Tag Archives: free speech

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.

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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:

—————-

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

By MARK PEARSON

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

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

Here is the order form from Allen & Unwin:

Blogging & Tweeting Without Getting Sued A5 Flyer

Online orders can be placed with Booktopia.

The A&U catalogue entry is here.

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

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

Here is the cover and blurb:

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

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

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

© Mark Pearson 2012

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

By MARK PEARSON

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

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

The A&U catalogue entry is here.

And here’s the cover:

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

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

Here’s the blurb:

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

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

Stay tuned for more as the April release date approaches.

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

© Mark Pearson 2011

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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Pressures on the media in a Western democracy #RSF #pressfreedom #censorship

By MARK PEARSON

Each year I file a report on key incidents and developments in the areas of media law and censorship as Australia’s correspondent for Reporters Without Borders.

This data, when combined with submissions from several journalism and academic colleagues in Australia and throughout the world, feeds into RSF’s annual World Press Freedom Index where most nations’ levels of media censorship are compared in a league table format.

I have just filed my 2011 report with the assistance of research assistant Kiri ten Dolle and share some of the highlights with you here, in reverse chronological order.

November 2011:

By far the most important threat to media freedoms in Australia came in the form of at least five government inquiries into media regulation conducted throughout the year, which I have blogged on previously. Between them they raised the prospects of tougher regulation regimes for print, broadcast and online media; a new tort of privacy; tough new classification systems across media; and the conversion of some self-regulatory bodies to regulatory status.  RSF was particularly concerned by suggestions at the hearings of the Independent Media Inquiry that journalists should be licensed or that the Australian Press Council should be given powers to fine media organizations for ethical breaches. See their release on the matter.

The trial of Victorian police officer Simon Artz for alleged leaks to The Australian newspaper about a counter-terrorism operation raised several media freedom issues, with Crikey senior journalist Andrew Crook allegedly breaching a suppression order by revealing the name of a former member of Victoria’s Special Intelligence Group involved in the hearing; warnings over Crikey journalist Margaret Simons live tweeting from the hearing; and The Australian’s Cameron Stewart being ordered to reveal his sources to the hearing.

In a separate matter Victorian Police were investigating an alleged hacking of an ALP electoral database by four journalists at The Age, including editor-in-chief Paul Ramage. The Age claims they received access to the private information of high-profile individuals through ‘appropriate journalistic methods’ and authorisation by a whistleblower.

October 2011

Leaks to the media were also central to a report by the Office of Police Integrity (OPI) found advisers to the Victorian police minister conspired to bring down the former police commissioner Simon Overland. Weston had allegedly leaked information to the media about Overland’s fallout with his former deputy, Ken Jones.

Government control over media access to detention centres prompted condemnation from the journalists’ union. Department of Immigration and Citizenship (DIAC) announced editorial control would be handed over to representatives of the immigration department under new guidelines introduced by DIAC that restrict reporting of and access to detention centres. Journalists and media organisations are required to sign a Deed of Agreement in accordance with the new policy which ultimately prohibits photography, film or interviews with individual detainees and rules that all footage must be submitted to department officials for approval before publication.

Defamation actions, even spurious ones, were alive and well despite uniform defamation laws introduced throughout Australia in 2005. Convicted killer Michael McGrane sought $30 million in damages from the Seven Network claiming he was defamed in a television show called “The Suspects: True Australian Thrillers”. A Queensland Supreme Court justice struck out the claim but gave McGrane leave to replead under a technical provision of the reformed laws.

The extent to which free expression should be trumped by hate speech laws was the subject of wide debate after a Federal Court judge ruled Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act when he wrote that some fair-skinned people used their indigenous identity to further their careers.

September 2011

Fairfax Media group general counsel Gail Hambly and the editor-in-chief and publisher of The Sydney Morning Herald Peter Fray were summonsed by the Police Integrity Commission to produce documents on September 23 in relation to articles by the Herald journalists Linton Besser and Dylan Welch about the NSW Crime Commission. The inspector sought information about sources of information.

Fairfax Radio broadcaster Michael Smith’s contract was suspended in September when he tried to air an interview a former union official who claimed alleged fraudulent conduct by a former boyfriend of Prime Minister Julia Gillard. Smith took Fairfax Radio to court, contesting his ‘planned dismissal’ under the Fair Work Act and alleging he was victimised over his political beliefs.

August 2011

Two Brisbane journalists and a producer were dismissed by the Nine Network for faking live crosses to the Daniel Morcombe search site and ‘unfair dismissal’ litigation was foreshadowed.

July 2011

Cancer-stricken Hinch was sentenced to home detention in July after being found guilty of breaching four suppression orders by naming two sex offenders on his website and at a crime rally in 2008.

