Tag Archives: Media Report

September 7, 2016 · 4:30 pm

Addressing the Sri Lankan Press Council on media law and mindful journalism

For the past two weeks I have been in Sri Lanka, where my speaking and interview schedule has been arranged by Dr Sugath Senarath, my co-author of our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015).

Professor Mark Pearson (@journlaw) at the Sri Lanka Press Council event. Photo: Julie Pearson

The highlight was my address to the Sri Lankan Press Council last Wednesday (August 31) on the topic “Designing free expression models in communication with special reference to Commonwealth countries – a mindful Australian perspective”.

I offer the full text of the address to you here. [Please note that sections are excerpted from earlier work, including The Journalist’s Guide to Media Law (co-authored with Mark Polden, Allen & Unwin, 2015), Mindful Journalism (reference above) and my unpublished 2013 address to the Timor Leste National Congress for Journalists.]

Press Commissioner, Press Council Chair and board members, co-author and host Dr Sugath Senarath, academic and media colleagues, journalism and media students and young reporters and other honored guests…

Thank you sincerely for having me here today to talk about the important topic of free expression – a fundamental feature in a working democracy.

It is important that all citizens – particularly journalists and politicians – have a grasp of the principles of free expression, media freedom and their historical context.

Origins of free expression

The free expression of certain facts and views has always been a dangerous practice, with countless people put to death for expressing religious or political views throughout history. Many more have been imprisoned, tortured or punished for such expression. Socrates in 399 BCE elected to drink a poison—hemlock—rather than recant his philosophical questioning (Brasch and Ulloth, 1986, p. 9). The history of freedom of expression is as much a history of censorship, because when free expression has been threatened, intellectuals have been called upon to defend it. It was Johann Gutenberg’s invention of movable type in about 1450 and the massive growth in the publishing industry over the sixteenth and seventeenth centuries in the form of newsbooks and the activities of ‘pamphleteers’ that first triggered repressive laws, and then the movement for press freedom (Feather, 1988: 46). (It is interesting that these individuals were the forerunners of the citizen journalists and bloggers we know today—often highly opinionated and quick to publish speculation and rumour.)

Delivering the Sri Lankan Press Council address in Colombo. Photo: Julie Pearson

The pamphleteers took umbrage at government attempts to impose a licensing system for printers from the mid-sixteenth century (Overbeck, 2001: 34). Political philosopher and poet John Milton took aim at this in 1644 with Areopagitica, a speech to the parliament appealing for freedom of the presses. He went on to utter the famous free speech principle: ‘Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.’ (Patrides, 1985: 241). Milton inscribed his name on the title page of his unlicensed work, in defiance of the law he was criticising. The notion of free expression had spawned its offspring: press freedom.

Part of Milton’s argument centred on the ‘marketplace of ideas’—the belief that truth will win over falsehood when the two compete. This proposition of a contest between truth and falsehood was often used during the seventeenth and eighteenth centuries to justify freedom of expression (Smith, 1988: 31). It continues in public discourse today.

Two of the co-authors of ‘Mindful Journalism’, Professor Mark Pearson (left) and Dr Sugath Senarath from the University of Colombo.

Philosopher and political theorist John Locke took up the fight after Milton’s death. Under his social contract theory, governments are there to serve the people, and central to this is freedom of expression (Overbeck, 2001: 36).

Like Milton, Locke campaigned for the end of the English printing licence system, which expired in 1694 (Overbeck, 2001: 36). Those to speak out against restrictions on press freedom at the turn of the eighteenth century included novelist and journalist Daniel Defoe, who wrote ‘An Essay Upon the Regulation of the Press’ around 1704 (Brasch and Ulloth, 1986: 62), and John Trenchard and Thomas Gordon who, under the pen name ‘Cato’, wrote a series of letters about freedom in the 1720s (Brasch and Ulloth, 1986: 64–8).

England’s foremost philosopher of the late nineteenth century, John Stuart Mill, articulated the need for free speech in a liberal democratic society in On Liberty, first published in 1859 (Mill, 1991). He wrote:

The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. (1991: 20)

Mill’s On Liberty built on Milton’s ‘marketplace of ideas’ to define the boundaries of freedom of expression in the modern nation-state. One of the great legal minds of the eighteenth century, Sir William Blackstone, in his Commentaries on the Laws of England, had a great impact on the evolution of press freedom by defining it as the absence of ‘previous restraints upon publications’ (Blackstone, 1765–69: 151–2).

Blackstone’s notion of ‘prior restraint’ has underscored the development of media law in the United States. The idea was that freedom of the press could tolerate no restrictions before publication, such as licensing and taxes that had been imposed in Britain, but that the law should take its course after publication to punish those who abused this freedom. Publications should be tax and licence free, but subject to laws like defamation and contempt once published. In both Britain and its colonies, a common weapon for silencing the press had been the crime of ‘seditious libel’—any serious criticism of government or the Crown, whether or not the criticism was truthful. William Murray, Lord Chief Justice and Earl of Mansfield (1704–93), had coined the expression ‘the greater the truth, the greater the libel’ (Whitton, 1998), ensuring that truth would not stand up as a defence to seditious libel.

Despite these restrictions, basic press freedom had taken hold in Britain. Some thought the press had gone too far. In this context, the expression ‘the Fourth Estate’ was coined. At that time, there were said to be three ‘estates of the realm’—the Lords Spiritual, the Lords Temporal and the Lords Common. In 1790, English statesman Edmund Burke is said to have pointed to the press gallery in parliament and said: ‘There are three estates in Parliament but in the reporters’ gallery yonder sits a fourth estate more important far than they all.’ (Inglebart, 1987: 143).

The libertarian ideals on which press freedom is based were not confined to Britain. The movement for civil rights and individual liberties spread throughout Western Europe during the seventeenth to nineteenth centuries, epitomised by the French Revolution in 1789, leaving a legacy of press freedom throughout that region and its colonial outposts.

In Western democratic societies, journalists often take their liberties for granted. But there has never been utterly unshackled free speech or a completely free media: we operate on an international and historical continuum of free expression through to censorship. It is only over the past half-century that the notion of free expression and a free media has gained traction on a broader international scale.

Free expression internationally

There is no enforceable worldwide agreement on free expression as a fundamental human right, although some nations and regions have entrenched free expression in their constitutions. The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

At face value, this statement seems to give all the world’s citizens a right to free expression. While a declaration of a lofty goal, it has many limitations, as we will see.

Stronger protections came internationally in 1966 when the United Nations (UN) adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduces a right to free expression for the world’s citizens, again at Article 19.

However, the right is limited because the covenant also recognises duties, responsibilities and restrictions covering respect for the rights and reputations of others, and the protection of national security, public order, public health or morals. Add to this the fact that many countries either have not ratified the covenant, or have not incorporated its provisions to make them part of their domestic law—as in the case of Australia.

At least three major democratic English-speaking nations in addition to the United States have bills of rights enshrining free speech. British and European liberal ideals found their way into the wording of the American Declaration of Independence in 1776, the US Constitution in 1789 and its Bill of Rights in 1791. Central to the Bill of Rights was the First Amendment to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

US government attempts to restrain publications in the national interest have usually failed on First Amendment grounds.

The Canadian Charter of Rights and Freedoms (1982), like the US First Amendment, recognises freedom of the press as part of section 2(b), which confers upon every citizen the following freedoms: ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. The United Kingdom and New Zealand legislation does not mention media freedom, opting instead for the broader term ‘freedom of expression’.

New Zealand’s Bill of Rights, enacted in 1990, states at section 14: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. In 2011, the New Zealand Supreme Court found that the right protected Valerie Morse, an anti-war protester who burned her country’s flag during a dawn memorial service in Wellington. Her conviction for offensive behaviour was set aside.

