Tag Archives: journalsim

September 19, 2012 · 8:55 pm

Tasmanian sex case ID proposals under scrutiny

An issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes – raises so many issues of relevance to my media law and ethics class that I have built a problem-based learning assignment around it.

The inquiry was triggered by coverage in the Hobart Mercury (see picture) in 2010 of prostitution of a 12-year-old girl by her mother and her mother’s male friend.

While the Mercury anonymised the identity of the girl and her mother, it named the accused male and listed several details that might have led readers with some knowledge of the accused or the family to identify the victim.

The barrister appointed as the girl’s representative in her care and protection proceedings, Mr Craig Mackie, wanted the newspaper charged for breach of the legislation prohibiting the identification of a sex crime victim (s194K of the Evidence Act 2001).

But the prosecutor’s office refused to act, arguing the identification was too indirect to breach the provision. Mr Mackie also sits on the Tasmanian Law Reform Institute board, and he referred the matter to that body for its review.

The issues paper covers some of the key topic areas covered in our media law and ethics subject –free expression, open justice, contempt of court, court reporting restrictions and privacy.

As part of our problem-based learning task, some students might file their own submissions before the September 28 deadline, while others will use their research to inform a reflective paper they submit as a class assignment a week later.

I might draw upon some of their research and insights in my personal submission to the inquiry – with due recognition to their efforts.

Media law tragics will find the Institute’s issues paper compelling reading.

On the one hand, it offers in a relatively brief 52 pages an excellent comparison of reporting restrictions in sexual crimes across several jurisdictions including most Australian states and the UK, New Zealand and Canada.

It also summarises the key cases in the field and quotes some of the leading judgments on the principle of open justice.

Yet my own submission will call into question several assumptions and gaps in the Issues Paper, including:

– Evidence of anti-media language and stance, betraying a fundamental assumption that journalists are out to expose sexual assault victims despite there being relatively few cases where they have done so (often accidentally).

– An old world ignorance of the advent of social media, citizen journalism and blogging, which have complicated the 20^th century approach to regulating news media coverage of sex crime cases.

– A similar pre-Internet approach to jurisdiction, seemingly working from the premise that publications about such matters are contained within Tasmanian borders.

– Disregard of the fact that the Commonwealth Government is considering major reform proposals on privacy law and media regulation, all of which are relevant to the media’s exploitation and exposure of vulnerable victims of sex crimes.

– Floating an extraordinarily proposition for prior restraint in such matters – that the media be totally banned from covering sexual cases and that a court should review and censor any proposed story about such a case pre-publication.

– Ignoring the fact that free expression has no constitutional guarantee in this country – unlike in all of the foreign jurisdictions used as a yardstick for comparison, each of which features either a constitutional guarantee or one contained in a bill or charter of rights.

A bizarre aspect of the 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.

It is ironic that someone who knew the family and those basic facts might well discover her identity via the Institute’s very own document.

I’ll publish my submission in a future blog.

© 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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Tagged as Australian media, blogging, censorship, contempt, copyright, defamation, First Amendment, free expression, intellectual property, journalsim, law, media inquiry, open justice, public interest, self-regulation, social media law, sub judice

September 11, 2012 · 10:08 am

Legal responsibility online: are you left carrying the can? ( #defamation #blogging )

By MARK PEARSON Follow @Journlaw

[Loosely adapted from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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The courts have long held that anyone having direct responsibility for a publication is legally liable for it, so if your blog or comment is on the website or social media site of another organisation, both you as the writer and whoever is hosting your work can be sued for defamation. (Some jurisdictions – most notably the US – offer strong defences to the hosts of third party comments.)

If someone edits or moderates your work before it is published, they too share the burden of legal liability. That happened recently to the News Limited website Perthnow, when it was ordered to pay $12,000 compensation to a West Australian mother over racist comments posted about her deceased teenage sons. The comments had been approved by a moderator.

If anyone republishes your work, through syndication or perhaps even through retweeting or forwarding your defamatory material, they also are also liable. Even someone who inserts a hyperlink to libellous material can be sued for defamation in some places, although the Supreme Court of Canada rejected this position in a landmark decision last year.

