Tag Archives: law

July 30, 2013 · 8:41 am

Media law basics for election bloggers

[This blog was first published on the citizen journalism election site No Fibs, edited by Margo Kingston.]

Countless laws might apply to the serious blogger and citizen journalist because Web 2.0 communications transcend borders into places where expression is far from free.

Even in Australia there are nine jurisdictions with a complex array of laws affecting writers and online publishers, including defamation, contempt, confidentiality, discrimination, privacy, intellectual property and national security.

If you plan on taking the ‘publish and be damned’ approach coined by the Duke of Wellington in 1824, then you might also take the advice of Tex Perkins from The Cruel Sea in 1995: “Better get a lawyer, son. Better get a real good one.”

(A quick disclaimer: My words here do not constitute legal advice. I’m not a lawyer.)

The problem is that most bloggers can’t afford legal advice and certainly don’t have the luxury of in-house counsel afforded to journalists still working for legacy media.

So if you’re going to pack a punch in your writing you at least need a basic grasp of the main areas of the law, including the risks involved and the defences available to you.

Defamation remains the most common concern of serious writers and commentators because blog posts so often risk damage to someone’s reputation – but it does have some useful defences.

Political commentary has been much livelier over the past two decades since the High Court handed down a series of decisions conveying upon all citizens a freedom to communicate on matters of politics and government.

However, it is still refining its own decisions on the way this affects political defamation, and most of us aren’t as fortunate as Darryl Kerrigan in The Castle – we don’t all befriend a QC willing to run our High Court appeal pro bono.

That leaves us trying to work within the core defamation defences of truth and ‘honest opinion’ (also known as ‘fair comment’). (Of course there is also the defence protecting a fair and accurate report of court, parliament and other public occasions if you are engaging in straight reporting of such a major case or debate and a range of other less common defences).

Truth as a defence has its challenges because you need admissible evidence to prove the truth of defamatory facts you are stating – and you also need evidence of defamatory meanings that might be read into your words (known as ‘imputations’).

That can be difficult. You might have the photograph of a shonky developer handing a politician some cash – but you’d need more evidence than that to prove she is corrupt.

Serious allegations like these need to be legalled.

Harsh criticism of public figures can usually be protected by the defence of honest opinion or fair comment if you review the criteria carefully each time you blog.

This defence is based on the idea that anyone who has a public role or who puts their work out into a public forum should expect it to be criticised and even lampooned by others.

To earn it you will normally need to ensure that the target of your critique is indeed in the public domain. This covers criticism of such things as the quality and service of hotels and restaurants; reviews of creative works like music, books and artworks; critiques of sports and entertainment performances; and reflections on the role and statements of politicians and other public officials.

Your defamatory material needs to be your honest opinion, based upon provable facts stated in the material.

While facts might be provable, you obviously can’t prove the truth or falsity of opinions themselves, which are much more subjective in their nature.

As I explain in Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012) the law will not allow you to parade a fact as an opinion. For example, you could not write “In my opinion, Jones is a rapist and the judge must be demented”. In such a case, the court would view both allegations as statements of fact, and you would need to prove the truth of each. However, if you had drawn on provable facts to prove Jones had indeed committed serious sexual offences and had just been convicted of rape, you might write your honest opinion.

You might write something like: “The one year jail sentence Jones received for this rape is grossly inadequate. It is hard to imagine how someone who has caused such damage to this woman will walk free in just 12 months. Judge Brown’s sentencing decision is mind-boggling and out of all proportion to sentences by other judges for similar crimes. His appointment is up for renewal in February and, if this sentence is any indication, it is high time he retired.” This way you can express a very strong opinion within the bounds of this defence as long as you are basing your comments on a foundation of provable facts.

That is not to say that you can just say what you like and just add the clause ‘This is just my opinion’. The defence will succeed only where the opinion clearly is an opinion, rather than a statement of fact.

It must be based on true (provable with evidence) facts or absolutely privileged material (for example, parliamentary debate) stated or adequately referred to in the publication.

It must be an honestly held opinion, the subject to which it relates matter must be in the public domain or a matter of public interest, and the comment must be fair (not necessarily balanced, but an opinion which could be held, based on the stated facts).

Matters like the private conduct of a public official do not earn the defence unless the conduct affects the official’s fitness for office.

If the facts on which the opinion is based are not provable as true or not protected in some other way, you stand to lose the case. The facts or privileged material on which the opinion is based should normally appear in our piece, so the audience can see clearly where the opinion has originated and judge for themselves whether they agree or disagree with it. They can also be based on matters of ‘notoriety’, not expressed in the publication, although it is safer to include them.

The defence is defeated by malice or a lack of good faith, so forget it if you’re a disgruntled former staffer trying to take revenge on your old boss.

Do all that and you can give that pollie the serve they deserve.

Fail to do it and you could lose your house and savings.

