Tag Archives: First Amendment

Why #Assange and journalists should not sue for #defamation

By MARK PEARSON

 

It is always sad to see journalists and free expression advocates threatening to sue over the reportage and commentary of others.

 

Of course, journalists and freedom fighters are citizens too – so they certainly have the right to resort to defamation action to achieve their ends and to help restore reputational damage they may have suffered.

 

But we have heard today that two Australians – Wikileaks’ Julian Assange and Sunday Telegraph reporter Jonathan Marshall – are threatening defamation action over commentary about their respective roles as public figures. That is a great shame.

 

Two years ago – soon after the editor of a national daily newspaper threatened to sue a journalism academic – I penned a piece for Crikey! outlining my reasons editors should refrain from resorting to litigation when they take umbrage at comments made in the cut and thrust of public debate. I’ve those comments here to adapt them to the circumstances of these latest threats.

 

The reality is that any media outlet worth its salt – and Wikileaks more than most! – is in the defamation business. The columns of newspapers, news websites and the broadcast news outlets should be laden thick with defamation every day if their journalists are doing their jobs properly.

 

Lord Northcliffe is supposed to have said: “News is what somebody somewhere wants to suppress; all the rest is advertising.” But the bulk of that defamatory material is — or should be — defensible. The defences vary somewhat between countries, and between jurisdictions within countries, but most allow truthful defamation, defamation in the public interest published reasonably, defamatory opinions on public matters based on provable facts, and fair and accurate defamatory reportage of important public gatherings.

 

Law in the United States developed further under its constitutional First Amendment protection of a free press to allow even untruths about public figures to be published, so long as they were not published maliciously.

 

Journalists and free expression warriors like Julian Assange do not normally sue over public commentary — for a host of reasons.

 

  • Given they are in the defamation business themselves, most see it as part of the cut and thrust of public debate.
  • Many understand the defences and realise that the reputational slur will often be protected.
  • Journalists are used to telephoning people and having it out with them at an intellectual level. Many disputes are resolved that way, both for and against the media.
  • Most realise there are other avenues of recourse, perhaps through their own medium and perhaps via some mechanism for complaint.
  • Most are too poor, and defamation litigation can be unpredictable and costly, particularly if it reaches the appeal stage.

 

To balance this, of course, occasionally someone will make the most heinous false allegation about a journalist of a sexual nature, and everyone would understand them pursuing the matter through the courts, particularly if there were no other means of recourse.

 

But most have an editor or a news director who will counsel them against using libel laws to resolve a dispute, which brings us to the additional reasons editors rarely sue. (Remember, Assange has carried the title ‘editor-in-chief’ of Wikileaks).

 

  • Most have editorialised countless times about press freedom and it runs, like ink, through their veins. Most have quoted Voltaire, Milton, Mill, Jefferson and Burke in their editorials espousing how truth will win out and defending all citizens’ right to free expression. This extends to even allowing untruths to be aired and demolished in the marketplace of ideas. As Milton wrote: “Let her and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter.’ Assange himself stands on a free expression platform, and recently drew upon that principle in his call for the US to cease its pursuit of him.
  • Editors fear their own example in suing for defamation will encourage more lawsuits against their own media outlet by others. It sends a message to the rich and powerful everywhere that even editors believe libel action is a superior method of dispute resolution to a Press Council, ACMA or journalists’ union complaint.
  • Most editors and news directors have been involved in litigation themselves or have witnessed how time-consuming and distracting it can be for their journalists. Four Corners investigative reporter Chris Masters laments the decade he spent in the courts justifying his Moonlight State expose of corruption in Queensland. Most see lawyers and litigation as enormous time wasters, distracting them from their greater purpose.
  • That said, some have been at the forefront of pursuing free expression through the courts. The Australian, through its parent company Nationwide News, was crucial in 1994 convincing the High Court to overturn a law that banned criticism of the Industrial Relations Commission or its members. This was one plank in the court’s development of an implied constitutional freedom to communicate on matters of politics and government and an historic victory for media freedom.
  • Most editors and news directors would be loath to expose their own behaviour and their companies’ past performance to the scrutiny that is inevitable in the discovery process and trial. They might be purer than the Pope or the Dalai Lama, but lawyers will inevitably find, or create, examples in their past that erode their case. Most have seen this happen in countless pyrrhic victories in the courts where the “winner” has had all sorts of character slurs made against them.
  • Related to this is the media coverage attached to the case itself, which normally increases a hundredfold the repetition of the original slur. Many a successful plaintiff has later said they regretted the whole process.
  • Most have belonged to industry groups fighting for free expression in society.
  • Most abhor the use of libel as a weapon in despotic regimes throughout the world and many are members of organisations fighting against this.
  • Most in Western democratic countries secretly covet the US First Amendment, which makes public figures fair game, particularly when the defamation — even falsities — relates to their performance.

