Tag Archives: media

August 11, 2013 · 11:56 am

Mindful ethics for bloggers

[This blog was first published on the citizen journalism election site No Fibs, edited by Margo Kingston.]

Bloggers and citizen journalists come from an array of backgrounds and thus bring varied cultural and ethical values to their blogging.

No Fibs asks its citizen journalists to follow the MEAA Code of Ethics, and the journalists’ union has recently made a concerted effort to bring serious bloggers into its fold through its FreelancePro initiative.

This would have bloggers committing to a ‘respect for truth and the public’s right to information’ and the core principles of honesty, fairness, independence, and respect for the rights of others. Specifically, they would subscribe to the 12 key principles of fair and accurate reporting; anti-discrimination; source protection; refusal of payola; disclosure of conflicts of interest; rejection of commercial influences; disclosure of chequebook journalism; using honest newsgathering methods and protecting the vulnerable; disclosing digital manipulation; not plagiarising; respecting grief and privacy; and correcting errors. These can be overridden only for ‘substantial advancement of the public interest’ or where there is ‘risk of substantial harm to people’.

A decade ago in the US, Cyberjournalist.net cherry-picked the lengthy Society of Professional Journalists Code of Ethics and proposed its own Bloggers’ Code of Ethics.

All this is fine for bloggers who are former working journalists, student journalists who hope to work in that occupation, and for serious bloggers who view their work as journalism even though it might only be a hobby or attract a pittance in payment. But many bloggers make the conscious decision not to identify as journalists, and thus need to revert to a personal moral framework in their work.

I have been exploring this in recent months and have coined the expression ‘mindful journalism’ after finding that many fundamental Buddhist principles – applied in a secular way – lend themselves to serious blogging when other moral compasses might be absent. Parts of this blog are drawn from my paper delivered to the IAMCR conference in Dublin in June, 2013.

Please do not interpret this as an attempt to convert bloggers to Buddhism. I am not a Buddhist and believe that followers of any of the world’s major religions will find core values in their scriptures that serve this process just as well.

It is just that Buddhism’s Eightfold Path is a simple expression of key moral values that can underscore ethical blogging: understanding free of superstition, kindly and truthful speech, right conduct, doing no harm, perseverance, mindfulness and contemplation.

It was while writing my recent book Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012) that I decided a guide to safe online writing required more than a simple account of ‘black letter law’. It forced a re-examination of the fundamental moral underpinnings of Internet and social media communication. Being safe legally normally requires a careful pre-publication reflection upon the potential impacts of one’s work upon one’s self and others – or what a Buddhist might explain in terms of ‘mindfulness’ and ‘karma’.

Dalai Lama’s recent book – Beyond Religion – Ethics for a Whole World (2011) – explored his vision of how core ethical values might offer a sound moral framework for modern society while accommodating diverse religious views and cultural traditions. Buddhist practices like mindfulness and meditation have been adopted broadly in Western society in recent decades and have been accepted into clinical psychology. Even the MEAA Code of Ethics states: “Ethical journalism requires conscientious decision-making in context.”

This is premised on the belief that journalists and serious bloggers can adopt a mindful approach to their news and commentary which requires 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.

So what are these core principles and how might they apply to an election blogger?

Each of the constituent steps of the 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 political news.

Let’s explore its eight steps.

1. Right views. A fundamental principle of Buddhism is that all things in the world are at once impermanent, unsatisfactory and non-substantial. News, too, is about the impermanent and the unsatisfactory. It is premised upon identifying to audiences what has changed most recently, focusing especially on the most unsatisfactory elements of that change. The notion of ‘right views’ can incorporate a contract with audiences that accepts a level of change at any time, and focuses intention upon deeper explanations of root causes, strategies for coping and potential solutions for those changes prompting the greatest suffering. In election blogging, it moots for less scare-mongering, more careful consideration of policies and the clinical testing of claims.

2. Right intent. This calls upon the blogger to reflect upon the genuine motivating reasons why he or she is blogging at all, then why they might be writing this particular commentary, and finally why they are selecting a particular turn of phrase or quote to make a point. Such a reflective approach can be revealing. How is humanity being improved by this action? Is it motivated in some way by ego or for the betterment of society? This might prompt a change in mindset from bringing news ‘first’ in a competitive sense but ‘best’ and most meaningfully to an audience in a qualitative sense. Of course, it would not be ‘news’ if were not delivered relatively soon after its occurrence, but in this era of instant communication this step reinforces the notion of ‘responsible truth-seeking and truth-telling’ – authoritative and credible news and commentary, obtained ethically, and delivered as soon as possible (after such reflection) to retain its relevance and utility without losing its veracity.

3. Right speech. This step relates to both truthful and charitable expression and, interpreted narrowly, that second element could present a fundamental challenge to the very concept of political commentary as we know it. It certainly places serious questions about the gossip and mud-slinging orientation of much political coverage. The notion of telling the truth and being accurate lies at the heart of journalism practice and is foremost in most ethical codes internationally. While a single empirical fact might be subject to scientific measurement and verification, any conclusions drawn from the juxtaposition of two provable facts can only constitute what a scientist would call a ‘theory’ and the rest of us might call ‘opinion’. Gossip about the private lives of politicians, barbed commentary, imposing labels upon them like the “Flimflam Man”, the “Mad Monk” or “Dr No”, and cynical mock-ups like the Daily Telegraph’s Hogan’s Heroes front page all fail the test of ‘right speech’. That is not to say harsh and uncomfortable truths must not be told. It is the way they are told that is crucial to this principle.

