Tag Archives: publishing

Court restrictions on identifying children in Australia – a guide for journalists

By MARK PEARSON

We have removed the comparative reporting restrictions tables from the  fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) which will be published later this year.

Co-author Mark Polden and I have decided to move these comparative tables on reporting restrictions throughout Australia across to this blog – journlaw.com – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

As I upload them over coming weeks I would appreciate any students or colleagues using the comments section below to advise of any updates in your jurisdictions and I will act to update the tables accordingly.

Looking forward to your collaborative input!

——

Restrictions on reports of proceedings involving children

Note: NO identification of parties or witnesses in any way under the Commonwealth Family Law Act s. 121.

Jurisdiction Law  Exceptions  Legislation 
ACT  Reports of proceedings: Media allowed to report. ID: Cannot be identified. Cannot publish account of family group conference— None mentioned.  Criminal Code 2002, s. 712A. Children and Young People Act 2008, s. 77. 
NSW Reports of proceedings: Media allowed to stay and report. ID: No ID of child mentioned or otherwise involved (including victims and witnesses) living or dead, during or after proceedings, or their siblings.— Court may close proceedings. Court may allow ID or children aged 16 or over can authorise.(Seek legal advice on this.) Or senior next of kin or court (if deceased).

 

Children (Criminal Proceedings)Act 1987, s. 15A; Children and Young Persons (Care and Protection) Act 1998, ss. 104 and 105; Young Offenders Act 1997, s. 65. 
NT  Reports of proceedings: Open court and reports allowed. ID: No restriction.— Magistrate may close court or order suppression.  Youth Justice Act 2005, ss. 49, 50. 
Qld  Reports of proceedings: No. ID: No ID of child accused without court’s permission. No ID of child witness in sexual matter. ID of child witness okay in other matters unless ordered otherwise. Cannot ID authorised officer or police officer in matters with child witnesses. No ID info about child victims. No ID of children subject to allegations of harm or risk of harm or in state custody or guardianship.— Judge may order publication of identifying information for heinous crimes. Court can permit reporting when otherwise prohibited.Child victim can consent after becoming adult if fully informed of publication matter, audience and reason. Youth Justice Act 1992, ss. 234, 301. Child Protection Act 1999, ss. 189, 192, 193. 
SA  Reports of proceedings: Court open to ‘genuine representatives of news media’. No family care proceedings reports. ID: No ID of child parties, witnesses or victims,or other persons other than in official capacity without their permission, including name, address or school. Documentaries may be approved under strict conditions.— Courts can authorise some reports and ID.  Youth Court Act 1993, s. 24; Young Offenders Children’s   Protection Act 1993, s. 59, Children’s Protection Act 1993, s. 13; 59A. 
Jurisdiction  Law  Exceptions  Legislation 
Tas Reports of proceedings: No provision for media to be present without permission of court. ID: No ID of youths or youth witnesses.— Permission of court.  Youth Justice Act 1997, ss. 30, 31; Magistrates Court (Children’s Division) Act 1998, ss. 11, 12. 
Vic Reports of proceedings: Open court and media allowed to report. ID: No identification of child accused or any witnesses to case. No mention of court venue. Long list of banned ID particulars for children and witnesses including: name, title, pseudonym, alias of the person, home or work address or localit0, school or locality; physical description or style of dress; occupation or calling; relationship to identified others; interests or beliefs; real or personal property. No photos.— Permission of court.  Children, Youth and Families Act   2005, ss. 523, 534. 
WA  Reports of proceedings: Yes ID: No ID on child involved in proceedings in any way. No ID of child subject of a protection application or order.— Court can exclude persons. Supreme Court can authorise ID of child.  Children’s Court of Western Australia Act 1988, ss. 31, 35, 36, 36A. Children and Community Services Act 2004, s. 234 

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

© Mark Pearson 2014

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Sexual offences publishing restrictions in Australia – a guide for journalists

By MARK PEARSON

Our fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) goes to the printer this week for publication later this year.

Co-author Mark Polden and I have decided to move some of the comparative tables on reporting restrictions throughout Australia across to this blog – journlaw.com – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

As I upload them over coming weeks I would appreciate any students or colleagues using the comments section below to advise of any updates in your jurisdictions and I will act to update the tables accordingly.

Looking forward to your collaborative input!

 

Sexual offences publication restrictions

Jurisdiction  Law Exception Legislation
ACT Complainant must not be identified by name, ‘reference or allusion’, including allowing someone to find out their ‘private, business or official address, email address or telephone number’.


 

Complainant may consent. (Seek legal advice on proving consent.) Evidence (Miscellaneous Provisions) Act 1999, s. 40.
New South Wales
Complainant must not be identified, even after proceedings disposed of. With permission of court. Consent of complainant aged over 14. (Seek legal advice.) With consent of court for   complainants aged under 16.


 

Crimes Act 1900, s. 578A; Children (Criminal Proceedings) Act 1987, s. 15A.
Northern Territory
Complainant must not be identified at all. Accused cannot be identified until after committal. No mention of ‘name, address, school or place of employment’ for either.


