts and the Media’.

It was the annual Supreme Court Oration, hosted by Queensland Chief Justice Paul de Jersey who my students heard speak on a similar topic in February this year at Bond University.

Chief Justice de Jersey has been a pioneer in embracing new technologies and advancing open justice and has allowed journalists’ recording of proceedings for accuracy purposes (not broadcast) as the default position in Queensland courts.

He gave us advance approval to report McLachlin CJ’s oration via a live Twitter feed to the #cjcqld stream which some of you might have followed.

It was a superb introduction to the subject for my students, as McLachlin CJ traced the basic principles of open justice and assessed the best and worst aspects of the relationship between the judiciary and the media.

It was interesting that the speech seemed to receive no media coverage – or at least none that I can find over the past week – so our Twitter feed seems to be the only record of the speech until the Chief Justice’s staff process and release the full text after her return to Canada.

I have republished all my own tweets from the speech below for your gratification. I deleted my students’ tweets simply because I wanted to get this blog posted and would want to seek their permission before posting them, but you might find them by searching for the #cjcqld hashtag within Twitter. (The tag stands for “Chief Justice of Canada in Queensland” but coincidentally echoes the acronym of a former anti-corruption body in this state – the Criminal Justice Commission.)

You can get the gist of the oration from the tweets below, but here I wanted to draw your attention to the only tweet where I editorialised on the Chief Justice’s comments.

It came at a point where she was questioning whether accuracy and fairness in the reporting of court proceedings would suffer in the era of new technologies and social media.

I tweeted: “McLachlin CJ: How can 140 characters of Twitter report a complex High Court case effectively? #cjcqld (Like this, CJ!)”

The chief justice admitted on several occasions during her insightful address that she did not claim expertise in new technologies – particularly social media.

But this particular comment proved the point. We proved it was quite feasible to report her oration via Tweets posted to a hashtag where anyone following could take in the complexities of her argument, albeit in bite-sized capsules.

We do not claim to be trailblazers – conference presentations are being covered via hashtags on Twitter throughout the world as you read this.

The same approach can quite easily apply to a complex court case, and has indeed already been allowed, pioneered here in Australia by a Federal Court judge in the iiNet piracy case in Sydney two years ago.

Picking up on this small point might appear pedantic, and certainly no disrespect to McLachlin CJ is intended.

I am in awe of the level of specialist knowledge senior judges need to absorb in almost every case in the modern era. They need to come to grips with the most technical aspects of obscure areas of the law, along with much of the expert knowledge so crucial to understanding the context of the facts and expert witness testimony in a host of areas.

New technology presents yet another challenge for them in what is already a daunting learning curve.

As Reuters has reported, US Supreme Court Justice Stephen Breyer set up both Facebook and Twitter accounts, which he used to monitor discussion rather than participate himself. But Justice John Roberts was reported in the Huffington Post in June this year admitting he did not even know what a tweet was.

Slate has followed the debate in the judiciary over the use of social networking.

Given the rate of uptake of social media in its various forms globally over the past five years, it is worrying that some leading judges in our highest courts remain relatively ignorant of its basic functions and applications.

We cannot expect them to become instant experts on everything, but they at least need to have a working lay knowledge of new technologies if we are to remain confident that they will make informed decisions when legal issues arise.

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.

@journlaw tweets of Canadian Chief Justice Beverley McLachlin’s Supreme Court of Queensland Oration on Thursday, September 15, 2011:

Canadian CJ Beverley McLachlin about to speak on ‘Courts and the Media’ in Brisbane. Coverage at #cjcqld

Qld CJ de Jersey introducing Canadian CJ McLachlin: Canada: ‘that other great democracy of the northern hemisphere’ #cjcqld

McLachlin CJ: court-media relationship not always comfortable: sometimes concentrate on prurient and sensational #cjcqld

McLachlin CJ: free press and independent judiciary combine to foster the rule of law. Media helps build confidence in judiciary #cjcqld

McLachlin CJ: “public confidence in the judiciary is essential to the rule of law” #cjcqld

McLachlin CJ: speaking about the Rule of Law Index and what it says about nations’ cultural acceptance of rule of law #cjcqld

McLachlin CJ: judiciary’s power rests in the confidence of the people #cjcqld

McLachlin CJ: fundamental to building confidence is to publicise what the courts and justice do. #cjcqld

McLachlin CJ: open justice helps educate the public and ensure judges’ accountability and has a therapeutic function #cjcqld

McLachlin CJ: qld cj is leading champion of open justice #cjcqld

McLachlin CJ: open courts principle works because of the media … the means of communicating proceedings to the public at large #cjcqld

McLachlin CJ: paradoxically media also uniquely placed to undermine public confidence in judiciary #cjcqld