4. Right conduct. The fourth step of ‘right conduct’ goes to the core of any moral or ethical code and invokes a reflection on the actual practices involved. Here, journalism codes offer useful guidance in their lists of “do’s” and “do not’s.” Even journalism ethical codes can gain wider understanding and acceptance by appealing to fundamental human moral values and not just offering a proscriptive list of prohibited practices. A recent example is the Fairfax Media Code of Conduct which poses questions employees might ask themselves when faced with ethical dilemmas that might not be addressed specifically in the document, including:

Would I be proud of what I have done?
Do I think it’s the right thing to do?
What will the consequences be for my colleagues, Fairfax, other parties and me?
What would be the reaction of my family and friends if they were to find out?
What would happen if my conduct was reported in a rival publication?

While this approach seems to focus on the potential for shame for a transgressor, it offers an example of a media outlet attempting to encourage its employees to pause and reflect in the midst of an ethical dilemma – what educationalist Donald Schön (1987, p. 26) called ‘reflection-in-action’.

5. Right living. The Buddha identified certain livelihoods that were incompatible with a morally pure way of living, shaped of course by the cultural mores of his place and time 2500 years ago. They included poison peddler, slave trader, prostitute, butcher, brewer, arms maker and tax collector. Some of these occupations might remain on his list today. We are left to wonder how the worst of political coverage – intrusion, rumor-mongering, name-calling, mud-slinging, and agenda-pushing for commercial purposes – advances the enterprise of journalism or the personal integrity of an individual journalist who chooses to ply that trade. This is where political bloggers working outside the mainstream media can distinguish themselves by applying a mindful approach to their work.

6. Right effort. The step of ‘right effort’ was directed by the Buddha in a predominantly spiritual sense – a steady, patient and purposeful path to enlightenment. However, we can also apply such principles to the goal of ethical blogging and citizen journalism in a secular way. We might sometimes see the hurried scoop and accompanying kudos as an end in itself. There can also be an emphasis on productivity and output at the expense of attribution and verification. Of course, stories and blogs could evolve into lengthy theses if they were afforded unlimited timelines and budgets. Commercial imperatives and deadlines demand a certain brevity and frequency of output. Both can be achieved with continued attention to the core principle of purposeful reflection upon the ethics of the various work tasks and a mindful awareness of the underlying mission of one’s enterprise. External factors will continually threaten a blogger’s commitment to this ethical core, requiring the ‘right effort’ to be maintained at that steady, considered pace through every interview, every blog, every working day and ultimately through a full career. As the Dalai Lama wrote in Beyond Religion: “The practice of patience guards us against loss of composure and, in doing so, enables us to exercise discernment, even in the heat of difficult situations (p. 142).” Surely this is a useful attribute for the reporter, citizen journalist and blogger.

7. Right mindfulness. This is the technique of self-examination I have selected as central to an application of these principles to blogging and citizen journalism. Effective reflection upon one’s own thoughts and emotions is crucial to a considered review of an ethical dilemma in a publishing context. It is also essential to have gone through such a process if you are later called to account to explain their actions. Many ethical decisions are value-laden and inherently complex. Too often they are portrayed in terms of the ‘public interest’ when the core motivating factor has not been the greater public good but, to the contrary, an ego or a commercial imperative. The Leveson Report into the excesses of the British press detailed numerous instances where such forces were at play, often to the great detriment to the lives of ordinary citizens. Buddhists (and many others) adopt mindfulness techniques in the form of meditation practice where they reflect upon their thoughts and emotions without reacting to them. While I have found this practice useful, I am by no means suggesting citizen journalists or bloggers adopt the lotus position in the midst of a breaking news to peacefully contemplate their options. The extent to which individuals might want to set aside time for meditation in their own routines is up to them, but at the very least there is much to be gained by adopting the lay meaning of ‘being mindful’. In other words, bloggers might pause briefly for reflection upon the implications of their actions upon others – the people who are the subjects of their blogs, other stakeholders who might be affected by the event or issue at hand, the effects upon their own reputations and the community standing of others, and the public benefits ensuing from this particular truth being told in this way at this time. There is a special need to be mindful of the vulnerabilities of some individuals you write about. Our own research has examined how coverage might impact on those who might belong to a ‘vulnerable group’ or who might simply be ‘vulnerable’ because of the circumstances of the news event. This concern for others also invokes the notion of compassion for other human beings, a tenet central to the teachings of all major religions, and a hallmark of Buddhism. The Dalai Lama explains that true compassion for others requires that sometimes we must call to account those who abuse power: “Depending on the context, a failure to respond with strong measures, thereby allowing the aggressors to continue their destructive behaviour, could even make you partially responsible for the harm they continue to inflict (Dalai Lama, 2011, p. 59).”

