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New course helps manage social media risk


Griffith University has issued the following release on our fully online global social media law course which I will be teaching from March 2015.


New course helps manage social media risk

Managing your social media risk and protecting your brand is the focus of a fully online global social media law course to be offered at Griffith University from March 2015.

Social Media Law and Risk Management is aimed at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management.

“It addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies,’’ says course convenor Professor Mark Pearson.

“The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in averting communication crises.

“It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business and the general public.”

Professor Pearson is the author of Blogging and Tweeting Without Getting Sued – A Global guide to the Law for Anyone Writing Online, co-author (with Mark Polden) of The Journalist’s Guide to Media Law and the Australian correspondent for Reporters Without Borders. His Twitter handle is @journlaw.

Social Media Law and Risk Management is offered online as a stand-alone course or as part of a suite of four courses in the Graduate Certificate in Crisis Communication for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

Media Contact: Deborah Marshall, 0409 613 992, d.marshall@griffith.edu.au


Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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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Griffith Uni to offer online global social media law course


WE are now taking applications for a fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.



Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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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A taste of PR law #publicrelations #auslaw


I have just completed a legal chapter for a public relations text edited by colleague Jane Johnston. In researching the chapter I came across several Australian cases where PR practitioners had found themselves in legal tangles. Here is a taste of them, but you’ll have to wait for Jane’s new book to get more detail!

According to the Australasian Legal Information Institute (www.austlii.edu.au), the term ‘public relations’ has only been spoken 10 times in High Court judgments, with none of the cases having public relations as a key factor in the decision-making. The mentions did, however, give some indication of the way our leading justices viewed the profession and some hints of the legalities of PR. For example, the 2004 case of Zhu v Treasurer of NSW [2004] 218 CLR 530 involved a dispute between the Sydney Organising Committee of the Olympic Games (SOCOG) in 2000 and a sub-contractor who had been licensed to market an “Olympics Club” package to residents of China. ‘Public relations’ formed part of the intellectual property he was licensed to use, which included “letterheads, stationery, display materials and other advertising, promotional and public relations materials approved by SOCOG to promote the Olympic Club” (para 59).  The case establishes both contract law and intellectual property law as important to the role of PR professionals.

In Sankey v Whitlam (1978) 142 CLR 1, the High Court identified the importance of keeping secrets and confidentiality in government media relations.  Acting Chief Justice Gibbs quoted an earlier British case where Chief Justice Lord Widgery had acknowledged the practice of ‘leaking’ as a PR tool: “To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable.”(para 41).

The term ‘public relations’ has been used much more frequently in other courts and tribunals, with Austlii returning 1387 mentions of the term across all its case law databases. It was used in a host of contexts, including defamation, confidentiality, industrial relations, PR advice as lawyer-client privilege and whether public relations expenses could be claimed as part of a damages claim.

Here is a sampler:


Words spoken at a media conference in Adelaide were at the centre of a defamation action in 2012. A Hindley Street nightclub owner sued a neighbouring travel agency operator over a statement she had uttered almost two years earlier in the midst of a media conference he had called to announce an initiative to increase public safety and reduce violence in the central Adelaide precinct. He alleged the travel agency owner had announced loudly to the media gathered at the conference that he – the nightclub owner – was responsible for all the violence in Hindley Street. After hearing from several witnesses (including the nightclub’s public relations consultant) the District Court judge found for the defendant. He said it was more likely the interjector had not made such a blatant defamatory allegation against the nightclub owner and, even if she had, he would only have awarded $7500 in damages. There was no evidence of any actual recording of the words she had spoken despite numerous media representatives being present at the time: Tropeano v. Karidis [2012] SADC 29.

In a Western Australian case in 2006, the consultancy Professional Public Relations (PPR) was ordered to provide all records they had about a DVD recording criticising a proposed brickworks which the director of a building materials company claimed made defamatory statements about him and his company. He suspected a rival building materials company – a client of PPR – was behind the production, and wanted this confirmed so that he could commence legal action: Bgc (Australia) Pty Ltd v Professional  Public Relations  Pty Ltd & Anor [2006] WASC 175.


The most famous sub judice breach in a PR context came in 1987 when former NSW Premier Neville Wran called a media conference where he stated that he believed his friend – High Court Justice Lionel Murphy – was innocent of serious charges he was facing. Sydney’s Daily Telegraph published the comments under the heading ‘Murphy innocent—Wran. Court orders retrial’. Both Wran and the Daily Telegraph were convicted of contempt, with Wran fined $25,000 and the newspaper $200,000: Director of Public Prosecutions (Cth) v. Wran (1987) 7 NSWLR 616.