Despite this, there are many nations with such a free expression clauses in their constitutions where their governments have chosen to ignore them to advance their own interests or to prevent scrutiny of their actions. This has sometimes led to the harassment, assault, imprisonment and even murder of journalists. I note that the Sri Lankan Constitution also enshrines “freedom of speech and expression including publication” and it is encouraging that your new government has taken some first steps towards honouring that right which appears to have been neglected in recent decades. The recent passage of a Right to Information Act is one such encouraging step. Of course, such freedom of information instruments in many countries are ineffective because of the large numbers of exemptions to the release of documents available to governments, the cost of making applications, and the glacial speed with which bureaucracies approve requests for government information – using refusals and appeals to wear down the journalists rightfully seeking facts and information on behalf of the citizenry.

For many truth-seekers and truth-tellers, the commitment to free expression has taken the form of physical injury or danger—even death. The Committee to Protect Journalists (CPJ) lists more than 1200 journalists confirmed as killed in the course of their work since 1992, including 27 in 2016 to date. As a former correspondent for Reporters Without Borders, I must highlight the fact that the world is watching the new Sri Lankan government to see how enthusiastically it pursues and prosecutes those responsible for the murder of 19 journalists in this country since 1992 – criminals who it seems have been able to conduct their assassination of this democracy’s messengers with complete impunity. I suggest the Press Council might consider keeping this issue on the agenda in the interests of media freedom and as a tribute to those who have paid the ultimate price for exercising their Constitutional right to free expression.

Throughout the Asia-Pacific region, many others have died, suffered violence or have been imprisoned for what they report. Some have suffered in other ways, as the victims of lawsuits by those who set out to gag them.

Australia

Australia’s early history was marked by considerable censorship of its media, although an early battle between Governor Darling and the Chief Justice in 1827 prevented the licensing of newspapers.

Australia has no equivalent to the US First Amendment enshrining freedom of the press. However, in recent decades the High Court of Australia has recognised an implied freedom to communicate on matters of politics and government.

Press systems and ethical frameworks are on the agenda in all societies, and we are challenged to accommodate free expression and its close relative, press freedom, within new regulatory, technological and cultural contexts.

Recent inquiries into media regulation in the United Kingdom (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have recommended major changes to the regulation of media corporations and the ethical practices of journalists. Their motivation stems, at least ostensibly, from public angst—and subsequent political pressure—over a litany of unethical breaches of citizens’ privacy over several years in the United Kingdom, culminating in the News of the World scandal and the subsequent revelations at the Leveson Inquiry (2012), all of which had an undoubted ripple effect in Australia.

All proposals for any such government intervention with media freedom by such a controlling body by a Press Council or News Council were rejected after considerable pressure from media organisations as anathema to free expression.

Both inquiries acknowledged—and rejected—the notion of a revamped Australian Press Council, proposed in various submissions and in appearances by its then chair. The Australian Press Council was established in 1976 as a newspaper industry ‘self-regulatory’ body—a purely voluntary entity with no powers under law.) Nevertheless, both during and after these two reports, and with new support from most of its members, the Press Council moved quickly to ramp up its purview and powers to address many of its documented shortcomings, such as the refusal of some member newspapers to publish its findings and the threat of withdrawal of funding from others (Simpson, 2012). It locked its members into four-year commitments and established an independent panel to advise on a review of content standards.

At the same time as these changes to media regulation were being proposed, several reformulations of existing media laws were being considered by state, territory and federal governments and their respective law-reform bodies. They covered such topics as privacy law, media classification, intellectual property, cyber-bullying, shield laws and national security laws. Of these, new shield laws have subsequently been introduced in most Australian jurisdictions. Media law and regulation constitute a field subject to continual scrutiny and change, which makes it all the more important for students and professional communicators to keep pace with developments.

It is noteworthy that the self-regulatory institution journalists fear most – more than the Press Council and other self-regulation tribunals, is the ABC’s weekly program Media Watch, which was first screened in 1989. Its website promotes it as follows: ‘Everyone loves it until they’re on it’ (www.abc.net.au/mediawatch/). Criticised for being sometimes trite, and often bitchy, Media Watch has exposed some of the nation’s most spectacular ethical breaches over the past two decades. These include blatant instances of plagiarism and privacy invasion and, most famously, an exposé of secret payments being made to talkback radio stars for their endorsement of products and services without the knowledge of their listeners. While Media Watch itself has no sanctions available, the power of the program lies in the fact that ethical breaches and glaring errors are screened on national television, when journalists know their colleagues are watching. The ultimate tool of media self-regulation can indeed be the media itself!

There are several ways journalists in other countries considering regulatory models can learn from this recent experience in Australia.

Comparisons can be dangerous. Even in a democracy with a long history of relatively free expression politicians and governments will seek out and seize any opportunity to regulate the media. International comparisons can be dangerous because we operate within different political and cultural frameworks. When they were arguing for their media reforms, Ministers cited RSF’s World Press Freedom Index, using the argument that Finland remained in number one position there despite having a statutory mechanism for its press regulation. They failed to mention that Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws that impact on free expression in other countries like Australia.
Beware of regulation creep. Existing laws such as defamation and contempt that apply to all citizens go a long way towards controlling media behavior. I have seen few serious ethical breaches that could not be handled by the existing laws. Once media laws have been introduced it is hard to wind those laws back to re-establish eroded freedoms. Australia passed more than 60 new anti-terror laws after the September 2001 attacks on the US – many impacting on the media – and few of those have been wound back. Media regulation is hard to undo because governments like to have that power.
Don’t trade press freedom. Well meaning journalists and academics are sometimes willing to sacrifice media freedom because of the misbehavior of some media personnel. When you offer governments new powers to control the misbehaviour of some elements in the media you need to accept that those same powers might be used against you at some later stage.
Beware de facto licensing. There is the temptation to issue journalists with accreditation and registration in actual or de facto licensing schemes. While journalists might like the idea of carrying an official card with privileged access, the narrow defining of journalists and journalism by governments presents a real danger to free expression because it privileges some citizens over others as communicators. This gives those issuing and revoking such licenses influence over the message itself. It is even less appropriate in a new era of blogging and social media because the nature of news and journalism is even harder to define. Citizens might become reporters temporarily because of the scale of an event or issue or on an ongoing basis in a narrow field of interest that might momentarily become of broader public interest. It is inappropriate that they should have to seek registration or licensing as a journalist or that they should be punished for reporting without such official licence. Rather, their words or actions should be subject only to the communication limitations placed on all citizens, and in a working democracy they should be limited to only extreme breaches.
Judge a proposed law by its ultimate possible sanction. The best test when trying to gauge the potential impact of new media regulations is not the assurances of their proponents that they will be used only rarely and only in extreme cases, or perhaps not used against journalists. The real test is to look at the ultimate maximum sanctions available and if these involve the potential jailing or fining of journalists then they are anathema to press freedom in a democracy.
Media freedom is above politics. Media regulation was certainly a long overdue debate in Australia, but it was politicised from the outset which undermined the likelihood of the implementation of any of the proposals. Some political parties supported tougher regulation of the media because they had been the target of adverse coverage. A basic human right like free expression should be above politics in a democracy, yet most governments will strive to limit it.
Media freedom is above commercial interest. Opponents of media regulation need to be careful they are not being seen as simply protecting their own commercial enterprises. Criticism of the recommendations by the larger Australian media groups on free expression grounds – particularly by Murdoch executives – were dismissed as a defence of their vested interests (Meade and Canning, 2012). It helps to recruit other senior intellectuals in defence of media freedom – including academics, business leaders and other public intellectuals.
Be wary of ethics codes imposed by governments. Too often governments use ethics codes as a Trojan Horse to push through tougher restrictions on journalists. Ethical codes should be SELF regulatory systems, not legally enforceable instruments carrying potential fines and jail terms.
Training and education in law and ethics is crucial. 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 understanding of the important role of the media in a democracy.
Educate the community about free expression and a free media. The constitutional right to press freedom and free expression need to be part of every school’s civics curriculum and media organisations need to remind their audiences of this constitutional right and its important history at every opportunity.