8. Right concentration. Some have compared ‘right concentration’ to being in ‘the zone’ in elite sporting terminology – so focused on the work at hand that there is a distinctive clarity of purpose. It is such concentrated attention that is required of consummate professionals in the midst of covering a major event. It is at this time that we actually enter ‘the zone’ and are able to draw on core ethical values to produce important reportage and commentary within tight deadlines, paying due regard to the impact of their work upon an array of individual stakeholders and to the broader public interest. It is in this moment that it all comes together for the mindful journalist or blogger – facts are verified, comments from a range of sources are attributed, competing values are assessed, angles are considered and decided and timing is judged. And it all happens within a cool concentrated focus, sometimes amidst the noise and mayhem of a chaotic news event.

We cannot expect the millions of bloggers and citizen journalists internationally to abide by a unified moral or ethical code. Some will draw upon foundational principles from the Koran, the Bible, the Torah or Confucianism. Others will reflect upon classic secular guidelines like Dale Carnegie’s How to Win Friends and Influence People or Rudyard Kipling’s If. And some of us might find guidance in these eight steps developed more than two millennia ago.

———–

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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July 30, 2013 · 8:41 am

Media law basics for election bloggers

By MARK PEARSON Follow @Journlaw

[This blog was first published on the citizen journalism election site No Fibs, edited by Margo Kingston.]

Countless laws might apply to the serious blogger and citizen journalist because Web 2.0 communications transcend borders into places where expression is far from free.

Even in Australia there are nine jurisdictions with a complex array of laws affecting writers and online publishers, including defamation, contempt, confidentiality, discrimination, privacy, intellectual property and national security.

If you plan on taking the ‘publish and be damned’ approach coined by the Duke of Wellington in 1824, then you might also take the advice of Tex Perkins from The Cruel Sea in 1995: “Better get a lawyer, son. Better get a real good one.”

(A quick disclaimer: My words here do not constitute legal advice. I’m not a lawyer.)

The problem is that most bloggers can’t afford legal advice and certainly don’t have the luxury of in-house counsel afforded to journalists still working for legacy media.

So if you’re going to pack a punch in your writing you at least need a basic grasp of the main areas of the law, including the risks involved and the defences available to you.

Defamation remains the most common concern of serious writers and commentators because blog posts so often risk damage to someone’s reputation – but it does have some useful defences.

Political commentary has been much livelier over the past two decades since the High Court handed down a series of decisions conveying upon all citizens a freedom to communicate on matters of politics and government.

However, it is still refining its own decisions on the way this affects political defamation, and most of us aren’t as fortunate as Darryl Kerrigan in The Castle – we don’t all befriend a QC willing to run our High Court appeal pro bono.

That leaves us trying to work within the core defamation defences of truth and ‘honest opinion’ (also known as ‘fair comment’). (Of course there is also the defence protecting a fair and accurate report of court, parliament and other public occasions if you are engaging in straight reporting of such a major case or debate and a range of other less common defences).

Truth as a defence has its challenges because you need admissible evidence to prove the truth of defamatory facts you are stating – and you also need evidence of defamatory meanings that might be read into your words (known as ‘imputations’).

That can be difficult. You might have the photograph of a shonky developer handing a politician some cash – but you’d need more evidence than that to prove she is corrupt.

Serious allegations like these need to be legalled.

Harsh criticism of public figures can usually be protected by the defence of honest opinion or fair comment if you review the criteria carefully each time you blog.

This defence is based on the idea that anyone who has a public role or who puts their work out into a public forum should expect it to be criticised and even lampooned by others.

To earn it you will normally need to ensure that the target of your critique is indeed in the public domain. This covers criticism of such things as the quality and service of hotels and restaurants; reviews of creative works like music, books and artworks; critiques of sports and entertainment performances; and reflections on the role and statements of politicians and other public officials.

Your defamatory material needs to be your honest opinion, based upon provable facts stated in the material.

While facts might be provable, you obviously can’t prove the truth or falsity of opinions themselves, which are much more subjective in their nature.

As I explain in Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012) the law will not allow you to parade a fact as an opinion. For example, you could not write “In my opinion, Jones is a rapist and the judge must be demented”. In such a case, the court would view both allegations as statements of fact, and you would need to prove the truth of each. However, if you had drawn on provable facts to prove Jones had indeed committed serious sexual offences and had just been convicted of rape, you might write your honest opinion.

You might write something like: “The one year jail sentence Jones received for this rape is grossly inadequate. It is hard to imagine how someone who has caused such damage to this woman will walk free in just 12 months. Judge Brown’s sentencing decision is mind-boggling and out of all proportion to sentences by other judges for similar crimes. His appointment is up for renewal in February and, if this sentence is any indication, it is high time he retired.” This way you can express a very strong opinion within the bounds of this defence as long as you are basing your comments on a foundation of provable facts.

That is not to say that you can just say what you like and just add the clause ‘This is just my opinion’. The defence will succeed only where the opinion clearly is an opinion, rather than a statement of fact.