McLachlin CJ: gives Canadian child pornography decision where media focussed on judge rather than issues. #cjcqld

McLachlin CJ: sensationalised media trials run parallel to courtroom trials #cjcqld

McLachlin CJ: Uses example of media coverage of Casey Anthony trial and impact on Florida justice system implying jury got it wrong. #cjcqld

McLachlin CJ: they promoted the tv verdict over the court verdict #cjcqld

McLachlin CJ: Where justice is sensationalised or trivialised the damage to confidence can be profound #cjcqld

McLachlin CJ: need to encourage fair and accurate coverage. Restricting info won’t work #cjcqld

McLachlin CJ: Holding reporters in contempt won’t build confidence either #cjcqld

McLachlin CJ: needs positive interactive approach to the media … Not seeing media as enemy to be avoided at all costs #cjcqld

McLachlin CJ: Court info officers play a useful role #cjcqld

McLachlin CJ: Canada has court-press liaison committee to foster positive relationships and improved coverage #cjcqld

McLachlin CJ: need coverage that is accurate, prompt and complete#cjcqld

McLachlin CJ: Canadian Executive Legal Officer has press briefings function as source of info and background briefings. 3yr term #cjcqld

McLachlin CJ: whatever cts can do to help journalists report accurately can only improve public confidence in justice #cjcqld

McLachlin CJ: Promptness vital to press. Canada has media ‘lockups’ where media allowed to arrive an hour early and read judgments #cjcqld

McLachlin CJ: third mutual interest: appropriately complete reporting of proceedings and decisions #cjcqld

McLachlin CJ: Qualified completeness because some restrictions needed on children, sexual matters etc #cjcqld

McLachlin CJ: Media technology in courts must not impact in any negative way on admin of justice #cjcqld

McLachlin CJ: TV cameras in court: gives several reasons against … Privacy, intimidation, disturbance, sensationalising #cjcqld

McLachlin CJ: But cameras also allow public to see and experience the court … Maximum open justice #cjcqld

McLachlin CJ: Canadian practice is to not allow tv cameras in trial courts, but allow stationary cameras in Supreme Court #cjcqld

McLachlin CJ: Appellate courts started to allow cameras, but networks not that interested #cjcqld

McLachlin CJ: closing on cautionary note: identifying which media to work with is becoming more difficult as social media takes off #cjcqld

McLachlin CJ: Profound cultural shift in how media is communicate signals shift in who reports court proceedings #cjcqld

McLachlin CJ: anyone with a keyboard and a blog can report their version of a court case and who is to say they shd not? #cjcqld

McLachlin CJ: blogs not always objective or thoughtful and sometimes hurtful. Will accuracy and fAirness be casualties of new era? #cjcqld

McLachlin CJ: How can 140 characters of Twitter report a complex High Court case effectively? #cjcqld (Like this, CJ!)

McLachlin CJ: “It is crucial we understand the technology and how it is being used.” “Personally, I struggle with it” #cjcqld

McLachlin CJ: relationship betwn crts and media “is one of inescapable interdependence” #cjcqld

McLachlin CJ: The media and the courts are locked in a sometimes uncomfortable embrace. #cjcqld

McLachlin CJ: “What is at stake is nothing less than the rule of law.”#cjcqld

Bond student @fionaself asked about the impact of social media on defamation. CJ: should be no relaxation in law for new media. #cjcqld

McLachlin CJ: Talks about the prickly issue of defamation via hyperlinks … Doesn’t know how it will be decided. #cjcqld

McLachlin CJ: We do not have a court blog. Consensus in Canada is that judges should not be on Facebook, but some pushing boundaries #cjcqld

Applegarth, J. asks whether instant access to transcripts shd be available via live streaming. She says maybe but cautious re impact#cjcqld

McLachlin CJ: Juries researching on web … We hope juries will follow instructions not to. Problems in jurors contacting accused #cjcqld

Q on judges becoming celebrities like Judge Judy. McLachlin CJ: Canada being what it is, I’m not a celebrity and am not recognised. #cjcqld

McLachlin CJ: “Courts are there to serve the public so they have to account to the public.” #cjcqld

McLachlin CJ oration has ended and so has our live Twitter stream. Thanks for following! : #cjcqld

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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.

Why the #law stops you venting on #Facebook and #Twitter about the #Morcombe case

By MARK PEARSON Follow @Journlaw

[For readers outside Australia, please see background and coverage links in the Courier-Mail]

Child sex crimes rank among the most offensive and upsetting actions of human beings upon each other, so it is little wonder that people want to vent on social media when an arrest occurs in a high profile case like the Daniel Morcombe murder.

Ordinary citizens need to realise that their comments on Facebook, Twitter and other websites are ‘publications’ in the eyes of the law, and there are three types of restrictions in Queensland applying to such cases.