Mindful Journalism

Just as important as external regulatory and legal systems are the internal processes of journalists’ decision-making – their internal ‘moral compasses’. I have explored this phenomenon in developing the concept of ‘mindful journalism’ with colleagues Shelton Gunaratne and Sugath Senarath in a recent book – Mindful Journalism – published by Routledge in New York last year.

We explore the possibilities of applying some of Buddhism’s core principles to the secular phenomenon of journalism. It must be accepted that Buddhist practices such as ‘mindfulness’ and meditation have been adopted broadly in Western society in recent decades and have been embraced by the cognitive sciences in adapted therapeutic ways (Segal et al 2012).

Each of the constituent steps of the Noble Eightfold Path – understanding free of superstition, kindly and truthful speech, right conduct, doing no harm, perseverance, mindfulness and contemplation – has an application to the modern-day practice of truth-seeking and truth-telling – whether that be by a journalist working in a traditional media context, a citizen journalist or a serious blogger reporting and commenting upon news and current affairs.

We do not propose a definitive fix-all solution to the shortcomings in journalism ethics or their regulation. Rather, ‘mindful journalism’ is an acknowledgment that the basic teachings of one of the world’s major religions can offer guidance in identifying a common – and secular – moral compass that might inform our journalism practice as technology and globalization place our old ethical models under stress. Media coverage can be vastly improved with the application of such principles – working towards a journalism of wisdom and compassion.

One of the problems with emerging citizen journalism and news websites is that their proponents do not necessarily ascribe to traditional journalists’ ethical codes. In a global and multicultural publishing environment the challenge is to develop models that might be embraced more broadly than a particular country’s repackaging of a journalists’ code. However, codes of ethics have often failed to work effectively in guiding the ethics of the traditional journalists for whom they were designed, let alone the litany of new hybrids including citizen journalists, bloggers, and the avid users of other emerging news platforms. Core human moral principles from key classical teachings like the Noble Eightfold Path could form the basis of a more relevant and broadly applicable model for the practice of ‘mindful journalism’.

The recent international inquiries triggered by poor journalism ethical practices have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to explore new ways to recapture this. We should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary accommodating a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process. They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.

Journalists must tell uncomfortable truths for the benefit of society and for the proper functioning of democracies. Politicians particularly need to have thick skins in recognition of the transparency and accountability of the public positions they hold. Before they attack the media they need to reflect upon whether they are acting through craving, attachment or ego.

Even the Buddha allowed for such uncomfortable truths to be spoken. In the Abhaya Sutta, the Buddha addressed Prince Abhaya on the qualities of Right Speech. He related to the prince six criteria for deciding what is worth saying. The third represents how the mindful journalist might approach such criticism of public figures:

[3] “In the case of words that the Tathagata knows to be factual, true, beneficial, but unendearing and disagreeable to others, he has a sense of the proper time for saying them.

Mindful journalists should strive to get their timing correct, but there is no doubt that painful truths sometimes must be spoken. This requires reflection, meditation and insight in the planning and execution of a story to help alleviate suffering. A functioning democracy requires that such unendearing and disagreeable statements sometimes be made about our fellow citizens – particularly those entrusted with the public purse and special powers. It is no less than the role of the Fourth Estate to fulfil this function, and it is heartening to see that Sri Lanka is again investing in the fundamental freedoms that allow journalists to do so. I am sure the Sri Lankan Press Council can play an important role in advocating for press freedom and encouraging a robust journalism of truth, wisdom and compassion.

Thank you.

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

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Tagged as Buddhism, Buddhist journalism, censorship, communication ethics, communication law, Communication theory, defamation, Eightfold Path, ethics, First Amendment journalism, law, libel, mark pearson, media, media law, Media Report, mindful journalism, mindfulness, Press Council, Right Speech, Shelton Gunaratne, Sri Lanka, Sugath Senarath

July 7, 2016 · 9:20 am

Gearing up for a stimulating and mindful #wjec16

By MARK PEARSON Follow @Journlaw

Many of the leading lights in journalism education internationally gather in Auckland next week for the fourth World Journalism Education Congress at AUT Auckland.

For me, it will be a busy start to a sabbatical semester and I am looking forward to chairing a session, being respondent for another, a panellist in a 21st century ethics discussion, and presenting two conference papers with @ReportingIslam project colleague Jacqui Ewart (@jacquiewart).

Interested? Here are the session descriptions and abstracts. See the full program here.

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WJEC preconference of the Journalism Education and Research Association of Australia (JERAA), AUT Pacific Media Centre (PMC) and Media Educators Pacific (MEP), Wednesday, 13 July 2016, 4-5.30pm

A Research-driven Approach to Developing a Best Practice Checklist for Journalists Reporting upon Islam and Muslims

Prof Mark Pearson and Prof Jacqui Ewart (Griffith University, Australia)

This paper explains the processes undertaken to research, develop and trial a checklist for journalists or journalism students for the ethical and mindful reporting of stories involving Islam as a religion or Muslim people. The presenters outline an innovative approach to such a task where the international literature in the field and follow-up research informed the creation of an extended checklist which was then refined according to the perceived needs and priorities of the journalists and students who were presented with it.

This paper presents the methodology and results of the study implementing exactly that approach, which might inform future approaches to the development of such guidelines across a broad range of reporting topics. The study formed part of a major Australian Government funded project involving the creation of research-based resources on the mindful reporting of Islam and Muslim people.

Academic research papers stemming from international studies on reporting Islam and journalism ethics were searched. We also undertook 29 interviews with journalists, journalism educators, journalism students and academics with expertise in the media and Islam in Australia and New Zealand. Topics covered included best and poor practice and curricular and pedagogical approaches to educating journalists for more mindful reporting. We analysed this data – previous studies and the interview transcripts – as a crucial part of the development of an extended list of 30 questions journalists and editors might ask themselves when covering a story related to Islam or Muslim people. Journalists, educators and journalism students (n = 123) attending workshops throughout 2015 were presented with the 30 questions and were asked to nominate the 10 they felt were most important (in no particular order), using a variation of “forced choice” testing in survey methodology (Frederick, 2004, pp. 397-398). The responses were then ranked in order of importance into a “Top Ten” checklist and subsequently built into the project’s resources and curricula which were in turn trialled with journalists, journalism educators and students at several sites in four Australian states and in Canberra. This paper explains that the approach has at least three benefits – the pedagogical advantage of the embedded learning happening while the participants perform the ranking; the reassurance for the teaching resource developers that the selected guidelines are considered the most important by the target groups; and the enhanced credibility of the resulting guidelines for those subsequently using them. The paper details the methodological and educational research underpinning the approach and presents the resulting refined checklist.

Frederick, R. (2004). Forced-choice testing. In M. Lewis-Beck, A. Bryman, & T. Liao (Eds.), Encyclopedia of social science research methods. (pp. 397-398). Thousand Oaks, CA: Sage.

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WJEC Conference, July 14, 11am-12.30pm

Panel 2: 21st century ethical issues in journalism

WG404

This panel explores the ethics of journalism in an environment where journalistic authority is diminished and new relationships with news publics are being sought. The speakers, drawing on a range of philosophical positions, will explore arguments around journalistic independence, engagement with the public good, transparency and sincerity. In doing so, the panel members will trace some of the major fault lines in contemporary journalism ethics around truth-telling and accountability and assess ways through which journalists can morally justify their work.