It must be based on true (provable with evidence) facts or absolutely privileged material (for example, parliamentary debate) stated or adequately referred to in the publication.

It must be an honestly held opinion, the subject to which it relates matter must be in the public domain or a matter of public interest, and the comment must be fair (not necessarily balanced, but an opinion which could be held, based on the stated facts).

Matters like the private conduct of a public official do not earn the defence unless the conduct affects the official’s fitness for office.

If the facts on which the opinion is based are not provable as true or not protected in some other way, you stand to lose the case. The facts or privileged material on which the opinion is based should normally appear in our piece, so the audience can see clearly where the opinion has originated and judge for themselves whether they agree or disagree with it. They can also be based on matters of ‘notoriety’, not expressed in the publication, although it is safer to include them.

The defence is defeated by malice or a lack of good faith, so forget it if you’re a disgruntled former staffer trying to take revenge on your old boss.

Do all that and you can give that pollie the serve they deserve.

Fail to do it and you could lose your house and savings.

On a brighter note, the Media, Entertainment and Arts Alliance offers its freelance members professional indemnity and public liability insurance. See the details here.

———–

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July 11, 2013 · 2:16 am

To have and to hold? Newspapers (just) surviving 12 years after this …

By MARK PEARSON Follow @Journlaw

I just found this piece I wrote for the Otago Daily Times in New Zealand for its 140th anniversary issue almost 12 years ago.

My brief was to gaze into my crystal ball and foretell the future for newspapers. Futurology is always fraught, but on reflection I think I called it reasonably well at the time. What do you think?

(Of course, it’s quite a different outlook now!)

——

‘To have and to hold: newspapers on way back’, Otago Daily Times, December 11, 2001, p. 39

By Mark Pearson

Five years ago the Internet seemed to have scripted the death of newspapers.

Here was a hypertextual, instant, multi-level, multimedia technology with the potential to spawn new communities, reinvigorate old ones, and to fulfill the roles of all preceding media in a single interactive device.

Predictions of the death of newspapers were so common during the dot.com boom they had become almost trite.

Converts to the Web thumbed their noses at newspaper executives and compared them with the bosses of the stagecoach industry at the turn of the last century: while the future of horses as a species was assured, their function as the primary form of transport was destined for extinction.

Writer and academic Neil Postman even ventured to question the future of journalism in the modern era.

“What is the problem to which the profession of journalism is the solution?” he asked.

Postman argued that in the nineteenth century, journalism answered the problem of scarce information, but by the end of the last millennium the problem had become a glut of information.

“The problem is how to decide what is significant, relevant information, how to get rid of unwanted information,” he said.

When applied to newspapers, others suggested the problem was exacerbated by competition from other media, the loss of the notion of “community” in modern society, and the increasing pressures upon the average consumer’s time.

Add to this the fact that media consumers in Western democratic nations had experienced more than 20 years of relative peace and prosperity (in other words, little of large-scale importance to read about) and it seemed there were few remaining reasons why anyone would want to buy a newspaper.

One scholar, the US historian C. John Sommerville, pointed to another inherent problem in the news media: it is the business of products like newspapers to make the front page every day look like their contents are important and relevant, even though nothing earth-shattering might have actually happened in the preceding 24 hours.

Sommerville argues that over time this has dulled audiences to the contents of news products, leaving them with a lack of trust in the relative importance of the day’s headlines.

In his book How the News Makes Us Dumb, Sommerville says the news makes citizens “dumb” by dissecting reality, leaving the public with no idea of what to make of our times.

Nevertheless, two important events in the recent past have changed much of that and have allowed newspapers the opportunity to recapture the attention and loyalty of ordinary citizens.

One was the dot.com crash, the other the events of September 11, 2001.

The collapse of the financial markets’ confidence in Internet companies sent investors and consumers back to safer, reliable and tangible media commodities. And the newspaper was as safe and reliable and tangible a medium as one could find.

Despite generally declining circulations and dwindling titles since the 1950s, newspapers had continued to hold, if not improve, their share of the advertising dollar in an increasingly competitive media market. And all along the way they were recognized as wielding tremendous influence over important decision-makers in society, and for setting the agenda for competing media outlets.

The dot.com crash restored advertisers’ confidence in the safety of a quarter page advertisement in the morning daily over the ethereal promise of a million hits on some start-up backyard enterprise’s web site.

Like a good old-fashioned bride or groom, the newspaper was something “to have and to hold”, and it was somewhat comforting for advertisers to know their quarter page ad in the Daily Planet was going to land on a finite, countable number of front lawns in its shrink-wrap cover before breakfast the next morning.

The terrorism attack on America on September 11 and its aftermath also found newspapers back in their element as a chronicle and interpreter of world-shattering news within hours of its occurrence.

Certainly, there had been a shift in the role of newspapers as a medium since their heyday reporting the Second World War in the 1940s.

Then, with radio as their only competitor, they were bringing the actual news of distant events to their readers.

On September 12, 2001, they still delivered that news, but they offered much more: graphic colour photographic coverage and pages of background information and analysis that other media could not match.

