Tag Archives: open justice

Is an Open Justice Advocate the solution to overly restrictive suppression orders? #MLGriff

By MARK PEARSON

Jason Bosland [@JasonBosland] – Deputy Director of the Centre for Media and Communications Law at Melbourne Law School – has called for the introduction of a state-funded Open Justice Advocate as a measure to alleviate the continuing practice of judges issuing overly restrictive suppression orders.

Bosland’s explanatory article in Pursuit and his research article the Sydney Law Review come just as we are about to examine open justice and court restrictions in our Griffith University Media Law course, so they are essential reading for students.

He is the acknowledged leader in the field of suppression order scholarship in Australia and his work tracked firstly the need for the Open Courts Act 2013 in Victoria and, more recently, its failings to impact effectively on court practices.

Bosland writes in the Pursuit article:

This leads to a critical question: who is going to protect the fundamental principle of open justice if the courts themselves are not as vigilant as they should be and if the media are increasingly unable or unwilling to intervene? It is my view that the only solution is for the introduction of a state funded open justice advocate.

His longer Sydney Law Review is an expert combination of insightful policy analysis, meticulous scrutiny of the legislation, and illuminating statistics drawn from his funded research projects on the topic. I commend them to all media law geeks and students.

His concludes that article with this wise counsel:

This state of affairs is clearly unsatisfactory. The solution, however, is not to be found in further legislative reform of the courts’ powers. Rather, attention should be directed towards further professional and judicial education, and the development of a range of suitable model orders. Furthermore, a scheme facilitating the appearance of contradictors in suppression order applications — such as the Open Courts Act Duty Barrister Scheme introduced at the instigation of the Chief Justice — is likely to improve current practices. However, it will only be truly effective in solving the problems identified in the present study if it can be extended to all courts.

Insightful indeed.

[See also – my article in The Conversation on how the 2015 edition of our textbook inadvertently breached a Victorian suppression order and had to be reprinted.]

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

© Mark Pearson 2017

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Queensland judicial committee recommends some filming of proceedings and a new court information officer

By MARK PEARSON

A Supreme Court of Queensland committee has recommended a pilot program for the broadcasting of some sentencing remarks and appeal hearings and the appointment of a court information officer.

QldElectronicPubsReportApril2016The Electronic Publication of Court Proceedings: Report – April 2016 was released this month, the result of eight months of deliberations by five Supreme Court justices (chaired by Justice Margaret McMurdo, President of the Court of Appeal), with input from a further two District Court judges.

The report followed the release of an Issues Paper on the topic in June 2015 and the consideration of public submissions, including one from yours truly, which I detailed in an earlier blog.

The latest report reviews practices in other Australian jurisdictions and internationally. It stems from media requests to film the sentencing remarks in the trial of Brett Peter Cowan for the murder of school boy Daniel Morcombe.

No standard procedures existed in Queensland to film sentencing remarks and the court was rare among Australian jurisdictions in that it had no designated information officer to assist in making arrangements. The delay deemed necessary to make suitable arrangements was one of the reasons that the application to film the judge’s sentencing remarks was refused.

As a result of the report’s findings, the courts will develop a pilot program for broadcasting of sentencing remarks and appeal hearings.

The committee noted  that most respondents were concerned about the risk that recording and broadcasting witnesses and others in court would compromise the administration of justice.

As with similar reviews in other countries, the report does not favour broadcasting of witnesses’ evidence. However, the option will remain open for the judge in a particular case to allow the evidence of witnesses to be broadcast, with special consideration given to the position of victims and vulnerable witnesses.

The pilot program will require the development of suitable Practice Directions, logistical arrangements and guidelines to assist the judges and the media. Guidelines will address matters such as the exclusion of certain categories of cases and the location and field of view of cameras.

The decision on whether to allow the recording of sentencing remarks will remain the decision of the presiding judge in each case.

The report also recommends additional ways to better inform and educate the public, including:

  • improved public and media access to court decisions, case summaries and documents to allow fair and accurate reporting; and
  • the appointment of a Court Information Officer to assist the Supreme Court and the District Court in better informing and educating the public about the courts and the justice system.

When appointed, the officer will be responsible for the development of guidelines for the recording and publication of court proceedings, paving the way for the pilot program to start.

My own submission called for the installation of webcams in all courtrooms to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically.

It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location.

My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.

