Tag Archives: media regulation

Memo #RSF Paris: Australian media freedom at risk from anti-terror laws

By MARK PEARSON

[Research assistance from media freedom intern Jasmine Lincoln]

Memo to: Benjamin Ismail, Bureau Asie-Pacifique, Reporters sans frontiers (RSF – Reporters Without Borders), Paris.

From: Mark Pearson, RSF correspondent, Australia

RSFlogo-enI regret to advise that several events and policy proposals have impacted negatively on the state of media freedom in Australia.

They are highly likely to threaten Australia’s ranking on your forthcoming RSF World Press Freedom Index.

A raft of new laws and policies proposed by the conservative Abbott Government has placed its stamp on media law and free and open public commentary.

The initiatives follow in the steps of the prior Labor Government that had proposed a new media regulatory regime with potentially crippling obligations under the Privacy Act.

In the course of its first year in office the Abbott Government has:

– imposed a media blackout on vital information on the important human rights issue of the fate of asylum seekers;

– initiated major budget cuts on the publicly funded ABC;

– used anti-terror laws to win a ‘super injunction’ on court proceedings that might damage its international relations (see your earlier RSF release on this, which I cannot legally reproduce here for fear of a contempt charge);

– moved to stop not-for-profits advocating against government policy in their service agreements, meaning they lose funding if they criticise the government;

– slated the Office of the Information Commissioner for abolition, promising tardy FOI appeals;

– proposed the taxing of telcos to pay for its new surveillance measures, potentially a modern version of licensing the press;

– proposed ramped up surveillance powers of national security agencies and banning reporting of security operations (See Prime Minister’s August 5 release here);

– proposed increased jail terms for leaks about security matters (you issued a release on July 22 the impact for whistleblowers);

– mooted a new gag on ‘incitement to terrorism’;

– proposed new laws reversing the onus of proof about the purpose of their journey for anyone, including journalists, travelling to Syria or Iraq.

Major media groups have expressed their alarm at the national security proposals in a joint submission stating that the new surveillance powers and measures against whistleblowers would represent an affront to a free press.

Over the same period the judiciary has presided over the jailing of a journalist for breaching a suppression order, the conviction of a blogger for another breach, and several instances of journalists facing contempt charges over refusal to reveal their sources. There have also been numerous suppression orders issued, including this one over a Victorian gangland trial.

Other disturbing signs have been actions by police and departmental chiefs to intimidate journalists and media outlets.

  • The Australian Federal Police raided the Seven Network headquarters in Sydney in February, purportedly in search of evidence of chequebook journalism, triggering an official apology this week.
  • Defence Chief General David Hurley wrote to newly elected Palmer United Party Senator Jacqui Lambie in March, warning her not to use the media to criticise the military.
  • Freelance journalist Asher Wolf received a threatening letter from the secretary for the Department of Immigration and Border Protection (DIBP) Martin Bowles following her co-written article for the Guardian Australia on February  19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details.’ The public service mandarin’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’ and demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices. See the letter here: WolfDIBP to The Guardian – A Wolf. The Sydney Morning Herald later reported that the DIBP was hiring private contractors to trawl social media and order pro-asylum seeker activists to remove their protesting posts.

I am sure you will agree that these developments are not what we would expect to be unfolding in a Western democracy like Australia where media freedom has previously been at a level respected by the international community.

Kind regards,

Mark Pearson (@journlaw)

—–

Sources for further detail on the national security reforms:

(6 August, 2014). Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014 Submission. Retrieved from: file:///C:/Users/jasmine/Downloads/17.%20Joint%20media%20organisations%20(1).pdf.

Criminal Code Act 1995 (Qld) s. 5.4 (Austl.).

Grubb, B. (19 August, 2014). Anti-leak spy laws will only target ‘reckless’ journalists: Attorney-General’s office. Retrieved from: http://www.smh.com.au/federal-politics/political-news/antileak-spy-laws-will-only-target-reckless-journalists-attorneygenerals-office-20140818-1059c7.html.