Chair: Donald Matheson, Canterbury University (New Zealand)

Panelists:

Mark Pearson, Griffith University (Australia)

Cherian George, Hong Kong Baptist University (Hong Kong)

Linda Steiner, University of Maryland (United States)

Respondent: Stephen Ward, University of British Columbia/University of Wisconsin-Madison (Canada)

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WJEC Conference, July 16, 11-12.30pm

Paper session: 21st Century Ethical Issues in Journalism 3

WG607

Eliciting Best Practice in Reporting Islam: Case studies from Australia

Mark Pearson and Jacqui Ewart, Griffith University

Much is known about the poor practices adopted by some news media outlets in their coverage of Islam and Muslims, but relatively little research has been conducted into what might constitute best practice in this important area of reportage (Pintak & Franklin, 2013; Rupar, 2012). In this presentation we discuss two case studies from Australia, involving a range of approaches to reporting stories involving Islam and Muslims. These case studies were part of the first stage of a projected three-stage project aimed at developing best practice resources to encourage the more mindful reporting of Islam and Muslims. The first case study includes a set of examples of news media reporting of proposed and existing mosques and prayer rooms. We chose this particular case study because the international literature revealed that mosque proposals and construction projects frequently became the focus of negative news media coverage (DeHansas and Pieri 2011; Dunn, 2001; Alleivi, 2009). Key journalistic lessons to emerge from the examination of the articles about coverage of planned, proposed or existing mosques included the need to: pay attention to the type of language used in news reports; focus on using non-inflammatory language; ensure a range of voices are heard in reports; avoid giving attention to extreme points of view held by a minority; ensure images are in context; verify the veracity of protestors’ claims; assess the proportion of protesting residents in the particular community; embed ongoing coverage of issues affecting Muslim communities into the news schedule; and consider the broader social and current affairs context when covering stories about Islam and Muslims.

The second case study focuses on two approaches to national media coverage of radicalisation and association of Muslim people with violence and terrorism because the international body of research highlights the tendency of news media to make connections between, or conflate, these issues (Altheide, 2007; Murphy et al, 2015; Pintak and Franklin, 2013; Rupar, 2012).

There were some similarities and some differences between the approaches of the two national media outlets (newspaper and public television) to essentially the same topic of radicalisation of Australian Muslim men at approximately the same point of history. Both used a range of sources including some experts, mainstream Muslims and radicalised militants and/or their friends or associates; demonstrated a lack of detail on the sponsorship of their key expert sources; and simplified and sensationalised the issue in key aspects. Differences included: a generalised headline damaging the credibility of the newspaper’s overall coverage and the television program’s use of a moment of conflict in its promo; the newspaper’s use of a single expert source and the television program’s use of several; the newspaper’s profile of a single Muslim suburban woman for its ‘typical’ or ‘mainstream’ Muslim perspective as opposed to the television program’s inclusion of a range of diverse Muslim voices from different ethnic groups and locations; and the newspaper’s delay in offering Muslim community leaders’ perspectives until its follow-up coverage the next day as distinct from the television program including several such voices.

Using the international literature about best practice in reporting Islam and Muslims and the findings from our analysis of the case studies, we draw upon the research, our case studies and selected data from a series of interviews with experts to present a schema of 30 best practice questions journalists might reflect upon when reporting Islam and Muslims.

References

Allievi, S. (2009). ‘Conflicts Over Mosques in Europe: Policy Issues and Trends–NEF Initiative on Religion and Democracy in Europe’, Network of European Foundations.

Altheide, D.L. (2007). The Mass Media and Terrorism, Discourse and Communication, 1(3): 287-308.

De Hanas, D.N., and Pieri, Z.P. (2011). Olympic Proportions: The Expanding Scalar Politics of the London ‘Olympics Mega-Mosque’, Sociology 45(5): 798-814.

Dunn, K. M. (2001), Representations of Islam in the politics of mosque development in Sydney. Tijdschrift voor economische en sociale geografie, 92: 291–308.

Murphy, K., Cherney, A., and Barkworth, J., (2015), forthcoming). Avoiding Community Backlash in the fight against terrorism: Research Report.

Pintak, Lawrence and Franklin, Stephen (eds) (2013). Islam for Journalists; A Primer on Covering Muslim Communities in America. [Digital newsbook]. US Social Science Research Council; Edward R Murrow College of Communication, Washington State University. Available: https://www.rjionline.org/downloads/islam-for-journalists

Rupar, V. (2012). Getting the facts right: Reporting ethnicity and religion. A study of media coverage of ethnicity and religion in Denmark, France, Germany, Greece, Hungary, Italy, Lithuania, Slovakia and the United Kingdom.[Project Report]. Brussels: International Federation of Journalists. Available: http://ethicaljournalisminitiative.org/en/contents/eji-study-2012

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RELATED:

Mindful journalism – Bhutanese style

[This review was first published in Media International Australia, May 2016; 159 (1) as ‘Book Review: The Dragon’s Voice: How Modern Media Found Bhutan’]

By MARK PEARSON Follow @Journlaw

Few of us would pass up the chance to spend a year working in the Kingdom of Bhutan – mythologized in media coverage as a Shangri-La nestled in the Himalayas with its own Gross National Happiness Index.

Australian journalist and academic Bunty Avieson seized that opportunity and travelled (with her partner and young daughter) to work on a fledgling private newspaper in that tiny nation soon after its Fourth King had licensed it as part of a modernisation initiative.

The Dragon’s Voice – How Modern Media Found Bhutan (available here) is Avieson’s memoir of that experience. It is an entertaining work of popular non-fiction reflecting the author’s writing acumen and sense of narrative as a former editor of Woman’s Day and editorial director of New Idea. Yet it also has a depth of scholarship drawing upon Avieson’s more recent work as an academic researcher and journalism educator.

The Dragon’s Voice: How Modern Media Found Bhutan

Author: Bunty Avieson

University of Queensland Press, 2015, 240pp

ISBN: 978 0 7022 5357 7

The people of Bhutan are predominantly Buddhist and this navigation of opposites in life’s course is what Buddhists call the ‘Middle Path’. There are numerous examples throughout the book of Avieson and her Bhutanese newspaper colleagues endeavouring to find such a middle way between extremes.

Avieson takes up the challenge of portraying the deeper layers of a country whose image is over-simplified by its international media framing as a quaint oddity whose citizens are happily trapped in a bygone era on top of the world.

She does not shy away from important issues of censorship (including self-censorship), crime, poverty, natural disasters, domestic violence and the toll of the rapid pace of modernization.

Several threads run through the work, but one of the most important is the paradox centred upon the birth of a newspaper in Bhutan; coinciding with the death of printed newspapers in much of the developed world.

It is a particularly Buddhist and Bhutanese approach to journalism adopted by the Observer’s leadership team – mindful journalism in action. (See the reviewer’s own work on mindful journalism here.)

Avieson explains the newspaper’s owners Tenzin Wangdi and Phuntsho Wangmo asked some of the nation’s wisest and most ethical intellectuals to help develop guiding principles for the newspaper.

The resulting mission statement began with a Buddhist assertion “that all things exist in interdependence is an age-old wisdom”, before vowing to “uphold and strengthen the values and principles that bind this small but great kingdom together”. It continued: “We are a voice with a conscience, and our efforts are aimed at enriching people’s lives through unbiased content intended to inform, educate and entertain.”

Avieson proceeds to chronicle the successes gained and the challenges faced by the newspaper’s journalists and other staff as they set about redefining reporting about Bhutanese people in a Bhutanese style. She details the very practical problems of distribution to remote regions and the inexperience of staff, along with bizarre news topics including one about a town where men believe their wives have crooked vaginas and another about a ghost that lives in a rock.