My submission featured these six hallmarks:

  1. Install inexpensive webcams in all courtrooms showing only the judge in the frame.
  2. Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
  3. Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
  4. Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
  5. Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
  6. Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.

In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).

It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.

The committee gave my suggestion due consideration but rejected it on the basis of expense and for tipping the scales too far in favour of open justice over a fair trial and the due administration of justice. The report stated:

“Professor Pearson and others have advocated the introduction of a system whereby proceedings which are held in open court are recorded on webcams that are installed in all courtrooms and live-streamed. A variation on this is for the court to have its own dedicated internet channel for live-streaming.

It may be argued that, with new and relatively inexpensive technology to record and live-stream proceedings, all proceedings should be live-streamed. This simply would enable members of the public to view what would be seen by them if they exercised their right to attend a proceeding in open court. It may be relatively inexpensive to install webcams in most courtrooms showing the judge and to live-stream the images from this single camera angle to a designated court website which citizens can access. However, such a system would not regulate what was to be broadcast. Guidelines and procedures, and judges and court staff in individual cases, would need to address the evidence of witnesses, including vulnerable witnesses, which may be affected by the knowledge that what they say is being broadcast to the world. Any new system would need to control the transmission of certain evidence to the general public, including the identity of victims and children whose identification is subject to statutory prohibitions. It also would need to control the broadcasting of the horrendous details of certain crimes. Monitoring the recording and transmission of evidence under a system which live-streamed all proceedings in all courtrooms would entail a very substantial cost to the community.

Many cases in the superior courts are of no real interest to the general public. Few members of the general public attend them, the media do not report them and it seems unlikely that more than a few members of the general public would wish to view them if they were live-streamed. The resources required to establish a system to record and live-stream all proceedings and to apply appropriate restrictions on what is communicated to the general public cannot be justified in the light of anticipated demand.”

© Mark Pearson 2016

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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An argument for more open courts in the digital era

By MARK PEARSON

My submission in response to the Supreme Court of Queensland’s comprehensive issues paper Electronic Publication of Court Proceedings argues that the advent of digital technologies means the courts should be more open to the public than ever before.

A committee of judges of the Supreme Court released the issues paper in June, seeking views on the potential for the audio-visual recording of court proceedings and possible livestreaming or broadcast of all or part of the proceedings.

Screen Shot 2015-08-17 at 3.47.25 pm

Whatever the outcome of the process, the report stands as an excellent contribution to the literature in the field and a useful resource for students and academics for its comparative and comprehensive coverage of the topic and for the currency of the material.

It backgrounded the fundamental principles of both open justice and the right to a fair trial before considering the potential impact of electronic publication on various personnel, particularly jurors, witnesses and judges. It reported upon international and interstate developments in the field and discussed recent experiences in both Queensland and other jurisdictions where some level of recording or publication has been permitted.

The ultimate outcome of the process will inevitably also be influenced by both human and technical resources available for recording, editing and courtroom management of the logistics.

My own submission was relatively brief and addressed a select few of the issues and suggested one approach for a way forward fully embracing open justice in the digital era.

  1. Changing notion of open justice for the public and the media

The issues paper addressed the principle of open justice  and quite rightly highlights the importance of proceedings being conducted in open court. It portrayed the media’s right to report upon proceedings as “an adjunct of the right to attend court”, using the oft-quoted expression of the media being the “eyes and the ears” of the general public in the courtroom.

While this traditional approach holds true, the advent of the Internet and social media mean that there are now many more “eyes and ears” of the general public witnessing and relaying information about court processes than there were in days of yore. Ordinary citizens, bloggers and ‘citizen journalists’ offer their own versions of courtroom events via microblogs on Facebook and Twitter as well as through extended blogging and commentary media.

Thus I suggested there were two key questions that could help shape the court’s deliberations:

  1. Does modern technology provide a cheap and simple mechanism for streaming ALL court rooms via a single website or interface? and
  2. Should the mainstream news media be privileged in certain situations by being allowed to film in the courtroom and broadcast sections of such footage?

The first question turned the tables on much of the report which seemed preoccupied with reasons for restricting access and publication. My question suggested the default situation should be to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically. It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location. The final point of my submission suggested a system for making this possible. My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.

My second question positions the mainstream media as a select group with special commercial and public interest needs for providing their audiences with edited footage in cases with a high level of newsworthiness. As explained below, such a level of access can be addressed on a case by case basis and the presiding judge could indeed retain the discretion on the level of access allowed and the conditions of its use.