Plaintiffs will sue the writer, editor or host organisation for a range of reasons. Sometimes they just want to gag the discussion, so they issue a defamation writ to chill the criticism. This is known as a ‘SLAPP’ writ – ‘Strategic Lawsuits Against Public Participation’ – and in some countries they are simply thrown out of court as an affront to free expression. Others allow them. Plaintiffs often want to get the highest possible damages award from someone who can afford to pay it, so they might bypass the original impoverished blogger and sue the wealthier company that republished the material. Sometimes they enjoin all of them in their action, although this adds to their legal costs if they lose.

As the Australian High Court ruled in the Gutnick case in 2002, publication happens whenever and wherever someone downloads it. If you have published something defamatory about someone who is unknown in your own state or country you are probably safe from suit or prosecution until you travel to the place where they do have a reputation.

They would have to prove they could be identified from the material you posted. Of course, if you have named somebody they are identifiable, but what if you stop short of naming them but use other identifiers? For example, what if your blog questioned the ability of ‘a prominent 21^st Avenue cosmetic surgeon responsible for the fat lips and lopsided breasts of at least three Oscar winners’? You would be much better taking legal advice first and actually naming the surgeon if you have a solid defence available to you. Why? Because there might well be other surgeons who meet this description, and you would have a hard time defending a suit from them if you didn’t even know they existed.

If your description is broad enough you will normally be reasonably safe. So if you had made your description fairly general – ‘an LA cosmetic surgeon’ – the group would be too large for any single surgeon to be able to prove you were talking about them. (They say there are almost as many cosmetic surgeons as lawyers in LA!)

Of course, if you decide after taking legal advice to actually name someone you need to ensure you use enough identifiers to ensure they will not be mistaken for someone else. That’s why court reports in the news usually state the full name, suburb, occupation and age of the accused person. Otherwise someone by the same name might show their reputation was damaged by proving their friends and colleagues thought they were the rapist, murderer or drug dealer you were writing about.

Your legal responsibility might even extend to pressing the ‘Like’ button on Facebook, as courts struggle with the legal status of this symbol – even in the US. See some useful analysis of this here.

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

© Mark Pearson 2012

Digital #defamation: losing face on Facebook and the toll of trolls on Twitter

By MARK PEARSON Follow @Journlaw

[Loosely adapted from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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Defamation law everywhere requires proof that your publication has lowered someone’s standing in the eyes of at least one other person.

It must go to this third person before the ‘reputation’ can be damaged, because your reputation is your standing in the eyes of others.

In other words, if you insult someone in a direct message (DM) to them alone on Twitter, you have not defamed them. But if you repeat the slur to just one other tweep your victim might then have an action in defamation.

From that point on the laws of defamation (libel and slander) vary across jurisdictions, with falsity required as a starting point in some places and defences varying widely.

In many countries defamation is also a crime – known broadly as ‘criminal libel’ – used by some repressive regimes as a weapon of the State against free expression.

We have all seen how a major newspaper or television network can destroy someone’s reputation in an instant, but you might have felt comfortable saying what you like about someone to your handful of blog followers, your 20 Facebook friends or your tribe of chirpy tweeps.

Sorry, but as soon as you say something nasty about someone to a single Facebook friend or to your single Twitter follower you have defamed the victim of your comments. Most of the time this will just cause a little embarrassment to both you and them if they find out, but occasionally a single publication to just one other person can be devastating – and expensive.

If your comment (or defamatory material in some other form like an image or even perhaps a ‘Like’ symbol!) goes to a client of the victim it could cost them a multi-million dollar contract – and you’d be facing that bill in damages if your lawyers can’t find you a good defence.

The name David Milum might not be familiar to you, but he was a pioneer in defamation law … for all the wrong reasons. He ran a political website in Forsyth County, Georgia, and became the first US blogger to lose a libel case when in 2004 he wrote that an attorney had delivered bribes from drug dealers to a judge. The attorney won $50,000 in damages and the appeal court held in 2007 that bloggers and podcasters were just as liable for defamation action as other publishers.

Since then we’ve had the advent of social media and a litany of defamation cases across most platforms worldwide.