June 2011

Fairfax Media announced it would outsource the sub-editing of news, sport and business content to Pagemasters, a subsidiary of the Australian Associate Press (AAP), with a loss 44 jobs at The Sydney Morning Herald and 38 at The Age, despite calls from the NSW Upper Tribunal to abandon the decision.

May 2011

The Australian Broadcasting Corporation used a programming exemption to FOI laws to deny The Weekend Australian and Herald Sun access to its audience data and employee salaries.

Fairfax’s deputy technology editor Ben Grubb, 20, was arrested after reporting on a conference presenter’s alleged hacking at the AUSCert IT security conference. During the week, Grubb had published a story explaining a demonstration shown at the conference of acquiring private photos from a Facebook user without being a ‘friend’. Police seized his iPad but released Grubb after questioning him.

Sixty Minutes reporter Liam Bartlett and his crew’s attempt to enter the main detention centre at Christmas Island led to a police investigation. Bartlett and refugee advocate Kate Gauthier were denied access to the centre after it was alleged Gauthier’s baby, who was with them, was fitted with a recording device.

March-April 2011

Fairfax Media, publisher of the Sydney Morning Herald, and two of its senior journalists Linton Besser and Dylan Welch were issued with subpoenas by the NSW Crime Commission demanding them to surrender mobile phone records, sim cards and other communication related to an investigation of organised crime and corruption in NSW. The Crime Commission dropped the subpoenas in April.

February 2011

The NSW Supreme Court considered forcing three journalists from The Age to reveal their sources in a defamation trial centred around a story about former businesswoman Helen Liu and former defence minister Joel Fitzgibbon.

The Australian Communications and Media Authority found there had been no breach of privacy when Channel Seven’s coverage of NSW Transport Minister David Campbell’s resignation included footage of him leaving a gay club. While the ACMA acknowledged the privacy rights of Campbell, they ruled public interest outweighed his personal privacy because he was a public figure.

 ———–

Have we missed some? Please email me at journlaw@gmail.com if you think there are other important threats to free expression in Australia during 2011 and I’ll add them to our brief for RSF.

© Mark Pearson 2011

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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Why the Australian Government’s media inquiry is fraught

By MARK PEARSON

The Federal Government’s announcement of an ‘independent inquiry into the Australian media’ yesterday might well be a positive development if it were not politically driven, confused in its objectives and artificially narrow in its focus on the print media alone.

A ripple effect from the UK News of the World scandal combined with the machinations of a minority Australian Labor government to trigger this new inquiry, billed as a subsidiary of the existing Convergence Review of telecommunications and broadcast media regulation.

While it is described as ‘independent’ – chaired by retired judge Ray Finkelstein QC ‘assisted’ by University of Canberra journalism professor Matthew Ricketson – it has set off my press freedom alarm bells for other reasons.

Those individuals are excellent choices, but sadly the politician who announced it – the Minister for Broadband, Communications and the Digital Economy Stephen Conroy – has ‘form’.

He has long been the vocal advocate of an Internet filtering scheme for Australia and has only been prevented from introducing such an unworkable vehicle of web censorship by his lack of numbers in the existing Parliament.

Further, he has been at war with Rupert Murdoch’s News Limited over its coverage of his government and has accused it of pressing for ‘regime change’.

Yes, Prime Minister’s Sir Humphrey Appleby advised: ‘Never hold an inquiry unless you know what its outcomes will be’. If the minister’s advisers are working to that script, then media freedom advocates might well be worried.

While Senator Conroy announced the inquiry will focus on newspapers and their online operations, the terms of reference promise much broader objectives.

Focussing on the print media seems at odds with the overarching Convergence Review, particularly if other media and their codes of practice are not going to get the same level of attention as their newspaper cousins.

The terms of reference of this new media inquiry require it to report upon:

a) The effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms;

b) The impact of this technological change on the business model that has supported the investment by traditional media organisations in quality journalism and the production of news, and how such activities can be supported, and diversity enhanced, in the changed media environment;

c) Ways of substantially strengthening the independence and effectiveness of the Australian Press Council, including in relation to on-line publications, and with particular reference to the handling of complaints;

d) Any related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest.

These are important issues and worthy of considered investigation, but it is hard to see how an examination of the print media in isolation can resolve them. If there is a News of the World style of tabloid journalism in operation in Australia, you will find it in the two main commercial television networks’ evening ‘current affairs’ programs – Today Tonight and A Current Affair – not in genuine journalism and not in the print media.

There is a mishmash of in-house and industry codes of practice in operation as well as the Press Council’s Statement of Principles and the iconic but rarely enforced Media Alliance Journalists’ Code of Ethics.

Their review and a move to uniformity would be relatively easy. Most cover common values and ethical principles.