 

Finally, and most importantly, unlike doctors, lawyers, sportspeople or politicians, the very act of suing for libel sends a reputational message about the journalist, editor or freedom fighter himself or herself: that they are the kind of person who would use a defamation action to pursue someone else who has exercised free expression.

 

Unlike any other, that very act puts their reputation as a journalist on the line among their peers and the broader thinking community. Most would prefer to be remembered for their accomplishments as a journalist or editor than to become a textbook case as one of the few who sued to shut someone else up.

 

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See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.

© 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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Sub judice – time to brush up on your Latin

By MARK PEARSON

The arrest and court appearance of a man accused of the rape and murder of Melbourne ABC staffer Jill Meagher has sparked a spate of commentary on social media – much of it potentially prejudicial to the suspect’s upcoming trial. Here is an excerpt from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012) – explaining the basic principles of sub judice contempt for lay users of social media. See also Julie Posetti’s innovative and useful Storify on this.

Victoria Police are also struggling to cope with prejudicial comments about the accused on their Facebook site. See my earlier blog on similar problems with the Queensland Police Facebook page where they have faced similar challenges trying to moderate prejudicial comments.

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Sub judice – time to brush up on your Latin

The most frustrating area of contempt law for the traditional media has been sub judice contempt – publishing prejudicial material that might reduce the chance of a fair trial. First Amendment rights in the US have given the media immunity in recent times, but ‘trial by media’ can prompt a mistrial and lawyers can be disciplined if they make prejudicial statements during a trial. ‘Sub judice’ comes from the Latin meaning ‘under justice’ and has been prosecuted most often in the UK and Commonwealth countries, although some European countries like Denmark have laws against publications that might seriously damage a trial.

In 2011, the judge presiding over the trial of a conservative politician for a false expenses claim in Britain referred to the Attorney-General a potentially prejudicial tweet about the case by a rival politician. High-profile Labour peer Lord Sugar tweeted to his 300,000 followers on the second day of the trial: “Lord Taylor, Tory Peer in court on expenses fiddle. Wonder if he will get off in comparison to Labour MPs who were sent to jail?” The Telegraph quoted Justice Saunders saying: “I was concerned that if seen by a juror it might influence their approach to the case… I reported the matter to the Attorney-General not for the purpose of taking any action against Lord Sugar but to investigate whether entries on Twitter sites … posed a risk of prejudicing the fairness of a trial, and if so whether there were steps which could be taken to minimise that risk.”

International media law firm Taylor Wessing revealed in 2011 that they had defend a website against contempt allegations over prejudicial user-generated posts on a message board just a few weeks before a criminal fraud trial. They had to take down the messages and the jury had to be warned not to do Internet research. They pointed out that bloggers and social media users were liable for their publications even when they did not intend to damage a trial. From the moment someone has been arrested in a criminal case, reports about the matter are seriously limited in many countries. Authorities can prosecute for this kind of contempt if there is a ‘substantial risk’ that justice will be prejudiced in the case.

While the mainstream media are the most common targets of such actions, the size of the audience for many blogs and social media commentators will increasingly make them vulnerable. The Victorian Government Solicitor’s Office advises websites to take down materials related to an upcoming case in the lead-up to a trial. The most sensitive material is anything implying the guilt or innocence of the accused, confessions, photo identification of the accused, and republishing reports of earlier hearings. A public interest defence might be available for publication of material on a matter of overwhelming public importance, but you should never rely upon this defence without legal advice.

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.

[Media: For review copies please 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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My submission to the Tasmania Law Reform Institute on ID of sex crime victims

By MARK PEARSON

Here is my submission responding to the issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes.

For background to the inquiry, see my earlier blog here. It was triggered by this Hobart Mercury story (left).

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September 28, 2012

Submission in response to Issues Paper No 18 ‘Protecting the Anonymity of Victims of Sexual Crimes’

Please accept this personal submission in response to your issues paper, which I have prepared with research assistance from Bond University students enrolled in my media law and ethics subject. They have been required to read and discuss your report as part of an assignment for that subject and their scholarship and insights have informed the views I express here. I must stress, however, that this is a personal submission as an academic who teaches and researches in the field and my opinions do not necessarily reflect those of my employer, Bond University, or the international media freedom agency Reporters Without Borders, for whom I am the Australian representative.