  1. Concerns over selective reportage

On several occasions the paper expresses concern over the potential for the media’s highly selective use of camera angles, audio and sections of proceedings. I suggest this is the very nature of the news media and the government, the executive and the judiciary have voiced concern at this phenomenon in the centuries since the media first took on the role as the Fourth Estate in a democracy. It is the price for media freedom in systems where editors and news directors (rather than politicians and judges) decide upon the newsworthiness of a story. There are already numerous devices available to the courts to address the potential for sensationalised or inaccurate reporting in the domain of contempt of court (in its sub judice, disobedience and scandalising iterations) and via the loss of the fair and accurate reporting defence to resulting defamation actions. Further, media outlets need to be aware that such privileges might be withdrawn for selected outlets if they are not accompanied by the due level of responsibility detailed by the presiding judge in the granting of such permissions.

  1. Production standards required for mainstream media

While all mainstream media would prefer the highest quality of recorded material, all news media now broadcast both online and on radio and television much more citizen-generated content which is sometimes of the poorest amateur quality. The news priority of the material now takes precedence over the production quality of the audio and vision. Highly blurred and pixellated material now finds its way into even the most expensively produced programs if that is the only actuality available to help tell a compelling story. This means that if the general livestreaming option is the only one available to the media, and if they are allowed to record and rebroadcast it, then they will do so if the material is newsworthy enough.

  1. A relatively cheap and simple system of implementation

This preliminary discussion backgrounds my very simple proposal which I believe would address both the need for open justice and the concerns over the potential for interference with the administration of justice and the opportunity for accused persons to get a fair trial. It is as follows:

  1. Install inexpensive webcams in all courtrooms showing only the judge in the frame.
  2. Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
  3. Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
  4. Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
  5. Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
  6. Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.

In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).

It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.

© Mark Pearson 2015

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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For those who missed it – the @RNMediaReport story on the Bayley suppression order #auslaw

By MARK PEARSON

As most people were heading off for their Easter vacation, Radio National’s Media Report ran a segment on how we discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

My article in  The Conversation (excerpted below) explained what happened, and RN Media Report’s Richard Aedy followed it up with this interview last week:

Screen Shot 2015-04-10 at 5.17.41 PM

 


March 27, 2015 blog:

How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw ]

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation

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

© Mark Pearson 2015

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How the Adrian Bayley suppression order forced the reprinting of our new media law book #auslaw

By MARK PEARSON

It is somewhat alarming when a media law academic finds himself on the wrong side of a media law. But that is exactly what happened to me when I discovered the new edition of our textbook was in breach of a suppression order on the name of Adrian Bayley – the man who murdered Jill Meagher.

One of the manually redacted pages sent out to reviewers before our book was reprinted

One of the manually redacted pages sent out to reviewers before our book was reprinted

Our experience highlights serious problems with the system of suppression orders in the courts today as they try to grapple with the ever-increasing challenge of keeping internet-savvy jurors from having access to reports of the past trials or convictions of the accused.

Victorian County Court judge Sue Pullen issued the suppression order against anyone publishing “any information relating to previous convictions, sentences, or previous criminal cases of the accused”. The orders were lifted on Thursday after Bayley was convicted of raping three other women before he raped and murdered Meagher in September 2012.

On one view, Pullen’s orders constituted a “super injunction” because they suppressed mention of the proceedings – and therefore of the suppression order itself. Perhaps understandably, news of the order had not spread beyond the inner circle of lawyers and mainstream court reporters and editors, mainly in Victoria.

The suppression order only came to my knowledge as a Queensland-based academic when I happened to be sitting on a conference panel in Melbourne with a media lawyer and a judge last year discussing the futility of suppression orders in the modern era.

The media lawyer told the audience of court officers, lawyers, journalists and academics that he had recently appeared in court several times to try to have this particular suppression order overturned – without success. He said he could not be specific about the suppressed identity of the accused (wisely, as representatives of that court were sitting in the audience).

But when he mentioned the notorious crime itself my heart skipped a beat. It dawned on me that our new edition of The Journalist’s Guide to Media Law, which was sitting in the publisher’s warehouse awaiting distribution, was in clear breach of the order. Bayley had been named and linked to the Meagher murder on three pages of the book. He also appeared in its index.

Continue reading the full version of this commentary in The Conversation

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

© Mark Pearson 2015

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New @journlaw updates posted in privacy, anti-terror and confidentiality of sources #MLGriff

By MARK PEARSON

We have just posted numerous updates to the fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) on the journlaw.com blog.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we have been posting fresh material via this blog’s Media Law Updates menu.

