Tag Archives: press freedom

The long copyright battle over a monkey’s selfie

By MARK PEARSON

The booklet Understanding Copyright and Related Rights (WIPO, 2016) is an excellent entry-point for learning about the basic copyright principles applying globally. Any monkey would understand it.

Monkey selfie taken by Indonesian macaque named Naruto on equipment set up by photographer David Slater. Sourced from Wikimedia Commons. © disputed.

It explains that ‘copyright’ translates into ‘author’s rights’ in many other languages because it is the creator of the work—the ‘author’ of written works—who holds the right to reproduce their outputs.

The word ‘copyright’ in English refers to that act itself—the ‘right’ to ‘copy’ something you have created. As the holder of that right, you have the legal power to license others to do so as well.

A fascinating international example of the principle that copyright rests with the creator of a work is the Monkey case (2018). In 2011 an Indonesian monkey named Naruto – a crested black macaque – took a ‘selfie’ with camera equipment set up by wildlife photographer David Slater. Monkey see, monkey do.

Slater complained to Wikimedia Commons after the images were posted there, but they refused his demand that he take them down, arguing he did not hold copyright in the images because he did not actually take them – the monkey did (Wikimedia Foundation, 2014).

The basic principle stood: copyright rests with the human creator of a work (Monkey case, 2018).

However, the monkey did not get to claim damages for the photographer’s use of the work. The US Ninth Circuit Court of Appeals denied an application by an animal rights group to have the monkey’s copyright in the images formally acknowledged, stating that animals did not have standing. The photographer and the monkey (represented by animal rights group PETA) negotiated a settlement (Toliver, 2017).

Monkey case: Naruto Monkey PETA v Slater CA9 No. 16-15469 D.C. No. 3:15-cv-04324-WHO Opinion 04 23 18 < https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html >

Toliver, Z. 2017. ‘Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights’, PETA (People for the Ethical Treatment of Animals) website. [11 September.] < https://www.peta.org/blog/settlement-reached-monkey-selfie-case-broke-new-ground-animal-rights/ >.

Wikimedia Foundation (2014). ‘Monkey Selfie’, Wikimedia Foundation Transparency Report. https://transparency.wikimedia.org/stories.html

© Mark Pearson 2018

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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Defamation research and social media mean it’s time to consider reform

By MARK PEARSON

The Sydney Morning Herald recently published my commentary welcoming the NSW Government’s rethink of defamation law in the light of recent research showing a large number of cases involve ordinary citizens (rather than celebrities) and social media posts (as distinct from media publications).

It was titled ‘Social media gives people a wider audience for their bile – and defamation laws must reflect that’.

Here is the extended unedited version for those with a special interest:

The decision to review NSW defamation laws announced yesterday is overdue, and changes need to address several aspects of the legislation as well as the very human flaws of vindictive remarks, fragile egos and ignorance of the law.

NSW District Court defamation expert Judge Judith Gibson called for reform this week, pointing to the rise of Internet-related defamation cases, a phenomenon unanticipated when uniform defamation laws were introduced throughout Australia in a landmark 2005 reform.

Her argument was underscored by research released last week by the UTS Centre for Media Transition which found that more than half of defamation cases over the past five years involved reputational damage in a digital medium, up from 17 per cent in 2007 when social media was in its infancy.

The common perception that defamation cases typically involve celebrities suing the media for millions of dollars – like recent litigants Rebel Wilson and Geoffrey Rush – is a myth. The study showed that among the 189 decided cases from 2013-2017, only one third of defendants were media companies, and only about one fifth of those bringing the action were celebrities or public figures.

When you read the detail on the cases, it becomes clear that most defamation cases are contests between ordinary citizens over negative remarks they have made about each other on social media, websites, emails and other means of digital communication.

With the advent of social media, everyone is a publisher in the eyes of defamation law – and many more people in far-flung places can see or hear the nasty things we say about each other.

Broken friendships, business disagreements and political or moral debates escalate and get vindictive and personal.

There was the first Twitter case where a misguided former student posted a social media character assassination against a school teacher because he mistakenly thought she had cost his father his job.

And the disgruntled businessman who used the social media platform WeChat and targeted emails to tell the world a meat trader was a conman, corrupt and a criminal, with no factual basis.

And the Victorian junior football umpire with Asperger’s Syndrome who was taunted on a US autism website with falsities that he was a pedophile and was faking his condition.

For centuries there have been some people inclined to write poison pen letters, spread nasty rumours and to post sick messages on public noticeboards and toilet walls. The Internet and social media has given them a wide audience for their bile and some of these now result in defamation trials.