As I stumbled down my driveway to pick up my local newspaper on that historic morning, having just seen the news report on the television, I was amazed that my local newspaper had been able to produce several pages of coverage of an event that had not even happened when I went to bed the night before.

The sheer thought of producing a printed product of considerable sophistication within that timeline reminded me of why the newspaper, something most of us take for granted, once earned the nickname “The Daily Miracle”.

Newspapers the world over relished the opportunity to cover such an important happening and interpret it for their readers.

And readers appreciated it, with newspaper titles throughout the world returning record circulations since that event as readers sought out tangible details on the attacks and the ensuing war and looked to newspapers for reliable expert comment and analysis.

This important news puts newspapers in their element, and its scarcity over the past half century has combined with other factors to erode the daily reading habit.

Newspaper executives hope their extra investment in the terrorism coverage will win back many of those lost readers.

We have yet to see whether that strategy is successful, but either way it would be a brave soothsayer who would predict the imminent death of newspapers.

We live in hope that events like those of September 11 will not recur and that the world will soon return to relative peace.

Even if that scenario comes to pass, newspapers will not die in the short to medium term.

Their circulations might decline gradually, and the number of newspaper titles might continue to diminish.

But those that survive will continue to play an important role in democratic societies and their influence among decision-makers and power brokers will continue to exceed their actual circulations.

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June 19, 2013 · 2:45 am

Dealing with cybersquatters in your precious domain

By MARK PEARSON Follow @Journlaw

Since the advent of the Internet, profiteers have tried to exploit the registration of domain names of unwitting celebrities, businesses and organisations. Lawmakers are still trying to work out how to deal with this problem, and quite often there is absolutely nothing the courts can do because the offender lives in a different jurisdiction. Disputes often end up in the hands of international and national domain registration agencies who engage in arbitration between the parties to try to resolve the argument over who is really entitled to the name. The Internet Corporation for Assigned Names and Numbers (ICANN) will work with national bodies to withdraw a domain name from a cybersquatter.

It is in your best interests as a blogger to keep a close eye on your domain name registration and to register in advance any close wording variants, especially if you are using your blog to any commercial ends. You never actually ‘own’ your URL – you are only licensed to use it for a certain period by the registration body. Cybersquatters keep a close eye on the registration process and pounce once a popular name becomes available. They then use might use it for selling advertising, stealing your identity theft or trying to sell it back to you at an inflated price.

You can’t register every possible variation on the spelling of your name so some spyware and phishing operators register common misspellings of the URLs of famous people and corporations – a practice known as ‘typosquatting’.

Even trademark law is inconsistent in the area of domain names and courts will often not grant relief unless someone clearly demonstrates an intent in ‘bad faith’ to profit from the deception within the same jurisdiction as the victim.

The international dispute resolution processes for domain names might be less expensive than litigation, but they can be beyond the means of the ordinary blogger or small business. WIPO’s Arbitration and Mediation Center charges between US$1500 and US$5000 for their services, depending how many domain names are contested and the number of independent panelists needed for the adjudication. They claim they can process such claims within two months of filing. The domain name cases they have handled – listed here – make for interesting reading and feature many of the world’s leading brands winning URL registration back from shysters and spammers from remote corners of the planet.

Major social media network and blog hosts like Facebook and WordPress also have rules to deter you from registering under other people’s or corporations’ names. They claim they will act to shut down the offender’s account if the target person or organisation complains. But they are sometimes slow to respond and complaints get lost in their bureaucracies. PBS reported on the difficulties a Georgia mother faced removing a fake Facebook profile on her 13-year-old daughter. This was despite the social network’s Statement of Rights and Responsibilities requiring users to use their real names and not ‘create an account for anyone other than yourself without permission’. On the other hand, Twitter tolerates numerous impersonation ‘handles’ set up for comedic purposes. Its policy allows users “to create parody, commentary, or fan accounts”.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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May 21, 2013 · 11:47 am

Moral rights – taking the high ground

By MARK PEARSON Follow @Journlaw

International conventions and the laws of many countries grant you ‘moral rights’ over your work in addition to your actionable economic rights over copyright. They give you the right to claim authorship of your work through attribution and also the right to object to any changes others might make to your work that might damage your integrity as the creator.

Even if you transferred the copyright in your work to someone else – as you might have done as a freelance blogger or if you were writing as an employee in a government or media organisation – you would still retain your moral rights as an author. This means you can take action against those who might put their own names to your work or those who have put your name to the work but have changed it to your disadvantage. It operates in part to protect you from unfair attacks and parodies where your work has been mutilated, distorted beyond recognition, or reproduced in a thoroughly inappropriate context that damages your honour.

It won’t protect ‘reasonable’ criticism of your work or any critique you have agreed to. It also does not prevent employers or clients leaving your name off work if you have contracted to allow them to do so. But it sends a warning to others that they shouldn’t mess with your work or republish it without giving you due credit. As a blogger, it also means you should be careful when writing parodies pretending to be someone else or denigrating their content and style by chopping and changing it to your satirical ends.

A recent Australian case resulted in the award of $10,000 in damages over a moral rights breach to international rap/hip-hop recording star ‘Pitbull’ (Armando Perez) by an Australian DJ and promoter who had altered one of his songs and played it automatically when his website was visited and at nightclub performances. Freehills executive counsel Melanie Bouton gives an excellent summary of the case here.

