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

By MARK PEARSON

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’.

© Mark Pearson 2013

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

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Terror is no laughing matter – lessons from the #twitterjoketrial

By MARK PEARSON

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 20th century, while New Zealand introduced new restrictions after the French bombing of the Greenpeace boat the Rainbow Warrior in 1985.

But the early 21st 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 21st 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).

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.

© Mark Pearson 2012

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Counter-terror laws under review – our appearance at COAG

By MARK PEARSON

Griffith University colleague Associate Professor Jacqui Ewart (@jacquiewart) and I appeared before the Council of Australian Governments (COAG) hearing into the review of counter-terrorism laws conducted in Brisbane yesterday.

We explained our collaborative research on the subject, and called upon the committee to take account of the importance of free expression, open justice and transparency of process to a democracy like Australia.

The laws under review are listed here.

I began by explaining that national security laws introduced since September 2001 affected the ability of journalists to investigate into and report upon particular incidents, identify and communicate with sources of information for such reportage, preserve the confidentiality of such sources, report fairly and accurately court proceedings related to counter-terrorism, expose miscarriages of justice, and  to draw upon actual examples when covering the broader issues of national security and counter-terrorism.

Australia differed from other democratic nations in that it lacks written constitutional protection of free expression.

I suggested that given the absence of any such free expression protection here, there was a crucial need for public interest or media exemptions to provisions threatening free expression.

Perhaps the committee could appoint an independent adviser or a representative from a body such as the Australian Press Council to review any proposed legislation with an eye to its implications for free expression.

Dr Ewart made the following points in our submission:

When the anti-terrorism legislation was introduced in 2004 and 2005 there was much discussion about the potential impacts these laws would have on journalists and the public right to know about terrorism cases, but much of that discussion was at the time speculation. Since then we have seen demonstrable evidence of the impacts of those laws on the ability of journalists to report on national security matters and to inform the public. These impacts include but are not limited to:

  • Suppression orders are now routinely invoked in terrorism-related court cases to prevent journalists’ from reporting details of cases that may be in the public interest and may not be against national security interests. While there was recently a move towards cooperation between the media and the judiciary in relation to suppression orders (Operation Pendennis court trials under J Bongiorno), this is not standard practice.
  • Sedition laws have restricted freedom of expression in the media. The legal provisions regarding journalists reporting the detention of suspects under the ASIO Act have implications for journalists, and much broader consequences for individuals’ freedom of speech.
  • Media reliance on official spokespeople has increased because of arrest, questioning and detention restrictions once a suspect has been arrested, as evidenced by the controls of information flows by the Australian Federal Police in the arrest and charging of Dr Mohamed Haneef.
  • Recent demands by judges for journalists to reveal their sources of counter-terror stories, evidenced by the making of such demands upon The Australian’s Cameron Stewart regarding leaks from the Federal Police over the Holsworthy Barracks raids.
  • Further to the preceding point, the freezing of information about counter-terror operations by government agencies after the above incident where The Australian published an account of one operation before it started. This led to police/media protocols for future counter-terrorism stories.
  • The potential for the confidentiality of a journalist’s source being compromised through the investigative powers of anti-terror agencies. This may erode the public’s confidence in the media, preventing members of the public from approaching journalists with stories or information.
  • The readiness of counter-terror agencies and prosecutors to make use of raw footage and interview material captured by journalists as prosecution evidence in their cases against terror suspects, as per the Jack Thomas trial.
  •  A warning from an Attorney-General to an academic about his research involving the interviews with suspected terrorists overseas renders journalists’ interviews with terrorists on foreign territory problematic.

We are also unaware of potential problems for those arrested or questioned under the ASIO Act because of the restrictions placed on individuals in relation to telling others including the media they have been arrested or questioned and those restrictions extend to journalists.

This means that the ability of the media to freely – real national security implications notwithstanding – fairly and accurately report terrorism cases has been at times severely hindered by the legislation.

We concluded by recommending the review of the legislation specifically examines the question of the impacts of the legislation on journalists’ ability to cover terrorism cases and terrorism-related court cases, in order to ensure the protection of the public interest in such cases. We provided the committee with an extended explanation in the form of an article on the topic we recently submitted to an international refereed journal.

