Tag Archives: journalism law

Danish expert explains European media law #MLGriff

By MARK PEARSON

Danish School of Media and Journalism media law associate professor Thomas Pallesen visited us at Griffith University this month and delivered guest lectures to my media law classes.

We recorded this interview where he explained the European approach to media law, particularly how courts strike a balance between the rights to free expression and privacy.

View the interview here [10 mins 05 secs, produced by Shenil Ranpura, Griffith University].

 

© Mark Pearson 2018

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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John Stuart Mill predicted the likes of Trump and the echo chamber #MLGriff

By MARK PEARSON

A passage by the great philosopher John Stuart Mill in his seminal work ‘On Liberty’ seems prescient almost 160 years after it was published. It offers insights into ‘false news’ in a ‘post-truth era’.

Much has been written about the sycophants who surround some leaders of politics and business, too fearful to suggest that their views might just be wrong or misguided.

In modern times some have suggested that nobody in the White House would dare question or debate the assertions US President Donald Trump emits daily via Twitter and at rallies of supporters. They have called it the “Emperor with no Clothes” phenomenon.

Related to this is the suggestion that social media and modern means of communication adds to the “echo chamber” where we accept as truth the rumours and assertions of those we “follow” or of commentators on the media channels that best suit our world view.

Again, it is said that the echo chamber for Trump and his supporters centres upon information and commentary in Fox News, which he has excluded from his rants against what he labels ‘fake news’ in other media.

While the communication media might have changed since 1859, there is nothing new about this, because Mill warned us of both phenomena in his landmark text.

I stumbled upon the passage this week when researching an address for a conference session and thought it was timely to share it with you here.

It offers important insights into our conceptions of “truth” and adds credence to better education in fact checking and source assessment, not just for journalists but also for the broader citizenry:

Absolute princes, or others who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects. People more happily situated … place the same unbounded reliance only on such of their opinions as are shared by all who surround them, or to whom they habitually defer: for in proportion to a man’s want of confidence in his own solitary judgment, does he usually repose, with implicit trust, on the infallibility of “the world” in general. And the world, to each individual, means the part of it with which he comes in contact; his party, his sect, his church, his class of society … Nor is his faith in this collective authority at all shaken by his being aware that other ages, countries, sects, churches, classes, and parties have thought, and even now think, the exact reverse. He devolves upon his own world the responsibility of being in the right against the dissentient worlds of other people; … Yet it is as evident in itself as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.” – John Stuart Mill (1859). On Liberty. London: John W. Parker and Son. [underscore added by author]

 

© Mark Pearson 2018 and John Stuart Mill 1859

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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Our surveillance chapter in the new book ‘In The Name of Security’

By MARK PEARSON

Friend and colleague Joseph Fernandez (Curtin University) and I teamed up to write a chapter on surveillance and the media for a new book published by Anthem Press.

Ours is one of eleven chapters in the book In the Name of Security – Secrecy, Surveillance and Journalism (Anthem, 2018), edited by our journalism education colleagues Johan Lidberg (Monash University) and Denis Muller (University of Melbourne).

For full details and ordering information, please go to the Anthem Press site here.

The book description and our chapter abstract are as follows:

The terrorist attacks on the World Trade Center in New York on 11 September 2001 saw the start of the so-called war on terror. The aim of ‘In the Name of Security – Secrecy, Surveillance and Journalism’is to assess the impact of surveillance and other security measures on in-depth public interest journalism. How has the global fear-driven security paradigm sparked by 11 September affected journalism? Moves by governments to expand the powers of intelligence and security organizations and legislate for the retention of personal data for several years have the potential to stall investigative journalism. Such journalism, with its focus on accountability and scrutiny of powerful interests in society, is a pillar of democracy.

Investigative journalism informs society by providing information that enables citizens to have input into democratic processes. But will whistleblowers acting in public interest in future contact reporters if they risk being exposed by state and corporate surveillance? Will journalists provide fearless coverage of security issues when they risk jail for reporting them?

