Tag Archives: MEAA

June 19, 2014 · 12:51 pm

National security and anti-terror laws continue to threaten journalism

* This article was first published as ‘Terror on the books’ in the Walkley Magazine on May 29, 2014.

More than 50 anti-terror laws have been introduced by the Australian government since the September 11 attacks in the US in 2001, and they continue to impact on our coverage of national security issues and place journalists and their sources at risk.

No Australian journalist would want to see lives lost in a terrorist attack, but there is evidence that existing laws give police, security agencies and the courts too much power in monitoring media activities and suppressing reports that are in the public interest. Two major reports now confirm some of these existing laws are over-reaching.

The long overdue Council of Australian Governments (COAG) Review of Counter-Terrorism Legislation was released in 2013.

As well as recommending changes to basic definitions of terrorist threats and harm, it proposes there be more opportunity for judicial reviews of the agencies’ search and seizure powers, and introducing some safeguards to the control order system (a control order restricts where a person goes and who they can meet).

The committee suggested that the communications restrictions be eased to allow a person subject to a control order access to a mobile phone, a landline phone and a computer with internet access.

Most importantly for journalists, the review recommended the repeal of Section 102.8 of the Criminal Code dealing with “associating with terrorist organisations”. This reform would put beyond any doubt the likelihood of a journalist being convicted of this serious offence by just undertaking normal reporting duties.

Another major report came in November 2013 from Bret Walker SC, the Independent National Security Legislation Monitor (INSLM). It was his third report since being appointed to the review role in 2011.Walker repeated his earlier recommendation that ASIO’s questioning and detention warrants should be abolished and suggested improvements to the definition of a “terrorist act”.

He called for a simpler system of listing terrorist organisations and inserting an exception to the “associating with terrorist organisations” provisions for humanitarian groups such as the Red Cross.

While both reports focused on issues of natural justice and human rights, neither the COAG review nor the INSLM addressed the stifling of journalism in the anti-terror laws.

Sadly, there was little in the way of media lobbying to do so either. The COAG counterterror review received 30 submissions which it posted to its website, none of which were from media-related companies or journalism or free expression organisations.

The ripples of international security operations were also felt in Australia. In 2013 the Media, Entertainment & Arts Alliance wrote to Prime Minister Tony Abbott asking for a review of the extent of metadata surveillance conducted by governments in the wake of former US National Security Agency (NSA) contractor Edward Snowden’s revelations.

There was good reason to be concerned. At least three cases in recent years have shown how the confidentiality of journalists’ sources can be compromised by surveillance by security agencies or anti-terror operations.

The retrial of “Jihad” Jack Thomas on terrorism charges in 2008 was based partly on interview materials gathered by Sally Neighbour from Four Corners and The Age’s Ian Munro and subpoenaed by the prosecution.

It emerged in the trial that up to 20 telephone calls between Neighbour and Thomas had been monitored by an ASIO agent.

The issue of confidentiality of whistleblowers’ identities also arose in the aftermath of the convictions of the Holsworthy Barracks bomb plot conspirators in 2011. The Australian had published an exclusive account on the raids in the hours before they occurred. (The three convicted plotters lost their appeals against their 18-year jail sentences last year.)

The Australian’s Victoria Police source, Simon Artz, paid for his leaks to the newspaper in the Victorian County Court with a four-month suspended sentence for unauthorised disclosure of information.

It was not a good year for whistleblowers internationally. WikiLeaks founder Julian Assange is holed up indefinitely in Ecuador’s embassy in London as he avoids extradition to Sweden on sex charges (and feared extradition to the US over security leaks). His US Army source – Private Chelsea (formerly Bradley) Manning – was sentenced by a military court to 35 years in jail for leaking classified documents. Meanwhile, Edward Snowden had fled to Russia to avoid prosecution over his leaks.

The whistleblower’s revelations about the extent of government surveillance continue to cause embarrassment, including in Australia where Prime Minister Tony Abbott reacted by attacking the ABC over its reportage. In an interview in early 2014, Abbott voiced his disapproval that the ABC had run stories about security services eavesdropping on Indonesian leaders’ phone conversations, a fact revealed by Snowden’s leaks.

