Tag Archives: media law

Legal risks of Facebook comments

By MARK PEARSON

Social media offers countless benefits to organisations, but an emerging legal risk is prompting many communication professionals to reassess their exposure.

Several superior court cases in Australia and internationally have decided that hosts of Facebook pages must bear responsibility for defamatory comments posted to their sites by other people.

The latest – involving Australian indigenous activist and former juvenile detainee Dylan Voller – has left major news organisations potentially liable in his defamation action over comments posted in response to articles about him on their corporate Facebook sites.

For the full article on this topic, please go to the Griffith University Thought Leadership series of articles.

If you are a communication professional wanting to study in this area, please consider enrolling in our online courses Social Media Law and Risk Management (postgraduate) or Media Law (undergraduate).

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 2021 – the moral right of the author has been asserted.

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A formula for success in study and in life

By MARK PEARSON

My media law students are in their final week of studies for the year so I took the opportunity to offer them my observations on some crucial ingredients for their success in this course and beyond into their lives and careers.

It is encapsulated in this formula:

Ability

We all have talents for some things and but are not so good at others. I know that if I decided suddenly at my age that I wanted to be a concert pianist, never having learned a musical instrument, I guess I might learn to play a basic tune on the piano but my abilities would prevent me actually achieving that dream. On the other hand, if I paid for piano lessons for one of my young grandchildren they would have a much better chance, yet they would still need some inherent ability. I guess the lesson here is that we each need to acknowledge our abilities – and pursue those from that set that really interest us as well.

+ Passion

I’ve found most things I’ve done in my life have been a success if they have had a passion element to them. I’ve really needed the heart for it before I’ve been able to make something a success. And there have been things I’ve done along the way that have not been so successful because they lacked such enthusiasm. I remember my father took me along to join a swim school and I only attended twice because I didn’t have the passion for swimming. My granddaughter, however, has that passion, and she’s in the state championships. She has the ability and the enthusiasm. If you’re going to do well at something – including media law – you need some ability and a good dose of passion.

+ Learning

Then of course you need the learning. No matter how talented you are at something you really need to commit yourself to learning more about it and that comes into play in all walks of our life. I did work at a previous university and I really love the motto of that place – “Forever Learning”. I’ve come to believe we all really are forever learning, and even when we’re really good at something we can always learn more. I think part of my joy in media law is in always learning something new. Only last week a student told me about a new case involving emojis and how they can leave you vulnerable to a defamation action – and that was something new I’d learned so I was really excited to share that on Twitter. Even though you might be a so-called ‘expert’, if you see yourself as forever learning more about something you maintain the passion and you do actually improve in the process.

+ Opportunities

There is no denying we also need opportunities. Those of us attending Griffith University have a certain level of advantage over many of our peers. Others might be deprived of such an opportunity for a host of reasons. We really owe it to ourselves, to our parents, to each other, and to the rest of society to maximise the chances we have been given. That can help drive the passion for what we are doing if we understand it and take advantage of every chance we can to pay it back along the way by creating opportunities for others.

 + Effort

Sometimes it really does take considerable effort, even if you have some natural ability, passion, and you are willing to learn and are presented with the opportunities. There’s a point at which you really have to lift yourself to put in the effort. Some of you are already doing well in media law, but with that extra effort you’ll do even better. It could be you’ve decided by this stage of the course that your ability and passion is not really in media law, but that extra effort can get you over the pass line and perhaps an even higher result.

+ Reflection

Reflection is important in this formula. We need to reflect as we go – as we address a particular problem – but we also need reflection upon our own progress in our career and life. We need time out – whether it is a dedicated meditation period – or something less formal like a mind-mapping or journaling session, or perhaps a brainstorm or heart to-heart chat with a mentor. We need to assess and reassess where we are in our pursuit of our goals and in resetting them along the way, perhaps as we adjust them to ethical or moral frameworks or in response to other priorities that have emerged. We all make our New Year’s resolutions, but how seriously do we take them and how well do they truly map our foreseeable futures? Perhaps we need to engage in that process more frequently than annually. I think we all can benefit from a timetable of serious reflection upon where we have been, where we are headed, what the realistic goals are, whether this is what we really should be doing, and how to perform even better on each of the above criteria.