At the core of ‘In the Name of Security – Secrecy, Surveillance and Journalism’ sits what the authors have labeled the ‘trust us dilemma’. Governments justify passing, at times, oppressive and far-reaching anti-terror laws to keep citizens safe from terror. By doing so governments are asking the public to trust their good intentions and the integrity of the security agencies. But how can the public decide to trust the government and its agencies if it does not have access to information on which to base its decision?

‘In the Name of Security – Secrecy, Surveillance and Journalism’ takes an internationally comparative approach using case studies from the powerful intelligence-sharing group known as the Five Eyes consisting of the US, Canada, the UK, Australia and New Zealand. Chapters assessing a selection of EU countries and some of the BRICS countries provide additional and important points of comparison to the English-speaking countries that make up the Five Eyes.

The core questions in the book are investigated and assessed in the disciplines of journalism studies, law and international relations. The topics covered include an overview and assessment of the latest technological developments allowing the mass surveillance of large populations including the use of drones (Unmanned Aerial Vehicles).

Chapter 3. Surveillance and National Security ‘Hyper-Legislation’ – Calibrating Restraints on Rights with a Freedom of Expression Threshold, Mark Pearson and Joseph M Fernandez:

The post-11 September 2001, era has unleashed a plethora of laws invoking national security and antiterrorism justifications that have severely compromised a range of human rights and civil liberties, including freedoms associated with expression and information access. Roach has described such laws as ‘hyper-legislation’ (2011, 310). Such legislation has inflicted often-unjustified constraints upon journalists and journalism. The overly broad antiterrorism laws potentially ensnare reporters covering security matters and have inflicted repeated blows on investigative journalism in recent times (Weisbrot 2016). Insufficient attention, however, is paid to the potential for these constraints to be informed and moderated by the constitutional and human rights frameworks in which such laws are enacted. There has been inadequate resolve to protect the public interest by ensuring that journalists and journalism are able to properly perform their professional duties and obligations. This chapter uses archival research, analysis of statutes and case law to examine how freedom of expression constitutional and human rights provisions in the Five Eyes democracies have, in reality, offered minimal protection to journalists and their sources – particularly in Australia, where a constitutional protection for freedom of expression is lacking. The absence of strong protections or the rampant undermining of existing protections, in the face of what Agamben (2005, 1) describes as an ongoing ‘state of exception’ in the post–9/11 war on terror, presents the need for new mechanisms to provide journalists and their confidential sources adequate protection to enable them to fulfil their professional obligations.

The authors argue that the long-held importance of freedom of expression in democracies moots for workable and explicit public interest defences to allow for the reporting of national security matters without endangering journalists or the sanctity of their obligations to confidential sources. The chapter undertakes a case study of Australia which, unlike the other Five Eyes intelligence alliance members – New Zealand, Canada, the United Kingdom and the United States – has no explicit constitutional or human rights framework to compel the courts or the Parliament to recognize the adverse implications of legislation upon free expression or a free media. The Australian courts and the Parliament have, however, acknowledged free expression rights, drawing upon free expression jurisprudence through the common law; an implied freedom to communicate on matters of politics and government; and the protocols for a non-binding review of the implications of proposed legislation upon human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). This chapter considers these processes against the backdrop of the First Amendment obligations in the US Constitution, the UK’s free expression protection under Article 10 of its Human Rights Act 1998, guarantees on free expression, free media and free expression under the Canadian Charter of Rights and Freedoms, and the free expression protection in New Zealand’s Bill of Rights Act 1990. The authors argue that, while each of these jurisdictions has national security laws that impact upon the media, each enshrines stringent checks upon the impacts of proposed legislation on free expression. The ongoing onslaught against freedom of expression under the banner of the continued state of exception, however, shows that the free expression protections offered by such rights instruments provide minimal protection to journalists and their confidential sources.