The ABC then faced an “efficiency study”. It seems the Abbott government’s approach is to put the budgetary microscope on the ABC’s operations rather than wind back national security laws in the interests of media freedom.

The suppression of reporting on terrorism-related trials or evidence tendered in national security cases is an ongoing issue. The use of a closed court – combined with government media management – was central to the misplaced prosecution of Gold Coast Hospital registrar Dr Mohamed Haneef in 2007.

More than 30 suppression orders under anti-terror powers were imposed during the Benbrika trials in 2008 and 2009. In that case, Abdul Benbrika and 11 other Muslim men from Melbourne were charged with intentionally being members of a terrorist organisation. Their arrests in 2005 followed Operation Pendennis, a 16-month surveillance operation by Victoria Police, the Australian Federal Police and ASIO.

While by 2014 legislation covering suppression and non-publication orders had been introduced into only the Commonwealth, New South Wales, Victorian and South Australian jurisdictions, it appears that other states and territories are following suit to harmonise the laws.

© 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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Tagged as Alliance, anti-terror laws, COAG, Code of Ethics, confidentiality, contempt, courts, ethics, journalism law, MEAA, media law, national security, shield laws, social media law, sources, surveillance, terrorism, The Australian, Walkley Magazine

May 1, 2014 · 1:08 pm

Journalists revert to age-old methods to protect sources, says @camstewarttheoz

By MARK PEARSON Follow @Journlaw

National security reporter and associate editor at The Australian Cameron Stewart (@camstewarttheoz) says investigative journalists have to leave their smartphones back at their office when they are meeting confidential sources.

Stewart said the surveillance powers of national security agencies under anti-terror laws, combined with the geo-navigational features of Web 2.0 technologies, meant investigative reporters were reverting to 1970s techniques like those of Watergate reporters Carl Bernstein and Bob Woodward used when they met their famous source ‘Deep Throat’ in an underground car park.

“That is actually still the best way to get your information,” Stewart told me in the interview below.

“The thing I’ve got to my ear now [a smartphone] is your biggest enemy in every single sense as the Snowden revelations have shown.

“The ability of authorities to track movements of journalists is really of great concern as far as protecting sources goes.

“What they’re doing is quietly authorising metadata searches and things like that. What that does is give them every phone call you’ve made and I think they can piece together through your iPhone for example what your movements are over time.

“It’s not rocket science to work out what your movements are over a certain period of time and who you’ve been speaking to and who sources might be.”

Here Cameron Stewart talks with Professor Mark Pearson of Griffith University (@journlaw) about the impact of anti-terror laws on the reporting of national security issues. Stewart shares some of the methods he uses as a reporter when dealing with off the record information provided by whistleblowers [15 minutes, recorded 1-5-14]

© Mark Pearson 2014

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April 22, 2014 · 8:47 am

Meet Miles Heffernan (@Mileshef) – shield law campaigner and @journlaw guest

By MARK PEARSON Follow @Journlaw

Miles Heffernan (@mileshef) is a journalist and features/opinion editor with the Star Observer.

When he was a freelancer he ran a campaign on change.org calling on mining magnate Gina Rinehart to withdraw her demands for two journalists to reveal their sources. See ‘http://www.change.org/en-AU/petitions/gina-rinehart-withdraw-your-subpoenas-against-adele-ferguson-and-steve-pennells-pressfreedom‘. See also my blog from 2013 on this.

It achieved close to 40,000 signatures.

Here Miles talks with Professor Mark Pearson of Griffith University (@journlaw) about that campaign and the battle for shield laws to protect journalists from having to reveal their sources in court. See more at journlaw.com. [12 minutes, recorded 16-4-14]

© Mark Pearson 2014

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October 5, 2013 · 6:10 pm

Updated: Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones

By MARK PEARSON Follow @Journlaw

The interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension.