The newspaper relied largely on government advertising, creating a fear of retaliation over critical stories, a situation not unique to Bhutan. Buddhist principles even influenced the types of advertisements the owners will carry. For example, the Observer would not run ads for cars because “it would be unkind to make villagers desire something they can’t afford”.

Occasionally the reader gets an insight into the profound influence Avieson had on the newspaper in her short time there – drawing upon her many years of experience as a magazine editor with layout, design, photography commissioning and selection and in the production of themed editions and special magazines.

While her modest approach is in keeping with the Buddhist theme, the reader is left wondering how involved Avieson became in the day to day journalism of the operation.

Successful memoirs need to do much more than document a passage of the author’s life. Avieson has achieved this in The Dragon’s Voice. It is purportedly about a year in Bhutan but in the telling it prompts important questions about the media, society and life.

We are left pondering how we would do journalism differently if we had the chance to reinvent it, and then it dawns upon us that that is exactly what journalists in the developed world are trying to do right now. There is much they can learn from Avieson’s account of her time with the Bhutan Observer.

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** Listen to author Bunty Avieson’s interview about the book with ABC Radio National Media Report host Richard Aedy here.

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Tagged as Bhutan, book review, Buddhist journalism, Bunty Avieson, communication ethics, ethics, mark pearson, media, Media Report, mindful journalism, mindfulness, newspapers, privacy, Radio National, The Dragon's Voice

May 5, 2016 · 12:33 pm

Ethical lessons from the 60 Minutes abduction saga

By MARK PEARSON Follow @Journlaw

International readers of this blog might be unaware of the national debate in Australia over the involvement of an Australian 60 Minutes television current affairs crew in last month’s abduction of two children in Lebanon who were the subject of a parental custody dispute.

The Australian mother of the child – Sally Faulkner – and the reporter Tara Brown and her three crew were jailed for two weeks along with the alleged abduction contractor Adam Whittington who remained in jail seeking bail this week.

The Nine Entertainment Company announced an investigation into the circumstances surrounding its flagship current affairs program’s involvement in the failed abduction attempt.

Following that announcement (April 21, 2016) ABC Gold Coast’s Matt Webber interviewed me about the ethical dimensions of the saga.

Here is the recording of that interview. [Transcription below by Virginia Leighton-Jackson].

Interview with ABC Gold Coast’s Matt Webber

Matt Webber: Let’s concentrate on the Nine Network for now. What are the main questions it needs to answer?

Mark Pearson (@journlaw): Well Matt, I think in your introduction you started to hit upon the main questions, and I think they’re questions that need [answering] – I mean hindsight is a wonderful thing and it’s very easy for an academic like me to be looking at this in hindsight and saying all the things that should have been done. But the sorts of questions that you were just asking [are relevant] – Who is involved? Who are the stakeholders? Who are those who might get hurt through such a story? The first thing Channel Nine should be doing, I believe, is setting up accountable systems where those questions are actually asked before stories are embarked upon. And that involves…

MW: Are we naive to think that wouldn’t happen?

…

MP: I don’t think so; I think people would get carried away, and particularly in a highly emotionally charged story like a custody battle it’s very easy to hear one party’s side of the story. Another issue here is of course is the simple fact of obeying laws. Now, there seems to be like a cultural view that has come through this story that going to another place, the ‘other’, a place like Lebanon, excuses journalists from doing what would be absolutely illegal for them to be doing here in Australia. I mean only a couple of years ago one of the leading news stories was a custody battle over children in Queensland where the Italian father had won custody of the children, and the family – the grandparents and the mother – were fighting the order of the court that the children be taken back to Italy. What if that had happened in that case? Just say the order had gone the other way and the father and an Italian TV crew was here and the children were grabbed on the streets of the Gold Coast and taken, and the plan was to take them to a boat at Southport, and somehow the TV crew had helped fund the abduction. Can people imagine what would have happened there? So what Channel Nine needs to be asking is what is going on there culturally in their mindset about these sorts of stories to think that it’s okay to do that in Lebanon, but it’s not okay to do it in Australia. What’s their view of another country’s legal system that allows that to happen?

Now there’s still a lot of this story to come out, facts that we will hear about – you just played a part of the father’s version of whether or not people are being paid or whatever. The truth of all of that will eventually come out. But I think what Channel Nine needs to do is actually follow the privacy guidelines of ACMA, the Broadcasting Authority, but follow them to the letter. They are not obligatory, but they need to actually look at them; where it says that children are more vulnerable, and the privacy of children is something that really needs close scrutiny. And in public interest – what they might call public interest doesn’t outweigh the rights of children to be considered. A story like this has ripple effects across a whole range of stakeholders, and they need to actually have a formalised process which goes through considering the potential impact on all of those involved – including in this case, the news crew.

MW: Indeed. Mark Pearson, a professor in journalism at Griffith University. Often ‘journalistic ethics’ is a pair of words that is tossed around fairly liberally. The Code of Ethics that journalists need to adhere to, are they sufficiently aware of it? Or are they far too ignorant of it, either wilfully or otherwise?

MP: Well, journalists do know about the Code of Ethics, and most journalists these days have been through some journalism program, like a degree or whatever and have learned about the Code of Ethics. But the big problem with the Australian journalists’ Code of Ethics, and most others, is that there is a whopping ‘get-out’ clause. What it says is that all of these are things that should be strived for, but if the public interest, or if the story is of such public concern then that excuses journalists, outweighing those ethical considerations. But it does make specific reference to chequebook journalism – now I’m not saying that’s happened in this case, is it chequebook journalism to help fund an operation? Well, that’s something we’ll be able to discuss once more facts come out. But also things like dealing with children and the vulnerable, and thinking of those potential implications.

So I think it’s more than just journalists’ ethics: it’s a basic moral code that most humans think twice before they do something that is related to or can impact badly on children’s lives. And so if anything comes of this, I would hope that people take special care, and newsrooms implement practices that ring extra alarm bells if there are going to be children involved in any story.

MW: What about those who will argue that look, commercial television is, particularly commercial TV Current Affairs, is a wild and woolly old world, boundaries will always be pushed; that’s the nature of capitalism in many regards. This shouldn’t come as any surprise that this sort of thing is happening. What do you say to those types?

MP: Well if there is a commercial or a capitalism argument for breaching ethics I think you can counter that with another equally commercial or capitalist argument: and that is the only thing that journalism has left these days, compared with its internet rivals, compared with the jungle of news breakers out there who might be citizen journalists or people doing it simply for a commercial imperative, the only thing that we have remaining to sell news is credibility and respect in the community. And that comes through having an ethical code that journalists adhere to. I think 60 Minutes has lost a lot of credibility out of this, and I think Channel Nine will be reviewing that because there is a commercial loss involved when you’ve overstepped the mark and you lose respect in the eyes of the community. 60 Minutes used to be a wonderful news brand, and Channel Nine will be asking what’s happened to that in the wake of this episode.

MW: Interesting observations, Mark Pearson, I really appreciate your time. Thank you.

MP: Thanks Matt

MW: Mark Pearson, Professor of Journalism and Social Media at Griffith University’s School of Humanities (Languages, and Social Science).

—-

RELATED:

Our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015) explored the possibilities of applying mindfulness techniques to journalism practice.

Interested? You can listen to my 10 minute interview on Radio National’s Media Report here.