You can find updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Order via Booktopia: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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

© Mark Pearson 2015

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Journlaw running updates to The Journalist’s Guide to Media Law

By MARK PEARSON

OUR fifth edition of The Journalist’s Guide to Media Law – A handbook for communicators in a digital world (Mark Pearson & Mark Polden, A&U, 2015) is now in bookshops and I will be running updates on each topic area via journlaw.com as we work towards the next edition.

Thanks to Leanne O’Donnell (mslods.com / @mslods), Virginia Leighton-Jackson and Griffith University media freedom interns and students we will be posting fresh material via this blog’s Media Law Updates menu.

There will be updates on recent cases, legislation and Australian and international media law news on the following topic areas:

Social Media Law

Free Expression

Legal and regulatory systems

Open Justice and Freedom of Information

Contempt of Court

Covering Court

Defamation

Secrets, Confidentiality and Sources

Anti-terror and hate laws

IP and copyright

Privacy

Law of PR, Freelancing and New Media Entrepreneurship

The sheer pace of change in all areas of media law is astounding so we have have built several mentions of journlaw.com into the chapters and discussion questions as a go-to resource for media law students.

We would also appreciate your input – whether you are a student, journalist, academic or lawyer.

Please email any contributions to these update sections to me, Mark Pearson, at journlaw@gmail.com .

Of course, the book and the journlaw.com examples are not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Order via Booktopia: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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

© Mark Pearson 2015

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Why we can name this forensic mental health patient, but you can’t: open justice in action

By MARK PEARSON

Almost 13 years ago an interpreter at the Community Relations Commission in Ashfield in Sydney – Ms Radmilla Domonkos – died in a fire that had been deliberately lit. Two colleagues were critically injured.

Long_Bay_Jail_2

Long Bay Correctional Centre in Sydney. Photo: JBar, WikimediaCommons

A co-worker was charged with her murder and with maliciously damaging property by fire with intent to endanger life.

After two years of court processes in March 2004 the accused was found not guilty on the ground of mental illness and has since then been held for treatment at the Long Bay Prison Hospital under the Mental Health (Forensic Provisions) Act (1990).

As in many other jurisdictions, the Mental Health Act (2007) prohibits at s. 162 the publication of the names of such patients even if they wish to be named.

As my colleague and research partner Associate Professor Tom Morton explained in an ABC Radio National Background Briefing program – The Man Without A Name – earlier this year, this patient has been prevented from telling his own story because of such anonymity provisions.

As he reported there, the ABC prepared a detailed application for permission to name the patient in that program and we attended a special hearing of that application before the Mental Health Review Tribunal in Sydney last September.

That application was approved, and Tom was able to name the patient in that program that aired in April this year.

However, were advised that such permission was limited to that single publication of the patient’s name. In other words, even though you can listen to a podcast of that program available here to discover his name, we would not be allowed to repeat it in our research outputs without further permission.

Earlier this year we went through that process, and I am pleased to advise that the Mental Health Review Tribunal has granted us permission to name the patient in our research publications and also in this blog.

I believe this is somewhat of a first – an academic research blog being granted permission to name a forensic patient – so journlaw.com is likely breaking new ground here as we do so.

The order states:

The means of publication are restricted to the following outlets for academic scholarship:

1. Academic journal articles, books and book chapters authored by Professor Morton and / or Professor Pearson.

2. Academic research blogs authored by Professor Morton and/or Professor Pearson.

It proceeds to require that any such publication must indicate our authorship, that the Tribunal can withdraw the consent at any time, and that any publication must carry the following notice:

“Notice: It is an offence under the Mental Health Act 2007 (NSW) section 162 to publish or broadcast the name of any person to whom a matter before the Mental Health Review Tribunal relates or who appears as a witness before the Tribunal in any proceedings or who is mentioned or otherwise involved in any proceedings under the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990, unless consent has first been obtained from the Tribunal. The author has obtained such consent to publish Mr Dezfouli’s name.”

That should make it clear why we can name the patient but you cannot – at least without going through this whole process of application detailed in the Tribunal’s Practice Direction on s. 162, viewable here (pdf file).

So, after that extended preamble, I shall now reveal the patient’s name.