Grubb, B. (30 July, 2014). Edward Snowden’s lawyer blasts Australian law that would jail journalists reporting on spy leaks. Retrieved from: http://www.smh.com.au/digital-life/consumer-security/edward-snowdens-lawyer-blasts-australian-law-that-would-jail-journalists-reporting-on-spy-leaks-20140730-zyn95.html.

Hopewell, L. (17 July, 2014). New Aussie Security Laws Would Jail Journalists for Reporting on Snowden Style-Leaks. Retrieved from: http://www.gizmodo.com.au/2014/07/new-aussie-security-laws-would-jail-journalists-for-reporting-on-snowden-style-leaks/.

Murphy, K. (17 August, 2014). David Leyonhjelm believes security changes restrict ordinary Australians. Retrieved from: http://www.theguardian.com/world/2014/aug/17/david-leyonhjelm-security-changes-restrict-australians.

Parliament of Australia (15 August, 2014). Parliamentary Joint Committee on Intelligence and Security, 15/08/2014, National Security Legislation Amendment Bill (No. 1) 2014. Retrieved from: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=COMMITTEES;id=committees%2Fcommjnt%2F2066f963-ee87-4000-9816-ebc418b47eb4%2F0002;orderBy=priority,doc_date-rev;query=Dataset%3AcomJoint;rec=0;resCount=Default.

The Greens (1 August, 2014). Brandis presumption of terror guilt could trap journalists, aid workers. Retrieved from: http://greens.org.au/node/5617.

 

© Mark Pearson 2014

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

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New Australian Press Council standards start August 1

Guest report from JASMINE LINCOLN, Griffith University media freedom intern

THE Australian Press Council (APC) has released its new Statement of General Principles as part of its Standards Project where it is reviewing its Standards of Practice and creating new ones.

It applies to all print and online news material from August 1, 2014.

Mark Pearson ( ) recently had the chance to interview Australian Press Council chair Professor Julian Disney on the role and direction of the Council.

In this interview he discussed the recent reforms to the Council, the move to improve its editorial standards, and the future for media ‘self-regulation’ as broadcast, print, online and social media formats continue to converge.

(12 mins, recorded 17 March 2014). Apologies for some audio sync issues!

The Council states on its site:

The revised Statement of General Principles does not seek to change substantially the general approach which has been taken previously by the Council. The main purposes are to ensure that the Principles accurately reflect that approach, are as clear as possible and are succinct.

Amongst other things, the new Statement of General Principles clarifies

• the principle that reasonable steps must be taken to ensure that factual material is accurate and not misleading applies to material of that kind in all types of article;

• the principle of reasonable fairness and balance applies to presentation of facts (including presentation of other people’s opinions) but not to writers’ expressions of their own opinion.

The Principles focus on four sets of key values:

• accuracy and clarity;

• fairness and balance;

• privacy and avoidance of harm;

• integrity and transparency.

The first phase of the Council’s ongoing changes has involved a review of the General Principles and the development of Specific Standards.

The next phase of the project includes a number of developments, including reviews of Privacy Principles and new Specific Standards on technological media outlets.

Also amongst these developments is a “systemic monitoring of compliance” (Australian Press Council, 2014) regarding the practice of the new standards.

This will directly affect the work of journalists because they will have their articles examined by the APC.

According to Press Council chair Professor Julian Disney, there are two main reasons for this Standards Project: so that the Standards of Practice are clearer and so they appropriately reflect the modern media context.

As a result of this project, the APC hopes that the new standards “will deal more effectively” with numerous complaints that they receive each year.

Sources:

Australian Press Council (2014). The Standards Project. Retrieved from: http://www.presscouncil.org.au/the-standards-project/

Robin, M (July 2014). Higher standards for opinion writing as Press Council refocuses for digital age. Retrieved from: http://www.crikey.com.au/2014/07/22/higher-standards-for-opinion-writing-as-press-council-refocuses-for-digital-age/

© Jasmine Lincoln 2014

Disclaimer: While this blog is 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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Australian Press Council Chair Julian Disney with @journlaw

By MARK PEARSON

I recently had the chance to interview Australian Press Council chair Professor Julian Disney on the role and direction of the Council.