On a brighter note, the Media, Entertainment and Arts Alliance offers its freelance members professional indemnity and public liability insurance. See the details here.

———–

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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July 11, 2013 · 2:16 am

To have and to hold? Newspapers (just) surviving 12 years after this …

By MARK PEARSON Follow @Journlaw

I just found this piece I wrote for the Otago Daily Times in New Zealand for its 140th anniversary issue almost 12 years ago.

My brief was to gaze into my crystal ball and foretell the future for newspapers. Futurology is always fraught, but on reflection I think I called it reasonably well at the time. What do you think?

(Of course, it’s quite a different outlook now!)

——

‘To have and to hold: newspapers on way back’, Otago Daily Times, December 11, 2001, p. 39

By Mark Pearson

Five years ago the Internet seemed to have scripted the death of newspapers.

Here was a hypertextual, instant, multi-level, multimedia technology with the potential to spawn new communities, reinvigorate old ones, and to fulfill the roles of all preceding media in a single interactive device.

Predictions of the death of newspapers were so common during the dot.com boom they had become almost trite.

Converts to the Web thumbed their noses at newspaper executives and compared them with the bosses of the stagecoach industry at the turn of the last century: while the future of horses as a species was assured, their function as the primary form of transport was destined for extinction.

Writer and academic Neil Postman even ventured to question the future of journalism in the modern era.

“What is the problem to which the profession of journalism is the solution?” he asked.

Postman argued that in the nineteenth century, journalism answered the problem of scarce information, but by the end of the last millennium the problem had become a glut of information.

“The problem is how to decide what is significant, relevant information, how to get rid of unwanted information,” he said.

When applied to newspapers, others suggested the problem was exacerbated by competition from other media, the loss of the notion of “community” in modern society, and the increasing pressures upon the average consumer’s time.

Add to this the fact that media consumers in Western democratic nations had experienced more than 20 years of relative peace and prosperity (in other words, little of large-scale importance to read about) and it seemed there were few remaining reasons why anyone would want to buy a newspaper.

One scholar, the US historian C. John Sommerville, pointed to another inherent problem in the news media: it is the business of products like newspapers to make the front page every day look like their contents are important and relevant, even though nothing earth-shattering might have actually happened in the preceding 24 hours.

Sommerville argues that over time this has dulled audiences to the contents of news products, leaving them with a lack of trust in the relative importance of the day’s headlines.

In his book How the News Makes Us Dumb, Sommerville says the news makes citizens “dumb” by dissecting reality, leaving the public with no idea of what to make of our times.

Nevertheless, two important events in the recent past have changed much of that and have allowed newspapers the opportunity to recapture the attention and loyalty of ordinary citizens.

One was the dot.com crash, the other the events of September 11, 2001.

The collapse of the financial markets’ confidence in Internet companies sent investors and consumers back to safer, reliable and tangible media commodities. And the newspaper was as safe and reliable and tangible a medium as one could find.

Despite generally declining circulations and dwindling titles since the 1950s, newspapers had continued to hold, if not improve, their share of the advertising dollar in an increasingly competitive media market. And all along the way they were recognized as wielding tremendous influence over important decision-makers in society, and for setting the agenda for competing media outlets.

The dot.com crash restored advertisers’ confidence in the safety of a quarter page advertisement in the morning daily over the ethereal promise of a million hits on some start-up backyard enterprise’s web site.

Like a good old-fashioned bride or groom, the newspaper was something “to have and to hold”, and it was somewhat comforting for advertisers to know their quarter page ad in the Daily Planet was going to land on a finite, countable number of front lawns in its shrink-wrap cover before breakfast the next morning.

The terrorism attack on America on September 11 and its aftermath also found newspapers back in their element as a chronicle and interpreter of world-shattering news within hours of its occurrence.

Certainly, there had been a shift in the role of newspapers as a medium since their heyday reporting the Second World War in the 1940s.

Then, with radio as their only competitor, they were bringing the actual news of distant events to their readers.

On September 12, 2001, they still delivered that news, but they offered much more: graphic colour photographic coverage and pages of background information and analysis that other media could not match.

As I stumbled down my driveway to pick up my local newspaper on that historic morning, having just seen the news report on the television, I was amazed that my local newspaper had been able to produce several pages of coverage of an event that had not even happened when I went to bed the night before.

The sheer thought of producing a printed product of considerable sophistication within that timeline reminded me of why the newspaper, something most of us take for granted, once earned the nickname “The Daily Miracle”.

Newspapers the world over relished the opportunity to cover such an important happening and interpret it for their readers.

And readers appreciated it, with newspaper titles throughout the world returning record circulations since that event as readers sought out tangible details on the attacks and the ensuing war and looked to newspapers for reliable expert comment and analysis.

This important news puts newspapers in their element, and its scarcity over the past half century has combined with other factors to erode the daily reading habit.