The chapter also reviews the use of specific devices to deny journalists and their work appropriate protections in fulfilling their professional duties and responsibilities, and weighs their efficacy in a national security and counterterrorism context. It identifies relevant terminology from case law and legislative instruments including defamation law, consumer law and privacy and shield laws, and assesses their potential value as exemptions or devices to better protect journalists in a national security context. In doing so, it draws upon some examples and cases from those jurisdictions.

Finally, the chapter reviews the extent of journalist and source protections in recent Australian national security laws and draws upon survey research to indicate their impact upon journalists. It recommends a key aspirational threshold that should underpin an objective public interest test to apply to journalism in a counterterrorism legislative context so as to better safeguard free expression, transparency in governance and protection for journalists’ confidential sources.

 

© Mark Pearson 2018

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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The long copyright battle over a monkey’s selfie

By MARK PEARSON

The booklet Understanding Copyright and Related Rights (WIPO, 2016) is an excellent entry-point for learning about the basic copyright principles applying globally. Any monkey would understand it.

Monkey selfie taken by Indonesian macaque named Naruto on equipment set up by photographer David Slater. Sourced from Wikimedia Commons. © disputed.

It explains that ‘copyright’ translates into ‘author’s rights’ in many other languages because it is the creator of the work—the ‘author’ of written works—who holds the right to reproduce their outputs.

The word ‘copyright’ in English refers to that act itself—the ‘right’ to ‘copy’ something you have created. As the holder of that right, you have the legal power to license others to do so as well.

A fascinating international example of the principle that copyright rests with the creator of a work is the Monkey case (2018). In 2011 an Indonesian monkey named Naruto – a crested black macaque – took a ‘selfie’ with camera equipment set up by wildlife photographer David Slater. Monkey see, monkey do.

Slater complained to Wikimedia Commons after the images were posted there, but they refused his demand that he take them down, arguing he did not hold copyright in the images because he did not actually take them – the monkey did (Wikimedia Foundation, 2014).

The basic principle stood: copyright rests with the human creator of a work (Monkey case, 2018).

However, the monkey did not get to claim damages for the photographer’s use of the work. The US Ninth Circuit Court of Appeals denied an application by an animal rights group to have the monkey’s copyright in the images formally acknowledged, stating that animals did not have standing. The photographer and the monkey (represented by animal rights group PETA) negotiated a settlement (Toliver, 2017).

Monkey case: Naruto Monkey PETA v Slater CA9 No. 16-15469 D.C. No. 3:15-cv-04324-WHO Opinion 04 23 18 < https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html >

Toliver, Z. 2017. ‘Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights’, PETA (People for the Ethical Treatment of Animals) website. [11 September.] < https://www.peta.org/blog/settlement-reached-monkey-selfie-case-broke-new-ground-animal-rights/ >.

Wikimedia Foundation (2014). ‘Monkey Selfie’, Wikimedia Foundation Transparency Report. https://transparency.wikimedia.org/stories.html

© Mark Pearson 2018

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 public isn’t allowed to know specifics about the George Pell case #MLGriff

By MARK PEARSON

This article was originally published on The Conversation. Read the original article.

File 20180320 31614 7icnee.jpg?ixlib=rb 1.1
George Pell emerges from court during his committal hearing on historical sexual offences.
AAP/Stefan Postles

Mark Pearson, Griffith University

Many Australians are left perplexed when media coverage of high-profile criminal cases is suddenly suspended or abbreviated “for legal reasons”. The current committal hearing of Catholic Cardinal George Pell on historical sexual offences engages the principle of “open justice” and some of its most important exceptions.

Coverage of such matters is restricted at various stages of criminal trials. This is because of the relative priority the courts and lawmakers have assigned to the principles of open justice and the administration of justice, and the competing rights of free expression, privacy and a fair trial.

What is ‘open justice’?

The principle of open justice dates back to at least the 12th century; it involves people’s access to observe the goings-on in a courtroom. It was later extended to the media as “the eyes and ears of the public” in court.

