Tag Archives: regulation

August 27, 2014 · 1:01 pm

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.

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May 12, 2014 · 10:16 am

Diary of a cyberbullying victim

By MARK PEARSON

My research and writing on social media law got all too personal last week when a cyberbully threatened to open a website claiming I am a rapist.

Some months ago I posted to my research blog journlaw.com a fair and accurate report of a Fair Work Commission (FWC) decision that this individual had been fairly dismissed from his workplace.

It was an interesting case in social media law because his termination resulted from his offensive Facebook remarks about his workplace, a client and a prospective colleague.

According to the judgment, he had previously been warned about using company time and resources to start a private website.

Tellingly, the Commission’s decision stated the individual had shown no apology or regret for his behaviour and had maintained he was entitled to do it, offering his employer and the Commission ‘little comfort that similar incidents would not occur in the future’.

Other legal and HR experts posted summaries of the decision to their blogs and websites, including some of Australia’s leading law firms.

A fortnight ago he wrote to several of us asking that we change some elements of our coverage detailing the Commission’s finding that he had written sexually harassing comments about a colleague. He also wrote to senior staff at my university about the matter.

I responded that I believed my report of the case constituted a fair and accurate report of material on the public record.

However, I explained that I understood the blogs might be causing him ongoing angst and that their appearance on search engines could have other implications for him. I had therefore replaced his name throughout my post with the initials of his name, although I had left his full name in the case citation.

I said I was keen to correct any inaccuracies and asked him to point out any errors in my reporting. I ended the note by suggesting he seek counselling if the episode had caused him undue distress and I provided the Beyond Blue and Lifeline toll free numbers.

A few days later this bombshell landed in my inbox:

“Your article makes it seem like I sexually harassed a work colleague and it appears that you do not understand the impact this can have.

“To help give you a little perspective I am currently registering markpearsonisarapist@wordpress

“If you have a change of heart please feel free to send me an email.”

Attached to the message was this graphic illustrating the availability of the website he was threatening to establish:

GraphicOfWordpressRapistPearsonThreatI have written books and articles citing scores of examples where cyberbullies have attacked other victims.

But you only appreciate the anxiety and powerlessness of cyber-victimhood when you are the direct target of such a threat and your own name and reputation are on the line.

My recent research and writing has been exploring ‘mindful’ approaches to journalism and social media law and ethics, so I did not want to engage in an email flame war with this individual or give a heated kneejerk response.

The official cyberbullying sites like the Australian Government’s cyber(smart) recommend a “talk, report, support” approach, advising a victim should talk about the threat to someone they trust, avoid retaliating or responding, block the bully and change privacy settings, report the abuse to the service, and collect the evidence.

I took some of this advice by discussing it with family and friends, screen capturing the correspondence, and advising the other bloggers who had reported the case that he had issued this serious threat against me.

However, given he had not yet registered the offensive site, I thought I would appraise him of the illegality of his threat and give him 24 hours to withdraw it and apologise.

I wrote explaining his email threat was likely in breach of several state and federal laws carrying the risk of substantial fines and jail terms, including blackmail, misuse of a carriage service, stalking and harassment and that I was prepared to press such charges against him.

Five hours later he responded:

“Your panic is not needed. I have not registered any accounts citing that you are a rapist, I simply exclaimed that I would to wonderfully illustrate my point about making damaging claims against others.

“Isn’t it a little funny how you’re happy to publish articles that insinuate that an individual is a sexual predator but once somebody propositions you with the same action you instantly threaten to contact the authorities?

“I understand that you have no intention of taking this matter any further, are probably just a little bored and like myself enjoy sticking to your principles and engaging in a good argument. I would have thought that you’d have something more important to be working on but I guess I was wrong, either way, I have a lot of time also. 😛

“Please advise when [my original blog post] has been removed entirely.”

So there it stands. It seems the threat has dissipated, but I’m unsure of what – if anything – I should do next.

A mindful approach involves reflecting upon the implications of one’s actions for all stakeholders and seeking counsel.

I thought it would be a useful learning experience for the 200 students in my Media Law course, so I put my dilemma to them in last week’s lecture. I also asked them to vote on which of three courses of action they recommended I should take.

Here are the options, with some of the students’ observations:

  1. Have him charged. About half the students in the lecture voted for this option. They felt that’s how you should deal with cyberbullies. The guy has ‘form’ and has clearly not learnt his lesson. He has escalated his tactics with this serious and intimidating threat. Next time his victim might be a much more vulnerable individual than a university professor who researches and publishes in the field. It might be someone in a fragile emotional state and there could be tragic consequences – just like we saw in the royal prank call episode.
  2. Do nothing and let it drop. About one quarter of students voted for this. I’ve made my point and he may well be terrified. While you cannot excuse his actions, you can certainly empathise with his despair at this digital archive of his transgressions available with a simple Google search of his name. Perhaps my response has been enough to make him stop his anti-social online behaviour. My original blog post on his dismissal remains live, so prospective employers are still on notice about him. Besides which, he himself might be vulnerable and further pressure might be detrimental to him. The research shows cyberbullies often have a mental illness, a personality disorder or engage during substance abuse. Worse still, it might prompt him to escalate the matter and perhaps retaliate by carrying out that threat or something worse.
  3. Blog about it. The remaining quarter of students thought this was the best course of action. It spreads the message to other potential bullies, educates the community about the problem, and it’s what I do best. It could be as little as writing a piece like this.

Of course, the other options are still available to me now I have posted this blog, and I can still proceed with pressing charges. I’d appreciate your advice if you’d care to comment below.