Newspaper executives hope their extra investment in the terrorism coverage will win back many of those lost readers.

We have yet to see whether that strategy is successful, but either way it would be a brave soothsayer who would predict the imminent death of newspapers.

We live in hope that events like those of September 11 will not recur and that the world will soon return to relative peace.

Even if that scenario comes to pass, newspapers will not die in the short to medium term.

Their circulations might decline gradually, and the number of newspaper titles might continue to diminish.

But those that survive will continue to play an important role in democratic societies and their influence among decision-makers and power brokers will continue to exceed their actual circulations.

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June 19, 2013 · 2:45 am

Dealing with cybersquatters in your precious domain

By MARK PEARSON Follow @Journlaw

Since the advent of the Internet, profiteers have tried to exploit the registration of domain names of unwitting celebrities, businesses and organisations. Lawmakers are still trying to work out how to deal with this problem, and quite often there is absolutely nothing the courts can do because the offender lives in a different jurisdiction. Disputes often end up in the hands of international and national domain registration agencies who engage in arbitration between the parties to try to resolve the argument over who is really entitled to the name. The Internet Corporation for Assigned Names and Numbers (ICANN) will work with national bodies to withdraw a domain name from a cybersquatter.

It is in your best interests as a blogger to keep a close eye on your domain name registration and to register in advance any close wording variants, especially if you are using your blog to any commercial ends. You never actually ‘own’ your URL – you are only licensed to use it for a certain period by the registration body. Cybersquatters keep a close eye on the registration process and pounce once a popular name becomes available. They then use might use it for selling advertising, stealing your identity theft or trying to sell it back to you at an inflated price.

You can’t register every possible variation on the spelling of your name so some spyware and phishing operators register common misspellings of the URLs of famous people and corporations – a practice known as ‘typosquatting’.

Even trademark law is inconsistent in the area of domain names and courts will often not grant relief unless someone clearly demonstrates an intent in ‘bad faith’ to profit from the deception within the same jurisdiction as the victim.

The international dispute resolution processes for domain names might be less expensive than litigation, but they can be beyond the means of the ordinary blogger or small business. WIPO’s Arbitration and Mediation Center charges between US$1500 and US$5000 for their services, depending how many domain names are contested and the number of independent panelists needed for the adjudication. They claim they can process such claims within two months of filing. The domain name cases they have handled – listed here – make for interesting reading and feature many of the world’s leading brands winning URL registration back from shysters and spammers from remote corners of the planet.

Major social media network and blog hosts like Facebook and WordPress also have rules to deter you from registering under other people’s or corporations’ names. They claim they will act to shut down the offender’s account if the target person or organisation complains. But they are sometimes slow to respond and complaints get lost in their bureaucracies. PBS reported on the difficulties a Georgia mother faced removing a fake Facebook profile on her 13-year-old daughter. This was despite the social network’s Statement of Rights and Responsibilities requiring users to use their real names and not ‘create an account for anyone other than yourself without permission’. On the other hand, Twitter tolerates numerous impersonation ‘handles’ set up for comedic purposes. Its policy allows users “to create parody, commentary, or fan accounts”.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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May 30, 2013 · 2:12 pm

When jurors go ‘rogue’ on the Internet and social media …

By MARK PEARSON Follow @Journlaw

The term ‘rogue juror’ has been used widely and pejoratively to describe a range of juror actions running counter to judicial directions to restrict their inquiries and communications about a case to the court room and the jury room.

I was tasked with taking a close look at the phenomenon for our collaborative research project conducted recently to the Standing Council on Law and Justice via the Victorian Attorney-General and drafted a section around the following cases. Our full report – including elaboration on this material – can be viewed here. [Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., and Wallace, A. (2013). Juries and Social Media. A Report Prepared for the Victorian Department of Justice. Centre for Law, Governance and Public Policy, Bond University.]

While all such incidents involve jurors venturing beyond the courtroom in their communications during a trial, not all their actions are prejudicial to a trial and can be viewed on a continuum. At one extreme are serious transgressions such as a juror’s ‘friending’ of the accused on Facebook (as in was A-G v Fraill [2011] EWCA Crim 1570). At the other extreme are actions that still risk being counter-productive, but are far from ‘roguish’ behaviour and may well stem from a desire on the part of jurors to better perform their role. For example, jurors who search the Internet for definitions of terms they have been asked to consider are likely indulging in their normal method of research and inquiry and might consider such actions as fastidious rather than inappropriate. Between these poles on the continuum are a range of behaviours classified and exemplified here through recent cases in Australian and other jurisdictions.

In 2010 Reuters Legal, using data from the Westlaw online research service, compiled a tally of reported US decisions where judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. They identified at least 90 verdicts between 1999 and 2010 challenged over juror Internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period (Grow, 2010).