Courts can – and do – award substantial damages to someone who has been injured in some way because of your nasty posting. Perhaps they have been traumatised, their relationships have been damaged or they might have lost a lucrative contract. Even the fact that you didn’t mean to defame them will not protect you in most places. In those countries just your act of publication needs to be intentional, not your intent to damage the person’s reputation.

There are several exceptions to this. For example, ISPs usually have a defence to defamation on the websites they host unless the material has been brought to their attention and they have refused to take it down. In the US, this goes further under s. 230 of the Communication Decency Act to give full protection to ‘interactive computer services’, even protecting blog hosts from liability for comments by users. Careful here, though, because the discussants can be sued over their comments if they are identifiable via their IP (Internet protocol) addresses and the host might cough yours up, particularly now that lawyers and private investigators are getting more sophisticated in their digital discovery processes.

Bloggers often mistakenly thought their ISP or host site would be sued for defamation instead of them. Lancashire academic Tracy Williams used a pseudonym to defame a UK Independence Party candidate on a Yahoo! discussion board in 2004. She called him a sexual offender, a racist bigot and a Nazi, and escalated her abuse when he started legal action. The politician won a court order against Yahoo! to reveal her identity and in 2006 she became the first blogger to lose a libel action in the UK High Court and it cost her £10,000 in damages. And in 2011 Twitter was ordered by a Californian court to reveal to South Tyneside Council in the UK the personal details of five users who had allegedly defamed three of its councillors.

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

© Mark Pearson 2012

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Tagged as blogging, copyright, defamation, First Amendment, intellectual property, journalsim, law, public interest, social media law

August 24, 2012 · 4:08 pm

Your SM medium can affect your legal risk

By MARK PEARSON Follow @Journlaw

[Adapted from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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Your method and your medium can be important factors in your legal exposure. The simple fact is that some publishing platforms are more law-friendly than others. Sometimes this will depend on the type of material you are publishing. For example, there is an argument that Twitter users may be less prone to copyright infringement because the very nature of the medium limits the amount of another person’s work they can borrow and the retweeting function implies that everyone expects their work to be recycled by others.

However, on Twitter you may leave yourself more exposed in the area of defamation because there is so little space for you to give context and balance to your criticism of others. Longer, better argued critiques lend themselves to some of the fair comment defences in many countries.

Tweeting from an event as it unfolds, such as a conference or a court case, has its dangers because your tweets might contain errors in the quotes of others or might be taken out of context by someone just reading a single tweet rather than the overall coverage. And of course you tweet with the full expectation that your work will be spread far and wide, meaning any libellous material can cause considerable damage.

Publication on Facebook, however, might be restricted to just a few friends, particularly if your privacy settings are adjusted so that your comments are not viewable to the friends of your friends.

Remember, if someone reposts your work they are the ones republishing it, so they would in turn be liable. (A court may, of course, factor in to a damages claim the extent that you might have expected your material to be retweeted or reposted by others.)

The open blog has a potentially wide distribution network, but it also has quite cautious controls available to you when you use a host like WordPress. You should take advantage of opportunities to save drafts and proof-read your material in preview mode before proceeding to publication. Careful checking pre-publication can help you find accidental spelling mistakes and remind you of extra fact-checking you will need to carry out before pressing that magic ‘Send’ button.

If you have written your blog fairly and accurately it can go a long way to establishing a defence to defamation. Blogging is also about writing quality, so your mastery of the language and your selection of the most appropriate words can be crucial when defending a libel allegation if you have written a scathing review of a public event or performance.

You might take a moment to look over some of your recent blogs, tweets and Facebook postings. How well do they shape up?

And who is that trying to foist a legal document at you as your step out your front door? 😉

Is your blog ‘in the public interest’ or just ‘interesting to the public’?

By MARK PEARSON Follow @Journlaw

[Adapted from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

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Is your blog ‘in the public interest’ or just ‘interesting to the public’?

If something you have posted becomes the subject of legal action, lawyers, prosecutors and judges will usually look to your motives for publishing the material. In some places those motives can actually form a defence, while on other occasions your motives can be your undoing. But two are worth considering here because of their very different impact on the law – ‘public interest’ and ‘malice’.