= Satisfaction (and Success)

These six factors I believe add up to constitute your satisfaction with what you are pursuing – the level of satisfaction in your life, your career and even in a particular course like media law if you apply yourself to each of them in a considered way. You’ll notice I placed in brackets after the word Satisfaction “(and Success)” because success can be measured in so many different ways. Some people finish their careers with others seeing them as extremely successful in terms of wealth, position and other social acknowledgements. But do they actually have satisfaction? Some do – they are indeed satisfied with their lives and what they have achieved in their careers and the opportunities they have created for others. But really I think the success element is linked strongly to satisfaction. We can get substantial satisfaction without those monetary and other tokenistic rewards but through intangible rewards by having pursued and achieved considered goals with passion, to the best of our abilities, making the most of each opportunity – and learning from our studies and our mistakes along the way.

May you be safe. May you be well. May you be content.

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 2020 – the moral right of the author has been asserted.

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Our chapter in Comparative Privacy and Defamation

By MARK PEARSON

Colleague Virginia Leighton-Jackson and I teamed up to write a chapter on Australian defamation and privacy law in the newly released book Comparative Privacy and Defamation from Edward Elgar Publishing. 

Comparative Privacy and DefamationThe book [ ISBN: 978 1 78897 058 7; 480pp ] forms part of the Research Handbooks in Comparative Law series and is edited by András Koltay (Professor of Law, National University of Public Service and Pázmány Péter Catholic University, Hungary) and Paul Wragg (Associate Professor of Law, University of Leeds).
It provides comparative analysis that examines both Western and non-Western legal systems, and offers commentary on issues of theory and doctrine, including the impacts of privacy restrictions, defamation reforms and new technologies on the law.
Our chapter (pp 381-398) is titled ‘Privacy and defamation in Australia – a post-colonial tango’.
It considers defamation and privacy law in its uniquely Australian context, where statutory and case law have evolved without explicit protections of free expression in its Constitution.
After offering an Australian constitutional, legislative and common law context, our chapter surveys the laws of defamation and privacy since English colonial settlement in the late eighteenth century.
Emphasis in the discussion of defamation is upon its relationship with privacy through various statutory iterations of the truth/justification defence which has at times featured privacy protections.
The focus of the survey of privacy law is the story of reform momentum over four decades towards an actionable tort for the serious invasion of privacy, which remains unfulfilled.
The chapter explains how this has impacted on celebrity plaintiffs’ preference for defamation when the media has scrutinised their private lives.
The case law and statutory and regulatory dimensions of both defamation and privacy are covered, with the chapter comparing and contrasting Australian defamation and privacy law with some key aspects of that jurisprudence in the United States (US) and the United Kingdom (UK).

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 2020 – the moral right of the author has been asserted.

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Griffith Review publishes podcast on ‘Trust and Press Freedom’ #MLGriff

By MARK PEARSON

Journalist in residence colleague at Griffith University, Walkley Award-winner Nance Haxton, has produced a quality podcast on Trust and Press Freedom as a special instalment of Griffith Review‘s The Backstory.
Matters of TrustIt includes interviews with yours truly (Mark Pearson @journlaw), along with prominent journalists and academics Damien Cave, Matthew Condon, Trent Dalton, Peter Greste, Kate McClymont, Hugh Riminton, Gerard Ryle, Leigh Sales, Julianne Schultz, Sandra Sully and Mark Willacy.
As explained by Griffith Review, Haxton explores ‘Matters of Trust’ through the prism of the media – access to information, the processes of injunction and defamation that limit media freedom, the absence of a constitutionally enshrined right to freedom of expression, the shrinking of news sources with the closure of AAP and many regional newspapers, and the need for journalists to strive harder to earn more respect.
The episode of The Backstory complements Griffith Review 67: Matters of Trust.

 

Read the episode transcript here.

More articles about trust, freedom, transparency and threat can be found in Griffith Review 67Matters of Trust  – the current edition.

Print, PDF, ePub and Kindle versions, as well as subscriptions can be accessed here.


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

© Mark Pearson 2020 – the moral right of the author has been asserted.

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Review: Truthteller – An Investigative Reporter’s Journey through the World of Truth Prevention, Fake News and Conspiracy Theories

By MARK PEARSON

Truthteller: An Investigative Reporter’s Journey through the World of Truth Prevention, Fake News and Conspiracy Theories, Stephen Davis (2019)

Dunedin and Chatswood: Exisle Publishing, 264 pp.,

ISBN 978-1-92533-589-7, p/bk, USD 29.99

[This review was first published in Australian Journalism Review, Volume 41, Issue 2, 2019]

Timing of the publication of the page-turning paperback Truthteller could not have been better, with the subsequent Australian Federal Police raids on the ABC offices and News Corporation journalist Annika Smethurst’s home offering a haunting currency to many of its themes.