Prior to the 2005 reforms, defamation law in Australia was a complicated mess. Major variations existed across the states and territories on a host of issues, including the limitation periods in which people could bring an action and the defences available. ‘Forum shopping’ was rife, with plaintiffs selecting the jurisdiction where the law best suited their case.

The reforms were remarkable in that attorneys-general in eight states and territories reached agreement and forged the changes through their parliaments.

But those laws are desperately in need of reform if they are to catch up with the social and technological changes of the past decade.

The ‘offer of amends’ system introduced with the last reforms was a novel initiative to keep actions out of court with encouragement for an early offer of damages and an apology. But it is complex, often appealed, and other mediation incentives should be put in place to educate parties about settling their differences earlier to avoid the public and personal expense and distress of litigation. Alternative remedies to damages and injunctions would be a bonus.

The triviality defence is flawed and needs to include something of the flavor of the UK’s “serious harm” test – requiring serious reputational harm as a prerequisite to an action.

Changes also need to encourage public interest journalism rather than punish it.

Journalists deserve a stronger public interest (qualified privilege) defence which does not fail when they refuse to reveal their confidential sources and allows for minor errors in important exposés.

And the truth defence should be narrowed to focus on the single most obvious defamatory meaning to give certainty to the reportage so that lawyers do not generate more obscure meanings a journalist might never have anticipated when researching a story.

The implied freedom to communicate on matters of government – a welcome but technical initiative of the High Court – should be enshrined as a formal statutory defence and satirists should get their own defence to better protect robust political critique via parody and satire.

But in tandem with defamation reforms we need government investment in digital legal literacy. School and adult learning curricula must include the basic legalities of social media and Internet use – stressing the key risks posed by defamatory and contemptuous posts.

Teachers might use some of those moral aphorisms our mothers used to tell us.

They would scold us over our nasty comments with “Do not say to others what you would not want said to you”.

And they would soothe our fragile egos:  and “Sticks and stones may break my bones, but names will never hurt me.”

Education and mediation encouraging mindful communication might resolve some defamation actions before they even start.

 


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 2018

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Article 10 expert discusses free expression as a human right #MLGriff

By MARK PEARSON

It was a pleasure hosting two esteemed European media and law colleagues over summer.

Recently retired colleagues Emeritus Professor Dirk Voorhoof (University of Ghent) and Dr Inger Høedt-Rasmussen (University of Copenhagen) toured Australia and New Zealand, visiting law schools and media law colleagues along the way.

They recently formed the Legal Human Academy, an organisation based online from Denmark critiquing media law, human rights and legal education issues.

Professor Voorhoof is an acknowledged expert in Article 10 (free expression) rights and cases in Europe, so I took the opportunity to interview him about this for the benefit of media law students.

View the interview here [14 mins 41 secs, produced by Bevan Bache, Griffith University].

 

© Mark Pearson 2018

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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Rare victory for truth defence in vocational education case – #MLGriff

By MARK PEARSON

CASE REPORT: Charan v Nationwide News Pty Ltd [2018] VSC 3

The Australian newspaper had a rare victory using the truth (or justification) defence to defamation in a recent case involving a vocational education businessman.

Pure truth defences rarely make their way through the courts because they are usually either settled or decided on other defences such as honest opinion, fair report, triviality or qualified privilege.

Plaintiffs will not usually undergo the pain of public defamation trials if there is some semblance of truth to the allegations against them which will be aired for all to see in media coverage.

 

Facts

On November 20, 2015, The Australian newspaper published a print article (‘Watchdog takes peak training college to court’) and a similar online version (‘ACCC to take top training college Phoenix Institute to court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network company (CAN) in the midst of a general crackdown on the sector over unscrupulous door-to-door marketing practices. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up and stated that the parent company was under investigation by both the Federal Department of Education and the Australian Skills Quality Authority and that its shares had been suspended from trade for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, “whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct” (para 2). Mr Charan had in fact left the company about a year earlier and The Australian the next day published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded eight imputations arose from the article, which the judge grouped into four headings:

  1. Mr Charan was head of ACN, a company which engaged in unscrupulous business practices that took advantage of vulnerable consumers

  2. Mr Charan was head of ACN, a company which engaged in misleading and deceptive conduct.

  3. Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers

  4. Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards (para 27).