By way of background, my research, teaching and industry consultancy focus on the interpretation of media law for journalists and other writers who might produce reportage as bloggers, ‘citizen journalists’ or social media users. I am co-author with barrister Mark Polden of The Journalist’s Guide to Media Law (4th edition, Allen & Unwin, 2011) and am sole author of Blogging and Tweeting Without Getting Sued – A Global Guide to the Law for Anyone Writing Online (Allen & Unwin, 2012). I have conducted media law training for Fairfax Media journalists at the Launceston Examiner and the Burnie Advocate newspapers. Our Centre for Law, Governance and Public Policy convened the national symposium ‘Courts and the Media in the Digital Era’ in 2011, which resulted in our co-edited book The Courts and the Media – Challenges in the Era of Digital and Social Media (Keyzer, Johnston and Pearson, Halstead Press, 2012). We are now collaborating with colleagues from other universities on a national research project examining the impact of social media upon the courts.

I have chosen to begin with some general observations about the tone and ambit of your issues paper before proposing a mechanism for reform.

Important contextual considerations

Issues Paper 18 is an excellent summary of comparative legislation and case law on the identification of sex crime victims. It canvasses numerous public policy issues at stake when contemplating a reform of s. 194K. However, it seems to demonstrate little understanding of media organisations’ news values and production values and does not acknowledge several important policy developments under way nationally and globally.

Journalists’ training

The paper offers a handful of examples where such laws have been breached by the news media in Australia, including only one in recent times in Tasmania that has proceeded to court. While we all would prefer there were no media breaches of identification laws, I suggest that court reporters are overwhelmingly aware of, and compliant with, both sub judice contempt guidelines and statutory reporting restrictions. This is due mainly to the media law education and training reporters receive in their university journalism degrees and in the workplace. Most media organisations also provide shorthand tuition to their staff and adhere to strict court reporting protocols where cases are followed through the court system and junior reporters ‘shadow’ experienced colleagues before starting on the round. One of the fundamental topics all court reporters learn is that there are restrictions on the identification of children and sexual assault victims involved in proceedings.

News values, open justice and the role of court reporting

Your issues paper devotes a small section to the principle of ‘open justice’ which quite rightly quotes important jurists and international human rights documents and legislation enshrining it (Part 2.1). Yet, it implies news organisations are motivated primarily by commercial interest when reporting upon the courts. At 4.3.3, your paper states: “Media outlets have an obvious interest in publishing material that will attract readers or viewers. A story that identifies the victim of sexual assault is likely to attract greater consumer interest than one that does not. There is a strong incentive for the media to publish such details.” I am aware of no research supporting this assertion and my informed view is that editors, sub-editors and court reporters strive to abide by the legal restrictions and ethical obligations forbidding identification. On rare occasions that determination is tested in the heat of competition for a particularly unusual story or one involving a celebrity – but such occasions have become even less common in the wake of strong national and international scrutiny of such media behaviour. It is, however, a mistake to view this story of this 12-year-old Tasmanian girl prostituted by her mother and the named accused as one of simply the media feeding a public titillation with sordid sexual detail. The story indeed featured the news values of ‘unusualness’ and sheer ‘human interest’ – but it also had the important public news value of what we call ‘consequence’ or ‘impact’ – many of which concern public policy benefits of the reportage of such matters.

Public policy benefits of media reportage of sexual and juvenile cases

There is a principle as ancient and as inherent in a democracy as open justice – and that is the role of the news media as the ‘Fourth Estate’. Key public policy reviews and reforms have ensued in Tasmania after this incident, and I suggest they might not have garnered the political traction to proceed if the public had been kept ignorant of the matters before the courts. These have included your own review of the defence of ‘mistake as to age’ and other important reviews of child protection. In short, court reporting by the news media and the public discussion and scrutiny it generates can fulfil many important functions in society beyond sheer entertainment; including deterrence from crime, education about justice, transparency of process, and as a watchdog on injustice and deficient public policy. Closed proceedings – or complex requirements involving media applications to cover certain matters – pose serious risks to such positive public policy outcomes.