Former journalism educator at Macleay College, Stephen Davis, has seen the craft from all angles over an impressive career as investigative reporter on the Sunday Times’ Insight team, producer for 60 Minutes, and editor of the New Zealand Herald.

Three decades of reporting international wars, espionage, crime and intrigue make for a riveting read as Davis reveals the lengths to which governments and agencies and their functionaries will go to mislead and deceive the media when they have something to hide.

Davis structures Truthteller into an introduction and conclusion plus 10 chapters taken from the ‘toolbox for lies and deception’ – each centred on a case study from his reporting career where the authorities have used a different technique of spin or outright censorship.

Highlights include:

  • The UK Government’s cover up of the truth behind British Airways flight BA149 which was given permission to land in Kuwait with 367 passengers in 1990 despite the Iraqi invasion of that nation having already commenced. The passengers were subsequently used as human shields by the Iraqis but the British government denied them compensation despite evidence the flight had been landed to deploy a troop of undercover special forces operatives;

  • The world exclusive that oil giant BP was using a Brazilian subsidiary to rape huge swathes of Amazonian rainforest and the subsequent attacks by authorities on Davis’s prime NGO source in a classic case of shooting the messenger rather than addressing the problem; and

  • The multi-government conspiracy to cover up the real reasons for the 1994 sinking of the ferry Estonia in the Baltic Sea with the loss of 852 passengers and crew amidst allegations that the captain had been whisked away and that the ship had been carrying Russian arms.

Davis’s ‘toolbox’ of techniques used by governments and big corporates include character assassination, targeting sources, generating alternative theories, delay, distance, cover-ups, legal suppression, secret deals and media manipulation.

His stated aim is “to inspire truth seekers of the future, because the battle between those seeking to expose the truth and those seeking to prevent it is an unequal struggle”. Sadly, I could not find much inspiration in the dark picture Davis paints in his case studies, most of which remain clouded in the confusing mystery of spin despite the best efforts of some of the world’s best investigative teams.

The book’s subtitle ‘An investigative reporter’s journey through the world of truth prevention, fake news and conspiracy theories’ promises to shed light on false news in the modern ‘post truth’ era. However, while Davis offers some insights into bots and trolling and a short chapter on the 2017 fake news conspiracy theory about a secret anti-Trump society in the FBI, the bulk of the book is centred on analogue media manipulation from the 1990s and early 2000s when Davis was doing most of his international reporting.

There is a paucity of references and a gimmicky technique of listing random other news items from the particular case study’s news day at the start of each chapter which contribute to the impression it is a popular read rather than a worthy set text or reference work.

Nevertheless, it is a fascinating memoir and a useful vehicle for the media literacy of the masses, whose eyes will be opened to the methods governments and multinational companies have used to keep truth from their citizenry.

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 2020 – the moral right of the author has been asserted.

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Five media law essentials for journalists, publishers and students #MLGriff #auspol #medialaw #auslaw

By MARK PEARSON

Much has happened in the field of media and social media law, even since the sixth edition of our Journalist’s Guide to Media Law (Pearson & Polden) was published in 2019.

As media law students start their academic year at Australian institutions, this calls for a quick update of the five most important risks facing journalists in the digital era.