The Law Commission (2012) (p. 62) identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved Internet access or social media use. The section below is an attempt to classify these types of cases, with examples, according to their level of potential prejudice to a trial, although this is not a perfect science and experts will inevitably differ in their opinions on this.

Jurors using social media to communicate with parties to the case

The most famous case of this type was A-G v Fraill [2011] EWCA Crim 1570, [2011] 2 Cr App R 21. Joanne Fraill, 40, was sentenced to eight months in jail by London’s High Court in 2011 for exchanging Facebook messages with the accused in a drug trial while she was serving on the jury. She also searched online for information about another defendant while she and the other jurors were still deliberating. All this went against clear instructions from the judge to jurors to stay away from the Internet.

In June 2010, the West Virginia Supreme Court of Appeals granted a new trial to a sheriff’s deputy convicted of corruption, after finding that a juror had contacted the defendant through MySpace. (Grow, 2010).

Jurors commenting on social media during the trial

Harvard’s Digital Media Law Project recorded the case of attorney Frank Russell Wilson who was suspended from the Bar for 45 days for blogging about a burglary trial while serving as a juror. He had failed to disclose to the court that he was a lawyer (California Bar v. Wilson DMLP 1/23/09) .

An erstwhile Californian Superior Court Judge was called for jury duty in a murder case, and proceeded to email 22 fellow judges with progress reports on his experiences. His first e-mail stated: “Here I am, livin’ the dream, jury duty with Mugridge [the defense lawyer] and Jenkins [the prosecutor].” (Sweeney, 2010).

A juror used his smartphone to send eight tweets from an Arkansas case brought by investors against a company manufacturing building materials. He tweeted: “oh and nobody buy Stoam [the building product]. Its bad mojo and they’ll probably cease to exist, now that their wallet is 12 m lighter.” (Sweeney, 2010)

Tweets from the handle @JohnnyCho in 2010 boasted the owner was in a jury pool in Los Angeles Superior Court. He posted: “Guilty! He’s guilty! I can tell!” He was identified through his Twitter profile to be Johnny Cho, director of communications at a Los Angeles entertainment lighting company. The accused in the case was convicted and the court took no action against Cho (Grow, 2010).

Jurors commenting on blogs or social media after a trial has concluded

In Commonwealth v. Werner 81 Mass. App. Ct. 689 (2012) Appeals Court of Massachusetts, Plymouth, February 1, 2012 a variety of juror online behaviours were exhibited, including three jurors friending each other and two jurors posting comments to Facebook about their jury service. One also blogged about the case after the trial. The Appeals Court refused to set aside the conviction on this basis because of overwhelming evidence of the accused’s guilt.

Jurors using social media to seek responses or advice about the case

A UK juror was dismissed from a child abduction and sexual assault trial after she asked her Facebook ‘friends’ to help her decide on the verdict. “I don’t know which way to go, so I’m holding a poll,” she wrote. This was discovered prior to the jury starting its deliberations (Sweeney, 2010)

Jurors ‘friending’ each other on Facebook during trial

Retired Circuit Court judge Dennis M. Sweeney told the Maryland State Bar Association of an episode during the political corruption trial of Baltimore Mayor Sheila Dixon, over which he presided in 2009. Five jurors had ‘friended’ each other on Facebook and had mentioned the case in their postings, despite his explicit direction not to use Facebook (Sweeney, 2010). After he admonished them, a young male juror posted on his Facebook page, “F— the Judge.” Judge Sweeney said he asked the juror about the offensive comment and was told: “Hey Judge, that’s just Facebook stuff.” [Westlaw News & Insight website, 2010]

Given it is common behaviour among social media for people to ‘friend’ those with whom they interact in many situations, the challenge is for the courts to distinguish the often close relationships formed during an intense jury trial from other social contexts if they wish to establish juror duty as an exception to this common practice.

Jurors searching the Internet for information on the accused (“Trial by Google”)

The UK Attorney-General used the expression ‘Trial by Google’ in a recent speech to describe jurors’ use of Internet search tools and social media to conduct their independent investigations into a case (Grieve, 2013). He conveyed a dim view of the practice and cited instances where it had resulted in contempt convictions, including Attorney General v Dallas [2012] EWHC 156. There, a female juror was sentenced six months’ jail for contempt of court for conducting research on the Internet, including definitions of the word ‘grievous’ and a newspaper report of an earlier rape allegation against the accused, and had shared this with fellow jurors. The judgment [at http://www.bailii.org/ew/cases/EWHC/Admin/2012/156.html] provides an extended account of how the British courts brief juries about Internet use and manage transgressions.

