Tag Archives: free speech

The liability time bomb of comments on your FB fan page #medialaw

By MARK PEARSON

What if someone posted a comment to your Facebook fan page at 5.15pm on a Friday alleging a leading businessman in your community was a paedophile?

How long would it be before someone noticed it? Immediately? Perhaps 9am Monday?

I put this question to a group of suburban newspaper journalists recently, expecting most would not be checking their newspapers’ Facebook pages over the weekend.

I guessed right, but I was amazed when one replied that such a comment would have remained there for the three months since he last looked at his company’s fan page.

Facebook fan pages are a legal time bomb for corporations, particularly in Australia where the courts have yet to rule definitively on the owner’s liability for the comments of others.

In an earlier blog I looked more closely at the decision of Federal Court Justice Ray Finkelstein in the Allergy Pathways case last year.

Justice Finkelstein’s ruled that in a consumer law case a company would have to take reasonable steps to remove misleading and deceptive comments of others from their Facebook fan pages (and Twitter feeds) the instant they had been brought to their attention.

A more recent Federal Court case examined moderated comments on a newspaper’s website in the context of a racial discrimination claim.

In Clarke v. Nationwide News, Justice Michael Barker ordered the publishers of the Perth Now website to pay $12,000 to the mother of three indigenous boys who died after crashing a stolen car and to take down the racist comments about them from readers that had triggered the claim.

Central to the case was the fact that the newspaper employed an experienced journalist to moderate the comments on its site, meaning that it had taken on responsibility as ‘publisher’ of the comments. (The newspaper managing editor’s explanation of the moderation system at paras 170-178 makes for interesting reading too).

Justice Barker distinguished situations where the editors actively moderated readers’ comments from those where they did not (para 110), but restricted that distinction to the operation of s. 18C of the Racial Discrimination Act, which requires the “offensive behavior” to have been “because of the race, colour or national or ethnic origin”.

Unmoderated comments fall outside this because it cannot be proven the publisher shares the commenter’s racist motivation unless the publisher refuses to take down the comments once this has been brought to their attention.

Justice Barker stated:

“If the respondent publishes a comment which itself offends s18C, where the respondent has “moderated” the comment through a vetting process, for example, in order not to offend the general law (or to meet other media standards), then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it.

“In such circumstances, it will be no defence for the respondent media outlet to say, ‘But we only published what the reader sent us’.”

Some might read this to mean that it is safer to run all comments in an unmoderated form – just like a Facebook ‘fan’ page is structured – then take them down if you get a complaint.

Such an approach might sit okay with these decisions in consumer or racial discrimination law, but what happens when the time bomb lands – a shocking defamation imputation, a heinous allegation damaging a forthcoming trial, or the breach of a court order or publication restriction like the naming of a rape victim?

Defamation and contempt are matters of ‘strict liability’, where you might be liable even if you are ignorant of the defamatory or contemptuous content you are publishing. The only intent required is that you intended to publish your publication or were ‘reckless’ in the publishing of the material. And neither has offered protection for publishers providing a forum for the comments of others.

Which brings us back to the question at the very start. If the Federal Court has ruled you should remove unmoderated material breaching consumer or race law within a reasonable time of becoming aware of it, what will courts deem a ‘reasonable time’ for a serious allegation of child molestation about a prominent citizen to remain on a publisher’s Facebook fan page?

If the allegation were about me, I certainly wouldn’t want it remaining there over a weekend. Or even five minutes. Any period of time would be unreasonable for such a dreadful slur.

The High Court established 10 years ago in the Gutnick case that a publisher is responsible for defamation wherever their material is downloaded. As The Age revealed in 2010, a blogger using the pseudonym ‘witch’ launched a series of attacks on a stockmarket forum about technology security company Datamotion Asia Pacific Ltd and its Perth-based chairman and managing director, Ronald Moir. A court ordered the forum host HotCopper to hand over the blogger’s details which could only be traced to an interstate escort service. But private investigation by the plaintiff’s law firm eventually found the true author of the postings on the other side of the nation who was then hit with a $30,000 defamation settlement.