The issue of moral rights also raises copyright issues for the blogger or social media user writing under the name of someone famous – beyond the hazards we considered earlier in this book.

Many parts of the world have limitations on how you can use the name and image of others – particularly if you are making a profit out of it. These are often called ‘personality rights’.

In European and other civil law jurisdictions there are tough limits on how you can use the likenesses of others – all bundled up in the laws of privacy. You can’t just cut and paste someone’s photo from the Internet and use it in your blog – especially if it appears to be endorsing your enterprise in some way.

In common law countries like Australia and the UK there is an action called ‘passing off’ which can be launched against you if you have used someone’s name or likeness to imply they have entered into some commercial arrangement to endorse your product or service in some way. In its basic form, it offers simple protection to businesses against those who pretend to have some connection with them or endorsement from them. It has been extended in the creative arts to protect newspaper columnists from deceptive parodies of their work being published under their names in competing publications and also to protect the ‘pen-names’ of authors being used by their former employers after they have moved on to another title.

The US offers a property right known as the ‘right to publicity’ and several states have passed laws to extend its basic common law protections. It gives people the right to protect their name, image and other identifying features against commercial exploitation by others. However, like so many areas of US law, it is limited by the First Amendment so it usually only encompasses blatant cases of exploitation that lack a free expression rationale.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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March 14, 2013 · 6:06 pm

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

By MARK PEARSON Follow @Journlaw

The oxymoron in the name of the proposed media reform legislation says it all: It is the “News Media (Self-regulation) Bill 2013”. (See here).

Here we have a piece of legislation proposing a statutory mechanism for the supervision of industry-based self-regulation of print and online news media.

That, dear readers, is “regulation”.

Just as it is troubling when proposed legislation purports to be what it is not, it is of even greater concern when a government moves to rush such laws through Parliament in just one week.

This blog is about media and social media law and regulation and their impact on free expression – not about politics.

But it is politics that has cruelled this whole media regulation review over the past 18 months.

The Independent Media Inquiry, chaired by former Federal Court justice Ray Finkelstein, was mired in politics when it was announced in late 2011 against the backdrop of both Labor and Greens stoushes with Murdoch titles.

And it seems to be politics that is now driving the desire to enact ‘something’ in the life of this government.

But that ‘something’ is problematic on a range of measures.

The basic ‘self-regulatory’ proposal is that a Public Interest Media Advocate be appointed with the power to declare bodies like the Australian Press Council to be a suitable ‘news media self-regulation body’.

If such bodies do not meet the government-appointed Advocate’s criteria, their member media outlets would be stripped of their current Privacy Act exemptions – leaving them exposed to potential privacy compensation orders and a bureaucratic reporting regime that would cripple their news operations.

At present, media organisations just have to be signed up to the Press Council or an equivalent body and be ‘publicly committed to observe’ its privacy standards.

If a media company falls foul of the self-regulator, refuses to join one, or joins one that does not meet the requirements, then the new Public Interest Media Advocate would have the power to strip them of their Privacy Act exemption under Section 7B(4) – leaving them obliged to follow all the privacy protocols associated with ‘obtaining, keeping and disclosing of personal information’ related to any of their stories and photographs.

This would leave the newspaper or online news company having to get every person in a group photograph to sign consent forms and to refrain from publishing sensitive personal information about people like their financial dealings, medical conditions, employment history and a host of other material commonly appearing in news stories.

They would also have to go to the expense of safely storing all the personal information they gathered for news reports and deal with requests from individuals who might want to withdraw their permission for them to retain that information about them.

There is no ‘public interest’ exemption to this requirement under the Privacy Act – other than formally seeking a ‘public interest determination’ from the Privacy Commissioner in a specific case.

Of course, there may be other protections for investigative reporters – perhaps the permission to publish details already released under the privacy provisions of Freedom of Information laws, and of course privileges extending to material tabled in court or Parliament.

There might also be an argument that the High Court’s implied freedom to communicate on matters of government and politics might apply to some private information in limited circumstances, although recent decisions from that court seem to render that freedom problematic and dependent on the views of individual judges.

There is a long principle ‘against prior restraint’ in our legal system – shackles by governments and courts to stop the news media before they have the opportunity to publish something.

The most famous example were the attempts in earlier centuries to license the printing presses – government measures opposed by famous statesmen and jurists like John Milton, John Stuart Mill and our own colony’s first Chief Justice, Sir Francis Forbes.

This proposal is for a system of de facto licensing because the statutory alternative to joining the self-regulatory regime would almost guarantee financial ruin for a newspaper company in this environment, when they are already facing huge challenges retaining readership and winning advertising in the Web 2.0 era.

The Privacy Act provisions would only apply to media companies earning more than $3 million per year – which is the threshold for corporations – and the proposed bill also offers a ‘small business’ exemption to its requirements.

This would potentially leave us with a two-speed news media – small operators, bloggers, citizen journalists and social media users sharing private information willy-nilly while larger news organisations falling outside the ‘self-regulatory’ regime are left to expend valuable time and resources filling out all that privacy paperwork.