A US District judge in Florida ordered the search of a former juror’s computer hard drive in 2013 after the juror revealed she had done Internet research each evening while hearing the federal criminal drug trial of reggae star Buju Banton. The order specifically asked whether the following words had been searched: “Pinkerton. Doctrine. Mark. Anthony. Myrie. Buju. Banton. Music. Reggae. Gun. Charge. Guilt. Verdict. Mistrial. Conspiracy. Cocaine. Narcotic. Drug. Possession. Hung. Jury.” The juror had told a newspaper: “I would get in the car, just write my notes down so I could remember, and I would come home and do the research.” (Ryan, 2013)

Jurors searching the Internet to better inform their role

In Benbrika v. The Queen [2010] [2010] VSCA 281(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2010/281.html) the Victorian Court of Appeal affirmed trial judge’s (Bongiorno, J.) handling of a situation where jurors had used Internet sites including Wikipedia and Reference.com seeking definitions of terms related to the terrorism trial (definitions the judge said were not substantially different from those stated in court). The Appeal court said the trial judge had found that “it was distinctly possible that they had interpreted his directions as meaning that they should not seek information about the case, rather than using the Internet for more general purposes” (at para 199). They noted the important difference between this kind of search and searching for “information that is both inadmissible at trial, and prejudicial to the accused”, which might prompt the discharge of a jury (at para 214).

However, in the US similar behaviour was enough for a Washington State Superior Court judge to declare a mistrial in a child sex case after a juror admitted researching on the Internet about witness coaching (Hefley, 2012).

Also in the US, Maryland’s Court of Special Appeals, overturned a murder conviction because a juror had searched Wikipedia for the terms “livor mortis” and “algor mortis” on and had taken printouts to the jury room, later discovered by the bailiff. The juror did not consider the action wrong: “To me that wasn’t research. It was a definition.” (Sweeney, 2010).

Jurors as citizens engaging in their routine social media behaviour during a trial

As social media becomes a part of everyday life, the courts are encountering the fact that ordinary citizens have adopted a routine use of social media which they carry into the court room. A visitor to the District Court in Sydney used a cellphone to take a photo of a family friend who was sitting in a jury panel – common social behaviour in other public places (Jacobsen, 2011). But she was charged with contempt and was fingerprinted, her phone was seized and she was granted bail but the charge was later dropped and signs were erected in the courthouse warning that no photography was allowed.

[Other cases of inappropriate access by British jurors include the following cited by the Law Commission (2012): Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5; Smith [2005] EWCA Crim 2028; Hawkins [2005] EWCA Crim 2842; Pink [2006] EWCA Crim 2094; Marshall [2007] EWCA Crim 35, [2007] Criminal Law Review 562; Fuller-Love [2007] EWCA Crim 3414; H [2008] EWCA Crim 3321; Thakrar [2008] EWCA Crim 2359, [2009] Criminal Law Review 357; White [2009] EWCA Crim 1774; Reynolds [2009] EWCA Crim 1801; Richards [2009] EWCA Crim 1256; Gibbon [2009] EWCA Crim 2198; Bassett [2010] EWCA Crim 2453; Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200; McDonnell [2010] EWCA Crim 2352, [2011] 1 Cr App R 28; Mpelenda [2011] EWCA Crim 1235; Morris [2011] EWCA Crim 3250; Yu [2011] EWCA Crim 2089; Starling [2012] EWCA Crim 743; Gul [2012] EWCA Crim 280, [2012] 3 All ER 83.]

References

Grow, B. (2010, December 8). ‘As jurors go online, US trials go off track.’ Reuters. Available: http://www.reuters.com/article/2010/12/08/internet-jurors-idUSN0816547120101208

Grieve, D. (2013, February 6). ‘Trial by Google? Juries, social media and the Internet. Speech by the Attorney-General at the University of Kent. Available: https://www.gov.uk/government/speeches/trial-by-google-juries-social-media-and-the-internet

Hefley, D. (December 12, 2012). ‘Juror’s ‘research’ forced mistrial in child rape case’, HeraldNet. Available: http://www.heraldnet.com/article/20121212/NEWS01/712129975?page=single

Jacobsen, G. (2011, September 8). ‘A quick click or two in court lands a young woman in the nick’, Newcastle Herald. Available: http://www.theherald.com.au/story/936338/a-quick-click-or-two-in-court-lands-a-young-woman-in-the-nick/

Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., and Wallace, A. (2013). Juries and Social Media. A Report Prepared for the Victorian Department of Justice. Centre for Law, Governance and Public Policy, Bond University. Available: http://www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/juries%20and%20social%20media%20-%20final.pdf

Krawitz, M. (2012). ‘Guilty as Tweeted: Jurors using social media inappropriately during the trial process’. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176634

Law Commission (2012). Consultation Paper No 209 Contempt of Court. Law Commission, London. Available: http://lawcommission.justice.gov.uk/docs/cp209_contempt_of_court.pdf

Ryan, P. (2013, March 5). ‘Judge wants to know if Banton juror typed any of these 21 words’. Tampa Bay Times. Available: http://www.tampabay.com/news/courts/criminal/judge-wants-to-know-if-banton-juror-typed-any-of-these-21-words/2107088

Sweeney, D.M. (2010). ‘The Internet, social media and jury trials: lessons learned from the Dixon trial’. Address to the litigation section of the Maryland State Bar Association, April 29, 2010. Available: http://juries.typepad.com/files/judge-sweeney.doc

…

© Mark Pearson 2013

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May 21, 2013 · 11:47 am

Moral rights – taking the high ground

By MARK PEARSON Follow @Journlaw

International conventions and the laws of many countries grant you ‘moral rights’ over your work in addition to your actionable economic rights over copyright. They give you the right to claim authorship of your work through attribution and also the right to object to any changes others might make to your work that might damage your integrity as the creator.