Free expression and freedom of the press

A close relative of the principle of ‘open justice’ in a democracy is the human right of free expression and its derivative – freedom of the press. Your paper does not mention this principle, but it is crucial to note when comparing reporting restrictions across jurisdictions that Australia is unusual among western democracies in that it has no written constitutional guarantee of free expression or a free media. Each of the foreign jurisdictions your paper uses for comparison on sexual reporting restrictions – the United Kingdom, Canada and New Zealand – features such a guarantee in a charter of rights. Australia and Tasmania have no such statutory or constitutional mechanisms in place, which is an important point of difference because proposed restrictions trigger no formalised process of review on free expression grounds and courts here are not obliged to weigh free expression against other rights in their determinations. (There is, however, an argument that court reporting restrictions might breach the High Court’s implied constitutional freedom to communicate on matters of politics and government; see Nationwide News v. Wills [1992] HCA 46; (1992) 177 CLR 1).

Media ethics and regulation

I realise the your document focuses on the narrow question of whether S. 194K should be reformed, but highly relevant is the likelihood of media organisations being motivated to use a perceived legal ‘loophole’ to identify a vulnerable individual such as a child who has been subjected to sexual abuse. Such a motivation would represent a serious breach of the privacy provisions of the MEAA Journalists’ Code of Ethics and all self-regulatory and co-regulatory codes of practice in place throughout print, broadcast, television and online news media industries – including in-house codes, those of the Australian Press Council and the numerous broadcast sector codes ultimately policed by the Australian Communications and Media Authority (ACMA). The question of media adherence to such codes has been the subject of two major inquiries in the form of the Convergence Review and its subsidiary Independent Media Inquiry chaired by former Federal Court justice Ray Finkelstein – the recommendations of which are currently under consideration by the Federal Government. Regardless of whether they are adopted, an impact has been significant attempts by the news media to get their own ‘houses in order’ to avoid the prospect of strict government regulation of their ethical practices and complaints systems. The Australian Press Council has implemented significant improvements to its processes. All of this has been against the international backdrop of the UK inquiries into serious ethical and legal breaches by the Murdoch-owned News of the World newspaper.

Privacy regulation and factors impacting media privacy intrusion

Related to this inquiry have been important developments in the area of privacy law and regulation. You would be aware that the Commonwealth Government has already implemented privacy law reforms recommended by the Australian Law Reform Commission Report 108: For Your Information: Australian Privacy Law and Practice (http://www.alrc.gov.au/publications/report-108). The Gillard Government is reported to be seriously considering a recommendation for a statutory tort of invasion of privacy. Whether or not that is implemented, your own issues paper at p. 14 cites the case of Doe v. ABC (2007) VCC 282, where a journalist’s identification of a sexual assault victim led to both criminal charges and a civil suit where damages were awarded for the privacy invasion of the victim. Although this was an intermediate court decision, it stands as a precedent in a developing body of judge-made privacy law. Significant too is the ACMA’s 2011 review of its privacy guidelines (http://www.acma.gov.au/WEB/STANDARD/pc=PC_410273) for broadcasters which included important changes in the way broadcast media should deal with vulnerable interviewees, particularly children. The submission from an ARC Vulnerability Linkage Grant project on which I was a chief investigator seems to have been influential in helping frame these new provisions. (See our submission to that ACMA inquiry at http://www.acma.gov.au/webwr/_assets/main/lib410086/ifc28-2011_arc_linkage_grant.pdf ).  In short, my view is that media outlets are working to a higher level of internal, industry and public accountability when dealing with the vulnerable (particularly children) than they were two years ago when this court proceeding was reported.

The Internet, social media and the Tasmanian jurisdiction

Your issues paper makes some mention of the Internet, primarily with regard to the terminology and scope of s 194K at 5.4.2, but it mentions social media only as a footnote on page 32. My informed opinion, drawing upon research for my most recent book and for our courts and social media project at Bond University’s Centre for Law, Governance and Public Policy, is that it would be a grave error to proceed to legislative reform without due consideration of the extraordinary ways in which social media has changed the capacity for ordinary citizens to become publishers about court proceedings. Importantly, this allows for the exact reverse situation to occur in a trial to what happened in this case. Instead of the traditional media revealing, albeit indirectly, the identity of a child sexual crime victim to people who might otherwise not know her, social media allows for those who know the victim to reveal her identity to the wider world via their networks of Facebook ‘friends’ and Twitter ‘followers’. Here you are dealing with ordinary citizens who may be completely ignorant of legal restrictions on identifying such victims and may even be relying on second hand information from court proceedings they have not even attended. The reality is that the advent of social media means that  no tightening of restrictions such as those found in s.194K will be totally effective in protecting the identity of anyone involved in court proceedings – no matter how compliant journalists from traditional media might be. Web 2.0 means that secrets – particularly interesting ones – will not often be revealed, and those revealing them might not be identifiable or answerable. It has led to what I describe as a “two-speed” suppression regime in our justice systems – effectively one rule for traditional media and a different rule for citizens using social media who sometimes have an even larger audience than news outlets for their gossip and innuendo. For a recent example of this, see the remarkable situation where the mainstream media was prevented from reporting that the acting police minister faced serious sexual charges under the Evidence Act 1929, s 71A – but his name was all over the Internet and social media (See http://www.adelaidenow.com.au/news/south-australia/bernard-finnigans-name-was-all-over-the-internet-despite-suppression-order/story-e6frea83-1226480605607 and https://journlaw.com/2011/05/04/south-australias-antiquated-sex-id-law/ ).