———–

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Tagged as 60 minutes, abduction, Buddhist journalism, communication ethics, communication law, defamation, ethics, law, mark pearson, media, media law, Media Report, mindful journalism, mindfulness, privacy, Radio National, Right Speech

February 27, 2016 · 12:07 pm

‘Right Speech’ and media law – mindful journalism as an analytical tool

By MARK PEARSON Follow @Journlaw

I recently wrote an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

The article backgrounds important critiques of the Western approach to communication studies, and considers how globalized communication and media studies has become, before exemplifying how a secular Buddhist perspective might offer 2,500 year-old analytical tools that can assist with media analysis, law and ethics.

The article proposes the Buddha’s Four Noble Truths and their associated Noble Eightfold Path (magga) can be fruitful tools for informing communication theory and analysis, and media law and ethics.

In media analysis, it suggests the Buddha’s teachings on Right Speech (samma vaca) offer key understandings to assist with the deconstruction of media texts. In media law and ethics, it extends the application of Right Speech principles to comparing defences to libel (defamation) as they have developed in four Western jurisdictions.

Here is a brief extract showing the potential for exploring media law using a Buddhist/mindful journalism framework:

The ultimate contest over media talk and Right Speech happens in the courts when media texts face charges for their criminality or are the subject of civil suits over their alleged infringement on citizens’ rights like copyright, confidentiality and defamation. There is also value in applying a mindful, Buddhist approach to the study of communication and media law. We can hardly reject the teachings of the founder of one of the world’s greatest religions as inappropriate in a communication law context on exclusively secular grounds because that would imply our so-called secular approaches to communication and media theory and ethics have no religious roots. No Western academic could deny deep-seated Abrahamic influences upon the cultural origins of media law and its scholarship. A whole body of literature on the philosophy of science and religion attests to it. In media law and ethics, libertarian approaches to press freedom espoused by the likes of Milton, Mill and Jefferson arose in an era when political, cultural and religious notions of rights were intertwined. For example, the most famous treatise against licensing of the press – Milton’s Areopagitica – was prefaced with an explanation that Moses, David and Paul the Apostle were all learned because they were able to read widely. Milton wrote:

…as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God, as it were in the eye (Milton, 1644).

The U.S. Supreme Court cited Areopagitica in the landmark defamation case of New York Times v. Sullivan (1964) 376 US 254, when explaining why it would be counter-productive to move the burden of proving truth to the defendant (NY Times v. Sullivan, Footnote 19). Thus, by only two degrees of separation, we find Judeo-Christian teachings informing a key decision on news media talk in one of the most purportedly secular of institutions – the U.S. Supreme Court. Related to this, as Rolph (2008: 38-43) notes, defamation as the tort used to contest objectionable speech, first arose in England in 1222 in the ecclesiastical (church) courts where it remained a spiritual offence for about four centuries. Damage to a reputation was seen to be an offence to the target’s soul – a right that only God should possess – to be judged only by God’s earthly adjudicators, the clergy. There was even recourse for appeals from English ecclesiastical court judgments to the Pope (Rolph, 2008: 45). From the 16^th century, defamation actions were increasingly brought in the common law courts, with the courts developing a list of allegations with which they would deal, without needing proof of actual damage being caused by the defamation (Morison & Sappideen 1989: 173). Even today the Catechism of the Catholic Church lists ‘detraction’ (essentially gossip – or disclosing ‘another’s faults and failings to persons who did not know them’) as a sin – or an ‘offense against truth’ (Catechism of the Catholic Church, para 2477). Thus, defamation action – the legal action available to those subjected to damaging media talk – has a traceable Christian genealogy.

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

Analysis of the development of defamation defences in Canada, the UK, Australia and the U.S. benefit from a Buddhist reading. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada developed a ‘responsible communication’ defence to defamation for matters which might not have been able to be proven absolutely as true, but were still diligently reported and were clearly in the public interest to be aired within the spirit of the Canadian Charter of Rights and Freedoms protection of free expression. Chief Justice McLachlin summed up the relevant factors of the ‘responsible communication’ defence on a demonstrable matter of public interest in these terms:

seriousness of the allegation

public importance of the matter

urgency of the matter

status and reliability of the source

whether the plaintiff’s side of the story was sought and accurately reported

whether the inclusion of the defamatory material was justifiable

whether a defamatory statement’s public interest lay in the fact that it had been made rather than whether it was truthful

other relevant circumstances

The court drew upon similar criteria to those developed earlier in the UK case of Reynolds v. Times Newspapers Ltd [2001] 2 AC 127 as part of the common law qualified privilege defence and elements of the statutory qualified privilege defence in Australia’s uniform Defamation Acts 2005.

The most significant First Amendment case in recent decades was New York Times v. Sullivan (1964) 376 US 254 where it was ruled that public officials had to meet tough new tests before they could succeed in a defamation action even if the allegations in the article were proven false. It established that plaintiffs who were ‘public officials’ had to prove a media defendant had acted with ‘actual malice’ if they were to win a defamation action, even if the defamatory allegation was untrue. The test has since been expanded to apply to any ‘public figure’— essentially anyone who is well known to the public, has taken on some public role or who has participated voluntarily in some controversy. While the principle has some difficulties in definition and application, it has meant the media in the United States have been free to publish criticism of virtually anyone in the public domain, even if the criticism proves to be unfounded, just so long as they have not acted maliciously or in ‘reckless disregard’ of the truth.

It is possible to implement a Buddhist approach using the Right Speech teachings from the Noble Eightfold Path to conduct an analysis in this area of communication law. The author proposes to do this more thoroughly in future work. However, for the purposes of this argument we might return to the Abhaya Sutta … and contrast these defences as they have been developed in these jurisdictions (Thanissaro, 1997). Crucial to the Canadian ‘responsible communication’ defence and its qualified privilege cousins in the UK and Australia is the extent to which reporters and publishers honestly believe in the truth of the defamatory material published, even though they might not have the firm evidence to prove this in court. They would pass the Buddhist (mindful journalism) test if they had an honest belief the material was “factual, true, beneficial” while perhaps being “unendearing and disagreeable to others”, as long as they had chosen the “proper time” for reporting it (Thanissaro, 1997). However, the U.S. defences driven by the First Amendment takes this liberty a step too far under this schema, because it allows unbeneficial, unendearing and disagreeable material to be published about public figures as long as it has not been done with malice. It also allows for untruthful gossip-mongering, as identified earlier in the Saleyyaka Sutta (Nanamoli, 1994) as ethically problematic. Such analysis shows promise in the field of media law analysis, reform and policy development because it provides a working ethical framework to apply to legislation and the fact scenarios of particular cases.

I’ve also written a shorter account of the basic principles of mindful journalism in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

———–

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Tagged as Buddhism, Buddhist journalism, communication ethics, communication law, Communication theory, Dao of the Press, defamation, Eightfold Path, ethics, First Amendment journalism, law, libel, mark pearson, media, media law, Media Report, mindful journalism, mindfulness, Right Speech, Shelton Gunaratne

September 4, 2015 · 10:11 am

Mindful journalism in focus on @RNmediareport

By MARK PEARSON Follow @Journlaw

Mindful journalism was the focus of a segment on Radio National’s Media Report (@RNmediareport) this week (September 3, 2015) when I was interviewed by host Richard Aedy (@richardaedy) on the application of Buddhist ethics to reporting.

Interested? You can listen to the 10 minute segment here.

I’ve also written a shorter account of the basic principles in the journal Ethical Space: The International Journal of Communication Ethics, and the editors have been kind enough to make that article available for free viewing as a feature item on their website here. You might also want to explore some of their other fascinating articles on media ethics here and perhaps subscribe.

I’ve also written an article on the “Right Speech” aspect of mindful journalism for the International Communication Gazette titled ‘Enlightening communication analysis in Asia-Pacific: Media studies, ethics and law using a Buddhist perspective’. Its abstract and link to the full article is available here.

The article begins by assessing the extent to which communication and media studies in Asia and the Pacific has shifted to accommodate non-Western approaches.