In this interview he discusses the recent reforms to the Council, the move to improve its editorial standards, and the future for media ‘self-regulation’ as broadcast, print, online and social media formats continue to converge.

(12 mins, recorded 17 March 2014). Apologies for some audio sync issues!

© Mark Pearson 2014

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

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Blended learning and instructional scaffolding in a Media Law course

By MARK PEARSON

I’m thoroughly enjoying a revitalised enthusiasm for my media law teaching thanks to the Blended Learning team at Griffith University.

I’ve recently been a student in an Online Course Development course run by expert faculty in my Arts, Education and Law group and have been keenly trying to build the various blended learning strategies into the Blackboard interface for both the on-campus and Open Universities Australia versions of my Media Law course.

The Media Law course’s pedagogy and assessment tasks are built around both problem-based learning and instructional scaffolding.

It is module-based, with each module’s integrated learning tools and materials contained in the Course Content area (see screen capture).

The Course Content part of the Learning@Griffith site for the Media Law course

The Course Content part of the Learning@Griffith site for the Media Law course

The modules are designed so that students progressively learn the material and work towards their assessment as the semester unfolds, whether they are studying on-campus or online, or via a combination of the two (‘blended learning’).

They are aware that their learning tasks each week feed directly into their end of semester examination, which is essentially requires them to demonstrate summatively their skills and understandings they have already been workshopping in a formative sense throughout the semester.

Each week’s problem is centred upon the module’s readings (including a textbook chapter) and other learning activities, including lectures, short video introductions to each module, tutorials, video interviews of 10-15 mins with an expert ‘guest of the week’, and  discussion board and social media engagement. [Some of these techniques I have also refined through my recent  enrolment in ‘Massive Open Online Courses’ offered by Coursera and Canvas.]

The instructional scaffolding approach to assessment links attendance and online participation with assessment items that relate directly to those activities.

For example, students complete Weekly Learning Reflections about the media law problem of the week (submitted and assessed twice in the semester as collated portfolios). These then form the basis of questions in students’ end of semester examination and their written preparation for their weekly learning problem rubrics become their actual study notes for their open-book final exam. This leads to a purposive approach to student weekly readings and other learning tasks, aimed to enrich their learning through its focus on a problem and an ultimate assessment reward.

Similarly, students complete a short multiple choice online quiz at the end of each learning module – which is at that stage non-assessable (formative) and is only available for a two week period after that module has ended. They know their final end of semester summative multiple choice quiz will later be drawn from the pool of these very questions, rewarding students who have completed their reading and undertaken the formative assessment along the way.

Do you have other techniques you have been using effectively in teaching media law? Please let me know via the Comments section here or via Twitter at @journlaw.

© Mark Pearson 2014

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

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Now that’s how you review a book! Thanks Prof

By MARK PEARSON

BloggingTweetingNewCover

The top media law academic in the US, Professor Kyu Ho Youm, has just reviewed my recent book Blogging and Tweeting Without Getting Sued in the leading journal Journalism & Mass Communication Educator.

Prof Youm is Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication and immediate past president of the 3700 member Association for Education in Journalism and Mass Communication.

His review was a lesson in academic book reviewing. He did considerably more than just criticise or praise the book (though he did both at various points!). Prof Youm manage to inject new gems of knowledge and insight about the field in the process, including the suggestion of additional reading and cases that have been since decided.

He concludes by recommending it as a text:-).

Screen Shot 2014-03-06 at 5.23.20 PM

Read the full review at http://jmc.sagepub.com/content/69/1/90.citation.

© Mark Pearson 2014

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

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Abbott’s attack on ABC proves politicians are free press chameleons

By MARK PEARSON

Politicians are free expression chameleons. Regardless of their political colours, they are inevitably staunch advocates of a free media and the free flow of information while in opposition.