Nine Network’s A Current Affair program had to pay $25,000 in damages to a property owner in 2002 after they had been invited by the Environment Protection Authority to accompany them when raiding his property for suspected environmental offences. The crew had cameras rolling as they entered the property and confronted the owner. The court held there was an implied licence for journalists to enter the land to request permission to film, but not to film without permission. The court also warned public authorities not to invite journalists on such raids, known as ‘ride-alongs’: TCN Channel Nine Pty Ltd v. Anning [2002] NSWCA 82.

Contract law

A West Australian District Court case involved a consultant to a South African mining company considering buyouts or mergers with other mining companies. The dispute surrounded a “partly written, partly oral and partly implied” agreement to provide “public relations, lobbying, consulting, networking, facilitating and co-ordinating” services: Newshore Nominees Pty Ltd as trustee for the Commercial and Equities Trust v. Durvan Roodepoort Deep, Limited [2004] WADC 57. The problem was that very little was detailed in the agreement, forcing the judge to look at previous work done by the consultant and to come to an estimate of the number of hours he had worked and their value on this occasion. He accepted that an agreement had been reached, and concluded that $250 per hour was a reasonable sum for the services provided, but could not accept that the consultant had worked 14 hour days for 64 days. Instead, he awarded him $830 per day for eight weeks, totalling $33,200 plus expenses.

Consumer law

The public relations consultancy Essential Media Communications used Victorian consumer law to win a Supreme Court injunction to stop another PR firm – EMC2 – from using that abbreviation of their name. They claimed it could ‘mislead and deceive’ their clients, some of whom knew them by that acronym. The court also accepted Essential Media Communications’ argument that EMC2 might have been ‘passing off’ their business as that of the plaintiff:  Essential Media Communications Pty Ltd v EMC2 & Partners [2002] VSC 554. The Federal Court issued an injunction in similar circumstances in an earlier case to stop a public relations company using the name “Weston”, when an existing consultancy was already operating under that name: Re Weston Communications Pty Ltd v Fortune Communications Holdings Limited and the Weston Company Limited [1985] FCA 426.

© Mark Pearson 2013

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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Tweeting and questioning free expression


It’s gratifying how well students seem to advance their understanding of free expression issues by tweeting about them and extending their inquiry through deeper questions.

Some months ago I unveiled a new media teaching law aimed to help students update their knowledge while triggering key questions they might explore.

Since then I’ve trialled it with one university class and have redesigned it for my new crop of students this year.

It involves students completing their weekly chapter readings from their text and, firstly, tweeting to the class hashtag (#MLGriff) a recent development in that topic area (perhaps a news story, court case, report or blog). Next, they frame an extension question from their textbook – something they still wonder about after reading the chapter.

Our first topic for the year was Freedom of the Press and more than 100 students came up with some excellent resources and questions for discussion.

Their tweets on new developments can be grouped broadly into:

  • Australian updates (High Court free speech decisions, media regulation push, access to detention centres, and Assange’s rights as an Australian citizen);
  • International updates (Greek and Somali crackdowns, Hong Kong protests, Vietnam and Burmese censorship, Mexican murder of a journalist, British campaign against seditious libel, Turkish PM’s media threats); and
  • Social media implications (YouTube bans, Facebook’s news push, social media as the Fourth Estate, unmasking trolls, cloud censoring and Twitter as a polarising agent.)
  • Some of the students’ questions would make excellent topics for future blogs, while others would need a PhD thesis to explore.

Here is a selection, credited to the students who asked them of course:

–       Why has the Australian Federal Government not codified freedom of the press laws despite the High Court making a number of rulings on the issue over the past 20 years? (Christopher Young)

–       As Australia does not have a bill of rights guaranteeing the protection of free expression, how heavily can journalists rely on government support? (Tiarna Lesa)

–       Although lying is not a crime, should it be protected speech for politicians? (Emma Lasker)

–       In a global community, fuelled by the Internet, is it sustainable or viable for some countries to have greater restrictions on the freedom of the press and freedom of expression than others? (Jessica Payne)

–       Has social media and freedom of speech and the press in Australia given us too much liberty to be opinionated – to the point where it becomes difficult for government to make popular political decisions? (Annabel Rainsford)

–       Do the current laws of freedom of speech cover every aspect of the Internet or social media or should new extensive laws be put into place? (Michelle Roger)

–       With no professional awareness of media law and ethical boundaries, can citizen journalists be treated as harshly in the legal system as qualified journalists? (Michaela Eadie)