A feature of Internet searches is that Google searches for certain terms group the results, leading to possible identification via a combination of factors across different results, whereas any single publication would not identify a victim. Similarly, an individual’s Facebook page or Twitter profile will list their ‘friends’ or associates, allowing social media to link an unnamed victim with a named accused if they have a close relationship. These factors present a challenge for reform of such legislation. A bizarre aspect of your inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter. Further, it draws attention by headline to the actual article that has triggered the inquiry, thus facilitating readers to access the very material that identifies the victim. It is sad and ironic that someone who knew the family and those basic facts might well discover the victim’s identity via the Institute’s very own document.

The paper also seems to take a pre-Internet approach to jurisdictional sovereignty, suggesting that Tasmania’s reach might extend beyond its island borders to ‘the entire world’ (4.3.9). While the state might well achieve such reach in the most serious offences via extradition agreements, I suggest it is counter-productive and unrealistic to entertain the notion that a Tasmanian identification prohibition is going to have any real effect on individuals publishing material on the Internet from beyond the State’s borders.

Court closure and judicial censorship are a threat to open justice

Completely closing the court in such proceedings would be a draconian and retrograde step, counter to the principle of open justice and damaging to the important public policy outcomes I mentioned earlier in this submission. I understand the detailed mention in the Mercury article of the sexually transmitted diseases the girl had contracted was a special concern of those who wanted the DPP to press charges in this matter. Yet there is strong argument that there could be important public policy outcomes from the publication of such graphic details; such as deterring prostitution clients from engaging in unprotected intercourse and the incentive for the numerous clients in this case to seek treatment to prevent their spread through the broader community. A closed court would prevent such public messages being conveyed.

Just as concerning is the censorship regime proposed in Option 3, requiring at 5.2.4 “that the media outlet provide details of what they intend to publish to assist the court in determining whether to grant the order”. The following sentence reads like a dictum from a despotic regime on the Reporters Without Borders watch list: “The court could then decide whether to allow publication of the whole piece, some parts of the piece or to deny publication altogether”. Such an approach is anathema in a state of a progressive western democracy like Australia. It would breach the ancient rule against ‘prior restraint’ – defended so eloquently by the first Chief Justice of NSW, Sir Francis Forbes against Governor Darling in 1826 (See Spigelman, J., 2002 at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_201103).

My suggested mechanism for reform of s. 194K

Rather than debating the pros and cons of the various options foreshadowed in your paper, I will instead propose a workable solution that will minimise the likelihood of the recurrence of the circumstances that occurred in this case. As I suggested above, there is now no watertight legislative or procedural way to be absolutely certain of protecting the anonymity of victims of sexual crimes.

Your paper offered an excellent summary of sexual case reporting restrictions in Australia and in comparable foreign jurisdictions, but seemed to ignore the similar identification laws that apply to the identification of children in proceedings. The case prompting this inquiry involved both a juvenile and a sexual matter, which of course prompts the highest level of caution with identification. Our text, The Journalist’s Guide to Media Law (with Mark Polden, Allen & Unwin, 2011) features comparative tables of both juvenile and sexual proceedings reporting restrictions (at pp. 160-162 and pp.156-158 respectively). I feel S 104C of the NSW Children and Young Persons (Care and Protection) Act 1998 offers a promising solution in the form of a news media privilege to attend proceedings for reporting purposes:

104C   Entitlement of media to hear proceedings

At any time while the Children’s Court is hearing proceedings with respect to a child or young person, any person who is engaged in preparing a report of the proceedings for dissemination through a public news medium is, unless the Children’s Court otherwise directs, entitled to enter and remain in the place where the proceedings are being heard.