© Mark Pearson and Jacqueline Ewart 2012

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The media regulation debate in a democracy lacking a free expression guarantee

By MARK PEARSON

The latest edition of Pacific Journalism Review is out – a special issue edited by Chris Nash, David Robie and Johan Lidberg on ‘Rebuilding Public Trust’.

My contribution carries the same title as this blog. Here are the abstract and conclusion, but if you’re really interested you’ll need to get PJR for the body of the article and the references – and, of course, another 13 articles by some of the region’s top journalists and researchers.

Abstract

Two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level.  Three regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; and the status quo with a strengthened Australian Press Council policing both print and online media. This article reviews the proposals and explores further the suggestion that consumer laws could be better utilised in any reform. It concludes with an assessment of the impact of the inquiries and their recommendations upon free expression in a Western democracy lacking constitutional protection of the media.

 ——

Conclusion

The Convergence Review report cleverly proposed the removal of some existing protections instead of the imposition of draconian new regulations, but then failed to flesh out their possibilities. It needed to position its mechanism of privacy and consumer law exemptions for signatories to its new pan-media self-regulatory body as much more than hypothetical and to detail its plans for the implementation of these proposals.

Australia already has one statutory regulator with powers to punish ethical transgressions – the Australian Competition and Consumer Commission (ACCC). In an era of increasingly commercialised and converged media, it seems reasonable that at least some forms of irresponsible journalism might be addressed via the legislative mechanism prohibiting misleading and deceptive conduct by any corporation against media consumers.

Such a legislative solution already exists, as identified by the Convergence Review – and it only requires an amendment to the existing news organisation immunity from prosecution under the ‘misleading and deceptive conduct’ provisions at Section 18 of the Competition and Consumer Act 2010. The proposal to take away media exemptions from prosecution under this section would leave them accountable for misleading and deceptive claims and behaviour in their editorial functions.

While misleading and deceptive conduct does not take in all unethical behaviour by news organisations or the journalists who act as their agents, it could well be read to cover such sins as lies, inaccuracy, subterfuge, and lack of verification of the false claims of others. The amendment would mean both the ACCC (and private citizens) could launch prosecutions over such behaviour, with the force of the regulatory powers it already holds. The key to this would be an amendment of the ‘prescribed information provider’ exception (Section 19) so that news organisations would no longer have the blanket, almost unchallengeable protection for misleading and deceptive conduct which was introduced after their lobbying in the late 1970s and early 1980s. They would only earn this exemption if they were signatories to the new self-regulatory body and abiding by its requirements.

I have previously backgrounded this news media exemption to consumer law provisions under the predecessor to the existing legislation, the Trade Practices Act 1974 (Pearson, 2000). The media operated for more than a decade under that law without special exemptions from its misleading and deceptive conduct provisions. In 1984, Section 52 (the ‘misleading and deceptive conduct’ clause under the TPA) caused concern in the case of Global Sportsman v. Mirror Newspapers (1984) 2 FCR 82 when it was held that the publication of statements – including statements of opinion made in the ordinary course of news – could constitute conduct which was “misleading or deceptive”.

Successful lobbying by the media led to the government of the day introducing the exemption from the provision for “prescribed information providers” unless the deception occurred in relation to the publication of advertisements or in articles promoting the information providers’ own commercial interests. “Prescribed information providers” included “…a person who carries on a business of providing information” and included obviously newspapers, holders of broadcasting licenses, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service Corporation (SBS).

The exemption – known as the ‘media safe harbour’ – acknowledged the fact that news organisations could not vouch for every claim made by those quoted in their news columns or stories (Applegarth, 2008). However, the instant news material was sponsored, or run in return for some compensation in cash or kind, or was used to promote the news organisation’s own operations (such as in a promo), it fell within the Act and left any misleading content open to prosecution of the media proprietor.

This rendered journalists and their organisations particularly vulnerable in the realm of advertorials, if it could be shown that space had been devoted to the promotion of a company’s products or services just because they happened to be advertising or they had reached some arrangement or understanding with some corporation to that effect.

If such claims were proven to be misleading or deceptive the media outlet was held responsible and could face an injunction preventing publication or a damages claim from those adversely affected.