Unlike other Western democracies, Australia has no written constitutional protection of free expression in the form of a Bill of Rights or a regional human rights document. The explanatory notes to the proposed laws go through the usual routine of giving a ‘Statement of Compatibility with Human Rights’, in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

But the imposition of the proposals on free expression is dispensed with in just three paragraphs excusing it because of its capacity for respecting the privacy and reputations of other citizens.

There is no doubt Australia’s media self-regulation can be improved, and there is even scope for some fine-tuning of media laws.

It is also evident that the Australian Press Council has markedly improved its systems and funding under the leadership of its chair, Professor Julian Disney.

There are already several hundred media laws in this country – enough to fill at least three major journalism textbooks in the field and several more in the specialist areas of torts, criminal law and intellectual property.

Even a tort of privacy invasion with a strong public interest exemption for journalism would be preferable to this proposal for a system of ‘death by a thousand consent forms’ for struggling news organisations who should have the right to be lone wolves and refuse to play the government’s game.

Call it what you like, but this Bill is not ‘self-regulation’.

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November 27, 2012 · 9:21 am

Terror is no laughing matter – lessons from the #twitterjoketrial

By MARK PEARSON Follow @Journlaw

Twitter and Facebook are great outlets for one-liners and satire, but police and security agencies are not known for their sense of humour. Trainee accountant Paul Chambers, 27, learned that the hard way when he was arrested on UK terrorism charges for jokingly tweeting a threat to blow up a British airport. Air traffic was delayed by a heavy snowfall and Chambers was desperate to visit a female friend in Northern Ireland, so he light-heartedly tweeted to her and his 650 followers: ‘C***! Robin Hood Airport closed. You have got a week to get your s*** together, otherwise I’m blowing the airport sky high!’ Police swooped a week later and he was questioned on the terrorism charges before being convicted and fined £1,000 on a lesser charge of causing nuisance. He later won an appeal in the High Court when the Lord Chief Justice agreed it had been a humorous remark rather than a threat. The case became known as the ‘Twitter joke trial’. I’m fairly confident Chambers would not go through all that angst again over a not so witty one-liner.

Journalist, blogger, tweeter and lawyer David Allen Green ( @DavidAllenGreen ‘Jack of Kent’ ) spoke recently on the issue to the Open Rights Group.

Across the English Channel, 23-year-old unemployed Frenchman François Cousteix was surprised one evening to find French police and US FBI agents arrive at his front door. Operating under the name ‘Hacker Croll’, he had made it his hobby to access celebrities’ social media accounts just for fun. He had accessed the social media account of celebrity Britney Spears but came to international security agencies’ attention when he hacked into the Twitter account of US President Barack Obama. He escaped with a five month parole sentence.

There is a simple lesson from these cases: do not joke about national security matters.

Governments throughout the world ramped up their national security laws in the wake of the terrorist attacks on the US in September 2001. Even in countries with a high regard for civil liberties and free expression, new powers were handed to security agencies and police to aid in the detection and arrest of suspected terrorists. Pressure mounted in western democracies for even tougher laws after the Bali bombings in 2002 and 2005 and the 7/7 London attacks in 2005.

Publishing restrictions in the name of national security existed long before 9/11. Sedition and treason laws encouraging public unrest, violence and the overthrow of rulers date back to feudal times when governments tried to enforce loyalty upon ordinary citizens. While many countries have phased out these ancient crimes, such laws are still used in some places as mechanisms for intimidation and repression. Anti-terrorism laws were also used in western democracies well prior to 2001. The UK passed special laws to respond to Irish Republican Army terrorism throughout the 20^th century, while New Zealand introduced new restrictions after the French bombing of the Greenpeace boat the Rainbow Warrior in 1985.

But the early 21^st century attacks on the West triggered a wave of new anti-terror laws impacting on the free expression of journalists and Internet users. Hundreds of anti-terror laws were introduced in the first decade of the 21^st century under the banner of the so-called ‘War on Terror’.

America led the way with its USA ‘Patriot’ Act of 2001, in which the letters stand for: ‘Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism’. President Barack Obama’s administration extended the legislation for a further four years from 2011.

Others followed suit, including the UK, Canada, Australia and New Zealand. Ottawa software developer Momin Khawaja became the first person charged under Canada’s anti-terror laws but in 2011 challenged his conviction on constitutional grounds. In Australia, Belal Saadalah Khazaal was sentenced to 12 years in jail in 2009 for ‘making a document connected with assistance in a terrorist act’ after he created an e-book titled “Provisions on the Rules of Jihad” which allegedly targeted foreign governments and leaders. The High Court upheld his conviction in 2012.

There were too many anti-terror laws introduced internationally to detail here, but some can impact upon you if you are a cyber-journalist or blogger. They include:

Increased surveillance powers for spy agencies and police;
New detention and questioning regimes;
Seizure of notes and computer archives;
Exposing confidential sources to identification;
Closing certain court proceedings so they are unreportable;
Exposing bloggers to fines and jail if they report on some anti-terror operations;
Making it an offence to merely ‘associate’ or ‘communicate’ with those suspected of security crimes; and
Exposing bloggers and social media users to criminal charges if you publish anything seen as inciting terrorism.