But the problem is not in their wording but in their dissemination and enforcement.

Most journalists operate under three such codes simultaneously – their own corporation’s code, an industry code, and the broader journalists’ code. Test any reporter on all three and my guess is they would fail dismally.

Your average citizen knows even less and does not really know where to file a complaint if they have one.

An important Press Council function has been the referral of complaints to other relevant bodies because they relate to different media or the behaviour of individual reporters rather than the outlets themselves.

The Press Council has done some great work over many years, particularly in its sponsorship of research and in its representations to parliamentary inquiries. But despite ramping up its complaints mechanisms it still cops cynical clichéd animal metaphors to describe its efforts, labels like ‘toothless tiger’ and ‘publisher’s poodle’.

Like much humour they are based on some truth, with the Council’s maximum penalty as a self-regulatory body being a request to the publication to publish its adverse finding, and its publisher-based funding raising questions about its independence. Funds have been slashed in recent years, as I have reported in The Australian.

The Council’s fundamental problem is that it has tried to be both an advocate of press freedom and an adjudicator of complaints against newspapers. While it has performed both tasks remarkably well with scant resources, it will be forever open to criticism until that dichotomy is addressed.

Its new chairman Professor Julian Disney is well aware of the problem and has been actively pressing for more funding and a cross-media regulatory role.

However, his expressed hope this week that the inquiry might lead to government funding should sound shrill alarm bells.

At what point does a government-funded body lose its ‘self-regulatory’ status? Would government funding of the Press Council trigger new animal metaphors as critics question the link between the government of the day and its self-regulatory decisions?

Perhaps ‘Labor’s lapdog’, the ‘Coalition’s fat cat’ or the ‘Greens’ gerbil’?

Seriously, though, there are some effective models for government funding of truly independent enterprises without government interference. The ABC is one that has worked relatively well for almost 80 years, although its board nominations and programming decisions have sometimes been questioned.

There are already hundreds of laws controlling the media in this country. I have built my research and publishing career around teaching and writing about them. We already have a government-funded regulator in the ACMA.

And we already have a government-funded self-regulator in the ABC’s Media Watch program. For mine, it is the most effective and best known of them all.

Instead of more regulation of the media, we need better public access to the complaints and legal mechanisms that already exist.

A better public ‘spend’ than greater regulation would be on more in-service training of journalists in sound legal and ethical practice, school and public education campaigns about media responsibility, and the establishment of media complaints referral services.

Government funding of self-regulatory bodies is a slippery slope and, despite its eminent leadership, this inquiry carries way too much baggage to inspire confidence.

© Mark Pearson 2011

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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Ancient lèse majesté laws an anachronism in the cyber era

By MARK PEARSON

Australian writer Harry Nicolaides was about to board the midnight flight from Bangkok to Melbourne on August 31, 2008 for a job interview with a major hotel group.

Officers approached him at passport control and he was then arrested and interrogated.

He recounted in The Monthly what happened next:

“In a dark, damp cell I stripped off my clothes and laid them on the floor, fashioning a bed with my shoes as a pillow. Sleep was impossible: I was thirsty and hungry, confused and alone.

“In the morning I made a short court appearance, before being handcuffed and shuffled onto an overcrowded prison bus bound for the Bangkok Remand Prison.”

Nicolaides was carrying no drugs or firearms and was not laundering money for international crime syndicates. As I wrote in The Australian at the time, his crime was that he had written a just few sentences deemed to be insulting to Thailand’s crown prince in a self-published work of fiction that had sold just a handful of copies.

Those words typed on a computer keyboard earned him a traumatic six month stay in an overcrowded ‘Bangkok Hilton’ as he tried to navigate court appearances and brief lawyers and diplomats trying to negotiate his freedom. He was ultimately released on a royal pardon.

Welcome to the law of lèse majesté – a crime dating back to Ancient Rome punishing a range of behaviours seen as insulting to a sovereign.

Other nations have lèse majesté laws or similar. Journalist Bashar Al-Sayegh spent three days in jail in 2007 just because someone else had posted insulting comments about the emir of Kuwait on his website. And Australian woman Nasrah Al Shamery spent five and a half months in prison in the same country in 2009 because she had allegedly insulted the emir during an argument in an airport terminal.

Brunei, Denmark, Netherlands, Spain and Morocco also have lèse majesté and each has used them to prosecute insults to their royal families in recent years.

Poland, Germany, Switzerland, the Maldives, Egypt, Syria, Kazakhstan, Belarus, Zimbabwe and Greece have crimes related to the denigration of heads of state of foreign countries or their own. They have been used several times this century, as the BBC has reported.

But the country most active in its lèse majesté prosecutions has been Thailand, a nation with an otherwise free and vibrant media.