  1. Defamation: Reforms to Australian defamation laws appear imminent, but the basic principles will remain the same. Pause before publishing anything criticising or ridiculing anyone and consider your language, evidence base, intended meaning, motivation and working knowledge of the defences available to you. If in doubt, seek legal advice. If you can’t afford that advice, then modify the material or leave it out – unless you have considerable defamation insurance. Society needs robust journalism, but remember it can also need deep pockets to defend it. The 2019 case of Voller v. Nationwide News underscores the decision in Allergy Pathway almost a decade ago: publishers may be responsible for the comments of others on their social media sites, particularly when posting articles on inflammatory topics or people. Ashurst law firm has produced a useful flow-chart to explain the steps a publisher should take to minimise the risks of liability for comments by third parties on their social media sites.
  2. High profile trials: Regardless of the fate of the 30 journalists and news organisations still facing contempt action over their reporting of last year’s trial of Cardinal George Pell, the episode reinforces the dangers facing those reporting and commenting upon major court matters. As we show in our crime reporting time zones flowchart in our text, a criminal case involves an interplay of risks including defamation, contempt and other restrictions. Courts and prosecutors take suppression orders seriously, so it is wise to pause to reflect and to take legal advice when navigating this territory.
  3. National security risks: Many of the 70-plus anti-terror laws passed in Australia since 2001 impact on journalists, with jail terms a real risk for those reporting on special intelligence operations, ASIO, suppressed trials, and any matter using insider government sources, along with a host of other risks as identified by Australia’s Right To Know’s submission to the Parliamentary Joint Committee on Intelligence and Security in 2019. The laws present a minefield for journalists covering national security, defence, immigration and related topics. It is a specialist field requiring a close familiarity with the numerous laws.
  4. Breach of confidence: Journalists are reluctant to reveal their own confidential sources, but they are keen to tell the secrets of others – particularly if matters of public interest are being covered up. Actions for breach of confidence allow individuals and corporations to seek injunctions to prevent their dirty linen being aired. Further, the Australian Law Reform Commission has recommended a new action of serious invasion of privacy and the future development of the action for breach of confidence with compensation for emotional distress. The Parliament has not yet embraced the proposal but judge-made law on privacy and confidentiality remains a possibility.
  5. Compromising sources: The journalist-source relationship is one where the journalist’s ethical obligation to preserve confidentiality is threatened by a number of laws. Most Australian jurisdictions now have shield laws giving judges a discretion to excuse a journalist from revealing a source after weighing up various public interest factors. This is far from a watertight protection and journalists face potential jail terms for ‘disobedience contempt’ for refusing a court order to reveal a source or hand over materials. Further, as two ABC journalists and News Corporation’s Annika Smethurst discovered last year, journalists can also face criminal charges for just handling or publishing confidential or classified materials given to them by whistleblowers, even if the matter relates to an important matter of public interest. The validity of the warrants to raid them over ‘dishonestly receiving stolen property’ (Commonwealth documents) was upheld by a Federal Court earlier this year, despite a range of arguments including shield laws and the constitutional implied freedom to communicate on political matters. Such action, combined with the far-reaching powers of authorities to access communications metadata and the proliferation of public CCTV footage presents huge challenges to journalists trying to keep their whistleblower sources secret. It is one thing to promise confidentiality to a source, but quite another to be able to honour that promise given modern surveillance technologies and the legal reach of agencies.

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 2020 – the moral right of the author has been asserted.

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Washington Post podcast shows role of JWs in First Amendment rights #MLGriff

By MARK PEARSON

MEDIA law students and colleagues will have undoubtedly noticed the Jehovah’s Witnesses pop-up stalls with religious books and magazines outside campuses and public transport stops, staffed by followers passively promoting their religion.

Yet few would realise the important role this religious group has played in cementing First Amendment rights in the United States, with a ripple effect for freedom of religion and free expression internationally.

That story is central to Episode 16 of the acclaimed Washington Post podcast ‘Constitutional’, available free here.

It uses the voices of constitutional experts and those who lived through the period to explain how a series of cases brought to the US Supreme Court by the Jehovah’s Witnesses forged the interpretations of the First Amendment that laid the platform for religious and media freedom – and free expression more generally – today.

More than 20 cases were brought in the midst of the Second World War. The religion lost the first two major cases, related to proselytising in public and the right of their children to refuse to salute the US flag at school.

But within two years the Supreme Court had overturned that decision, giving the First Amendment precedence over many other rights.

It is a compelling narrative and particularly well produced, and recommended listening for media law students.

Australia’s High Court has chosen to take a narrower approach to freedom of speech and religion in its interpretation of what it has called an ‘implied freedom to communicate on matters of politics and government’. In a comparable case in 2013, it declined a religious group’s attempt to use that implied freedom to proselytise in the centre of Adelaide.

Caleb and Samuel Corneloup were evangelical members of the fundamentalist ‘Street Church’, who preached in Adelaide’s busy Rundle Mall in a loud, animated and sometimes confronting style. Adelaide City Council tried to stop them, by using a by-law prohibiting anyone preaching or distributing printed matter on any road to any bystander or passer-by without permission.

The High Court majority held that the Local Government Act empowered the council to make the by-laws. They ‘were a valid exercise of the Council’s statutory power to make by-laws for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants’.