1. Suppression order on identities of witnesses. In this case the main factor limiting publication of the accused’s identity was a non-identification order placed on the names of witnesses during an earlier inquest into the victim’s disappearance. The Queensland Coroner lifted this ban on the identification of the accused on the afternoon of August 16, after media representation, so he can now be named as part of a fair and accurate report of court proceedings. See: http://www.abc.net.au/news/2011-08-16/morcombes-alleged-killer-named/2842126

2. Ban on identification of the accused in certain sex cases. The law in Queensland is similar to that of South Australia, which I have blogged about previously. In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7). It carries a two year jail term. The laws differ from those in other Australian states and territories where only the identity of the sex crime victim is suppressed. (In other states and territories, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.)

3. Ban on prejudicial coverage. Once a suspect has been arrested OR charged with a crime, there are tough restrictions about what can be published about the matter in that jurisdiction. This is because our justice system works on the assumption that an accused is innocent until PROVEN guilty in a court of law. Just because police have arrested someone does not mean that person is guilty. There are too many examples of miscarriages of justice over the years for us ever to assume that an arrest means guilt. Until the person has been either convicted or acquitted, the matter is ‘sub judice’ (Latin for ‘under a judge’). You face serious fines and jail terms for sub judice contempt, as talkback hosts Derryn Hinch and John Laws have learned.

As we explain in The Journalist’s Guide to Media Law, the main areas of concern during the sub judice period include: any indication of prejudgment (whether as to guilt or innocence), publishing potentially inadmissible evidence, publishing witnesses’ statements beyond what is given in evidence in court, revealing criminal records and alleged confessions of the accused, or identification of the accused where it may be an issue in the trial (always assume it will be).

It is no defence to your sub judice contempt charge that others did the same thing (just as it is no defence to a speeding charge to say that you were following a car going 20 km/h faster).

Adverse publicity can even result in a mistrial or even an acquittal, which is the last thing most social media commentators would want in a sex or murder trial.

It is especially difficult for social media users and bloggers untrained in media law to navigate all these rules so the best policy is to avoid comment on any matters before the courts until the justice process has run its course. Leave that to the trained, professional journalists who report with the backing of experienced editors and legal advisers.

How #bloggers can apply the Kipling formula to social media #law

By MARK PEARSON Follow @Journlaw

Rudyard Kipling explained the secret to good writing in his poem The Elephant’s Child:

“I keep six honest serving-men (they taught me all I knew);

Their names are What and Why and When and How and Where and Who.”

A century later, we still use those serving-men to teach news writing but they can also be used as a lens to consider cyberlaw and how it applies to the online writer. Each raises legal questions and highlights the risks you face.

Who? #YesYouAreLiable…

There are several ‘who’ elements to the online writing enterprise – and each can have an impact on your legal liability for what you write.

Identity and anonymity are important issues in the law of online authorship, and I devoted my last blog to the way courts have considered the latter.

Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. Those who write for larger organisations or companies share that responsibility. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger. In the 20^th century, large media organisations would usually cover the legal costs of their reporters or columnists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream journalist or columnist thinking of going solo with your blog you might factor this into your thinking. Another advantage of writing for a mainstream publisher is that your work will be checked by editors with some legal knowledge and perhaps reviewed by the company’s lawyers before being published.

A crucial ‘who’ element is your audience. Many areas of the law only require your publication to reach single person for you to be liable for its content. (In the case of libel, it needs to be a third person beyond you and the person you are defaming.) You might think you are just corresponding with your cosy group of Twitter followers or Facebook friends – all with a shared sense of humour or sarcasm – but your remark can be detected when it is forwarded or retweeted to someone else and can go viral very quickly. As soon as it comes to the attention of the authorities or counsel for the person you have offended, the courts will only look to the fact that you were responsible for the original publication.

If others add to your words with more inflammatory material of their own, they carry responsibility for the new publication. Think twice before retweeting or forwarding the legally dubious material of others, because this becomes a new publication under your own name, so at the very least you will share the legal liability with the original publisher. And of course never retweet, ‘like’ or forward anything without reviewing it thoroughly first.

Of course then there is the ‘who’ element related to the people you name in your blog or social media posting. These can present legal risks. Sometimes people cannot be named because their identities are protected under legislation because they are children, victims of sex crimes, or vulnerable in some other way. Courts can also suppress people’s identities for other reasons, and sometimes even suppress the fact that they have issued a suppression order, known as a ‘super injunction’, as journalists and Tweeters in the UK are well aware.

What? #…ForAlmostAnything

Lawyers and prosecutors will of course look closely at ‘what’ has been published to decide whether your work is a criminal offence or might be subject to a civil action.