Here is a brief extract on that aspect:

In this globalised, multi-cultural and multi-jurisdictional Web 2.0 era there should be no reason why the Judeo-Christian lens should have a monopoly on our examination of communication law. A mindful reading of defamation law benefits from a consideration of both Right Speech principles and concepts of necessary truth-telling. While it is far-fetched to expect judges and legislators in the West would turn to Buddhism for the reform of defamation law, an effort to abide by truth-telling and Right Speech principles could operate effectively when professional communicators are attempting to avoid libel litigation when pursuing their stories. Further, they present excellent tools for an alternative analysis.

Analysis of the development of defamation defences in Canada, the UK, Australia and the U.S. benefit from a Buddhist reading. In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada developed a ‘responsible communication’ defence to defamation for matters which might not have been able to be proven absolutely as true, but were still diligently reported and were clearly in the public interest to be aired within the spirit of the Canadian Charter of Rights and Freedoms protection of free expression. ..

It is possible to implement a Buddhist approach using the Right Speech teachings from the Noble Eightfold Path to conduct an analysis in this area of communication law. The author proposes to do this more thoroughly in future work. However, for the purposes of this argument we might return to the Abhaya Sutta cited earlier and contrast these defences as they have been developed in these jurisdictions (Thanissaro, 1997). Crucial to the Canadian ‘responsible communication’ defence and its qualified privilege cousins in the UK and Australia is the extent to which reporters and publishers honestly believe in the truth of the defamatory material published, even though they might not have the firm evidence to prove this in court. They would pass the Buddhist (mindful journalism) test if they had an honest belief the material was “factual, true, beneficial” while perhaps being “unendearing and disagreeable to others”, as long as they had chosen the “proper time” for reporting it (Thanissaro, 1997). However, the U.S. defences driven by the First Amendment takes this liberty a step too far under this schema, because it allows unbeneficial, unendearing and disagreeable material to be published about public figures as long as it has not been done with malice. It also allows for untruthful gossip-mongering, as identified earlier in the Saleyyaka Sutta (Nanamoli, 1994) as ethically problematic. Such analysis shows promise in the field of media law analysis, reform and policy development because it provides a working ethical framework to apply to legislation and the fact scenarios of particular cases.

The article applies the ‘Right Speech’ principles of Buddhist ethics to analysis of the Royal family prank call episode which resulted in a High Court appeal in Australia and to a racial discrimination case heard in Australia’s Federal Court over comments on a West Australian news website.

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August 24, 2013 · 9:22 am

The Guardian, GCHQ, the leaked security files and the airport arrest – an Australian view

By MARK PEARSON Follow @Journlaw

It is fascinating when an area of your research suddenly launches into life in a real event.

That happened in the UK this week when Guardian editor Alan Rusbridger revealed senior government officials had ordered him to destroy computer hard drives containing leaked National Security Agency (NSA) files or face court action which would almost inevitably result in an order to hand the material over.

We also learned the partner of a Guardian journalist was held at Heathrow Airport for nine hours under anti-terrorism laws, prompting the question ‘Could this happen in Australia?’.

The answer – put simply – is ‘Yes’, as I explained to Richard Aedy on Radio National’s Media Report this week.

You can download that interview here.

I’ve been working with Griffith University colleague Associate Professor Jacqui Ewart and lawyer Joshua Lessing in this space and our article on Australia’s anti-terrorism laws (including some comparison with the UK situation) was published in the latest edition of the prestigious Journal of Media Law, edited by the legendary media law expert, Professor Eric Barendt.

Our article’s citation is: Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

The abstract follows below.

I hope you enjoy the Media Report interview, and I’m happy to correspond with other scholars interested in this space, and to have contact with students looking to pursue higher degree research in this area and other topics of media and social media law, ethics and regulation.

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“The 9/11 terrorist attacks in the United States triggered an escalation of national security laws globally, including at least 54 in Australia, with some having implications for news reporting and open justice. This article backgrounds the Australian experience with such laws at a time when the United Kingdom is in the midst of a debate over the free expression impacts of its Justice and Security Bill. It uses case studies to highlight tensions between Australia’s security laws and the media’s Fourth Estate role and compares the Australian and UK human rights contexts. The article asks whether anti-terror laws restricting free expression should continue indefinitely in a democracy when national security breaches are likely to remain a major issue of public concern and there is no constitutional or human rights guarantee of free expression. It suggests a cautious approach to the renewal of such laws, particularly those restricting public debate about national security and its impact on human rights.”

– Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

© Mark Pearson 2013

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Tagged as ABC RN, anti-terror, Code of Ethics, counter terrorism, ethics, GCHQ, journalism ethics, journalism law, Justice and Security Bill, media law, Media Report, national security, NSA, shield laws, Snowden, sources, terrorism

October 7, 2012 · 3:59 pm

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

By MARK PEARSON Follow @Journlaw

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.

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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.

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Tagged as ACCC, Australian media, censorship, consumer law, convergence, Finkelstein, free expression, journalism, law, media, media inquiry, media law, Media Report, News of the World, NOTW, Press Council, press freedom

July 22, 2012 · 11:05 am

Lost cause? The Convergence Review model for news media self-regulation

By MARK PEARSON Follow @Journlaw

Australia’s news media regulatory framework has been the subject of two recommendations for major overhauls in recent months.

It was the $2.7 million Convergence Review, announced in late 2010, that was meant to develop the definitive regulatory model in its final report released in April, 2012.

But along the way political pressures (or opportunism, depending on who you want to believe) prompted the announcement last September of an offshoot – the $1.2 million Independent Media Inquiry – specifically briefed to deal with the self-regulation of print media ethics.

Its architects – former Federal Court judge Ray Finkelstein and journalism professor Matthew Ricketson – argued they could not decouple print news self-regulation from broadcast ‘co-regulation’ in the digital era, so came up with a statutory model including both.

Their News Media Council, proposed in their report of February 28, 2012, would take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court and ultimately face a hefty fine or a jail term.

I have written previously on my concerns about the implications of these recommendations on Australia’s international standing as a democratic nation with a free media, particularly in light of our lack of any written constitutional protection of free expression.

The ‘Finkelstein report’ – as it became known – was only ever meant to be an advisory to its parent Convergence Review, which ultimately acknowledged but rejected its simplistic model in favour of its own innovative and less draconian one.

But the Convergence Review left it to others to put flesh on its more complex reform proposals, leaving the Finkelstein statutory regulation model to fill the void for Labor and Green politicians riding the wave of concern about media ethics in the wake of the UK’s News of the World inquiry and arguing that ‘something must be done’ in Australia.

According to news reports, the parliamentary winter recess will be used by Prime Minister Julia Gillard, Communications Minister Stephen Conroy and the Greens to rally support for the enactment of a version of the Finkelstein model.

Experts argue they will lack the numbers to drive it home, and it is unlikely a 2013 conservative government would take up the cause, given the antipathy of leading Opposition figures Malcolm Turnbull and George Brandis.

Meanwhile, the Convergence Review’s innovative ‘carrot and stick’ model of self-regulation has all but disappeared from public commentary, overshadowed by the stark divide over Finkelstein’s statutory regulation proposal between the Opposition (and major media players) and the Government, Greens and anti-Murdoch intellectuals.

It is a shame the debate has been reduced to this black and white (red versus blue) battle.

I am working on a longer academic article examining the Convergence Review’s novel but sparsely articulated attempt at dealing with the evolving regulatory demands of Web 2.0 (and 3.0 and 4.0…), but I will share some preliminary thoughts here.