Australia’s High Court has ruled that open justice is of constitutional significance, and nothing should be done to discourage the media from publishing fair and accurate reports of what occurs in the courtroom. But, it added, the principle is not absolute.

An open court involving fair and accurate media coverage is thus the default position for Australian courts. The common law recognises only a limited number of well-defined exceptions. Lawmakers have developed hundreds more.

One important common law limitation is in the area of sub judice contempt. This puts a halt to prejudicial coverage of a criminal matter from the moment an accused is arrested or charged right through until the appeal period has expired.

Important restrictions here are upon any suggestion an accused might be guilty (or innocent), coverage of contested evidence that may or may not be put to a jury, coverage of earlier proceedings (such as preliminary hearings and royal commissions), interviews with key witnesses, details of any confessions, the criminal history or character evidence about the accused, and visual identification of the accused if that might be at issue in a trial.

Specific restrictions on court cases

Legislation in all Australian jurisdictions has placed a litany of further restrictions on attendance at – and reporting on – a host of situations. These include family law cases, juvenile cases, mental health proceedings and – most relevant here – sexual matters.

The statutory gags forcing closure of courts, banning of coverage, and de-identifying of parties vary in important ways. This is because lawmakers have placed a differing emphasis on the competing rights and interests.

For example, if Pell was facing his committal hearing in South Australia or Queensland, he could not even be identified until after he is committed to trial – if that eventuates.

Lawmakers in those states have decided the reputational damage attached to an allegation of a serious sexual offence is so damaging that an accused person should not be identifiable until it is proven there is at least a prima facie case to answer at trial.

In Victoria, where Pell’s committal hearing is taking place, the accused can usually be identified. However, other restrictions apply either under legislation or in suppression orders issued by a presiding judge or magistrate.

In no Australian jurisdiction can the victim (known as the “complainant”) be identified – directly or indirectly – in sexual matters. But the laws vary on whether they might be identified after proceedings with their permission or the court’s permission.

This means complainants who might have been identified in earlier coverage or proceedings are suddenly rendered anonymous from the moment the matter is “pending” – after the arrest or charging of a suspect.

Special protections apply to complainants during committal hearings involving sexual offences. This includes closing the court while victims give evidence.

A complex array of policy issues inform these kinds of restrictions. These include the perceived vulnerability of victims, their privacy, and the important likelihood that victims might not come forward to bring charges of this nature if they sense they might be in the media spotlight.

Do we need a rethink in the digital age?

Victoria has had more than its share of journalists and others falling foul of court restrictions through defiance or ignorance of the law.

Former journalist and blogger (now senator) Derryn Hinch has twice been jailed as a result of contemptuous coverage – once in 1987 for broadcasting prejudicial talkback radio programs about a former priest facing child molestation charges, and again in 2013 after refusing to pay a A$100,000 fine for blogging the prior convictions of Jill Meagher’s accused killer in breach of a suppression order.


Read more:
You wouldn’t read about it: Adrian Bayley rape trials expose flaw in suppression orders


Two ABC journalists were convicted of identifying a rape victim in radio broadcasts in 2007. They and their employer were later ordered to pay her $234,190 in damages in a civil suit for the invasion of her privacy among other injuries.

In 2017, Yahoo!7 was fined $300,000 for contempt after it published social media material about a victim and the accused. The publication forced the jury in a murder trial to be discharged.

Many of the restrictions on coverage are problematic in the digital era. Mainstream media are more likely to be charged with sub judice contempt than social media users because the large audiences of mainstream media mean their prejudicial coverage is more likely to reach potential jurors.

The cross-jurisdictional nature of digital publishing also renders journalists and social media users subject to the tangled web of restrictions on criminal justice reporting when covering a criminal matter from another state.

Court orders to take down earlier reportage on websites are typically futile, because online dissemination is so widespread. So, the bizarre situation exists where the prior character evidence and coverage of earlier proceedings still sits online for anyone to access with a simple search of an accused’s name.