The provision raised serious questions about media companies’ cross-promotion of their related corporate interests, particularly in an age where concentrated conglomerates had substantial shareholdings and sponsorships across industries. The exemption has been struck down by superior courts in two recent cases. The High Court found against a media organisation under the former Trade Practices Act in ACCC v. Channel Seven Brisbane Pty Ltd [2009] HCA 19.  That decision related to false claims on the tabloid television current affairs program ‘Today Tonight’ about goods and services. The reform would extend this to other ethical breaches. The NSW Court of Appeal had earlier ruled that Nine’s ‘A Current Affair’ did not qualify for the exemption over misleading claims made by their staff who posed as prospective customers in an expose of a home construction company. Their false claims were made in the course of their investigation – not while carrying on the business of providing information – and they had failed to reveal that they were in the information provision business during their inquiry. As Justice Applegarth has noted: “Statements made in the course of an investigation are said to lack such correspondence because they do not occur ‘in the course of carrying on’ a business of providing information.” (2008, p. 3).

Of course, the consumer laws apply to corporations rather than individuals, so journalists themselves would not be liable personally, well exemplified in the Current Affair case cited above. However, it is likely their employer organisations would pressure them to comply when faced with the prospect of ACCC prosecutions and contempt charges for disobeying any resulting orders.

The Convergence Review’s suggestion that a similar ‘carrot’ be applied to the exemptions to privacy law is more problematic. The ‘Journalism’ exemption to the Privacy Act 1988 at s. 7B(4) references privacy standards issued by the Australian Press Council as newspaper organisations’ ticket to a waiver (APC, 2011). Media organisations simply have to avow they are ‘publicly committed to observe standards’ on privacy as documented by their representative organisation. However, the proposed reform would require more of them than simply being ‘publicly committed to observe standards’ and to have published them.

If they refused to sign up for the Convergence Review’s ‘self-regulator’ they would have to follow in their journalism all of the privacy protocols applying to other corporations and marketers. Permissions would need to be sought and documented every time a citizen was named or identified visually in a news story or column and every time ‘private’ details about them and their lives were being published. It would be a logistical nightmare for a news organization. There are already a myriad of laws of defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright controlling the news media’s handling of private information. The recommendation comes at a time the government is also considering a proposal for a ‘statutory cause of action for a serious invasion of privacy’ – giving citizens the right to sue over a privacy breach and receive either an award of damages or an injunction to stop publication. If the statutory tort were introduced, then the removal of the Privacy Act exemption for media companies would appear to be overkill given the array of other laws in the field.

Reactions to the suggestion of a statutory regulator have certainly been strident and at times histrionic. Assistant to the Finkelstein inquiry, Professor Matthew Ricketson, responded in The Age to accusations that “… we would all be living in Stalinist Russia or even Hitler’s Nazi Germany with its Reich Press Chamber if the government acted on this recommendation”. He continued:

Really? What is actually recommended differs from the existing system in only one key aspect, namely government would fund the News Media Council. (Ricketson, 2012).

While he quite rightly took offence at such reactive rants, Ricketson was wrong to suggest that government funding of his proposed News Media Council was the only point of difference from the status quo.

Arms-length government funding of a self-regulator certainly sounds some alarm bells, but there may well be mechanisms to secure its independence, just as the ABC is publicly funded yet independent. The greater concern is with the body’s ultimate power to refer disobedient media outlets to courts with the distinct possibility they might face fines or a jail term if they continued to disobey the council’s order. Such powers place strong emphasis on the word ‘enforced’ in Finkelstein’s system of ‘enforced self-regulation’ and pushes it a long way towards the full government regulation its critics fear. The proposal would effectively convert ethical codes into laws – ultimately enforceable in the courts.

This has certainly been a long overdue debate in Australia, but it has occurred in a politicised context that has been counter-productive and has undermined the likelihood of the implementation of any of the proposals.  Several academics and small publishers stepped up to give the Finkelstein model their approval (The Conversation, 2012). Labor and Greens applauded it and pushed for its enactment, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage about them in News Limited publications locally (Kitney et.al, 2012).

Criticism of the recommendations by the larger media groups on free expression grounds were dismissed as a defence of their vested interests. It surprised nobody that News Limited chief executive Kim Williams opposed statutory regulation (Meade and Canning, 2012), but such pigeon-holing of Finkelstein’s serious critics is misplaced. History is littered with examples of politicians withdrawing citizens’ rights to free expression because they did not like what they had been saying about them at a particular moment in history.