The defendant Nationwide News – publisher of The Australian – argued successfully that imputations 2 and 3 did not arise and defended the imputations of unscrupulous business practices and significant noncompliance with quality standards successfully using the justification defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the unscrupulous conduct allegations it had to convince the court under the civil burden of proof – the ‘balance of probabilities’ – that there was ‘clear and cogent proof’. To do so it drew upon a host of material obtained after the publication, including:

(a) the oral testimony of a number of witnesses who had worked in the CTI group;

(b) the oral testimony of three “students” allegedly enrolled in CTI courses conducted by CTI companies;

(c) the contents of a series of audit reports, student interviews and file reviews (with associated documentation) of CTT and AMA, carried out in 2015 under the instructions of DET; and

(d) a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies” (para 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider Telstra.

Justice Forrest found the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para 111). He concluded with a concise summary of his 768 paragraph judgment:

(a) Mr Charan was defamed in both the written and online versions of the article;

(b) the article defamed him by conveying imputations that:

(1) Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2) Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations. (paras 762 -763).

Lessons for professional communicators

Several lessons arise from this rare but successful use of the justification (truth) defence by a publisher:

  • Considerable evidence can be required to prove the truth of imputations stemming from an article, and sometimes this has to be located after the reporting and publishing process has finished, although as much evidence as possible should be available at the time of publication;
  • A publisher defendant can still win a case on the pleaded imputations even if there is basic error in the story – in this case the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided).;
  • Defamation cases can be enormously expensive. In this case the 35-day trial was reported to have cost both side mores than $3.5 million in legal fees (Duke and Vedelago, 2018)

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 2018

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Media law for local government communications officers

By MARK PEARSON

A host of media laws might arise in the work of local government communications and media relations personnel, as I explained to a team from a large council recently.

With councils hosting inquiries and debates among ratepayers on social media platforms, and some even publishing their own news products to supplement a weaker suburban and regional media sector, they are facing many of the same media law risks that journalists encounter in their work.

These include defamation, contempt, breach of confidence, privacy, freedom of information/right to information, intellectual property and discrimination laws among others.

Yet while the news media have been described by some as “not just another business” because of their Fourth Estate role in a democracy, councils are clearly “not just another publisher” because of the special role local government plays in our political system.

A news organ published by the communications department of a local government body faces epistemological questions about their purpose and responsibilities which, in turn, feed into media laws and their defences.

A central question is: “Whose interests should come first, the citizen-ratepayer’s or the council’s?”

The reality is that most topics covered – such as extended library hours and the Carols in the Park coverage – would not trigger a dilemma here.

But push comes to shove when citizens are strongly critical of a council, its officers or its elected representatives over a decision or a proposal.

This is where the editor of any council-owned news organ and the moderator of comments on its social media feed face this fundamental dilemma over who is their real master – which in turn can feed into their position on several media law issues, most notably about whether defamation defences might be defeated by a lack of good faith or a perceived bias.

But there are also fundamental issues over the extent to which councils can shackle both the common law right to free expression and of course the implied freedom to communicate on matters of politics and government – both clarified in relation to local government bylaws by the High Court in Attorney-General (South Australia) v Corporation of the City of Adelaide (2013) 249 CLR 1.

While that case found Adelaide Council’s restrictions on preaching in Rundle Mall were a reasonable restriction on those freedoms, the decision prompts questions about other restrictions some councils may exercise upon their staff and elected officers.

Some, for example, have banned councilors from speaking publicly against decisions of their councils by narrowly interpreting some provisions of local government acts.

Early in 2017 the Redland City Council in Brisbane was criticized by the Queensland Ombudsman for threatening two citizens with defamation action over alleged defamatory comments about council, council officers and the Mayor, Karen Williams on social media websites. Legal letters from the Council demanded the complainants remove their comments and post apologies. The Ombudsman concluded the threats were not a reasonable or proportional response to what was relatively minor criticism of council’s decisions and were an unreasonable expenditure of public funds. He recommended training for councils in defamation law.

There are many other areas of the law beyond media laws that are likely to impact on local government media relations and communications personnel – both because of their public relations role and because of their function as part of the third tier of government.

These might include contract law, negligence, professional liability, HR law, whistleblower legislation and a host of regulations and common law obligations over transparency in council processes.

The recommendation by Queensland’s Ombudsman that council officers need training in defamation could well be extended to numerous media laws and several other legal and regulatory restrictions.

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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INFORRM a highly recommended resource for journalists and media law students #MLGriff

By MARK PEARSON

Congratulations to UK-based media law blog INFORRM (INternational Forum for Responsible Media) on reaching an impressive 4 million hits since it started seven years ago.

The site – international but with an understandable UK orientation – boasts more than 5,500 followers including  3,500 on Twitter @inforrm.