It is Mr Saeed Sayaf Dezfouli.

dezfouli

Forensic patient Saeed Dezfouli. Photo: Justice Action

In coming months we will be publishing our academic outputs on the research and journalistic processes involved in our pursuit for permission to identify Mr Dezfouli, kindly funded by a Rule of Law Institute of Australia grant.

Clearly, there are many competing rights and interests at stake in such a situation, including the patient’s right to privacy and effective treatment, their liberty, community safety, the reputations of their treatment team, and the welfare of victims and their families.

There are also the important legal principles of open justice, free expression, and the public’s right to know about the workings of the mental health and criminal justice systems. We will be exploring such issues in our academic publications.

Meanwhile, if you are interested in the Tribunal’s processes you might wish to read the Tribunal’s Official Report of an uncannily similar case (pdf file) it has published on its website using the name “Mr Ephram”.

The prisoner rights advocacy group Justice Action has also applied for, and obtained, permission to name Mr Dezfouli on its website and you can read more about his situation there.

Also, if you search for his name in a web browser you will find some other instances of him being named in the media, although it is unknown whether there were any legal consequences for the outlets which identified him.

(Tom Morton’s ABC Background Briefing program ‘The Man Without A Name’ – 20 April 2014)

———–

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

© Mark Pearson 2014

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Hot off the press – our 5th edition of The Journalist’s Guide to Media Law

By MARK PEARSON

I was delighted to receive from publisher Allen & Unwin my first copy of the fifth edition of The Journalist’s Guide to Media Law (co-authored with Mark Polden).

Much has changed since our last edition in 2011, particularly in the fields of news media, communication technologies and practices, tertiary education and the law. We have reshaped and updated this edition of the book to accommodate those developments.

The book is still titled The Journalist’s Guide to Media Law, but its new subtitle—‘A handbook for communicators in a digital world’—encapsulates the seismic shifts that have prompted our considerable revisions. Our target audience has broadened with each edition as technologies like the internet and social media have combined to transform journalism and its allied professional communication careers. Thus our prime audience of Australian journalists working for traditional media outlets has widened to embrace public relations consultants, bloggers, social media editors and new media entrepreneurs,  as they fill new professional occupations dealing with media law, once the domain of mainstream reporters and editors.  Crucial questions which recur through the book include: ‘What is a journalist?’, ‘Who is a publisher?’, ‘How does media law affect this new communication form?’ and ‘Who qualifies for this protection?’ Some of the answers are still evolving, as legislators, the judiciary and the community grapple with the implications of every citizen now having international publishing technology literally at their fingertips on mobile devices.

Such shifts have prompted major new inclusions in the content of the book. So much publishing now transcends Australia’s borders via social media, blogs and other online platforms that we have expanded this edition to contain many more international comparisons and cases. This has been accommodated by reducing some of the forensic examination of precise legislation in various Australian states and territories, found in previous editions. Instead of attempting to document every statutory instrument in all nine Australian jurisdictions, we have directed readers to the resources that contain those details.

All of this has necessitated design and pedagogical changes to the book’s format and contents. While the chapter structure is generally in accord with previous editions, there are new sections within the chapters addressing these issues. Their order varies slightly according to topic, but most chapters now include some key concepts defined at the start, some international background and context to the media law topic, a more detailed account tailored to Australian legislation and case law, a review of the ‘digital dimensions’ of the topic with special focus on internet and social media cases and examples, an account of self-regulatory processes if they apply to that topic, some tips for journalists and other professional communicators for mindful practice in the area, a nutshell summary, some discussion questions, and relevant readings and case references.

The introduction of ‘tips for mindful practice’ encapsulates the authors’ aim that professional communicators need to build into their work practices and routines an informed reflection upon the legal and ethical implications of their reportage, commentary, editing, publishing and social media usage. This approach is explained in greater detail in Chapter 2, but it essentially links safe legal practice and the responsible and strategic use of free expression with the personal moral framework and professional ethical strictures of the digital communicator—whether a journalist, public relations consultant, media relations officer or serious blogger.

 

Those changing roles are reflected in a new final chapter, Chapter 13, which deals with the law of PR, freelancing and media entrepreneurship. It replaces a chapter on self-regulation in earlier editions. (The role and application of the various industry regulatory, co-regulatory and self-regulatory bodies, such as the Australian Communications and Media Authority (ACMA) and the Australian Press Council (APC), are now introduced in Chapter 3, but they are then referred to in the chapters where their functions and decisions seem most relevant). We saw this area of media law as significant because those who occupy those roles  are now grappling with special dimensions of media law—and several other legal topics relevant to their work—and deserve a new chapter dedicated to their roles and the legal dilemmas that are emerging in relation to them. The chapter also reflects the fact that many former journalists are now working in these allied occupations, and that student journalists need to start their careers with a broad understanding of the legal considerations which govern allied professional communication industries.