First, to review the Convergence Review’s proposed model. While its final report shared Finkelstein’s concerns about shortcomings with existing regulatory systems, it proposed that ‘direct statutory mechanisms … be considered only after the industry has been given the full opportunity to develop and enforce an effective, cross-platform self-regulatory scheme’. In other words, it was offering the media industry ‘drinks at the last chance saloon’ for a three year period under its model (p. 53).

Its mechanism centres upon the establishment of a new ‘news standards body’ operating across all media platforms – reinforcing the overall review’s preference for ‘platform neutrality’ (p.51).

The news standards body ‘would administer a self-regulatory media code aimed at promoting standards, adjudicating complaints, and providing timely remedies’ (p. 153).

The Convergence Review decided not to be prescriptive about the constitution or operational requirements for such a body, beyond some broad requirements.

The largest news media providers – those it deemed ‘content service providers’ – would be required by legislation to become members of a standards body. Most funding for the new body should come from industry, while taxpayer funds might be drawn upon to meet shortfalls or special projects. (p. xiv). It should feature:

– a board of directors, with a majority independent from the members;

– establishment of standards for news and commentary, with specific requirements for fairness and accuracy;

– implementation and maintenance of an ‘efficient and effective’ complaints handling system;

– a range of remedies and sanctions, including the requirement that findings be published on the respective platform. (p. 51)

The review’s definition of ‘content service enterprises’ (control over their content, a large number of Australian users, and a high level of revenue drawn from Australia) would catch about 15 media operators in its net.

Others might be encouraged to join the body with a threat to remove their current news media exemptions to privacy laws and consumer law ‘misleading and deceptive conduct’ provisions.

To my mind, this is the most innovative element of the Convergence Review’s proposal, and is something I proposed in my personal submission to the Independent Media Inquiry and blogged about at the time.

The review only deals with this aspect as a hypothetical, and refers readers in a footnote to pages 127-136 of the Independent Media Inquiry report for extended explanation of the exemptions. The review offers just a single sentence by way of explanation:

“In particular, it seems reasonable that only those organisations that have committed to an industry self-regulatory scheme for upholding journalistic standards of fairness and accuracy should be entitled to the exemptions from the provisions of the Competition and Consumer Act 2010 concerning misleading and deceptive statements and from the obligations of the Privacy Act 1988 that would otherwise apply to those organisations.” (p. 51).

My article will explore these further, going into the history of the exemptions and important case law covering on their application.

Take these away, and the review’s recommendations are relatively meek, and unlikely to appease those wanting stricter controls over news content.

The Australian Press Council has been moving quickly to ramp up its purview and powers over its members, and can meet most of the requirements except these. It has already locked its members into four year commitments and has established an independent panel to advise on its review of its content standards.

It is poised to apply this across all media if broadcasters and online providers decide it offers the simplest mechanism to meet the Convergence Review’s recommendations. Either way, it can quite rightly argue that newspaper and online news readers are being serviced by a superior complaints handling system than that which existed before the inquiries.

In my view, the Convergence Review report needed to position its privacy and consumer law exemptions as much more than hypotheticals and to detail its plans for the implementation of these proposals.

But I suspect its members were caught short on time and resources when the Independent Media Inquiry went too far for its liking with its statutory regulation solution.

It’s a shame that a multi-million dollar inquiry like this one has left it to academics like me to dot its i’s and cross its t’s on detail.

It’s a greater shame that politicians wish to capitalise on a moment of public antipathy to the media to introduce a draconian, simplistic solution in a democratic nation with no documented right to free expression.

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March 19, 2012 · 2:35 pm

Inquiry’s #Finkelstein was judge who fined company for contempt over comments by its Facebook fans

By MARK PEARSON Follow @Journlaw

Independent Media Inquiry chair Ray Finkelstein had already broken new legal ground and fined an online publisher for contempt for hosting misleading comments on its Facebook page before he was appointed to the inquiry last year.

His decision as a Federal Court judge in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 in January 2011 established the leading Australian precedent on publishers’ responsibility for the comments of others on their websites, Facebook pages and Twitter feeds.

He found the alternative health company’s actions in not removing ‘misleading and deceptive’ claims about its allergy treatments by ‘fans’ on its Facebook page (and ‘Twitter pages’) was in breach of earlier court orders to desist from making claims that it could ‘diagnose and treat allergies’.

As Crikey reported at the time, he fined both the company and its director, Mr Paul Keir, $7500 each for the disobedience contempt.

He has now chaired an inquiry which has a core recommendation with exactly that potential outcome – along with possible jail terms – for news bloggers and media outlets that refuse to publish corrections or apologies as directed by a new statutory News Media Council.

Of course there are key differences here, too. Allergy Pathway was not a news publisher – and it was disobeying an earlier court order under consumer law.

However, then Justice Finkelstein broke new ground on an issue where other jurisdictions like the US and the UK have offered protection to ISPs and blog hosts over the words of commenters on their sites.

Until a higher court decides otherwise, his decision means every Facebook user and website host (and Twitter user! – see below) is legally responsible for ‘publishing’ the comments of others on their sites.

The extent to which they might be immediately liable for an offending comment or whether they would be protected by taking it down within a ‘reasonable’ time has not yet been determined.

Certainly, Justice Finkelstein’s decision established that they would need to take reasonable steps to remove any such comments the instant they had been brought to their attention.

The Allergy Pathways decision goes to some lengths (paras 14-17) to define a Facebook ‘profile’ and ‘fan page’ and a Twitter feed.

But at paragraph 18 Justice Finkelstein seems to show a misunderstanding of Twitter by stating the ACCC’s argument as “once Allergy Pathway is aware of the statement having been placed on its Facebook or Twitter page and does not remove it, then it is liable for contempt”.

Call me an ignoramus, but I am left wondering: What is my “Twitter page”, and how can someone else post something there? Does he mean my own list of tweets, for which I am clearly responsible myself? Does he mean a #hashtag I have established on a topic? Surely I could not be responsible for others’ comments there? Or does he mean someone putting my handle in their tweet, for which I could surely not be held responsible?

He proceeds to track the legal precedents for host liability through defamation posted on golf club noticeboards, through to bulletin board hosts and Internet Service Provider liability.

“The effect of these cases is that merely facilitating the commission of a wrong will not result in liability but it is another thing to procure or conspire in the commission of the wrong, in which case liability may be imposed, particularly if the procurer is aware of the material being published and has accepted general responsibility for its publication,” Justice Finkelstein wrote.

He concluded: “It has been shown, indeed it was not disputed, that Allergy Pathway knew that persons had published testimonials on its Twitter and Facebook pages and that it took no steps to have them removed. …

“While it cannot be said that Allergy Pathway was responsible for the initial publication of the testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway’s Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them.

“Hence it became the publisher of the testimonials. In any event it is clear that it caused them to continue to be published from the time it became aware of their existence, which is enough to put Allergy Pathway in breach of the second limb of its undertaking.”

I might be missing something here, but the good judge appears to have bundled the company’s responsibility for comments by others on its “Twitter page” in with responsibility for comments on its Facebook page.

I can live with the latter – and as a result of this decision media organisations and public sector groups like the Queensland Police are now monitoring their Facebook comments very carefully – but how on earth can we control the former? And what is a ‘Twitter page’ upon which others might comment?

Please enlighten me in the comments section below.

Another theory is that Mr Finkelstein and his advisers were not quite as expert on the workings of the Internet and social media as punters might expect from a $1 million-plus government inquiry. The have already been criticized for using the term ‘hits’ rather than ‘page views’.

As for the fact that Mr Finkelstein already had ‘form’ in the fining of publishers for contempt is not that great a surprise. It is what senior judges are sometimes called upon to do.

However, it puts into context his core recommendation for a statutory solution with appeal to a judge like him with the power to fine or jail a news publisher or relatively small blogger for disobedience contempt.

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

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