When they win government they tend to shut down criticism and negative press by implementing policies and passing laws to limit scrutiny.

Tony_Abbott

Australian Prime Minister Tony Abbott … called the ABC ‘unpatriotic’. [Image: Google free usage]

We saw this happen in Australia this week Prime Minister Tony Abbott’s criticisms of the Australian Broadcasting Corporation on the eve of his government’s announcement of an ‘efficiency study’ on the independent national broadcaster.

Less than a year ago, the former Gillard Labor government’s proposed media regulations which risked journalists and media organisations being shackled by a new privacy bureaucracy.

Less than two years ago the Finkelstein Report had journalists potentially being jailed or fined for disobedience of its proposed regulatory regime.

At the time I blogged about the potential implications of the Finkelstein recommendations (The Drum: ‘Media Inquiry: Be Careful What You Wish For’) and then communications minister Stephen Conroy’s poorly named News Media (Self-Regulation) Bill. [Also see my commentary in The Conversation putting all this in an international media freedom context.]

Those proposals arose in a highly politicised context where the then government believed some media outlets were biased against them.

The new Abbott conservative government – despite having opposed those reforms under the banner of press freedom – now seems to have adopted the public soap box and budgetary strategies with the ABC directly in its sights.

Prime Minister Abbott used a populist radio program to label the ABC ‘unpatriotic’ following the broadcaster’s publication of claims by asylum seekers that they had suffered burns during an Australian navy operation. [Well detailed by former ABC Media Watch host Jonathan Holmes here in The Age.]

In the same radio interview Mr Abbott criticised the ABC’s reportage of the Edward Snowden NSA leaks, including the revelation that Australia’s spy agency had secretly tapped the phones of Indonesian president Susilo Bambang Yudohoyono and his wife in 2009. He questioned the funding of the ABC’s FactCheck Unit which a few days earlier disproved his claim asylum seekers who alleged mistreatment by the Navy were breaking the law.

His criticisms came only hours prior to the Minister for Communications Malcolm Turnbull announcing an “efficiency review” of the ABC and its sister national broadcaster SBS (Special Broadcasting Service). The review will be looking for cost-saving measures in the lead-up to the May budget.

Reporters Without Borders has a long history of dealing with governments that demand national broadcasters be more patriotic in their coverage under threats to withdraw funding. But these cases rarely occur in Western democracies with a relatively high media freedom ranking. (Australia’s was 26/179 in 2013).

A free news media and a truly independent national broadcaster should be neither patriotic nor unpatriotic – such calls to nationalism are anathema to genuine truth-seeking and truth-telling in society.

An independent national broadcaster is not the equivalent of the marketing arm of a large corporation.

The ABC’s reportage of both the asylum seeker allegations and the spying scandal is understandable given the Australian Government’s policy of withholding information about the fate of asylum seekers who have attempted to reach Australian shores by boat.

The Australian Government’s policy of refusing to provide the media with details of such operations and in limiting media access to detention centres deprives Australian citizens and the international community of important information on a key human rights issue.

When journalists are deprived of basic information they are within their rights to publish serious allegations like those of the asylum seekers who claimed to have been injured at the hands of Australian defence forces, particularly if government sources are refusing to offer information about the circumstances.

They are simply reporting the truth that the allegations have been made. Authorities and other media or citizen journalists can set the record straight with evidence if the allegations are unfounded.

It is quite different from false allegations about an individual citizen – where that person could sue for defamation.

There is a policy reason large corporates and government entities like the Navy cannot sue for defamation over such allegations: in a democratic society such assertions deserve circulation so citizens can weigh their credibility.

Even if ultimately proven false, the allegations of mistreatment of asylum seekers had an element of plausibility when made because the Australian authorities – including the Navy, national security agencies and the border protection regime – had ‘form’.

It may be unpatriotic to say this, but documented incidents suggest it would be naïve to give Australian governments (of whatever persuasion) and agencies the benefit of the doubt in such situations.