1827: NSW Chief Justice Francis Forbes rejects Governor Ralph Darling’s proposal for legislation licensing the press, stating: “That the press of this Colony is licentious may be readily admitted; but that does not prove the necessity of altering the laws.” (Historical Records of Australia, Series 1, Vol. 13, pp. 290-297)

The extract from the Sydney Gazette in 1830

1830: The Sydney Gazette and New South Wales Advertiser publishes an extract from London’s New Monthly Magazine on the prying nature of the British press compared with its European counterparts, stating: “The foreign journals never break in upon the privacy of domestic life”. But the London newspapers would hound a ‘lady of fashion’ relentlessly: “They trace her from the breakfast table to the Park, from the Park to the dinner-table, from thence to the Opera or the ball, and from her boudoir to her bed. They trace her every where. She may make as many doubles as a hare, but they are all in vain; it is impossible to escape pursuit.”

1847: NSW becomes the first Australian state to add a ‘public benefit’ element to the defence of truth for libel – essentially adding a privacy requirement to defamation law (ALRC Report 11, p. 117)

1882: First identified use of the phrase ‘right to privacy’ in an Australian newspaper. Commenting on a major libel case, the South Australian Weekly Chronicle (22.4.1882, p.5) states: “A contractor having dealings with the Government or with any public body has no right to privacy as far as those dealings go.”

1890: In a landmark Harvard Law Review article, the great US jurist Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis announce a new ‘right to privacy’ in an article by that very name. There is a ripple effect in Australia with several mentions of the term in articles between 1890-1900.

1937: A radio station used a property owner’s land overlooking a racecourse to build a platform from which it broadcast its call of the horse races. The High Court rules the mere overlooking of the land did not constitute an unlawful interference with the racing club’s use of its property. The decision viewed as a rejection of a common law right to privacy: Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479.

1948: Universal Declaration of Human Rights is proclaimed in Paris. Article 12 provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (United Nations Universal Declaration of Human Rights, GA. Res 217A(III), UN Doc A/Res/810 (1948).)

1966: The International Covenant on Civil and Political Rights (ICCPR) is proclaimed, protecting privacy at Article 17. (16 December 1966, [1980] ATS 23, entered into force generally on 23 March 1976)

1972: Australia signs the ICCPR.

1979: Australian Law Reform Commission releases its first major report on privacy – Unfair Publication: Defamation and Privacy, ALRC 11. It recommends a person be allowed to sue for damages or an injunction if ‘sensitive private facts’, relating to health, private behaviour, home life, and personal or family relationships, were published about him or her which were likely in all the circumstances to cause distress, annoyance or embarrassment to a person in the position of the individual. Wide defences were proposed allowing publication of personal information if the publication was relevant to the topic of public interest. (pp. 124-125).

1980: Australia ratifies the ICCPR and the Organisation for Economic Co-operation and Development (OECD) expert group led by Australian Justice Michael Kirby issues its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

1983: Australian Law Reform Commission releases its Privacy (ALRC Report 22), recommending the establishment of a Privacy Act to establish information privacy principles and the appointment of a Privacy Commissioner.

1984: Australian Journalists’ Association (AJA) revises its 1944 Code of Ethics to include a new clause (9) requiring journalists to “respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them”.

1988: The Privacy Act 1988 is enacted, applying initially only to the protection of personal information in the possession of Australian Government departments and agencies.

1999: Media Entertainment and Arts Alliance (MEAA) issues another revised Code of Ethics preserving the grief and privacy elements in clause 11.

2000: Privacy Act 1988 provisions are extended to larger private sector organisations, and 10 National Privacy Principles (NPPs) are introduced, determining how companies must collect, use and disclose, keep secure, provide access to and correct personal information. Media organisations are exempted from the provisions as long as they ascribe to privacy standards published by their representative bodies.

2001: High Court rejects an argument for a company’s right to privacy after animal liberationists trespass to film the slaughter of possums in a Tasmanian abattoir and someone gives the footage to the ABC, but the court leaves the door open for a possible personal privacy tort: Australian Broadcasting Corporation v. Lenah Game Meats (2001) 208 CLR 199.

2003: A Queensland District Court judge rules the privacy of the former Sunshine Coast mayor Alison Grosse had been invaded by an ex-lover who continued to harass her after their affair had ended. She is awarded $108,000 in damages: Grosse v. Purvis [2003] QDC 151.