And what if it is a litany of allegations about the accused in an upcoming criminal trial? I have blogged previously about the awkward position the Queensland Police face with their very successful Facebook fan page when citizens comment prejudicially about the arrest of an accused in a criminal case. No matter how well those fan page comments are moderated by police media personnel, they could never keep pace with the prejudicial avalanche of material posted on the arrest of a suspect in a high profile paedophilia case.

That leads to the awkward situation of the key prosecutor of a crime hosting – albeit temporarily – sub judice material on their own site. It can’t be long before defence lawyers use this as a reason to quash a conviction.

The situation is different in many other countries – particularly in the US where s. 230 of the Communication Decency Act gives full protection to ‘interactive computer services’, even protecting blog hosts from liability for comments by users.

Much has changed in the three decades since I had my first letter to the editor published by the Sydney Morning Herald as an 18-year-old student.

I can clearly recall that newspaper’s letters editor phoning me in my suburban Sydney home to check that I really was the author of the letter and that I agreed with his minor edits.  No doubt he then initialled the relevant columns in the official letters log – the standard practice that continues in some newspaper newsrooms today.

But all that caution has been abandoned in the race for relevance in the digital and Web 2.0 eras.

First, it was news organisations’ websites allowing live comments from readers – still largely moderated. For a while, most insisted on identification details from their correspondents.

Next came their publication in hard copy of SMS messages received in response to their stories. My local newspaper – the Gold Coast Bulletin – sometimes publishes several pages of such short texts from readers using witty pseudonyms.

And now we have the Facebook fan pages, where the technology does not allow the pre-moderation of the comments of others. You need to have that facility switched completely ‘on’ or ‘off’ – and it defeats the purpose of engaging with readers for a media organisation to turn off the debate. I can post a Facebook comment from an Internet café under the name ‘Poison Pen’ and it may well be vetted by nobody.

The whole issue is symptomatic of the social media challenges facing both the traditional media and the courts.

Meanwhile, expect to wait a while to see your comments to this blog published. I’ve elected for full moderation of all comments, and have already rejected a couple that seem to leave me exposed as publisher. You can’t be too cautious now, can you?

© 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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Celebrities’ social media strife a lesson for us all

By MARK PEARSON

[First published in the Gold Coast Bulletin, Monday, June 4, 2012, p. 33]

Every week we hear about yet another celebrity finding themselves on the wrong side of the law because of their misuse of social media.

We’ve had comedian Catherine Deveny sparking a defamation threat against Twitter by Catholic Archbishop George Pell, writer Marieke Hardy paying a man damages over a false cyberstalking allegation on Twitter, and celebrities threatened with consumer litigation over their sponsored plugs for companies.

In my book ‘Blogging and Tweeting Without Getting Sued’  (Allen & Unwin, 2012) I tell the story of fashion designer Dawn Simorangkir who was asked to create some clothing for rock diva Courtney Love.

Love was furious when Simorangkir sent her an invoice for her work under the Boudoir Queen label. The troubled star fired off scores of blog and Twitter rants, accusing the designer of being a thief, burglar, felon, drug addict, prostitute, embezzler, cocaine dealer and an unfit mother.

Love had to pay her $430,000 in defamation damages and make a grovelling apology as part of a mediated court settlement, only to find her former lawyers had filed suit over other tweets where she had claimed they had taken a bribe.

It is not just celebrities who find themselves in legal strife on social media. Brisbane ‘Internet troll’ Bradley Paul Hampson served 220 days in jail last year for plastering obscene images and comments on Facebook tribute pages dedicated to the memory of two children who had died in tragic circumstances. Hampson had already been convicted of a similar offence three years earlier.

While a newspaper publisher can pulp an offensive edition before the trucks left the factory, as a blogger or micro-blogger you have to live with the consequences of your digital publishing errors.

Yes, you can remove your blog, tweet or Facebook status within seconds of posting it, and request that it be taken down from search engines – but you can never be sure someone hasn’t captured, downloaded, and forwarded it in the meantime.

This permanent quality of new media does not mix well with an online writer’s impulsiveness, carelessness, anger or substance abuse.

There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today.

At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

If you have posted something you regret, you should act to withdraw any dubious material as soon as possible. If others choose to forward or republish it, it has hopefully become their problem rather than yours.

Whether you have millions of Twitter followers, hundreds of friends on Facebook or just a single figure readership for your Pinterest postings on tapestries, in the eyes of the law you are now a ‘publisher’.

