Tag Archives: free expression

Is an Open Justice Advocate the solution to overly restrictive suppression orders? #MLGriff

By MARK PEARSON

Jason Bosland [@JasonBosland] – Deputy Director of the Centre for Media and Communications Law at Melbourne Law School – has called for the introduction of a state-funded Open Justice Advocate as a measure to alleviate the continuing practice of judges issuing overly restrictive suppression orders.

Bosland’s explanatory article in Pursuit and his research article the Sydney Law Review come just as we are about to examine open justice and court restrictions in our Griffith University Media Law course, so they are essential reading for students.

He is the acknowledged leader in the field of suppression order scholarship in Australia and his work tracked firstly the need for the Open Courts Act 2013 in Victoria and, more recently, its failings to impact effectively on court practices.

Bosland writes in the Pursuit article:

This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene? It is my view that the only solution is for the introduction of a state funded open justice advocate.

His longer Sydney Law Review is an expert combination of insightful policy analysis, meticulous scrutiny of the legislation, and illuminating statistics drawn from his funded research projects on the topic. I commend them to all media law geeks and students.

His concludes that article with this wise counsel:

This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

Insightful indeed.

[See also – my article in The Conversation on how the 2015 edition of our textbook inadvertently breached a Victorian suppression order and had to be reprinted.]

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 2017

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Privacy as a value for democratic societies – Beate Roessler #mediaiplaw

By MARK PEARSON

It is only in the past twenty or so years that the societal value of privacy has become of interest and still more recently that there has been a particular focus on the value of privacy for democracies, University of Amsterdam Professor of Ethics Beate Roessler proposed to the 2015 IP and Media Law Conference at the University of Melbourne Law School today (November 24).

“Privacy protection is necessary not only for individual freedom and autonomy but also for the functioning of the democratic society,” she said.

Professor Beate Roessler from the University of Amsterdam

Professor Beate Roessler from the University of Amsterdam

Beate Roessler is Professor of Ethics at the University of Amsterdam and chair of the Capacity group of Philosophy and Public Affairs. She also chairs its Department of Philosophy. In her keynote address she explored her work examining the difficulty of keeping up privacy standards on social network sites and the role of anonymity in social/political relations and the consequences of the loss of that anonymity.

Professor Roessler pointed to statements by Edward Snowden in 2013 and 2015 as an interesting focus upon the democratic value of privacy, where he had justified his revelations partly upon the contest between the state’s surveillance and the individual citizen’s privacy.

She listed three steps in the conceptualisation of privacy – firstly, the classic conception of Warren and Brandeis as the right to be let alone, the fundamental idea being that the right to freedom is protected by, and dependent upon, the right to privacy.

The second step after Warren and Brandeis was the ‘social dimensions of privacy’.
“The social norms which regulate privacy enable us to play different roles,” she said. “They enable us to play these different roles and have these different relations.
“If I started telling you now about my grandmother I would violate the demand of the role I am playing here. It is not just my autonomy, but it is also the norm itself that regulates our relations.
“Privacy is also a social practice, meaning the norms protect individual privacy and the right is part of the practice.
“Also respect for the privacy of other people is part of the practice. It is part of the deal of the social norms of privacy. The right to privacy and respect is always socially contextualised.

“The idea that we are democratic subjects is also the idea that our privacy is protected.”

She explained that the value of privacy has for the most part of the last hundred years been conceived of in purely individual terms: the protection of privacy being important or even constitutive for the protection of individual freedom and autonomy.

The third step after Warren and Brandeis was the significance of privacy for democracy.

“I want to argue that it is precisely this social and democratic value of privacy which is at stake in the digitized society,” she proposed.