2007: Victorian County Court Judge Felicity Hampel SC holds that a rape victim’s privacy was invaded when ABC Radio broadcast her identity in a news report despite state laws banning the identification of sexual assault complainants. She is awarded $110,000 damages: Jane Doe v ABC & Ors [2007] VCC 281.

2008: Australian Law Reform Commission releases its For Your Information: Australian Privacy Law and Practice (ALRC Report 108) recommending a cause of action for breach of privacy where an individual has a ‘reasonable expectation of privacy’, with a cap for non-economic loss of $150,000.

2011: Federal Government releases an Issues Paper floating a proposal for a Commonwealth cause of action for a serious invasion of privacy.

2012

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Privacy Amendment Act) passed, to take effect in 2014, featuring new Australian Privacy Principles (APPs), more powers for the Australian Information Commissioner, tougher credit reporting rules and new dispute resolution processes. Media exemption remains unchanged.
Independent Media Inquiry (Finkelstein Review) releases its report recommending a News Media Council take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court. Privacy breaches cited as a reason for the move.
Commonwealth Government’s Convergence Review releases its final report rejecting the Finkelstein model but instead proposing a ‘news standards body’ operating across all media platforms, flagging the withdrawal of the privacy and consumer law exemptions from media outlets who refuse to sign up to the new system.

2013

The federal attorney-general directs the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era. The inquiry will address both prevention and remedies for serious invasions of privacy with a deadline of June 2014.
At the same time the government introduces legislation to establish a Public Interest Media Advocate with the power to strip media outlets of their Privacy Act exemptions. That part of the legislation is later withdrawn.
The federal attorney-general seeks state and territory input on the regulation of drones following the Privacy Commissioner’s concerns that their operation by individuals was not covered by the Privacy Act.

2014

The Australian Law Reform Commission (ALRC) releases a Discussion Paper, Serious Invasions of Privacy in the Digital Era (DP 80, 2014). The proposed elements of the action include that the invasion of privacy must occur by: a. Intrusion into the plaintiff’s seclusion or private affairs (including by unlawfulsurveillance); or b. Misuse or disclosure of private information about the plaintiff. The invasion of privacy must be either intentional or reckless. A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstance. The court must consider that the invasion of privacy was ‘serious’, in all the circumstances, having regard to, among other things, whether the invasion was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff. The court must be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest in the defendant’s conduct.

———–

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Tagged as Australian media, blogging, Code of Ethics, defamation, election, fair comment, free expression, honest opinion, journalism, law, mark pearson, MEAA, media, media ethics, media history, media law, political commentary, press freedom, privacy, privacy law, right to privacy, social media law

July 18, 2013 · 11:16 am

Shield laws might not protect bloggers and citizen journalists

By MARK PEARSON Follow @Journlaw

Q: When is a journalist not a journalist? A: When trying to earn a shield law privilege.

Sadly, that is too often the situation for those using confidential sources for their online reportage, even when it is exposing serious wrongdoing.

So-called ‘shield laws’ are limited protections offered to journalists trying to keep their sources confidential. But, even in the US, they are even more restricted when it comes to bloggers, ‘citizen journalists’ and social media users.

Shield laws vary widely in their scope, sometimes only applying to material that has already been ‘published’ and sometimes specifically naming ‘journalists’ and ‘news media’ as those protected.

Federal shield laws introduced in Australia in 2011 extended to bloggers and tweeters – but only to those ‘engaged and active in the publication of news’.

Some US state shield laws can be interpreted to cover new media users, while others are narrowly construed to apply to journalists in the mainstream media. Montana’s shield laws were held to apply to anonymous Internet commenters in 2008 when a former political candidate launched a defamation action over material on the Billings Gazette’s site.

But a blogger who was sued for defamation over comments on a message board failed to win protection under the New Jersey shield law in 2011. The former Citizen Media Law Project’s Justin Silverman developed a useful state-by-state analysis of shield laws for bloggers.

The application of Californian shield laws to bloggers was questioned in 2010 when Gizmodo gadget blog editor Jason Chen appeared in a video on the site displaying a prototype of an Apple iPhone 4G which had been lost then purchased by an intermediary for about $5000. Police seized six computers and other items from Chen’s home. But the matter was not tested when charges against Chen were not pursued.