Many statutes and court rulings use the expression ‘public interest’ as an element of a defence to a range of publishing crimes and civil wrongs. In such matters you would have to convince the court that some greater public good came from the material you published and that society benefited in some way as a result. You would normally need to show that any public benefit outweighed the harm that was caused by the publication, which is normally the reason you are called to account. For example, your defence to a defamation action might be that it was in the public interest that your audience learned of your corruption allegations against a leading politician, even if you could not quite prove that the allegations were true.

Many jurisdictions offer a ‘public interest’ or ‘qualified privilege’ defence for defamatory material about extremely important public issues but the publisher might not have quite enough evidence available to prove truth and other defences might not apply.

It’s important to distinguish here between matters of legitimate ‘public interest’ and other matters such as celebrity gossip which might be just ‘interesting to the public’.

Even so, under special protections in the US writers can get away with false publications about celebrities and other public figures as long as you are not being malicious in your attacks. Again, you need to be wary of less forgiving laws in other places, particularly if the celebrity has a reputation they wish to defend elsewhere – perhaps the Australian actress Nicole Kidman or the New Zealand film-maker Peter Jackson.

In other countries the public interest or qualified privilege defence normally requires you to show that you acted in good faith and made proper enquiries in the lead-up to your defamatory publication, despite being unable to prove its truth.

Journalists may be better positioned to make use of this defence than so-called ‘citizen journalists’ or amateur bloggers because they have been trained in research skills and verification practices.

However, there has been nothing to indicate that bloggers or social media users will not qualify for the defence because of what they do. In fact, the Minnesota District Court granted a Republican blogger Michael Brodkorb the same rights as a traditional reporter when he had cited an anonymous source to accuse a Democratic political advisor of self-interest.

In some areas of the law the words ‘public interest’ are not used, but the defence itself has come from a balancing of public interests against other rights. For example, copyright law in most countries has a range of ‘fair use’ defences so that parts of copyright material can be republished for the purposes of education, news or critique.

The defences exist because politicians have decided that there is a greater ‘public interest’ in the community being educated and informed about such important matters than in protecting the intellectual property owned by the creator of the work. As many judges have pointed out, ‘public interest’ does not equate with ‘interesting to the public’, and you should not be allowed to destroy someone’s reputation or invade their privacy simply because your gossip is particularly saucy.

By far the best known right to free expression is the First Amendment to the US Constitution. It states: “Congress shall make no law … abridging the freedom of speech, or of the press.” The US Supreme Court has interpreted the First Amendment very broadly and has applied it across media to a whole range of publishing situations. It certainly applies to the material bloggers, Facebook users and tweeters create – particularly if you are commenting on matters of public importance.

In a series of media decisions throughout the 20th century the Supreme Court allowed newspapers and broadcasters to use the First Amendment to bolster their defences against laws affecting their publications. This was especially useful in defamation law where a whole defence developed allowing the media to publish libellous material about a public figure as long as they did not know it was false and they were not being malicious.

The First Amendment is so entrenched in US society that bloggers sometimes operate under the assumption this same protection will apply in other parts of the world. Unfortunately, it does not.

Is deception in the public interest?

Sometimes bloggers will use the age-old journalistic excuse for deception – that it was in the ‘public interest’. That was the argument Cuban exile Luis Dominguez gave for adopting the guise of a 27-year-old female Colombian sports journalist to trick Fidel Castro’s son into sharing details of his opulent lifestyle. As the BBC reported, the blogger posted images and documents taken from his online flirting with 40-year-old Antonio who had a penchant for both sports and women.

“I’m a Cuban and I’m a Cuban American and I have not been able to go back to my country since 1971 when I left,” he told the BBC. “I use whatever tools I have to be able to get back at these people. In Cuba people are put in prison for no reason at all. Their rights are violated… So, why can’t I do the same thing to them? I have no remorse whatsoever.”

While ‘public interest’ might be a worthy moral motivation for your deception, it will rarely work as a defence in its own right, particularly if your actions are criminal. Get sound legal advice before relying upon it.

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Tagged as blogging, copyright, defamation, First Amendment, intellectual property, journalsim, law, public interest, social media law