 

With permission of court. Sexual Offences (Evidence and Procedure) Act 1983, ss. 6, 7 and 11(2).
Queensland Complainant must not be identified at all. Accused cannot be identified until after committal. No mention of ‘name, address, school or place of employment’ for either. With permission of court.Protection for accused only applies to ‘prescribed sexual offences’:
(a) rape;
(b) attempt to commit rape;
(c) assault with intent to commit rape;
(d) an offence defined in the Criminal Code, section 352.1. Seek legal advice about other offences.


 

Criminal Law (Sexual Offences) Act 1978, ss. 6 and 7.
South Australia Case and related proceedings including identity of accused cannot be reported until accused has been committed for trial. Complainant must not be identified at any stage.Publishers must publish prominent report of result of proceedings they have covered at earlier stage when accused has been identified.


 

  • Pre-committal reports can be made with permission of accused. (Seek advice.)
  • Complainant can be identified with his/her permission or order of court unless child victim.
Evidence Act 1929, ss. 71A and B.
Tasmania Complainant and witnesses other than defendant must not be identified, even if dead. Also bans ‘any picture purporting to be a picture of any of those persons’.


 

Court may allow identification ‘in the public interest’. Evidence Act 2001, s. 194K.
Victoria Complainant must not be identified, even if proceedings not pending. If proceedings not pending, with permission of court or complainant (seek legal advice) or on proof that no complaint of offence had yet been made to police. If proceedings pending, with permission of court only.


 

Judicial Proceedings Reports Act 1958, s. 4.
Western Australia Complainant and their school must not be identified. With authorisation in writing by complainant aged over 18 and mentally capable of making decision. (Seek legal advice.)


 

Evidence Act 1906, s. 36c.

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

© Mark Pearson 2014

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

By MARK PEARSON

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.

© Mark Pearson 2001 and 2013

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Legal responsibility online: are you left carrying the can? ( #defamation #blogging )

By MARK PEARSON

[Loosely adapted from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]

—————-

The courts have long held that anyone having direct responsibility for a publication is legally liable for it, so if your blog or comment is on the website or social media site of another organisation, both you as the writer and whoever is hosting your work can be sued for defamation. (Some jurisdictions – most notably the US – offer strong defences to the hosts of third party comments.)

If someone edits or moderates your work before it is published, they too share the burden of legal liability. That happened recently to the News Limited website Perthnow, when it was ordered to pay $12,000 compensation to a West Australian mother over racist comments posted about her deceased teenage sons. The comments had been approved by a moderator.

If anyone republishes your work, through syndication or perhaps even through retweeting or forwarding your defamatory material, they also are also liable. Even someone who inserts a hyperlink to libellous material can be sued for defamation in some places, although the Supreme Court of Canada rejected this position in a landmark decision last year.

Plaintiffs will sue the writer, editor or host organisation for a range of reasons. Sometimes they just want to gag the discussion, so they issue a defamation writ to chill the criticism. This is known as a ‘SLAPP’ writ – ‘Strategic Lawsuits Against Public Participation’ – and in some countries they are simply thrown out of court as an affront to free expression. Others allow them. Plaintiffs often want to get the highest possible damages award from someone who can afford to pay it, so they might bypass the original impoverished blogger and sue the wealthier company that republished the material. Sometimes they enjoin all of them in their action, although this adds to their legal costs if they lose.

As the Australian High Court ruled in the Gutnick case in 2002, publication happens whenever and wherever someone downloads it. If you have published something defamatory about someone who is unknown in your own state or country you are probably safe from suit or prosecution until you travel to the place where they do have a reputation.

They would have to prove they could be identified from the material you posted. Of course, if you have named somebody they are identifiable, but what if you stop short of naming them but use other identifiers? For example, what if your blog questioned the ability of ‘a prominent 21st Avenue cosmetic surgeon responsible for the fat lips and lopsided breasts of at least three Oscar winners’? You would be much better taking legal advice first and actually naming the surgeon if you have a solid defence available to you. Why? Because there might well be other surgeons who meet this description, and you would have a hard time defending a suit from them if you didn’t even know they existed.

If your description is broad enough you will normally be reasonably safe. So if you had made your description fairly general – ‘an LA cosmetic surgeon’ – the group would be too large for any single surgeon to be able to prove you were talking about them. (They say there are almost as many cosmetic surgeons as lawyers in LA!)

Of course, if you decide after taking legal advice to actually name someone you need to ensure you use enough identifiers to ensure they will not be mistaken for someone else. That’s why court reports in the news usually state the full name, suburb, occupation and age of the accused person. Otherwise someone by the same name might show their reputation was damaged by proving their friends and colleagues thought they were the rapist, murderer or drug dealer you were writing about.

Your legal responsibility might even extend to pressing the ‘Like’ button on Facebook, as courts struggle with the legal status of this symbol – even in the US. See some useful analysis of this here.

See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.

© Mark Pearson 2012

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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