There were calls for a US federal shield law after travel bloggers Chris Elliott and Steve Frischling were subpoenaed in late 2009 to find the anonymous correspondent who had provided them with a Transportation Security Administration security directive they had posted after a failed terrorist attack. But the TSA backed off and withdrew its demands.

The waters get murkier as the traditional media contract throughout the developed world and continue to retrench journalists, with many then turning to the Web and social media to continue their work. Some can only do it part-time and may not be defined as ‘engaged and active in the publication of news’. The same goes for students who often produce excellent investigative journalism but are not yet doing it for a living. It is debatable whether they would earn the protection of shield laws under many definitions.

And then there is the serious blogger with an agenda – not meeting the usual definition of ‘journalist’ and perhaps even rejecting the term. Nevertheless, should such an individual’s claim to a shield law privilege be allowed? Policy makers in most jurisdictions think not.

What do you think? I welcome your comments below.

…

Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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April 26, 2013 · 11:22 am

Surveillance and investigative reporting: How would Deep Throat stay anonymous today?

By MARK PEARSON Follow @Journlaw

We might support shield laws for journalists and bloggers but the actual practicalities of protecting confidential sources are a huge challenge for journalists in the modern era.

It’s of little value having a shield law to excuse a journalist revealing the identity of a whistleblower in court if litigants or government agencies have already been able to detect them using the surveillance regime that is ubiquitous in modern society.

It prompts the serious question: Could the Watergate investigation by the Washington Post three decades ago happen in the modern era? How long would Carl Bernstein and Bob Woodward’s White House source ‘Deep Throat’ (senior FBI official Mark Felt) remain anonymous today?

It would be interesting to hear from Bernstein and Woodward about how they would manage their top secret source in an era of geo-locational tracking, phone and social media e-records, CCTV in private and public spaces, and email logs.

Add to that new technologies like Google Glass and you start to wonder where a journalist could possibly meet in secret with a government source without being caught in the surveillance net.

The volumes of private information held on every citizen by governments and corporations was highlighted in the documentary Erasing David, where the lead character went into hiding and hired some of Britain’s top investigators to try to find him by discovering everything they could about him via public and private files. He found it was impossible to lead a private and anonymous existence in the 21^st century.

Our digital trail extends wherever and whenever we conduct business on the Internet. The typical web browser allows countless ‘cookies’ that track many of our online activities. Search engines, app stores, airlines, travel booking agencies and countless other online entities hold all sorts of digital information about us that may or may not be secure or subject to legal discovery in the case of a court action. Some European experts are so concerned about the amount of information about us that is out there and its irretrievable nature that they are proposing a new ‘right to be forgotten’ allowing citizens to have personal data permanently erased.

Law enforcement authorities throughout the world are winning court orders to search suspects’ Internet records. Facebook is a popular hunting ground, with Reuters reporting federal judges in the US had approved more than two dozen applications to retrieve incriminating data from Facebook accounts between 2008 and 2011, leading to several arrests and convictions. The Electronic Frontier Foundation has published a useful online Know Your Rights! guide for US citizens faced with the threat of search and seizure of their devices by law enforcement authorities. EFF attorney Hanni Fakhoury explained the volumes of private information the average citizen holds on their personal devices. “With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information,” Fakhoury said. “That smart phone in your pocket right now could contain email from your doctor or your kid’s teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data — your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that’s worth protecting from prying eyes.”

Of course, basic password selection and management is a fundamental starting point we often overlook. As the computer experts advise, choose your passwords carefully and change them often. Our laptops and smart devices also have geolocation capability, meaning our very movements can be recorded and abused, a point well explained by the Australian Privacy Foundation. This has serious implications for any meetings or communications we might have with confidential sources for our blogs or reporting.

As the Pew Research Center reported in 2011, more than half of people online had uploaded photos to be shared with others. As facial recognition (‘tagging’) is combined with geolocation capabilities, it means we are leaving a digital footprint via our images. That seem fine when we are just sharing an image with our small circle of friends on Facebook, but our ‘friends’ might choose to download and forward them and, depending on our privacy settings, these photos might well be viewable to the outside world.