Throughout the world all kinds of online material has been the subject of legal action. This has included the publication of words, symbols, still and moving images, sounds, illustrations, headlines, captions and links. Sometimes it is the very words alone that are banned (such as the name of a victim of a sex crime) while on other occasions it is the totality of the coverage that gives rise to a meaning that damages a reputation or intrudes (such as a photograph of someone accompanying a negative story). In some countries it is the publication without a licence that is banned.

When? #…NowAndThenAndForever?…

The instant nature of new media does not mix well with an online writer’s impulsiveness, carelessness or substance abuse. There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today. At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

British actor Stephen Fry learned this in 2010 when he tweeted his two million followers, insulting Telegraph journalist Milo Yiannopoulos over a critical column.

“Fry quickly deleted the tweet once others started to latch on to it, but as we know that rarely helps when you’ve posted something injudicious online: the internet remembers,” Yiannopoulos wrote.

This also creates problems for digital archives – because if the material remains on the publisher’s servers it is considered ‘republished’ every time it is downloaded. This means that even where there might be some statutory time limitation on lawsuits, under some interpretations the clock starts ticking again with each download so you do not get to take advantage of the time limit until you have removed the material from your site.

A New York District Court considered whether material was actually ‘published’ when it was posted to the Internet. In Getaped.com Inc v. Cangemi, a motor scooter business claimed parts of its website had been copied. Cangemi argued the website was not a publication, but rather like a ‘public display’ or performance. Judge Alvin Hellerstein said ‘when a webpage goes live on the Internet, it is distributed and “published”’.

Where? #…JustAboutAnywhere…

The Dow Jones v. Gutnick decision by Australia’s High Court in 2002 showed just how long the arm of cyberlaw could be. In that case it stretched all the way from Melbourne, Australia, to allow a businessmen to take suit against a publisher based in New Jersey, USA. The same kind of thing happened this year when a Californian court ordered US-based Twitter to hand over the name, email address and phone number of a British-based local government councillor whose council wanted to sue him for defamation over comments he had allegedly posted anonymously. A year earlier the same South Tyneside council had also managed to have Google and the blogging site WordPress ordered to hand over IP addresses to identify a whistleblower.

While foreign countries cannot normally enforce their laws beyond their borders, you might be called to account for your blogs and postings under their laws if you happen to travel there. And citizens in other countries can go to court and get a declaration against you in your absence, perhaps ordering you to pay a certain sum in damages for something you have published.

Depending on the international legal agreements in place, the courts in your jurisdiction might be empowered to apply the laws of another state or territory in a case against you. The landmark US case in the field centred around two companies’ dispute over the use of the name ‘Zippo’ – one a manufacturing company and another an Internet news service provider. A Pennsylvania court developed a sliding scale to help it decide whether the web news service had enough commercial dealings in the state for the court to have jurisdiction.

Not that long ago you had to be served personally with a summons for a criminal charge or a writ for the launch of a civil action against you. In many places this can be done online – via email or even via a message to your social media account. The Supreme Court of the Australian Capital Territory became one of the world’s first courts to allow legal documents to be served on defendants via a personal message on their Facebook pages when they had defaulted on their home loan payments. Other methods of contacting them had failed and their house was about to be taken from them.

Why? #…EspeciallyIfYouAreMalicious…

Lawyers, prosecutors and judges will also look to your motives for publishing the material you have written. The motivation that will work against almost any defence in a publishing case is malice. Even the United States, which has one of the strongest defamation defences in the world under its First Amendment freedom of the press protection, will not excuse a slur against somebody if it can be proven to be false and malicious. Malice has a wide range of definitions in international law. Your online behaviour can be used as evidence in court, as well. Lawyers will dig for all kinds of proof that you have been less than honest about your behaviour or have shown a lack of good faith or malice in your dealings.

How? #…SomeMediaAreRiskier

Your method and your medium can be important factors in your legal exposure. The simple fact is that some publishing mechanisms are more law-friendly than others. Sometimes this will depend on the type of material you are publishing. For example, there is an argument that Twitter users may be less prone to copyright infringement because the very nature of the medium limits the amount of another person’s work they can borrow and the retweeting function implies that everyone expects their work to be recycled by others. Photographers and a US District Court judge disagree with this, however. Twitter users might leave themselves more exposed in the area of defamation because there is so little space in which to give context and balance to their criticism of others. Tweeting from an event as it unfolds, such as a conference or a court case, has its dangers because your tweets might contain errors in the quotes of others or might be taken out of context by someone just reading a tweet rather than the overall coverage.

The ‘How?’ legal element can be crucial to several defences. If you have written your blog fairly and accurately it can go a long way to establishing a defence to defamation or a contempt of court charge over a report of a court case.

——

You might like to look back over some of your recent blogs, tweets and Facebook postings and apply the 5Ws and the H of legal analysis to them. How well do they shape up? …And who is that knocking at your front door? 😉

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