–       Does freedom of speech protect victims of crime and their families? (Kristy Hutchinson)

–       Are laws that assist the freedom of the press too lenient in a time where false information can be so easily disseminated and seen as factual? (Simon Eddy)

–       Is popular opinion the difference between freedom of speech and vilification? (Ashley Pearson)

–       In the aftermath of Wikileaks and Julian Assange, how has the public’s perception of freedom of the press changed? (Jacob Blunden)

–       How has each country’s political, cultural and historical background influenced their view on freedom of the press? (Emma Knipe)

–       To what extent does the media influence our thoughts and our ability to make informed decisions ourselves? (Harrison Astbury)

–       What are the legal consequences of cyber-bullying? (Angela Eisentrager)

–       Should Australian politicians be allowed to hide behind parliamentary privilege and not be subject to the same laws as other citizens? (Ranui Harmer)

–       Why does Australia have a higher Press Freedom ranking than the US when America has a Bill of Rights? (Jess Henderson).

I hope you can appreciate how much more animated the discussion was in our tutorials when students had thought so deeply about the issues and the key questions. Their tweets added material for fresh examples for their arguments.

It’s a recipe for deeper learning – for the students and me!

Follow us at #MLGriff as we work through media law topics over the next three months. The next topic is Open Justice and the students’ tweets have started to roll in. Chime in with a comment or example if you have one to share.

[The latest rubric follows. Feel free to borrow or adapt it with due credit.]


Media Law (Two hard copies needed at start of lecture/tute each week – one for your reference and one to submit. Not accepted by email, sorry.)


Date and topic this week:


YOUR ORIGINAL TWEET ON THIS WEEK’S TOPIC. Must include insightful comment and/or link to recent case or article on topic. NB. INCLUDE IN TWEET:  #MLGriff @journlaw











Criterion Poor Fair Good Excellent
Understanding of chapter readings        
Link to a recent development on this week’s chapter topic        
Clear and simple Tweet, perhaps with a witty twist?











Criterion Poor Fair Good Excellent
Understanding of chapter readings        
Important extension of inquiry BEYOND those readings        
Clear and simple question structure        

Other comments:












Example of EXCELLENT question on Defamation: “How has the High Court dealt with the political qualified privilege defence since the textbook was published in 2011?”

Example of POOR question on Defamation: “What is defamation and give an example?”


© Mark Pearson 2013

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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I’m heading to Griffith U as Professor of Journalism and Social Media


After 24 fulfilling years at Bond University I am leaving to take up a position as Professor of Journalism and Social Media at neighbouring Griffith University.

This Friday, December 21, will be my last day at Bond U and I will take a few device-free weeks of long service leave before starting at Griffith U on February 4, 2013.

You would appreciate my mixed emotions after almost a quarter of a century at the one institution.

I was lucky to be part of the foundation staff at Australia’s first private university in 1989 and have worked with a host of great people over those years to build a credible Journalism program, culminating in the wonderful ‘J-team’ of colleagues I’m leaving this week.

That said, I’m excited by the role I’ll be taking up at Griffith U and am looking forward to joining the faculty there. I’ve collaborated with at least four of my Griffith colleagues on research projects previously and am keen to resume old friendships and start new ones.

As a journalist I am hesitant to claim ‘firsts’, but I can’t find another “Professor of Journalism and Social Media” on a Google-search, although there are a few professors of social media internationally. Please let me know if you find one out there! Of course, I’ll be specialising in the social media law, ethics, risk and policy space in my social media research and teaching and make no claim to be expert in all things social media.

My teaching timetable has already been decided and I’m able to devote my first semester to lecturing and tutoring in my primary field of media law.

My new email address will be m.pearson@griffith.edu.au , but meanwhile you can contact me at journlaw@gmail.com.

I’ve packed 24 years worth of books and papers into boxes to move up the motorway to my new office at Griffith U’s Gold Coast campus, just a 30 minute drive away.

Then it’s Christmas festivities with the family and three weeks of R&R in our motorhome exploring the north coast of New South Wales over summer.

It’s a great life, and I wish you a peaceful and safe festive season.

My journlaw.com blog will resume in February and I’ll also return to the Twittersphere about then @journlaw from my new home at Griffith U.

Best wishes!

Mark (@journlaw)

© Mark Pearson 2012


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The @journlaw slide presentation to the World Public Relations Forum #wprf


The World Public Relations Forum was held in Melbourne this week and I participated (with Claire O’Rourke from Essential Media) in a feature presentation on social media law and ethics for public relations practitioners. Here are my slides from my presentation on ‘Blogging and Tweeting Without Getting Sued’ for your use (with full attribution, of course). I hope you find them helpful.