Despite whistleblower protection laws and shield laws, confidential sources face lengthy jail terms in most countries if they reveal state secrets because officials might not agree there was an ethical or public interest in the material being revealed. That was certainly the case with one of the most famous whistleblowers of the modern era – the military analyst Daniel Ellsberg who leaked the sensitive ‘Pentagon Papers’ about the true story of the US involvement in Vietnam to the press in 1971. Despite government efforts to stop the publication of the material, the Supreme Court allowed the New York Times and the Washington Post to go ahead with its release. Ellsberg and a co-accused later faced charges of conspiracy, theft of government property and espionage which were dismissed among allegations of FBI wiretapping.

Bernstein and Woodward operated using document drops at park benches and secluded places, coded phone messages and convoluted taxi rides to face-to-face meetings with Felt. In the modern era it is even harder to protect communications against detection by the authorities so you need to take extraordinary steps if you hope to keep your sources truly confidential. The international whistleblowing organisation Wikileaks became famous for revealing the 21^st century equivalent of the Pentagon Papers when it released thousands of secret US government files on the Middle East conflicts and broader diplomatic relations throughout 2010 and 2011.

It reassured sources that its high security encrypted submission system using an electronic drop box protected their identity. US soldier Bradley Manning was arrested in 2010 and held in solitary confinement pending trial over the release of the classified material. CNN interviewed several experts about the spate of similar sites to Wikileaks who warned whistleblowers to examine their protocols very carefully if they wanted their identities to remain secret after the authorities discovered the leaks. Some reserved the right to disclose leakers’ identities if subpoenaed to do so.

Reporters, bloggers and citizen journalists should pay heed to the fact that their colleagues have served jail time throughout the world for either leaking secrets or refusing to name their off-the-record sources in court. Equally important are the measures you take to protect their identities in the first place.

…

Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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April 11, 2013 · 7:39 pm

Call for uniform shield laws is worth supporting, but not an easy fix

By MARK PEARSON Follow @Journlaw

Five Australian journalists face possible contempt charges for refusing to reveal the identity of their sources in court.

The journalists’ union – the Media, Entertainment and Arts Alliance – has quite rightly called for the introduction of uniform shield laws for journalists throughout Australia.

Australia’s attorneys-general managed to reach agreement on uniform defamation laws in 2005, and it is within their power to bring some sanity to the differing shield laws at federal level and in NSW, Victoria and Western Australia.

The laws in the various jurisdiction were well summarised last year by the Queensland Parliamentary Library and Research Service, and WA has passed its shield law since then.

However, as noted in the ABC’s Media Report in March, even a unified system would not necessarily protect reporters because even the most generous shield laws give a discretion to a judge to compel a journalist to answer a question in court if an answer is seen as crucial to the interests of justice.

Three Australian journalists have been jailed and others fined and convicted for refusing to reveal their sources since the early 1990s.

Only one of those cases – that involving Courier-Mail journalist Joe Budd in the midst of a defamation case – might have had a different outcome if such a shield law was in place. The others involved criminal allegations or charges and it is doubtful the presiding judicial officer would have excused a journalist from answering a ‘relevant question’.

Courts throughout the world have long insisted on witnesses answering relevant questions, whether or not they are bound by some professional or ethical obligation of silence.

Lawyers are an exception. Throughout the UK, North America and the Commonwealth a legal professional (attorney-client) privilege protects lawyers from having to reveal to the court prejudicial statements a client might have confided in them. In some places the privilege has been extended to doctor-patient relationships and sometimes to priests whose parishioners who might confess criminal sins to them. Witnesses are excused from answering incriminating questions in court. Sometimes, as in the Australian state of NSW, judges are given a discretion to weigh up all professional confidences against the interests of justice in deciding whether a question must be answered.

Canada allows a promise of confidence to be protected in court if:

– It originates with a non-disclosure agreement

– It is essential to the relationship involved

– The relationship is one that should be fostered ‘in the public good’; and

– The public interest in protecting the identity of the informant outweighs the public interest at getting at the truth.