Governments also go straight to search engines and ISPs and demand they remove material and, as Google’s Transparency Report documents, they often comply. But some have complained Google and Youtube have not responded quickly enough when asked to take down terrorism material. Burst.net certainly acted fast when the FBI advised it that some blogs it hosted under the free WordPress blogetery.com site contained terrorist material suspected of being used by the group al-Qaeda. It shut the site down, along with the 70,000 blogs it hosted. Blogetery resurfaced a month later under a different host.

The United Nations introduced a range of protocols that countries adopt minimum standards for combating terrorism. At the same time, the OECD acted to encourage Internet freedom by asking nations to open up cyberspace to freer and speedier communication. To the average blogger, the two positions might seem at odds.

A Mexican radio commentator and a maths tutor were jailed and faced a maximum 30 year prison sentence in 2011 on terrorism and sabotage charges after they tweeted false reports that gunmen were attacking schools in the city of Veracruz. The misinformation prompted parents to panic and some were involved motor accidents as they rushed to fetch their children.

“Here, there were 26 car accidents, or people left their cars in the middle of the streets to run and pick up their children, because they thought these things were occurring at their kids’ schools,” an official told Associated Press. The false reports followed weeks of gangland violence in the city.

“My sister-in-law just called me all upset, they just kidnapped five children from the school,” tutor Gilberto Martinez Vera allegedly tweeted. He followed that message with: “I don’t know what time it happened, but it’s true.” The other accused had retweeted the false reports to her followers. Experts described the tweeting as poor use of the medium, but not deserving of terrorism charges.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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October 24, 2012 · 8:19 pm

Counter-terror laws under review – our appearance at COAG

By MARK PEARSON Follow @Journlaw

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

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

The laws under review are listed here.

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

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

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

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

Dr Ewart made the following points in our submission:

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

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

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

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

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

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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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September 28, 2012 · 8:39 pm

Sub judice – time to brush up on your Latin

By MARK PEARSON Follow @Journlaw

The arrest and court appearance of a man accused of the rape and murder of Melbourne ABC staffer Jill Meagher has sparked a spate of commentary on social media – much of it potentially prejudicial to the suspect’s upcoming trial. Here is an excerpt from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012) – explaining the basic principles of sub judice contempt for lay users of social media. See also Julie Posetti’s innovative and useful Storify on this.

Victoria Police are also struggling to cope with prejudicial comments about the accused on their Facebook site. See my earlier blog on similar problems with the Queensland Police Facebook page where they have faced similar challenges trying to moderate prejudicial comments.

—————-

Sub judice – time to brush up on your Latin

The most frustrating area of contempt law for the traditional media has been sub judice contempt – publishing prejudicial material that might reduce the chance of a fair trial. First Amendment rights in the US have given the media immunity in recent times, but ‘trial by media’ can prompt a mistrial and lawyers can be disciplined if they make prejudicial statements during a trial. ‘Sub judice’ comes from the Latin meaning ‘under justice’ and has been prosecuted most often in the UK and Commonwealth countries, although some European countries like Denmark have laws against publications that might seriously damage a trial.

In 2011, the judge presiding over the trial of a conservative politician for a false expenses claim in Britain referred to the Attorney-General a potentially prejudicial tweet about the case by a rival politician. High-profile Labour peer Lord Sugar tweeted to his 300,000 followers on the second day of the trial: “Lord Taylor, Tory Peer in court on expenses fiddle. Wonder if he will get off in comparison to Labour MPs who were sent to jail?” The Telegraph quoted Justice Saunders saying: “I was concerned that if seen by a juror it might influence their approach to the case… I reported the matter to the Attorney-General not for the purpose of taking any action against Lord Sugar but to investigate whether entries on Twitter sites … posed a risk of prejudicing the fairness of a trial, and if so whether there were steps which could be taken to minimise that risk.”

International media law firm Taylor Wessing revealed in 2011 that they had defend a website against contempt allegations over prejudicial user-generated posts on a message board just a few weeks before a criminal fraud trial. They had to take down the messages and the jury had to be warned not to do Internet research. They pointed out that bloggers and social media users were liable for their publications even when they did not intend to damage a trial. From the moment someone has been arrested in a criminal case, reports about the matter are seriously limited in many countries. Authorities can prosecute for this kind of contempt if there is a ‘substantial risk’ that justice will be prejudiced in the case.

While the mainstream media are the most common targets of such actions, the size of the audience for many blogs and social media commentators will increasingly make them vulnerable. The Victorian Government Solicitor’s Office advises websites to take down materials related to an upcoming case in the lead-up to a trial. The most sensitive material is anything implying the guilt or innocence of the accused, confessions, photo identification of the accused, and republishing reports of earlier hearings. A public interest defence might be available for publication of material on a matter of overwhelming public importance, but you should never rely upon this defence without legal advice.

…

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.

[Media: For review copies please contact publicity@allenandunwin.com or call +61 2 8425 0146]

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