That means you have to comply with those same communication laws that big media outlets have been forced to obey since Gutenberg invented the printing press 575 years ago. The big difference is that for most of that time publishers only had to worry about the laws in their own country.

You have hundreds of legal systems or ‘jurisdictions’ to consider because the courts have decided you are liable wherever your material is downloaded.

That might be especially dangerous if you plan to visit a country like Thailand, Vietnam or Fiji – popular tourist spots with far less tolerance of the free and vigorous expression we allow here.

© 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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Social media, you and the law: Transcript of the @lawreportrn interview with @journlaw & @julieposetti

By MARK PEARSON

Transcript of the @lawreportrn interview with @journlaw and @julieposetti on May 22, 2012.

To listen, go to the ABC Radio National Law Report website for podcast download.

Anita Barraud: you’re probably all well acquainted with that advice that you shouldn’t put anything on the internet that you wouldn’t want your employer or your mother to see. There are those posts that can lead you to missing out on that great job, but some might even land you in court. James Pattison reports on the legal dangers of your online life.

James Pattison: Have you got a phone in your pocket? Or what about a laptop in your bag? Well, if you use social media, you’re now a publisher, whether you know it or not. Mark Pearson is professor of journalism at Bond University. He’s written a book that’s very aptly named Blogging and Tweeting Without Getting Sued.

Mark Pearson: The book stemmed from 30 years of looking at the law, as it relates to journalists and journalism students, and coming to the realisation a couple of years ago that of course this whole development in social media meant that everybody out there using it is now a publisher, just like journalists have been, and therefore come under the laws of both media law and many others that might apply to citizens who publish things.

James Pattison: And trying to be funny online can land you in some serious trouble.

Mark Pearson: And only last year we had a British gentleman who posted a witty tweet, or what he thought was a witty tweet, about blowing up an airport, and he was just expressing it as satire, he said, because he was frustrated that snow had stopped flights from this particular airport, but unfortunately national security and police agencies don’t always have a sense of humour, and they certainly didn’t in that case, and his house was raided, he was arrested, he was charged with national security offence and he finished up being released, of course, but he suffered a whole lot through the process and spent some time in the big house, at least temporarily, as a result of it. Something none of us need in our lives.

James Pattison: There’s been a lot of changes with media that’s available to us as individuals; a student on their mobile phone posting witty tweets about the lecturer at the front of their lecture theatre, so we now have this instant public communication. Have the laws changed to cover the instant nature of this communication?

Mark Pearson: The basic laws are pretty much the same as they applied to journalists and media organisations in the past. So, your fundamental law of defamation, contempt, confidentiality, all of these areas, you know, the core law is still the same, it’s just that some circumstances have changed with new media and social media.

James Pattison: If the core law is still the same, if the underlying principles are still the same, how’s the adaptation been? Is it exposing perhaps that there’s some principles upon which our legal system is founded, that don’t quite weigh up in 2012?

Mark Pearson: Indeed, it is already demonstrating that, and when it comes to social media law decisions, well, it’s problematic. For example, only last year we had the retired judge Finkelstein presiding over a consumer law case known as the Allergy Pathways case where a company had been directed not to make certain misleading comments about its health treatments, and what had happened was that some of these claims had continued to be made on their website and some by Facebook fans on their Facebook page, and some in a Twitter feed. So Justice Finkelstein was placed with a situation where he had to rule whether the fact that they…some of these comments had been hosted on the company’s Facebook fan page, meant that they were in breach of the order. He held that they were, and he found them in contempt, because of that breach, they were fined. He also made the interesting direction that they should remove all such comments from their Twitter page, whatever a Twitter page is. I don’t know what a Twitter page is, but nevertheless Justice Finkelstein made that direction in that case, so all I’m saying is that judges themselves are still trying to come to grips with social media and its implications, both in the court system and in particular cases where old law should apply, but it has to be adapted to these new technological circumstances.

James Pattison: Professor Mark Pearson. Julie Posetti is a journalist and assistant professor at the University of Canberra. She’s writing a PhD about the impact of social media on professional journalism. Posetti has firsthand knowledge of the troubles that you may encounter when using online platforms like Twitter. A couple of years ago she found herself at the centre of a legal stoush involving the editor of The Australian newspaper, Chris Mitchell.