© 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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A question and tweet-driven approach to deeper media law learning


What’s in a question? A whole lot of learning, if you ask students in my Ethical and Legal Strategies for the Media class this semester.

It has always been a challenge to get students to digest and understand the relevant chapter readings for the week’s lecture topic. Over the years I have experimented with a range of assessment tools to do so, including the traditional law school ‘fictitious fact scenario’ problem-based approach, end of chapter exercises and responses, and mini-quizzes on the chapter contents.

This semester I have developed a two-step weekly assignment which has generated some lively in-class discussions based upon a genuine depth of understanding of the material among most students.

Students are required to read the week’s chapter of the text and a. Compose a tweet including the subject code #hashtag referring their peers to a recent case, news report or commentary on the topic; and b. Compose an analytical extension question, demonstrating they have understood the chapter readings and have posed a question worthy of class discussion during the lecture session. They are graded on the quality of the question, as outlined in the rubric below.

I spend a few moments arranging the students’ questions into themes and then pose them, leading class discussion in place of the traditional Powerpoint-driven slideshow lecture. The slides are there as a backup, of course, to return to key foundational learning points, but most time is spent debating the potential answers to the questions students have raised. Here are some examples from the semester’s crop thus far:

  • As social media continues to satisfy society’s appetite for news and court reporting, will judge-only trials become more commonplace to ensure justice is done?
  • Can technology ever replace the role of court reporters?
  • Why would anyone decide not to sue for defamation after they have been defamed?
  • Are there any changes proposed for defamation laws to focus more closely on social media, particularly trolls?
  • What matters most – closed courts in sex cases to fully protect the ID of the victim or open courts to protect open justice?

Every one of these questions shows the student has understood the topic and grappled with a dilemma arising from it. Each could be the subject of a research project in its own right.

Universities are meant to be about constructing, researching and attempting to resolve such deeper questions. This exercise rewards students who apply analytical skills to journalism and social media law topics, and elevates the subject above the ‘black letter law’ approach that was the hallmark of media law courses in the 20th century.

I offer you the rubric for the assignment below. Feel free to use it, critique it and adapt it. File any feedback below. Cheers.

JOUR12-230 Ethical and Legal Strategies for the Media  (2 copies needed at start of lecture – one for your reference and one to submit. Not accepted by email, sorry.)

Date and topic this week:


Your tweet on this week’s topic. (Compulsory). Must include insightful comment and/or link to recent case or article on topic TWEET:



…#JOUR12-230 @journlaw



Criterion Poor Fair Good Excellent
Understanding of chapter readings        
Important extension of inquiry BEYOND those readings        
Clear and simple question structure        
Other comments:







Example of EXCELLENT question on Defamation: “How has the High Court dealt with the political qualified privilege defence since the textbook was published in 2011?”

Example of POOR question on Defamation: “What is defamation and give an example?”

Example of defamation tweet:

#Defamation suit pits casino owner against creator of ‘Girls Gone Wild’ – bit.ly/OXX3bq #freespeech #JOUR12-230 @journlaw

© 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 risks for journalists – the journlaw.com guide to staying safe in the Web 2.0 era


The latest edition of the Walkley Magazine is out – with the issue in the mail to subscribers and articles gradually being posted to its website. As a teaser, here’s my contribution on the legal risks of social media for journalists:


Journalists and bloggers face new legal pitfalls in the Web 2.0 publishing environment, writes MARK PEARSON

Industry upheaval has prompted many journalists to retool as bloggers, multimedia producers and social media editors – each with its own set of legal risks.

These roles present exciting new dimensions to journalism – conversations and engagement with audiences, instant global publishing at the press of a button, and new opportunities to share content. But they also present levels of legal exposure most twentieth century journalists did not envisage.

Most of the principles covered in the dusty old media law tomes on a journalist’s bookshelf still hold true for defamation, contempt and confidentiality, but their Web 2.0 application is still being clarified by the courts and reporters and editors need to be aware of their personal legal liability across a range of risk categories.

Old laws, new contexts

Defamation and contempt are still high risk areas for all publishers and numerous judgments in Australia and abroad have established the rules apply just as readily to web and social media postings. Of course, damages awards might be limited if you tarnish someone’s reputation on your Facebook page to your small group of friends. But if your post prompts just one of them to cancel a lucrative contract with the victim, those damages might escalate quickly.