Even if you transferred the copyright in your work to someone else – as you might have done as a freelance blogger or if you were writing as an employee in a government or media organisation – you would still retain your moral rights as an author. This means you can take action against those who might put their own names to your work or those who have put your name to the work but have changed it to your disadvantage. It operates in part to protect you from unfair attacks and parodies where your work has been mutilated, distorted beyond recognition, or reproduced in a thoroughly inappropriate context that damages your honour.

It won’t protect ‘reasonable’ criticism of your work or any critique you have agreed to. It also does not prevent employers or clients leaving your name off work if you have contracted to allow them to do so. But it sends a warning to others that they shouldn’t mess with your work or republish it without giving you due credit. As a blogger, it also means you should be careful when writing parodies pretending to be someone else or denigrating their content and style by chopping and changing it to your satirical ends.

A recent Australian case resulted in the award of $10,000 in damages over a moral rights breach to international rap/hip-hop recording star ‘Pitbull’ (Armando Perez) by an Australian DJ and promoter who had altered one of his songs and played it automatically when his website was visited and at nightclub performances. Freehills executive counsel Melanie Bouton gives an excellent summary of the case here.

The issue of moral rights also raises copyright issues for the blogger or social media user writing under the name of someone famous – beyond the hazards we considered earlier in this book.

Many parts of the world have limitations on how you can use the name and image of others – particularly if you are making a profit out of it. These are often called ‘personality rights’.

In European and other civil law jurisdictions there are tough limits on how you can use the likenesses of others – all bundled up in the laws of privacy. You can’t just cut and paste someone’s photo from the Internet and use it in your blog – especially if it appears to be endorsing your enterprise in some way.

In common law countries like Australia and the UK there is an action called ‘passing off’ which can be launched against you if you have used someone’s name or likeness to imply they have entered into some commercial arrangement to endorse your product or service in some way. In its basic form, it offers simple protection to businesses against those who pretend to have some connection with them or endorsement from them. It has been extended in the creative arts to protect newspaper columnists from deceptive parodies of their work being published under their names in competing publications and also to protect the ‘pen-names’ of authors being used by their former employers after they have moved on to another title.

The US offers a property right known as the ‘right to publicity’ and several states have passed laws to extend its basic common law protections. It gives people the right to protect their name, image and other identifying features against commercial exploitation by others. However, like so many areas of US law, it is limited by the First Amendment so it usually only encompasses blatant cases of exploitation that lack a free expression rationale.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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April 4, 2013 · 10:41 am

A taste of PR law #publicrelations #auslaw

By MARK PEARSON Follow @Journlaw

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:

Defamation

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.

Contempt

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.

Trespass

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

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March 14, 2013 · 6:06 pm

‘Self-regulation’ oxymoron heralds the era of ‘death by a thousand consent forms’ #mediareforms

By MARK PEARSON Follow @Journlaw

The oxymoron in the name of the proposed media reform legislation says it all: It is the “News Media (Self-regulation) Bill 2013”. (See here).

Here we have a piece of legislation proposing a statutory mechanism for the supervision of industry-based self-regulation of print and online news media.

That, dear readers, is “regulation”.

Just as it is troubling when proposed legislation purports to be what it is not, it is of even greater concern when a government moves to rush such laws through Parliament in just one week.

This blog is about media and social media law and regulation and their impact on free expression – not about politics.

But it is politics that has cruelled this whole media regulation review over the past 18 months.

The Independent Media Inquiry, chaired by former Federal Court justice Ray Finkelstein, was mired in politics when it was announced in late 2011 against the backdrop of both Labor and Greens stoushes with Murdoch titles.

And it seems to be politics that is now driving the desire to enact ‘something’ in the life of this government.

But that ‘something’ is problematic on a range of measures.

The basic ‘self-regulatory’ proposal is that a Public Interest Media Advocate be appointed with the power to declare bodies like the Australian Press Council to be a suitable ‘news media self-regulation body’.

If such bodies do not meet the government-appointed Advocate’s criteria, their member media outlets would be stripped of their current Privacy Act exemptions – leaving them exposed to potential privacy compensation orders and a bureaucratic reporting regime that would cripple their news operations.