She said events in Paris this month had not changed her mind about the value of privacy in democracy, but did make the issues more challenging to address publicly.
“Political participation is dependent on the protection of privacy,” she said.
The loss of privacy affects all social and political relations between people, she argued.
Although the right to privacy remains important as an individual right, the Snowden revelations have made clear that violations of privacy have immediate impact on our social lives as well as on liberal democracies.
Privacy is under pressure in the digitized society through state surveillance, consumer surveillance, via the ‘internet of things’, and through social network sites with the voluntary sharing of personal data including the self-tracking devices and the quantification of self movement.
“New technologies do have an impact on our relationships, for better or for worse.
“The right idea is to think about what does privacy do in our society, and if that changes how far can we go with that change?”
She used privacy settings as an example of the status of privacy in society: “Standard preferences are public, but privacy is an extra task or an achievement.”
“Our personal data are analysed by companies that are collecting, storing and mining as the default. It is what is happening if we do nothing.
“Forgetting, deleting is an extra task, an achievement.”
Anonymity was important to privacy, but as Snowden revealed our anonymity is not protected any longer.
“Lack of anonymity can cause loss of freedom, harmful for the individual and democratic society,” she said.
She pointed to the use of drones as the next “massive threat”.
She said arguments against anonymity such as accountability and public security did not allow for the fact that neither had increased markedly in recent years with large scale surveillance.
“The threat of a life without the protection of privacy involves the transformation of social and political relations,” she concluded.
“If we have to assume there is no privacy protection any longer in our social relations it means our social relations tend to get homogenized.
“How can I understand myself as a democratic subject if I can’t assume any longer that my privacy is not being protected?
“How do we change and how does society change, when our sense of privacy changes, when we lose the differences in self-presentation, possibilities of political participation, and when we lose the possibilities of control?”
From 2003-2010 Roessler was Socrates-Professor for the Foundations of Humanism at Leiden University. Before, she taught philosophy at the Free University, Berlin, Germany, and at the University of Bremen, Germany. Roessler studied philosophy at Tuebingen, London, Oxford, and Berlin and completed her PhD in 1988 at the Free University Berlin (on theories of meaning in analytic philosophy and hermeneutics). In November and December 2015 she is visiting as a research fellow at University of Melbourne, Melbourne Law School. Her publications include Social Dimensions of Privacy: Interdisciplinary Perspectives (edited with Dorota Mokrosinska, Cambridge: Cambridge University Press 2015) and The Value of Privacy (Polity Press, 2005).

The full conference program is here. Our paper (Pearson, Bennett and Morton) was titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here) and was presented yesterday (November 23).

Those interested in privacy as a topic might also see my timeline of privacy in Australia here.

———–

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

© Mark Pearson 2015

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For those who missed it – the @RNMediaReport story on the Bayley suppression order #auslaw

By MARK PEARSON

As most people were heading off for their Easter vacation, Radio National’s Media Report ran a segment on how we discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

My article in  The Conversation (excerpted below) explained what happened, and RN Media Report’s Richard Aedy followed it up with this interview last week:

Screen Shot 2015-04-10 at 5.17.41 PM

 


March 27, 2015 blog:

How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw ]

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation

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

© Mark Pearson 2015

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice

How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw

By MARK PEARSON

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation

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

© Mark Pearson 2015

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice

New @journlaw updates posted in privacy, anti-terror and confidentiality of sources #MLGriff

By MARK PEARSON

We have just posted numerous updates to the fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) on the journlaw.com blog.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we have been posting fresh material via this blog’s Media Law Updates menu.

You can find updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Order via Booktopia: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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

© Mark Pearson 2015

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Journlaw running updates to The Journalist’s Guide to Media Law

By MARK PEARSON

OUR fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) is now in bookshops and I will be running updates on each topic area via journlaw.com as we work towards the next edition.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we will be posting fresh material via this blog’s Media Law Updates menu.

There will be updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Order via Booktopia: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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

© Mark Pearson 2015

Leave a comment

Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice, Uncategorized

Why we can name this forensic mental health patient, but you can’t: open justice in action

By MARK PEARSON

Almost 13 years ago an interpreter at the Community Relations Commission in Ashfield in Sydney – Ms Radmilla Domonkos – died in a fire that had been deliberately lit. Two colleagues were critically injured.