The news media have traditionally been extended certain privileges in courts as the ‘eyes and the ears’ of the broader citizenry – reserved seating at a press bench, access to court papers, and sometimes even standing to make a submission on a court order (Evidence Act (SA) s. 69A(5).) In NSW they are allowed to attend and report upon children’s court proceedings – but are of course expected to comply with identification restrictions. This is sensible, given journalists’ training in media law and court reporting matters and their understanding that it is only a privilege that a judicial officer might choose to withdraw. All this also prompts questions about the role and entitlements of reporters from non-traditional media – bloggers and ‘citizen journalists’ – who might choose to cover certain trials and report upon them on social media or upon specially constructed crime websites devoted to high profile proceedings. I suggest procedures could be applied to require ‘citizen journalists’ to satisfy the court that they deserve such a media privilege on a case-by-case basis.

In summary, and without extended further explanation, my proposal is:

  • Close the courts in matters involving children and sexual assault victims to the broader citizenry to limit social media ‘leakage’ of matters such as identification;
  • Allow authorised news media representatives to attend and report with the following identification restrictions;
  • Tighten the identification wording so that indirect identification is less likely. Prohibit the naming of the victim, of course. Require the court to rule upon the other identifying factors allowable in the particular case, with the working principle that a combination of factors does not identify the victim. (For example, allow her suburb and her age to be published if the suburb is populous enough, but not the sporting organisation of which she is a member.) Also prohibit visual identification of the accused in sexual assault cases where the accused has had an ongoing relationship with the victim (not necessary where the assault has been an attack by a stranger) so that those who have seen the accused with the victim do not identify her by this means.
  • Prohibit all photographs or footage of the victim being published or broadcast – even those pixelated or obscured in any way. (This practice is flawed.)

My final comments address two important points related to journalists. Firstly, I suggest there are excellent public policy reasons why victims should be permitted to self-identify as sexual assault victims at a reasonable time after proceedings have ended. I am not a psychologist, but I float the suggestion that a period of two years after the completion of proceedings might be a time when some victims might feel able to give ‘informed consent’ to a media outlet to tell their story – and that such a story could itself have major public policy benefits. Given that abuses of such a privilege are rare in jurisdictions that allow it, I suggest it be worded so that it is enough that the victim gives the journalist his or her permission in writing for publication, and that the onus of proof be on the prosecutor to demonstrate that the journalist “knew, or should have known” that the consent was not “informed” by the condition of the victim at the time and that financial inducements be prohibited.

Secondly, I offer my strong view that any penalties for breach of the reformed statute be dealt with as an offence against the statute itself, and with a fine and not a jail term. Breaches have been so rare in the past and are usually accidental, and it is an affront to democracy when states jail journalists for publishing offences. Contempt powers, particularly those wielded by superior court judges, are far too broad to justify their application to this type of publishing error.

I wish you well with your deliberations on this important matter and would be pleased to offer any further assistance if you should require it.

Yours sincerely,

Professor Mark Pearson

© 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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Tasmanian sex case ID proposals under scrutiny

By MARK PEARSON

An issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes – raises so many issues of relevance to my media law and ethics class that I have built a problem-based learning assignment around it.

The inquiry was triggered by coverage in the Hobart Mercury (see picture) in 2010 of prostitution of a 12-year-old girl by her mother and her mother’s male friend.

While the Mercury anonymised the identity of the girl and her mother, it named the accused male and listed several details that might have led readers with some knowledge of the accused or the family to identify the victim.

The barrister appointed as the girl’s representative in her care and protection proceedings, Mr Craig Mackie, wanted the newspaper charged for breach of the legislation prohibiting the identification of a sex crime victim (s194K of the Evidence Act 2001).

But the prosecutor’s office refused to act, arguing the identification was too indirect to breach the provision. Mr Mackie also sits on the Tasmanian Law Reform Institute board, and he referred the matter to that body for its review.

The issues paper covers some of the key topic areas covered in our media law and ethics subject –free expression, open justice, contempt of court, court reporting restrictions and privacy.

As part of our problem-based learning task, some students might file their own submissions before the September 28 deadline, while others will use their research to inform a reflective paper they submit as a class assignment a week later.

I might draw upon some of their research and insights in my personal submission to the inquiry – with due recognition to their efforts.

Media law tragics will find the Institute’s issues paper compelling reading.

On the one hand, it offers in a relatively brief 52 pages an excellent comparison of reporting restrictions in sexual crimes across several jurisdictions including most Australian states and the UK, New Zealand and Canada.

It also summarises the key cases in the field and quotes some of the leading judgments on the principle of open justice.

Yet my own submission will call into question several assumptions and gaps in the Issues Paper, including:

–       Evidence of anti-media language and stance, betraying a fundamental assumption that journalists are out to expose sexual assault victims despite there being relatively few cases where they have done so (often accidentally).