It was put to the test in Ontario in 2010, where a National Post newspaper was ordered to produce documents upon which it had based corruption allegations against the prime minister. Despite the newspaper’s claim of a journalist-source confidential relationship, the Supreme Court decided there was no such constitutional right and that a greater public interest lay in pursuing an investigation that the source had actually forged the documents in question.

Several western democratic nations have also introduced so-called ‘shield laws’ to specifically excuse journalists from having to identify their confidential sources in court and sometimes allowing them to refuse to hand up their interview records or other documents. According to the Reporters Committee for Freedom of the Press, 31 US states and the District of Columbia have shield laws protecting journalists’ confidential relationships with their sources, although several have quite serious limitations.

Britain offered a limited protection for journalists in its Contempt of Court Act 1981. New Zealand’s Evidence Act protects journalists’ sources, but gives the discretion to a judge to override this on public interest grounds.

France amended its 1881 press law in early 2010 to protect the confidentiality of journalists’ sources after pressure from Reporters Without Borders over several violations. This was enough for a Bordeaux appeal court to rule in 2011 that a prosecutor had wrongly allowed two Le Monde newspaper reporters’ phone records to be seized when they were covering a high-profile case involving L’Oréal heiress Liliane Bettencourt.

Yet a tough shield law in another European country was not enough to protect one reporter and blogger. Young Ukrainian journalist Olena Bilozerska had her cameras, computers, phone and other gear seized by police in Kiev despite article 17 of the press law stating ‘journalists may not be arrested or detained in connection with their professional activities and their equipment may not be confiscated’. She was interrogated after posting footage of someone throwing a Molotov cocktail at a building during a protest.

Journalists have been jailed in several countries for refusing to reveal their sources in courts or hand over documents that might break confidences. Between 1984 and 2011, 21 US journalists were jailed under such laws, including video blogger Josh Wolf who was released in 2007 after serving 226 days for refusing to hand over tape of protesters damaging a police car. New York Times journalist Judith Miller served 86 days in prison in 2005 for refusing to tell a grand jury who leaked the identity of CIA operative Valerie Plame to the media. The First Amendment Center features a useful timeline on jailed journalists.

The Committee to Protect Journalists records numerous other cases, including arrests in Ghana, Ethiopia and Kenya.

It is ridiculous that Australia should have so many variations on journalists’ shield laws in an era of cross-border reporting and publishing via a range of media, including the Internet and social media.

As the Media Alliance points out, it is an area of the law in dire need of reform.

The MEAA also supports the petition for reporter Adele Ferguson, who has been subpoenaed by Australia’s richest woman, miner Gina Rinehart, seeking information about Ferguson’s confidential sources. You can add your name here, but read the terms and conditions closely before volunteering a donation, which seems to be directed to change.org to generate further support for the cause online.

…

Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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September 25, 2012 · 10:20 am

Gillard government should step carefully with its push for privacy tort

By MARK PEARSON Follow @Journlaw

A tort of privacy is on the agenda again, with the Gillard Government purportedly considering enacting such a right.

West Australian lawyer Ainslie Van Onselen has outlined many reasons why such a privacy tort could be dangerous to free expression in a democracy like Australia’s, but unfortunately her article is behind The Australian’s paywall, so I republish my earlier article and blog here for the benefit of students and researchers interested in that debate.

The right to privacy is a relatively modern international legal concept. Until the late 19^th century gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright in some steamy images of Dumas with the ‘Paris Hilton’ of the day – 32-year-old actress Adah Isaacs Menken.

The court held his property rights had not been infringed but that he did have a right to privacy and that the photographer had infringed it.

Across the Atlantic in 1890 the top US jurist Samuel D. Warren teamed with future Supreme Court Justice Louis D. Brandeis to write the seminal Harvard Law Review article ‘The Right to Privacy’ after a newspaper printed the guest list of a party held at the Warren family mansion in Boston.

Warren and Brandeis wrote: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”

Thus celebrities, lawyers, paparazzi and the gossip media were there at the birth of the right to privacy – and the same players occupy that terrain today.

While both privacy and free expression are recognised in many national constitutions and in international human rights treaties, Australia is rare among Western democracies in that it has no constitutional or Bill of Rights protection for either.

