By MARK PEARSON Follow @Journlaw
[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.
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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.
© Mark Pearson 2013
journlaw 
Updated: Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones
By MARK PEARSON Follow @Journlaw
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)
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
2013
2014
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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.
© Mark Pearson 2013/2014
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