Long_Bay_Jail_2

Long Bay Correctional Centre in Sydney. Photo: JBar, WikimediaCommons

A co-worker was charged with her murder and with maliciously damaging property by fire with intent to endanger life.

After two years of court processes in March 2004 the accused was found not guilty on the ground of mental illness and has since then been held for treatment at the Long Bay Prison Hospital under the Mental Health (Forensic Provisions) Act (1990).

As in many other jurisdictions, the Mental Health Act (2007) prohibits at s. 162 the publication of the names of such patients even if they wish to be named.

As my colleague and research partner Associate Professor Tom Morton explained in an ABC Radio National Background Briefing program – The Man Without A Name – earlier this year, this patient has been prevented from telling his own story because of such anonymity provisions.

As he reported there, the ABC prepared a detailed application for permission to name the patient in that program and we attended a special hearing of that application before the Mental Health Review Tribunal in Sydney last September.

That application was approved, and Tom was able to name the patient in that program that aired in April this year.

However, were advised that such permission was limited to that single publication of the patient’s name. In other words, even though you can listen to a podcast of that program available here to discover his name, we would not be allowed to repeat it in our research outputs without further permission.

Earlier this year we went through that process, and I am pleased to advise that the Mental Health Review Tribunal has granted us permission to name the patient in our research publications and also in this blog.

I believe this is somewhat of a first – an academic research blog being granted permission to name a forensic patient – so journlaw.com is likely breaking new ground here as we do so.

The order states:

The means of publication are restricted to the following outlets for academic scholarship:

1. Academic journal articles, books and book chapters authored by Professor Morton and / or Professor Pearson.

2. Academic research blogs authored by Professor Morton and/or Professor Pearson.

It proceeds to require that any such publication must indicate our authorship, that the Tribunal can withdraw the consent at any time, and that any publication must carry the following notice:

“Notice: It is an offence under the Mental Health Act 2007 (NSW) section 162 to publish or broadcast the name of any person to whom a matter before the Mental Health Review Tribunal relates or who appears as a witness before the Tribunal in any proceedings or who is mentioned or otherwise involved in any proceedings under the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990, unless consent has first been obtained from the Tribunal. The author has obtained such consent to publish Mr Dezfouli’s name.”

That should make it clear why we can name the patient but you cannot – at least without going through this whole process of application detailed in the Tribunal’s Practice Direction on s. 162, viewable here (pdf file).

So, after that extended preamble, I shall now reveal the patient’s name.

It is Mr Saeed Sayaf Dezfouli.

dezfouli

Forensic patient Saeed Dezfouli. Photo: Justice Action

In coming months we will be publishing our academic outputs on the research and journalistic processes involved in our pursuit for permission to identify Mr Dezfouli, kindly funded by a Rule of Law Institute of Australia grant.

Clearly, there are many competing rights and interests at stake in such a situation, including the patient’s right to privacy and effective treatment, their liberty, community safety, the reputations of their treatment team, and the welfare of victims and their families.

There are also the important legal principles of open justice, free expression, and the public’s right to know about the workings of the mental health and criminal justice systems. We will be exploring such issues in our academic publications.

Meanwhile, if you are interested in the Tribunal’s processes you might wish to read the Tribunal’s Official Report of an uncannily similar case (pdf file) it has published on its website using the name “Mr Ephram”.

The prisoner rights advocacy group Justice Action has also applied for, and obtained, permission to name Mr Dezfouli on its website and you can read more about his situation there.

Also, if you search for his name in a web browser you will find some other instances of him being named in the media, although it is unknown whether there were any legal consequences for the outlets which identified him.

(Tom Morton’s ABC Background Briefing program ‘The Man Without A Name’ – 20 April 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 2014

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