That distinguishes us from the United States, United Kingdom, Canada and New Zealand which all have constitutional or rights charter requirements that proposed laws must be considered for their potential impact on free expression.

It is one of the main reasons for the complex array of legislation, court decisions and industry codes of practice limiting Australian journalists’ intrusion into the affairs of their fellow citizens.

The myriad of laws of defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright all have a privacy dimension. The Privacy Act controls the collection and storage of private information by corporations and government.

There are very few situations of media intrusion into privacy not covered by one of these laws or by the framework of codes of ethics and practice controlling journalists’ professional activities.

Proposals to replace the self-regulatory and co-regulatory ethics systems with a statutory news media regulator would add yet another layer to the regulation of privacy intrusions.

The crux of the proposed ‘statutory cause of action for a serious invasion of privacy’ is whether a citizen should have the right to sue over a privacy breach and receive either an award of damages or an injunction to stop publication.

Over the ditch, Kiwi journalists now have to navigate a judge-made right to privacy, developed interestingly from a celebrity suit in which the plaintiffs lost the case.

Mike and Marie Hosking were New Zealand media personalities who had adopted twins and later separated. They asked for their privacy, but a magazine photographer snapped the mother walking the twins in their stroller in a public place. They sued, claiming breach of privacy. The NZ Court of Appeal invented a new action for breach of privacy, but held it did not apply in that particular case. The Kiwi privacy invasion test requires “the existence of facts in respect of which there is a reasonable expectation of privacy” and that “publicity given to those private facts that would be considered highly offensive to an objective reasonable person”.

But this is set against the backdrop of the New Zealand Bill of Rights Act which protects free expression.

Australia’s High Court famously left the door open for a possible privacy tort in the ABC v. Lenah Game Meats case in 2001, when animal liberationists had secretly filmed the slaughter of possums in an abattoir in Tasmania and the ABC wanted to broadcast the footage – the fruits of the trespass.

It is hard to quarantine this latest push by the Federal Government from the News of the World scandal in the UK and the Greens-championed Finkelstein inquiry into media regulation.

The government had effectively sat upon the Australian Law Reform Commission’s proposal for the statutory cause of action for three years before progressing the matter with its Issues Paper last September in the wake of the phone hacking revelations from London. Now it has revisited it as part of its media regulation review which included both the Finkelstein report and the Convergence Review recommendations.

Few journalists or their media organisations object to the notion of their fellow citizens’ embarrassing private information being kept secret.

However, it is in the midst of a breaking story like that involving collar bomb extortion victim Madeleine Pulver, a celebrity scoop like the Sonny Bill Williams toilet tryst images or the case of the fake Pauline Hanson photos that genuine ‘public interest’ gives way to audience gratification and the resulting boost to circulation, ratings or page views.

Free expression is already greatly diminished by this mire of privacy-related laws and regulations without adding a new statutory cause of action for privacy.

But if this latest proposal is advanced further, journalists should insist upon:

– a free expression and public interest defence reinforced in the strongest possible terms;

– removal of the existing laws it would duplicate; and

– strong ‘offer of amends’ defence like that now operating in defamation law and alternative dispute resolution provisions to deter celebrity gold diggers.

Short of a bill of rights enshrining freedom of the press and free expression, these demands amount to the minimum the news media deserve in a Western democracy.

* An earlier version of this article was published in May 2012 in the annual press freedom report by the Media Entertainment and Arts Alliance – Kicking at the Cornerstone of Democracy.

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Tagged as Australian media, censorship, free expression, journalism, law, MEAA, media, media inquiry, media law, Press Council, press freedom, privacy, Reporters Without Borders, RSF

May 5, 2012 · 5:32 pm

Any Australian #privacy tort must feature strong free expression protections

By MARK PEARSON Follow @Journlaw

The Media Entertainment and Arts Alliance has released its latest annual press freedom report – Kicking at the Cornerstone of Democracy – with some excellent articles covering the gamut of media law and censorship issues in Australia.

It is essential reading for journalists, media lawyers and students – updating the material covered in their media law textbooks in an accessible journalistic style.

My article is on privacy law, and I reproduce it here in its extended, unedited form for the benefit of my blog followers:

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Privacy On Parade