–       An old world ignorance of the advent of social media, citizen journalism and blogging, which have complicated the 20th century approach to regulating news media coverage of sex crime cases.

–       A similar pre-Internet approach to jurisdiction, seemingly working from the premise that publications about such matters are contained within Tasmanian borders.

–       Disregard of the fact that the Commonwealth Government is considering major reform proposals on privacy law and media regulation, all of which are relevant to the media’s exploitation and exposure of vulnerable victims of sex crimes.

–       Floating an extraordinarily proposition for prior restraint in such matters – that the media be totally banned from covering sexual cases and that a court should review and censor any proposed story about such a case pre-publication.

–       Ignoring the fact that free expression has no constitutional guarantee in this country – unlike in all of the foreign jurisdictions used as a yardstick for comparison, each of which features either a constitutional guarantee or one contained in a bill or charter of rights.

A bizarre aspect of the inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter.

It is ironic that someone who knew the family and those basic facts might well discover her identity via the Institute’s very own document.

I’ll publish my submission in a future blog.

© 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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Legal responsibility online: are you left carrying the can? ( #defamation #blogging )

By MARK PEARSON

[Loosely adapted from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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The courts have long held that anyone having direct responsibility for a publication is legally liable for it, so if your blog or comment is on the website or social media site of another organisation, both you as the writer and whoever is hosting your work can be sued for defamation. (Some jurisdictions – most notably the US – offer strong defences to the hosts of third party comments.)

If someone edits or moderates your work before it is published, they too share the burden of legal liability. That happened recently to the News Limited website Perthnow, when it was ordered to pay $12,000 compensation to a West Australian mother over racist comments posted about her deceased teenage sons. The comments had been approved by a moderator.

If anyone republishes your work, through syndication or perhaps even through retweeting or forwarding your defamatory material, they also are also liable. Even someone who inserts a hyperlink to libellous material can be sued for defamation in some places, although the Supreme Court of Canada rejected this position in a landmark decision last year.

Plaintiffs will sue the writer, editor or host organisation for a range of reasons. Sometimes they just want to gag the discussion, so they issue a defamation writ to chill the criticism. This is known as a ‘SLAPP’ writ – ‘Strategic Lawsuits Against Public Participation’ – and in some countries they are simply thrown out of court as an affront to free expression. Others allow them. Plaintiffs often want to get the highest possible damages award from someone who can afford to pay it, so they might bypass the original impoverished blogger and sue the wealthier company that republished the material. Sometimes they enjoin all of them in their action, although this adds to their legal costs if they lose.

As the Australian High Court ruled in the Gutnick case in 2002, publication happens whenever and wherever someone downloads it. If you have published something defamatory about someone who is unknown in your own state or country you are probably safe from suit or prosecution until you travel to the place where they do have a reputation.

They would have to prove they could be identified from the material you posted. Of course, if you have named somebody they are identifiable, but what if you stop short of naming them but use other identifiers? For example, what if your blog questioned the ability of ‘a prominent 21st Avenue cosmetic surgeon responsible for the fat lips and lopsided breasts of at least three Oscar winners’? You would be much better taking legal advice first and actually naming the surgeon if you have a solid defence available to you. Why? Because there might well be other surgeons who meet this description, and you would have a hard time defending a suit from them if you didn’t even know they existed.

If your description is broad enough you will normally be reasonably safe. So if you had made your description fairly general – ‘an LA cosmetic surgeon’ – the group would be too large for any single surgeon to be able to prove you were talking about them. (They say there are almost as many cosmetic surgeons as lawyers in LA!)

Of course, if you decide after taking legal advice to actually name someone you need to ensure you use enough identifiers to ensure they will not be mistaken for someone else. That’s why court reports in the news usually state the full name, suburb, occupation and age of the accused person. Otherwise someone by the same name might show their reputation was damaged by proving their friends and colleagues thought they were the rapist, murderer or drug dealer you were writing about.

Your legal responsibility might even extend to pressing the ‘Like’ button on Facebook, as courts struggle with the legal status of this symbol – even in the US. See some useful analysis of this here.

See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.

© 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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Digital #defamation: losing face on Facebook and the toll of trolls on Twitter

By MARK PEARSON

[Loosely adapted from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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Defamation law everywhere requires proof that your publication has lowered someone’s standing in the eyes of at least one other person.

It must go to this third person before the ‘reputation’ can be damaged, because your reputation is your standing in the eyes of others.

In other words, if you insult someone in a direct message (DM) to them alone on Twitter, you have not defamed them. But if you repeat the slur to just one other tweep your victim might then have an action in defamation.