At present, media organisations just have to be signed up to the Press Council or an equivalent body and be ‘publicly committed to observe’ its privacy standards.

If a media company falls foul of the self-regulator, refuses to join one, or joins one that does not meet the requirements, then the new Public Interest Media Advocate would have the power to strip them of their Privacy Act exemption under Section 7B(4) – leaving them obliged to follow all the privacy protocols associated with ‘obtaining, keeping and disclosing of personal information’ related to any of their stories and photographs.

This would leave the newspaper or online news company having to get every person in a group photograph to sign consent forms and to refrain from publishing sensitive personal information about people like their financial dealings, medical conditions, employment history and a host of other material commonly appearing in news stories.

They would also have to go to the expense of safely storing all the personal information they gathered for news reports and deal with requests from individuals who might want to withdraw their permission for them to retain that information about them.

There is no ‘public interest’ exemption to this requirement under the Privacy Act – other than formally seeking a ‘public interest determination’ from the Privacy Commissioner in a specific case.

Of course, there may be other protections for investigative reporters – perhaps the permission to publish details already released under the privacy provisions of Freedom of Information laws, and of course privileges extending to material tabled in court or Parliament.

There might also be an argument that the High Court’s implied freedom to communicate on matters of government and politics might apply to some private information in limited circumstances, although recent decisions from that court seem to render that freedom problematic and dependent on the views of individual judges.

There is a long principle ‘against prior restraint’ in our legal system – shackles by governments and courts to stop the news media before they have the opportunity to publish something.

The most famous example were the attempts in earlier centuries to license the printing presses – government measures opposed by famous statesmen and jurists like John Milton, John Stuart Mill and our own colony’s first Chief Justice, Sir Francis Forbes.

This proposal is for a system of de facto licensing because the statutory alternative to joining the self-regulatory regime would almost guarantee financial ruin for a newspaper company in this environment, when they are already facing huge challenges retaining readership and winning advertising in the Web 2.0 era.

The Privacy Act provisions would only apply to media companies earning more than $3 million per year – which is the threshold for corporations – and the proposed bill also offers a ‘small business’ exemption to its requirements.

This would potentially leave us with a two-speed news media – small operators, bloggers, citizen journalists and social media users sharing private information willy-nilly while larger news organisations falling outside the ‘self-regulatory’ regime are left to expend valuable time and resources filling out all that privacy paperwork.

Unlike other Western democracies, Australia has no written constitutional protection of free expression in the form of a Bill of Rights or a regional human rights document. The explanatory notes to the proposed laws go through the usual routine of giving a ‘Statement of Compatibility with Human Rights’, in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

But the imposition of the proposals on free expression is dispensed with in just three paragraphs excusing it because of its capacity for respecting the privacy and reputations of other citizens.

There is no doubt Australia’s media self-regulation can be improved, and there is even scope for some fine-tuning of media laws.

It is also evident that the Australian Press Council has markedly improved its systems and funding under the leadership of its chair, Professor Julian Disney.

There are already several hundred media laws in this country – enough to fill at least three major journalism textbooks in the field and several more in the specialist areas of torts, criminal law and intellectual property.

Even a tort of privacy invasion with a strong public interest exemption for journalism would be preferable to this proposal for a system of ‘death by a thousand consent forms’ for struggling news organisations who should have the right to be lone wolves and refuse to play the government’s game.

Call it what you like, but this Bill is not ‘self-regulation’.

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March 10, 2013 · 4:20 pm

Tweeting and questioning free expression

By MARK PEARSON Follow @Journlaw

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: Name:
*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?
*YOUR ORIGINAL ANALYTICAL EXTENSION QUESTION:*
Criterion	Poor	Fair	Good	Excellent
Understanding of chapter readings
Important extension of inquiry BEYOND those readings
Clear and simple question structure
Other comments:				Total %

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?”

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December 18, 2012 · 10:48 am

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

By MARK PEARSON Follow @Journlaw

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)

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November 27, 2012 · 9:21 am

Terror is no laughing matter – lessons from the #twitterjoketrial

By MARK PEARSON Follow @Journlaw

Twitter and Facebook are great outlets for one-liners and satire, but police and security agencies are not known for their sense of humour. Trainee accountant Paul Chambers, 27, learned that the hard way when he was arrested on UK terrorism charges for jokingly tweeting a threat to blow up a British airport. Air traffic was delayed by a heavy snowfall and Chambers was desperate to visit a female friend in Northern Ireland, so he light-heartedly tweeted to her and his 650 followers: ‘C***! Robin Hood Airport closed. You have got a week to get your s*** together, otherwise I’m blowing the airport sky high!’ Police swooped a week later and he was questioned on the terrorism charges before being convicted and fined £1,000 on a lesser charge of causing nuisance. He later won an appeal in the High Court when the Lord Chief Justice agreed it had been a humorous remark rather than a threat. The case became known as the ‘Twitter joke trial’. I’m fairly confident Chambers would not go through all that angst again over a not so witty one-liner.