Although they ‘burdened political communication, they did not infringe the implied constitutional freedom’ because they served a legitimate end in a manner compatible with our system of representative and responsible government, the High Court said (Pearson & Polden, 2019)

[See Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (27 February 2013), <www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2013/3.html>. ]

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 2019 – the moral right of the author has been asserted.

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A mindful approach to introducing defamation to students #MLGriff

By MARK PEARSON

Colleagues from Griffith University gathered for a celebration of teaching and learning this week and I had the honour of presenting an open class session.

The forum was called ‘Teaching Using Engaging and Empowering Pedagogies’ and my class was titled ‘Practising mindfulness in the tertiary classroom’.

It was an attempt at putting into practice some of the research we have been undertaking in this space in recent years.

For the research underpinning it, please see:

Pearson, M., McMahon, C., O’Donovan, A. and O’Shannessy, D. (2019), ‘Building journalists’ resilience through mindfulness strategies’. Journalism. https://journals.sagepub.com/doi/abs/10.1177/1464884919833253

Pearson, M., McMahon, C., and O’Donovan, A. (2018) ‘Potential benefits of teaching mindfulness to journalism students’. Asia Pacific Media Educator (December). 28:2: https://doi.org/10.1177/1326365X18800080

You should get the gist of the mindfulness-based activities involved from the slide show captured below.

Enjoy.

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 2019 – the moral right of the author has been asserted.

 

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Australian metadata laws put confidential interviews at risk, with no protections for research

By MARK PEARSON

Interviews from a range of sensitive research topics may be at risk. These include immigration, crime and corruption.
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EACH year, academics and students make countless applications for research ethics approval, based on the promise of confidentiality to their interview subjects. Interviewees sometimes offer academic researchers information that might be self-incriminating or might jeopardise the rights and liberties of others they’re discussing.

But Australia’s metadata retention laws can lead to the identification and even incrimination of the very people whose identities academic researchers have promised to keep secret for their work.

Imagine, for instance, a criminologist conducting a project examining white collar crime in banking and financial services. The academic’s confidential interviews with former company directors and executives might elicit specific and revealing answers. It could lead to potential redundancy or even jail time, depending on their vulnerability and culpability.

Under the metadata laws, government agencies make hundreds of thousands of requests to Australian telcos each year for their customers’ phone and internet communications metadata.

For the criminologist, this means relevant agencies can ask telcos to access his or her metadata in the form of call records and computer IP addresses. This means they can identify whether a person of interest has been in communication with the researcher and is the possible source of incriminating material. Other investigations and legal steps might then follow.

Interviews about a range of sensitive research topics may be at risk. These include immigration, crime and corruption, national security, policing, politics, international relations and policy.

The impact of metadata laws on journalists and their sources have been well documented. But we can only wonder how many people will agree to participate in academic research if they are made fully aware of the real potential of being identified by investigators.

Interested?

READ my full article in The Conversation.

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 2019 – the moral right of the author has been asserted.

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Submission to inquiry shows journalism educators and students lack metadata source protection

By MARK PEARSON

Australian journalists have a narrow and inadequate protection under national security laws from government agencies accessing their metadata to discover the identity of their confidential sources.

I helped the Journalism Education and Research Association of Australia (JERAA) prepare a parliamentary committee submission that explains journalism educators and journalism students do not even qualify for that low level of protection, leaving their confidential sources open to revelation.

Our submission now sits with several others on the Parliamentary Joint Committee on Intelligence and Security site here.

We have asked that legislators focus on the public interest journalism involved when awarding such defences and protections rather than focussing simply on whether someone is a ‘journalist‘ – an occupation and term difficult to define in the modern era – and used as the default for the rare privileges given.

We have proposed that

existing and proposed protections for ‘journalists and media organisations’ be extended to apply to the research and outputs of journalism educators and their students when they are engaged in ‘public interest journalism’, whether or not they are paid to work as journalists and whether or not their work is published by a ‘media organisation’ in its traditional sense.

We have also asked that the Commonwealth lead a reform initiative to unify all state, territory an Commonwealth media laws across a range of publication restrictions to do away with anachronistic inconsistencies and introduce a public interest journalism defence or exemption so that courts are prompted to balance the various interests at stake before issuing a warrant against a journalist or taking criminal action.

The Committee is now entering the phase of public hearings. See their site here.

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

© Mark Pearson 2019 – the moral right of the author has been asserted.

 

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