From that point on the laws of defamation (libel and slander) vary across jurisdictions, with falsity required as a starting point in some places and defences varying widely.

In many countries defamation is also a crime – known broadly as ‘criminal libel’ – used by some repressive regimes as a weapon of the State against free expression.

We have all seen how a major newspaper or television network can destroy someone’s reputation in an instant, but you might have felt comfortable saying what you like about someone to your handful of blog followers, your 20 Facebook friends or your tribe of chirpy tweeps.

Sorry, but as soon as you say something nasty about someone to a single Facebook friend or to your single Twitter follower you have defamed the victim of your comments. Most of the time this will just cause a little embarrassment to both you and them if they find out, but occasionally a single publication to just one other person can be devastating – and expensive.

If your comment (or defamatory material in some other form like an image or even perhaps a ‘Like’ symbol!) goes to a client of the victim it could cost them a multi-million dollar contract – and you’d be facing that bill in damages if your lawyers can’t find you a good defence.

The name David Milum might not be familiar to you, but he was a pioneer in defamation law … for all the wrong reasons. He ran a political website in Forsyth County, Georgia, and became the first US blogger to lose a libel case when in 2004 he wrote that an attorney had delivered bribes from drug dealers to a judge. The attorney won $50,000 in damages and the appeal court held in 2007 that bloggers and podcasters were just as liable for defamation action as other publishers.

Since then we’ve had the advent of social media and a litany of defamation cases across most platforms worldwide.

Courts can – and do – award substantial damages to someone who has been injured in some way because of your nasty posting. Perhaps they have been traumatised, their relationships have been damaged or they might have lost a lucrative contract. Even the fact that you didn’t mean to defame them will not protect you in most places. In those countries just your act of publication needs to be intentional, not your intent to damage the person’s reputation.

There are several exceptions to this. For example, ISPs usually have a defence to defamation on the websites they host unless the material has been brought to their attention and they have refused to take it down. In the US, this goes further under s. 230 of the Communication Decency Act to give full protection to ‘interactive computer services’, even protecting blog hosts from liability for comments by users. Careful here, though, because the discussants can be sued over their comments if they are identifiable via their IP (Internet protocol) addresses and the host might cough yours up, particularly now that lawyers and private investigators are getting more sophisticated in their digital discovery processes.

Bloggers often mistakenly thought their ISP or host site would be sued for defamation instead of them. Lancashire academic Tracy Williams used a pseudonym to defame a UK Independence Party candidate on a Yahoo! discussion board in 2004. She called him a sexual offender, a racist bigot and a Nazi, and escalated her abuse when he started legal action. The politician won a court order against Yahoo! to reveal her identity and in 2006 she became the first blogger to lose a libel action in the UK High Court and it cost her £10,000 in damages. And in 2011 Twitter was ordered by a Californian court to reveal to South Tyneside Council in the UK the personal details of five users who had allegedly defamed three of its councillors.

See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.

© 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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Your SM medium can affect your legal risk

By MARK PEARSON

[Adapted from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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Your method and your medium can be important factors in your legal exposure. The simple fact is that some publishing platforms 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.

However, on Twitter you may leave yourself more exposed in the area of defamation because there is so little space for you to give context and balance to your criticism of others. Longer, better argued critiques lend themselves to some of the fair comment defences in many countries.

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 single tweet rather than the overall coverage. And of course you tweet with the full expectation that your work will be spread far and wide, meaning any libellous material can cause considerable damage.

Publication on Facebook, however, might be restricted to just a few friends, particularly if your privacy settings are adjusted so that your comments are not viewable to the friends of your friends.

Remember, if someone reposts your work they are the ones republishing it, so they would in turn be liable. (A court may, of course, factor in to a damages claim the extent that you might have expected your material to be retweeted or reposted by others.)

The open blog has a potentially wide distribution network, but it also has quite cautious controls available to you when you use a host like WordPress. You should take advantage of opportunities to save drafts and proof-read your material in preview mode before proceeding to publication. Careful checking pre-publication can help you find accidental spelling mistakes and remind you of extra fact-checking you will need to carry out before pressing that magic ‘Send’ button.

If you have written your blog fairly and accurately it can go a long way to establishing a defence to defamation. Blogging is also about writing quality, so your mastery of the language and your selection of the most appropriate words can be crucial when defending a libel allegation if you have written a scathing review of a public event or performance.

You might take a moment to look over some of your recent blogs, tweets and Facebook postings. How well do they shape up?

And who is that trying to foist a legal document at you as your step out your front door? 😉

© 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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