Julie Posetti: This whole episode, which eventually became the subject of large headlines and news tickers and coverage ad nauseam in the mainstream media, at least as far as The Australian was concerned, started with the live tweeting of a conference about journalism which was being held at the University of Technology in Sydney in late 2010. It was a particularly newsworthy session because it involved the launching of brand new research into the global reporting of the environment and climate change, which was being released in the context of this particular session, and one of the speakers was Asa Wahlquist, who, and I had heard from others, had left The Australian in difficult circumstances, and she was talking about her experience of trying to report climate change and environmental issues generally within the remit of being the rural reporter for The Australian. She was a very…highly respected, very experienced award-winning journalist, so a very trusted source, and somebody who was exceptionally media literate. So, in my mind there were no impediments to reporting what she was saying, and other than to think about the context of the event, which was a public event, there were many journalists present, so there I was, live reporting what Asa Wahlquist was saying. She had some very newsworthy, very interesting, very challenging things to say about what it was like to work at The Australian under its current editorship, and she made comments that were eminently newsworthy, and I felt were appropriate to distribute to the people who were following me on Twitter, and as I live tweeted, I had a couple of people who saw those comments who were at the conference who redistributed them via process which is called re-tweeting, and people who follow me who were not at the conference did the same. So they redistributed those comments, about four or five people I think redistributed those 140 character tweets to their own audiences, so…

James Pattison: What came about as a result of publishing these comments on Twitter?

Julie Posetti: Well, as I understand it somebody at The Australian had been monitoring my tweets, and within I think it was 12 hours of those tweets, 12 to 24 hours of those tweets being published I was sitting on a panel, and there was a live Twitter feed running behind me, and people started gasping and pointing, and somebody sent me a direct message on Twitter on my phone, so I’m sitting at this panel looking at an audience that seemed to be erupting inexplicably, and it became evident that they were reacting to a headline that had been posted by The Australian via their Twitter feed which was being rapidly redistributed which stated that Chris Mitchell, the editor-in-chief of The Australian would sue me, named me, Julie Posetti, as though I was some sort of household name, and that created an immediate explosion, and of course triggered all of the usual legal ramifications. So I had to seek legal advice from my employer, because I was there in my professional capacity as an academic. That resulted in me being effectively silenced because I couldn’t engage in any public discussion while legal advice was being sought, particularly in light of it being a threat to sue for liable or defamation. That’s where it began, and it got a life of its own on social media, it became know as Twitdef, what it came down to was, in any kind of defamation case, in very traditional terms, whether or not there was a defence against defamation, and the protection that the university, myself and our lawyers were relying on was that this was a fair and accurate report of public proceedings, which is a very familiar defence to journalists. So it was quite a tumultuous experience, but one that demonstrated to me both the power and the risk of an active online life.

James Pattison: Julie Posetti, and 18 months later nothing further has come of the threatened legal action. Posetti posted her online comments on her personal Twitter account under her own name, but what if you don’t? There are lots of anonymous internet users who tweet, blog and post comments under a pseudonym. Is this enough of a protection from a possible lawsuit? Mark Pearson.

Mark Pearson: Well, the law is still undecided in that area. Certainly in criminal cases there’s a very strong argument, but we have yet to get enough decisions to really base any real judgement on there, but even if the courts are reluctant, because of IP addresses and so on, the lawyers and the discovery process can often actually find the suspect as it were, or the defendant in a civil action. It happened in Australia only a couple of years ago, where an anonymous poison penner in Western Australia was using the pseudonym Witch to attack a technology security company and its chairman. Well, the court ordered the forum host Hot Copper to hand over the blogger’s details, and at first the details could only be tracked to an interstate escort service, but the law firm conducted its own private investigation and eventually found the true author of the postings and then that author was hit with a $30,000 damages verdict.

James Pattison: So, let’s say that you’re living in Australia, you post a comment albeit witty about somebody in the United States.