And, while the concerns of the Left at Murdoch media treatment might have helped trigger the inquiries, despite public protestations against the proposals by Opposition figures (Kerr, 2012), it is questionable whether a Conservative government would act to dismantle a new statutory regulator and its ‘independence’ could well be tested. The Howard conservative government lacked an impressive free expression record. It famously appointed arch conservatives to the ‘independent’ ABC board, ramped up anti-terror laws and cynically exploited exemptions to freedom of information requests. That government’s foreign minister, Alexander Downer, confessed to newspaper publishers in 2006: “Freedom of information always seems a great idea when you are in Opposition but less so when you are in Government” (McNicoll, 2006).

The Australian Press Council – with a suitable name change – could become an effective pan-media self-regulator and fulfil similar functions to the one proposed by the Convergence Review. That review’s suggestion of encouraging membership with the carrot of consumer law exemptions is also a mechanism worth considering.

A uniform code of practice across all news media is a vital reform. It is essential that media outlets and journalists conform to ethical codes. It is in their interests that they do so, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. But Australia has a confusing array of self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets. No single journalist could possibly be expected to understand and operate effectively within deadline, paying heed to all that might apply to him or her, including the MEAA Code of Ethics, an in-house code, an industry code and the related laws and formal regulations that might apply.

This moots strongly for a single code of ethics applying to journalists and their employers across all media, similar to the existing MEAA Code of Ethics, addressing fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern. Of course, this could be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty, along the lines of the Australian Press Council’s guidance releases. As Ricketson (2012) has suggested, media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their level of media literacy.

Australia is rare among Western democracies in that it does not have free expression or media freedom enshrined in its Constitution and no federal bill of rights with such a protection. Other countries like the UK and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence. The closest Australia has come to any such protection came in a series of decisions through the 1990s, starting with the Australian Capital Television Pty Ltd v. Commonwealth and Nationwide News v. Wills cases in 1992, where the High Court introduced and developed a so-called “implied freedom to communicate on matters of politics and government”. The court held this principle was fundamental to the system of representative government, but it demonstrated recently in Wotton v. Queensland (2011) that it was in no rush to progress this implied freedom. The Australian Capital Territory and Victoria have enacted limited charters of rights in the form of human rights acts, both of which enshrine free expression at the state and territory level, but neither applies to other jurisdictions and each is problematic even in its application in to its own jurisdiction (Pearson and Polden, 2011, pp. 38-39).

The lack of any formal written guarantee of a free media makes proposals for statutory regulators even more of a threat to democracy in Australia than in most comparable nations and this fact did not appear to weigh heavily enough with the architects of the Finkelstein report or those who rushed to support it. ‘Enforced self-regulation’ is not a suitable solution – at least not until free expression earns stronger protection from a more enthusiastic High Court or in a national bill of rights. Stronger self-regulation with the carrot of consumer law exemptions for compliant media outlets would strike the appropriate balance of freedoms and responsibilities in the interim.

© Mark Pearson 2012

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

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

By MARK PEARSON

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

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

—-

September 28, 2012

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

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

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

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

Important contextual considerations

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

Journalists’ training

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

News values, open justice and the role of court reporting

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

Public policy benefits of media reportage of sexual and juvenile cases

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

Free expression and freedom of the press

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

Media ethics and regulation

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

Privacy regulation and factors impacting media privacy intrusion

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

The Internet, social media and the Tasmanian jurisdiction

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

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

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

Court closure and judicial censorship are a threat to open justice

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

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

My suggested mechanism for reform of s. 194K

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

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

104C   Entitlement of media to hear proceedings

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

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

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

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

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

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

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

Yours sincerely,

Professor Mark Pearson

© Mark Pearson 2012

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

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Gillard government should step carefully with its push for privacy tort

By MARK PEARSON

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 19th 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.

© Mark Pearson 2012

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

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Tasmanian sex case ID proposals under scrutiny

By MARK PEARSON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A bizarre aspect of the inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter.

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

I’ll publish my submission in a future blog.

© Mark Pearson 2012

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

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