Twitter is still relatively new and the courts are grappling with its implications. For example, judges are yet to decide whether you face any special liability when others retweet your message.  A conservative view would be that a retweeter takes over your liability by republishing – just as anyone forwarding an email did previously. But if your nasty remark goes viral on Twitter the courts might well decide that you should have anticipated republication when you tweeted the original message – because the retweet is so central to the medium. This is virgin territory.

There is still no actionable right to privacy in Australia, although several court decisions and law reform recommendations are moving towards a new statutory tort of privacy invasion. Breach of confidence certainly exists as a legal action and this has been extended in the UK to private information and circumstances.

Facebook comes into play here as journalists download and republish private data and photographs of individuals in the wake of a tragedy or in the midst of a controversy.

That practice also brings us to the murky world of intellectual property and copyright in social media where the media and bloggers have adopted a cut and paste approach to the words and images of others online. This defies the clear international legal position which is that ‘freely viewed does not equal freely used’.

Intellectual property is a double-edged sword. It’s amazing how some publishers will complain about the theft of their own words or images while their staff are madly appropriating the words and images of others online.

New risks in old newsrooms

The new roles journalists have embraced in their existing newsrooms and the changing ways their organisations work with user-generated content across platforms present other hazards.

Moderation of website and social media comment threads has become a new position description – with inherent legal responsibilities.

A recent West Australian case centred upon racist comments on News Limited’s Perth Now website about indigenous youths who had died in a car accident. The fact that the comments were seen and approved by a moderator influenced the Federal Court’s decision to order the publisher to pay the boys’ mother $12,000 compensation for her humiliation under the Racial Discrimination Act.

The landmark case in the field was ACCC v Allergy Pathways in 2011 where then Federal Court Justice Ray Finkelstein (yes, that Ray Finkelstein of media inquiry fame) held that a company was responsible for comments made by others on its corporate Facebook page.

He suggested the comments – in breach of consumer law – should have been removed within a reasonable time during a routine review process.

But what is a ‘reasonable time’ – and does that period differ in serious defamation, contempt or race hate examples? This raises the legal and industrial issue of whether social media editors should be expected to conduct 24/7 monitoring of comments by other citizens (perhaps nasty trolls) on their social media sites.

Journalists would be well advised to clarify this and other aspects of their social media use in the terms of their contracts and to seek input into the social media policies of their employers.

Some columnists have had their services terminated over their inappropriate social media use, but journalists struggle with the confusion over their workplace and private social media persona, given the fact they publish, blog and tweet under their real names.

Special exposure in new contexts

While some are taking on new digital roles in mainstream media outfits, many are offering their services on freelance or contract terms and others are taking up newly created positions in private enterprise or government.

These work environments typically lack the traditional media’s history of daily engagement with media law, including on-call advice from in-house legal counsel and a generous budget line for courtroom stoushes.

If you are a freelancer or contractor you would be wise to take advice on your own exposure and professional indemnity insurance options – something you didn’t need when you were on the payroll of a large media enterprise.

If you are taking up a new media position in a corporation or government department you should review your work contract carefully for evidence of the industrial consequences you might face if your writing, editing or production triggers legal action.

A defamation threat that might have appeared routine to your managing editor at a newspaper or television network might well be viewed as a crisis by your new corporate boss or public service chief and it might even place your job on the line.

As we wave goodbye to journalism as we knew it, opportunities are arising in the mainstream media and beyond.

Media law was always a core training requirement for cadets and journalism students. Now all journalists need to update and extend that knowledge so they can assess their legal exposure across a broader range of work environments and functions.

© 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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Why #Assange and journalists should not sue for #defamation



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


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


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


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


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


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


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


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


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


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


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


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


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


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



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

© Mark Pearson 2012

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


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My submission to the Tasmania Law Reform Institute on ID of sex crime victims


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

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


September 28, 2012

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

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

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

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

Important contextual considerations

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

Journalists’ training

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

News values, open justice and the role of court reporting

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

Public policy benefits of media reportage of sexual and juvenile cases

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

Free expression and freedom of the press

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

Media ethics and regulation

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

Privacy regulation and factors impacting media privacy intrusion

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

The Internet, social media and the Tasmanian jurisdiction

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

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

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

Court closure and judicial censorship are a threat to open justice

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

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

My suggested mechanism for reform of s. 194K

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

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

104C   Entitlement of media to hear proceedings

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

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

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

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

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

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

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

Yours sincerely,

Professor Mark Pearson

© Mark Pearson 2012

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

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