Mark Pearson: You raise a really interesting point, and that is to do with the whole area of jurisdiction, and that’s why I’ve, you know, very boldly targeted the book internationally, because really it’s silly talking about the laws of just one jurisdiction when social media defies all jurisdictional boundaries. My own blog, Journlaw, journlaw.com, is…doesn’t have a huge following, it doesn’t have a huge readership, on any day there might be 50 or 60 people looking at it, but on any day, while 90 per cent of them will be looking at it from Australia, there are these outliers. There will be someone who’s accessed it from Thailand, someone else from Finland, someone else from Kuwait, and what it means is that if I have written something on my blog, which thankfully normally wouldn’t be offensive, but if for example I’d insulted the king in Thailand or perhaps written something blasphemous about Mohammed in Kuwait, then if I ever chose to travel to that place, I could face consequences, and as we learnt a couple of years ago with a Melbourne man who breached the Thai lese-majesty laws, he actually spent six months in one of the so-called Bangkok Hiltons, suffering away with all of the other prisoners, because he had dared to write something about the royal family there.

James Pattison: Julie Posetti, we are sort of caught up in the social aspect of social media and not the media aspect of social media; that what was once a social comment to make, a comment to make amongst friends in a social setting has now become broadcast, and that we do that every single day without realising the consequences of it. What does this present for young people who believe that they’re just having a bit of fun, and fair enough, just wanting to have a laugh with some friends, but are publishing these things in a public forum?

Julie Posetti: When we have situations where people who are very new to these mediums find themselves saying something that they might say in their lounge room but publishing it broadly, and it might be, you know, terribly defamatory or terribly contemptuous, and find themselves at the end of a threat from a big corporation or a powerful individual, what is the law going to do with that? I think these are all, you know, very interesting questions, and many of these cases have settled out of court, and case law hasn’t necessarily caught up, and it may not catch up and it may not need to catch up, but in the intervening period we have a need, I think, for a lot more communication about these issues and a lot more education about these issues, for the general public in particular.

I have a rule that I share with anybody who I’m teaching or training with regards to social media, which I borrow from my broadcasting experience which goes to the mute button and the capacity for a seven-second delay to exist, so if anything seems to you to be slightly, even slightly risky, don’t hit that send button on Twitter or Facebook, step back for seven seconds, then go and have another look at it. And if you’re still angry, if what you’re doing is about to post in anger or contempt, then step back for another seven seconds.

Anita Barraud: Julie Posetti and Mark Pearson’s book Blogging and Tweeting Without Getting Sued is published by Allen & Unwin. James Pattison with that report, and speaking of social media, on Friday, how Twitter is affecting sports journalism. Some reporters love it, some hate it, it’s certainly causing some conflict in the competitive world of British sports journalists. That’s coming up on the Media Report with Richard Aedy, Friday at 5:30 pm. That’s it for the program this week, thanks to producer James Pattison and to technical producer Angie Grant, and I’m Anita Barraud.

Guests

Mark Pearson
Professor of journalism at Bond University and author of Blogging & Tweeting Without Getting Sued
(@JournLaw)
Julie Posetti
Journalist and assistant professor at the University of Canberra (@JuliePosetti)

Publications

Title: Blogging & Tweeting Without Getting Sued: a global guide to the law for anyone writing online

Author: Professor Mark Pearson
Publisher: Allen & Unwin
Released: 01 Apr 2012
Description: Every time you blog or tweet you may be subject to the laws of more than 200 jurisdictions. As more than a few bloggers or tweeters have discovered, you can be sued in your own country, or arrested in a foreign airport as you’re heading off on vacation – just for writing something that wouldn’t raise an eyebrow if you said it in a bar or a cafe.
© 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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Doctors bury their mistakes. Lawyers jail theirs. But bloggers publish theirs for the world to see

By MARK PEARSON

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

—————-

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

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

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

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

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

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

© Mark Pearson 2012

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

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

By MARK PEARSON

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

There, I write:

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

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

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

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

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

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

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

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

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

———

Media twitters as Murdoch fronts Leveson

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

MARK PEARSON

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

© Mark Pearson 2012

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

By MARK PEARSON

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

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

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

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

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

So here they are, open for your comment:

Individuals

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

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

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

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

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

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

Organisations

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

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

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

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

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

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

© Mark Pearson 2012

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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Anti-social racism in social media is unwise and illegal

By MARK PEARSON

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

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

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

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

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

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The fine line between opinion and bigotry

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

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

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

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

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

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

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

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

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

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

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

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

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

© Mark Pearson 2012

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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