Journalist, blogger, tweeter and lawyer David Allen Green ( @DavidAllenGreen ‘Jack of Kent’ ) spoke recently on the issue to the Open Rights Group.

Across the English Channel, 23-year-old unemployed Frenchman François Cousteix was surprised one evening to find French police and US FBI agents arrive at his front door. Operating under the name ‘Hacker Croll’, he had made it his hobby to access celebrities’ social media accounts just for fun. He had accessed the social media account of celebrity Britney Spears but came to international security agencies’ attention when he hacked into the Twitter account of US President Barack Obama. He escaped with a five month parole sentence.

There is a simple lesson from these cases: do not joke about national security matters.

Governments throughout the world ramped up their national security laws in the wake of the terrorist attacks on the US in September 2001. Even in countries with a high regard for civil liberties and free expression, new powers were handed to security agencies and police to aid in the detection and arrest of suspected terrorists. Pressure mounted in western democracies for even tougher laws after the Bali bombings in 2002 and 2005 and the 7/7 London attacks in 2005.

Publishing restrictions in the name of national security existed long before 9/11. Sedition and treason laws encouraging public unrest, violence and the overthrow of rulers date back to feudal times when governments tried to enforce loyalty upon ordinary citizens. While many countries have phased out these ancient crimes, such laws are still used in some places as mechanisms for intimidation and repression. Anti-terrorism laws were also used in western democracies well prior to 2001. The UK passed special laws to respond to Irish Republican Army terrorism throughout the 20^th century, while New Zealand introduced new restrictions after the French bombing of the Greenpeace boat the Rainbow Warrior in 1985.

But the early 21^st century attacks on the West triggered a wave of new anti-terror laws impacting on the free expression of journalists and Internet users. Hundreds of anti-terror laws were introduced in the first decade of the 21^st century under the banner of the so-called ‘War on Terror’.

America led the way with its USA ‘Patriot’ Act of 2001, in which the letters stand for: ‘Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism’. President Barack Obama’s administration extended the legislation for a further four years from 2011.

Others followed suit, including the UK, Canada, Australia and New Zealand. Ottawa software developer Momin Khawaja became the first person charged under Canada’s anti-terror laws but in 2011 challenged his conviction on constitutional grounds. In Australia, Belal Saadalah Khazaal was sentenced to 12 years in jail in 2009 for ‘making a document connected with assistance in a terrorist act’ after he created an e-book titled “Provisions on the Rules of Jihad” which allegedly targeted foreign governments and leaders. The High Court upheld his conviction in 2012.

There were too many anti-terror laws introduced internationally to detail here, but some can impact upon you if you are a cyber-journalist or blogger. They include:

Increased surveillance powers for spy agencies and police;
New detention and questioning regimes;
Seizure of notes and computer archives;
Exposing confidential sources to identification;
Closing certain court proceedings so they are unreportable;
Exposing bloggers to fines and jail if they report on some anti-terror operations;
Making it an offence to merely ‘associate’ or ‘communicate’ with those suspected of security crimes; and
Exposing bloggers and social media users to criminal charges if you publish anything seen as inciting terrorism.

Governments also go straight to search engines and ISPs and demand they remove material and, as Google’s Transparency Report documents, they often comply. But some have complained Google and Youtube have not responded quickly enough when asked to take down terrorism material. Burst.net certainly acted fast when the FBI advised it that some blogs it hosted under the free WordPress blogetery.com site contained terrorist material suspected of being used by the group al-Qaeda. It shut the site down, along with the 70,000 blogs it hosted. Blogetery resurfaced a month later under a different host.

The United Nations introduced a range of protocols that countries adopt minimum standards for combating terrorism. At the same time, the OECD acted to encourage Internet freedom by asking nations to open up cyberspace to freer and speedier communication. To the average blogger, the two positions might seem at odds.

A Mexican radio commentator and a maths tutor were jailed and faced a maximum 30 year prison sentence in 2011 on terrorism and sabotage charges after they tweeted false reports that gunmen were attacking schools in the city of Veracruz. The misinformation prompted parents to panic and some were involved motor accidents as they rushed to fetch their children.

“Here, there were 26 car accidents, or people left their cars in the middle of the streets to run and pick up their children, because they thought these things were occurring at their kids’ schools,” an official told Associated Press. The false reports followed weeks of gangland violence in the city.

“My sister-in-law just called me all upset, they just kidnapped five children from the school,” tutor Gilberto Martinez Vera allegedly tweeted. He followed that message with: “I don’t know what time it happened, but it’s true.” The other accused had retweeted the false reports to her followers. Experts described the tweeting as poor use of the medium, but not deserving of terrorism charges.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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