The sheer pace of change in all areas of media law is astounding. Many changes were mooted as this edition was going to press—including important developments in the laws of privacy, copyright, hate speech and court reporting. Rather than render the book dated as soon as it is printed, we have opted to use co-author Professor Mark Pearson’s journlaw.com blog (this one!) as the venue for updates to material, and have built several mentions of that resource into the chapters and discussion questions.

Apart from an array of new cases and examples—many from the international arena and many more from social media—some highlights of important new content covered in this edition include the following:

  • There are significant cases on increased statutory powers, allowing courts to make suppression and non-publication orders, and on the relationship between free speech, open justice and the right of parties to settle disputes privately. Recent cases at the borderline between ridicule and defamation, and on the application of freedom of information laws to immigration detention centres are included, as are cases on the application of sub judice contempt to internet content hosts and ‘celebrity’ claims of privacy invasion.
  • Recommendations of the ALRC on copyright reform are included, together with a discussion of the new copyright fair dealing defence that applies to satire. The book presents a wide range of examples, across different legal categories, relating to the use of the internet and social media, which will be of growing importance for current and future professional practise in communication, reportage and media advice.
  • A separate chapter on secrets (Chapter 9) covers the new journalists’ shield laws and their relevance to micro-bloggers and non-traditional publishers.
  • Chapter 10, on anti-terrorism and hate laws, includes the recommendations for reform of anti-terror laws and discusses the high-profile Andrew Bolt case and related proposals for reform of the Commonwealth Racial Discrimination Act 1975.
  • The recommendations of the Leveson Inquiry in the United Kingdom, and the Finkelstein Inquiry and Convergence Review in Australia, are subjected to critical analysis in view of their potential impact upon notions of a free press.

There is also an increased emphasis on real-time reportage, as the traditional print media increase their online presence and depth of click-through coverage in a 24/7 news cycle, with concomitant risks in the areas of defamation and contempt in their own work and that of third-party commentators on their websites and social media pages.

Without going into exhaustive detail on all of these matters, the book remains true to its original aim: to provide professional communicators and students with a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across the media. It tries to do this by introducing basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

In designing this edition, we have tried to pay heed to the needs of both professional communicators and media students. The book is best read from front to back, given the progressive introduction of legal concepts. However, it will also serve as a ready reference for those wanting guidance on an emerging problem in a newsroom or PR consultancy. The cases cited illustrate both the legal and media points at issue; in addition, wherever possible, recent, practical examples have been used instead of archaic cases from the dusty old tomes in the law library. Rather than training reporters, bloggers and PR practitioners to think like lawyers, this book will achieve its purpose if it prompts a professional communicator to pause and reflect mindfully upon their learning here when confronted with a legal dilemma, and decide on the appropriate course of action. Often that will just mean sounding the alarm bells and consulting a supervisor or seeking legal advice.

Of course, the book is not meant to offer actual legal advice. Professional communicators must seek that advice from a lawyer when confronted with a legal problem. The most we claim to do is offer an introduction to each area of media law so that journalists, PR consultants and bloggers can identify an emerging issue and thus know when to call for help.

Booktopia is offering pre-orders on their website: http://www.booktopia.com.au/the-journalist-s-guide-to-media-law-mark-pearson/prod9781743316382.html

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

© Mark Pearson 2014

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Filed under blogging, citizen journalism, contempt of court, free expression, journalism, media ethics, media law, Media regulation, social media, sub judice, Uncategorized

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

By MARK PEARSON

[Research assistance from media freedom intern Jasmine Lincoln]

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

From: Mark Pearson, RSF correspondent, Australia

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

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

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

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

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

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

– initiated major budget cuts on the publicly funded ABC;

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

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

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

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

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

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

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

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

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

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

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

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

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

Kind regards,

Mark Pearson (@journlaw)

—–

Sources for further detail on the national security reforms:

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

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

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

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

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

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

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

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

 

© Mark Pearson 2014

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

4 Comments

Filed under free expression, national security, Press freedom, terrorism, Uncategorized