They include (at the very least):

  • The ‘Children Overboard’ Affair in 2001 where Howard Government and defence claims about events concerning the Norwegian freighter MV Tampa proved to be politicised and misleading.
  • The recent revelations that Australian agents eavesdropped on the Indonesian President and spied on East Timor during oil and gas negotiations.
  • The Howard Government’s dogged determination to pursue Gold Coast doctor Mohamed Haneef, damage his reputation and cancel his visa as its terrorism allegations against him evaporated in 2007.
  • A litany of examples of unpublicized incidents at immigration detention centres, evident only months after the event through Freedom of Information requests and appeals by determined citizen journalists.
  • Recent allegations of ritual sexual abuse by Australian Navy personnel on board ships used for border protection duties.

The free flow of information is crucial to the democratic standing of a country like Australia. Such attacks by political leaders and calls for patriotism are what we expect from nations ranking much lower on RSF’s World Press Freedom Index.

The Australian Government should direct its energies to improving the free flow of information in society and granting better access and information to journalists and other citizens instead of name-calling, threats of fund cuts, and bizarre calls for media patriotism.

Hear my ABC 91.7 local radio interview on the issue:

Screen Shot 2014-02-04 at 1.24.20 PM

 

© Mark Pearson 2014

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

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Immigration case shows process can take the news out of FOI requests

By MARK PEARSON

A recent decision by the Australian Information Commissioner has demonstrated that persistence with a Freedom of Information application can pay off – if you are willing to wait the year or more for the appeal process to take its course. 

Farrell and Department of Immigration and Border Protection [2013] AICmr 81  (21 November 2013) was decided recently and may well be subject to further appeal.

GlobalMailDetention

FOI data used in The Global Mail multimedia coverage

On November 15, 2012, he applied to the Department of Immigration and Border Protection for access to a series of incident reports about five self-harming events logged on the department’s FI disclosure log.

On January 14, 2013, the Department provided Mr Farrell with edited copies of five documents totalling 23 pages related to his request, citing its ‘operations of agency’ and ‘personal privacy’ exemptions under sections 47E and 47F of the Commonwealth FOI Act as its reasons for the deletion of material. On February 14, 2013, Mr Farrell applied to the Information Commissioner for review of the information exempted by the Department under s 47E.

The Privacy Commissioner ruled on November 21, 2013 that the Department’s decision should be set aside and the exempted information should be released to Mr Farrell. The exemption under  Section 47E(d) provides: ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

The Department had argued its operations would have been adversely affected if details had been released about an incident of self-harm while an individual was about to be deported from Australia on a scheduled commercial flight. It argued the information might help others avoid deportation by adopting the same behaviours. The Privacy Commissioner ruled (at paras 12 and 13):

“Much of the information exempted by the Department in document 1 is already in the public domain in the form of media articles relating to similar instances where disruptive behaviour had led to individuals being unable to be deported on commercial flights and charter flights having to be subsequently arranged. I have examined an unedited copy of document 1. Given that information of this nature is already publicly available, I do not consider that its disclosure would, or could reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of the Department’s operations or would result in the Department being required to alter its processes for deporting individuals.”

Lessons for journalists

The case holds important lessons about the workings of FOI and the exemptions that are available.

On the one hand, Farrell and his colleagues were able to publish a substantial body of material on their detentionlogs.com.au site as a result of numerous FOI requests – information later published as stories, searchable databases and graphics on other news sites including The Guardian, The Global Mail and New Matilda.

However, the case also provides an insight into the bureaucratic, technical and time-consuming side of the FOI application process. A request had taken a full year to be filed, rejected and reviewed, and the Department still had 28 days to appeal to have the Privacy Commissioner’s decision reviewed by the Administrative Appeals Tribunal. That would then open the way to a series of court appeals over the decision if either party chose to pursue them.

Theoretically, it could take years before the release of the information which might then be only of historical value rather than of news value.

© 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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