As many as 100 people a year have been charged with the offence there in recent years, with several unsuspecting foreigners languishing in jail because of their published criticisms of royalty. US-Thai resident Joe Gordon from Colorado was formally charged in August after being detained for 84 days on a charge of translating an unauthorised biography critical of the king.

The prosecutions are so harsh and random that foreign academic experts who have criticized the law have decided not to visit Thailand for fear of arrest over their publications and statements.

US academic David Streckfuss has written a book on the issue and has criticised the political nature of the charge in the modern era, describing it as anachronistic and “a tawdry and naked attempt to use the institution to suppress views”.

He has called for its use only with the king’s consent because it directly contradicts the Thai constitution’s guarantee of free expression.

“Otherwise, the lèse majesté law in Thailand will ever be ready at hand to serve as a weapon in the political arena, always to the detriment of the institution the law intends to protect,” he wrote.

The critics point out that it is not the monarchy itself that pursues the lèse majesté charges, but rather the government of the day via its agencies.

Thailand has a complex political structure, with democracy, the military and royalty all in the mix. Its citizens have such a strong devotion to the royal family that lèse majesté arrests can be used as political devices to win popular support for those pressing the charges.

In an era of globalised products and a certain sameness about many travel experiences we celebrate distinctive cultural differences about countries like Thailand.

But sometimes we must take an international stand against laws that are depriving both the citizens of these countries and visiting foreigners of their liberty because something they have written or said has been targeted for political purposes.

In the meantime, if you are an author, academic, blogger or journalist who has written about lèse majesté – or, worse still, if you have criticised the monarchy in any of these countries – you should review your next travel itinerary carefully. Like Harry Nicolaides, you might not rate your stay at the ‘Bangkok Hilton’ very highly.

© Mark Pearson 2011

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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Why I just wrote my last #LinkedIn recommendation

The trendy online reference seems flawed – both professionally and legally.

By MARK PEARSON

I see it as an important responsibility of my position as a professor to act as a referee for my former students and colleagues when they are job hunting.

I stopped writing formal general references many years ago because the practice seemed to have lost almost all credibility with employers.

Instead, I now agree to be a ‘referee’ and will only write a formal reference when an employer requests one.

But over the past couple of years I have been getting more requests for ‘recommendations’ from my connections on the social-professional network LinkedIn.

Not wanting to offend my former students and colleagues, I have obliged. Until now. I’ve investigated it further and have just written my final LinkedIn recommendation.

There are all the standard HR reasons why such recommendations are not worth a pinch of salt: they are time consuming, too general, and always glowing.

In 2009, Silicon Valley web strategist Jeremiah Owyang described LinkedIn recommendations as ‘puffery’.

“When I see recommendations on LinkedIn, my alarm goes off,” he blogged.

“I know most are not objective.”

LinkedIn responded to his criticisms on their official blog, with Adam Nash highlighting the benefits that can come from recommendations. He claimed the process could be mutually rewarding for the recommender and recommendee.

Perhaps so, but others have explored the employment law issues of the practice.

Employment attorney Shay Zeemer Hable offers a host of reasons why such references are fraught in labor law – with claims of defamation and unfair dismissal heading the list.

“Every discrimination plaintiff seeks to prove his employer is lying about the reason for the firing,” he writes.

“As a result, savvy attorneys will search the Internet for any comment that is inconsistent with the company’s official message about the reason for the termination.

But the area that concerns me most is defamation.

It’s not because of the risk of defaming the person you are recommending. My understanding is that they have to approve your recommendation before posting it, so I can’t imagine someone letting a disparaging comment slip through.

My concern is more with the impact of a glowing LinkedIn recommendation on the defamation defence you need to protect your harsh comments in the real reference you give later.

What happens if you later contradict your original glowing recommendation in your frank verbal or written advice to the employer when they contact you about this person you have recommended?

Australian law provides a strong qualified privilege defence for the negative job reference -restricted to those who have a genuine legal interest in knowing the your truthful opinion about a prospective employee.

But, as the Legal Services Commission of South Australia explains, it requires the ‘publisher’ – he or she who has written the reference – to have acted in good faith and without malice. You also need to believe in the truth of the material you are providing about the individual.

That could be damaged in a major way if the plaintiff can point to your contradictory glowing recommendation on LinkedIn, particularly if it covers the same aspects of their character.

A court would be hard pressed to find you have acted in good faith if you have offered conflicting versions of your opinion about the employee in separate ‘publications’. Exactly when were you giving your honest opinion?

I might be drawing a long bow here – and perhaps some readers can point me to some cases where this has been tested – but for the moment I certainly won’t be writing any more LinkedIn recommendations, and I will be directing my colleagues and students to this blog to read my reasons.

I’d be interested to hear your views.

© Mark Pearson 2011

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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