This is problematic if a rogue juror decides to become a cyber Sherlock Holmes. It means we require better training of jurors.


Read more:
Trial by social media: why we need to properly educate juries


Suppression orders are also a problem because these are typically circulated only to mainstream media in the trial’s immediate vicinity. This leaves others blissfully unaware of the orders. Some orders – known as “super injunctions” – are so secret that even publication of the fact they have been issued is prohibited.

Victoria’s Open Courts Act was meant to reduce the number of suppression orders and inject an element of consistency to the issuing of these. However, it has been problematic.

The ConversationAt least the media are better assisted in the modern era. Court information officers help explain the various restrictions and keep the media well briefed in high-profile trials – as they have done in Victoria during Pell’s committal hearing.

Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith University

© Mark Pearson 2018

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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Contempt in the face of the court is no laughing matter – usually #MLGriff

By MARK PEARSON

The ancient charge of ‘contempt in the face of the court’ is alive and well, as I have found in the research for the next edition of our text The Journalist’s Guide to Media Law (with Mark Polden).

Almost any behaviour that disrupts the courtroom can be considered a ‘contempt in the face of the court’ – a charge directed at behaviour in the actual courtroom that interferes with the administration of justice. The Australian Law Reform Commission (1987: 3) defined ‘contempt in the face of the court’ as:

Improper behaviour in court. Anything done to interrupt significantly the smooth and appropriately dignified hearing of a case in a courtroom risks being treated as contempt and punished accordingly.

Examples have included outright physical assaults in the courtroom, verbal abuse, inappropriate dress, sleeping and even attempting to release laughing gas into the court building.

Two recent examples have included:

  • The Indigenous laughing case (2017). An Aboriginal land rights activist was jailed for two hours after defying a Gympie magistrate by laughing at him in the courtroom. Gary Tomlinson (also known as “Wit-boooka”) had challenged the authority of the court to hear public nuisance and trespass offences related to a protest at Gympie Regional Council.
  • NT homeless ‘genius’ case (2017). A homeless man, self-described genius and would-be mayoral candidate who continuously insulted court officers interrupted the judge, and disrobed in court was twice jailed for contempt in the face of the court in 2016 and 2017. His appeals failed against his total of five months’ contempt sentence and alleged bias by the judge.

Given that both cases involved citizens who appeared outside of the mainstream of society, it is worth monitoring future cases to assess whether the charge is being disproportionately used against vulnerable, alienated, outspoken or disenfranchised individuals.

Journalists and bloggers are warned to show respect in the courtroom. This extends beyond paying attention to the proceedings, remaining clothed and avoiding throwing projectiles at the magistrate.

Indigenous laughing case, 2017. Gorrie, A. (18 December 2017). UPDATE: Gympie activist serves two hours for contempt. Gympie Times <https://www.gympietimes.com.au/news/update-gympie-activist-serves-two-hours-for-contem/3293365/>

NT homeless ‘genius’ case (2017). Jenkins v Whittington [2017] NTSC 65. < https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nt/NTSC/2017/65.html>

 

© Mark Pearson 2018

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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Article 10 expert discusses free expression as a human right #MLGriff

By MARK PEARSON

It was a pleasure hosting two esteemed European media and law colleagues over summer.

Recently retired colleagues Emeritus Professor Dirk Voorhoof (University of Ghent) and Dr Inger Høedt-Rasmussen (University of Copenhagen) toured Australia and New Zealand, visiting law schools and media law colleagues along the way.

They recently formed the Legal Human Academy, an organisation based online from Denmark critiquing media law, human rights and legal education issues.

Professor Voorhoof is an acknowledged expert in Article 10 (free expression) rights and cases in Europe, so I took the opportunity to interview him about this for the benefit of media law students.

View the interview here [14 mins 41 secs, produced by Bevan Bache, Griffith University].

 

© Mark Pearson 2018

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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Filed under journalism, journalism education, media ethics, Media freedom, media law, Press freedom