INFORRM has just listed its Top Twenty Posts of all time (in descending order of popularity):

From time to time over recent years they have been kind enough to repost my blogs or commentary pieces, including these:

Australia: Whither media reform under Abbott? – Mark Pearson

25 11 2013

Where will the new Liberal-National Coalition government led by Prime Minister Tony Abbott head with the reform of media regulation? Communications Minister Malcolm Turnbull and Attorney-General George Brandis were vocal opponents of the former Gillard Government’s proposals to merge press self-regulation with broadcast co-regulation into a new framework.

Read the rest of this entry »

Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones – Mark Pearson

13 10 2013

Australia MapThe interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension. Read the rest of this entry »

 

Privacy On Parade – Mark Pearson

12 05 2012

The right to privacy is a relatively modern international legal concept. Until the late 19th century gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright in some steamy images of Dumas with the ‘Paris Hilton’ of the day – 32-year-old actress Adah Isaacs Menken. Read the rest of this entry »

 

Australia: News Media Council proposal: be careful what you wish for – Mark Pearson

10 03 2012

The Finkelstein (and Ricketson) Independent Media Inquiry report released on 28 February 2012 is a substantial and well researched document with a dangerously flawed core recommendation.

An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least Aus$2 million of government funding annually. Read the rest of this entry »

 

Consumer law holds solution to grossly irresponsible journalism – Mark Pearson

9 11 2011

This post originally appeared on the Australian Journlaw blog.  It suggests an interesting new approach to media regulation which, as far as we know, has not been suggested in debates in this country.  We are reproducing it with permission and thanks to provide a further perspective on those debates.

Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.  It already has one – in the form of the Australian Competition and Consumer Commission (“ACCC”). Read the rest of this entry »


… as well as occasional snippets in their useful Law and Media Roundup section and this review of my book Blogging and Tweeting Without Getting Sued by media lawyer Leanne O’Donnell:

Book Review: Mark Pearson “Blogging and Tweeting Without Getting Sued” – Leanne O’Donnell

11 04 2012

Professor Mark Pearson’s Blogging & Tweeting Without Getting Sued will be welcomed by anyone writing online … Melbourne media lawyer Leanne O’Donnell reviews this timely legal guide to a rapidly evolving media landscape

Mark Pearson’s new book Blogging & Tweeting Without Getting Sued: A global guide to the law for anyone writing online – is very accessible guide to laws relevant to the all those writing online. Read the rest of this entry »


I find the INFORRM “Blogroll” is a particularly useful resource – regularly updated and featuring these media law blogs from throughout the world. Together they provide a wonderful resource for media law students, journalists and researchers. (Thanks for including journlaw.com,  INFORRM!)

Surely sufficient bedtime reading for even the most avid media law geek!

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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Speaking with magistrates about Open Justice #MLGriff

By MARK PEARSON

New magistrates from throughout Australia met in Brisbane last month for the National Magistrates Orientation Program and I was honoured to join a panel addressing them on open justice.

While magistrates have both legal qualifications and considerable experience, sadly open justice does not figure prominently in the curricular of most law schools so it is heartening to see the organisers of this program giving time to this important legal principle.

My fellow panellists for the session were former Queensland chief magistrate, District Court Judge Brendan Butler (who recounted his experiences with the media in prominent trials and inquests) and the Queensland Supreme and District Courts’ first Principal Information Officer Anne Stanford (@Anne_Stanford) (who explained her role and the interaction between the courts and the media in Queensland and in Victoria where she held a similar position).

I traced the origins and importance of the open justice principle in our legal system, citing English Master of the Rolls Lord Neuberger who described it as “a common law principle which stretches back into the common law’s earliest period” – to “time immemorial” – “…older than 6 July 1189, the date of King Richard the First’s accession to the throne” [Neuberger, Lord of Abbotbury (Master of Rolls) 2011, ‘Open justice unbound?’, Judicial Studies Board Annual Lecture, 16 March, < http://netk.net.au/judges/neuberger2.pdf>., p. 2].

Particularly important was the notion that the media should be free to report upon cases and publish the names of parties involved, with minimal exceptions, as recently stated in the UK by Baroness Brenda Hale, new President of the UK Supreme Court:

“The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. … The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. [… limited exceptions].” R (on the application of C) v Secretary of State for Justice [2016] UKSC 2, 1 (per Lady Hale).

I suggested that with diminished resources and finances available to mainstream media in both metropolitan and regional areas, magistrates might be the only people left to speak to the principle of open justice when lawyers and litigants want the court to be closed or names suppressed. Media organisations that might have formerly paid for lawyers to push for the courts to remain open might not be able to afford them, and court reporters might not be available to even report on the particular case being heard.

I attach here my Powerpoint presentation from the session for colleagues and students who might be interested.

MagistratesOrientationBrisbane8-9-17

 

 

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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