For information about cyberbullying go to cybersmart.gov.au or contact Lifeline on 13 11 14.

Thanks to these tweeps for your supportive comments:

© 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.

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May 5, 2014 · 10:50 am

Cyberbullying and the law in Australia: key legislation and cases

By MARK PEARSON

If you are looking for an excellent summary of the main laws controlling cyberbullying in Australia you need look no further than here:

Where does Cyber-bullying fit in the Current Australian Criminal Framework?.

It covers key Commonwealth and State laws including misuse of telecommunications services, stalking and harassment, and criminal defamation.

See also these previous posts on journlaw.com:

Schools, social media and cyberbullying

29 Aug 2013 by journlaw on journlawjournlaw.com/2013/08/29/schools-social-media-and-cyberbullying/
…  from my public lecture ‘Social Media – Risks and Rewards’] We hear a great deal about the downside of social media …  in schools. There have been well publicised examples of cyberbullying, defamation of teachers and principals, stalking of children by …

Republished: We all must learn from the #CharlotteDawson saga

24 Feb 2014 by journlaw on journlawjournlaw.com/2014/02/24/republished-we-all-must-learn-from-the-charlottedawson-saga/
…  sad news of the death of television personality Charlotte Dawson over the weekend,  I repost this commentary I wrote for The …  in the near tragic saga of TV personality Charlotte Dawson and Twitter. [2014 note: clearly, it is now tragic] Andthose lessons must …

If #cyberbullying is up, why is youth #suicide down?

29 Aug 2013 by journlaw on journlawjournlaw.com/2013/08/30/if-cyberbullying-is-up-why-is-youth-suicide-down/
…  from my public lecture ‘Social Media – Risks and Rewards’] Administrators andparents are indeed concerned about social media – partly because the …  committed to it, one might be excused for believing cyberbullying had driven young people to the depths of depression and anxiety …

Social media risks and rewards – @journlaw’s public lecture

29 Aug 2013 by journlaw on journlawjournlaw.com/2013/08/29/social-media-risks-and-rewards-journlaws-public-lecture/
…  MARK PEARSON Follow @Journlaw [Professor of Journalism and Social Media, Griffith University, Australia] Public lecture presented …  in schools. There have been well publicised examples of cyberbullying, defamation of teachers and principals, stalking of children by …

Anti-social racism in social media is unwise and illegal

1 Apr 2012 by journlaw on journlawjournlaw.com/2012/04/02/anti-social-racism-in-social-media-is-unwise-and-illegal/
…  issue of discriminatory abuse in my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing …  to their type, scale, andjurisdiction. They include: cyberbullying, cyberstalking, online trolling, malicious online content, using …

 

For information about cyberbullying go to cybersmart.gov.au or contact Lifeline on 13 11 14.

© Mark Pearson 2012 and 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.

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March 31, 2014 · 10:57 am

Blended learning and instructional scaffolding in a Media Law course

By MARK PEARSON

I’m thoroughly enjoying a revitalised enthusiasm for my media law teaching thanks to the Blended Learning team at Griffith University.

I’ve recently been a student in an Online Course Development course run by expert faculty in my Arts, Education and Law group and have been keenly trying to build the various blended learning strategies into the Blackboard interface for both the on-campus and Open Universities Australia versions of my Media Law course.

The Media Law course’s pedagogy and assessment tasks are built around both problem-based learning and instructional scaffolding.

It is module-based, with each module’s integrated learning tools and materials contained in the Course Content area (see screen capture).

The Course Content part of the Learning@Griffith site for the Media Law course

The Course Content part of the Learning@Griffith site for the Media Law course

The modules are designed so that students progressively learn the material and work towards their assessment as the semester unfolds, whether they are studying on-campus or online, or via a combination of the two (‘blended learning’).

They are aware that their learning tasks each week feed directly into their end of semester examination, which is essentially requires them to demonstrate summatively their skills and understandings they have already been workshopping in a formative sense throughout the semester.

Each week’s problem is centred upon the module’s readings (including a textbook chapter) and other learning activities, including lectures, short video introductions to each module, tutorials, video interviews of 10-15 mins with an expert ‘guest of the week’, and  discussion board and social media engagement. [Some of these techniques I have also refined through my recent  enrolment in ‘Massive Open Online Courses’ offered by Coursera and Canvas.]

The instructional scaffolding approach to assessment links attendance and online participation with assessment items that relate directly to those activities.

For example, students complete Weekly Learning Reflections about the media law problem of the week (submitted and assessed twice in the semester as collated portfolios). These then form the basis of questions in students’ end of semester examination and their written preparation for their weekly learning problem rubrics become their actual study notes for their open-book final exam. This leads to a purposive approach to student weekly readings and other learning tasks, aimed to enrich their learning through its focus on a problem and an ultimate assessment reward.

Similarly, students complete a short multiple choice online quiz at the end of each learning module – which is at that stage non-assessable (formative) and is only available for a two week period after that module has ended. They know their final end of semester summative multiple choice quiz will later be drawn from the pool of these very questions, rewarding students who have completed their reading and undertaken the formative assessment along the way.

Do you have other techniques you have been using effectively in teaching media law? Please let me know via the Comments section here or via Twitter at @journlaw.

© 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.

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March 6, 2014 · 5:44 pm

Now that’s how you review a book! Thanks Prof

By MARK PEARSON

BloggingTweetingNewCover

The top media law academic in the US, Professor Kyu Ho Youm, has just reviewed my recent book Blogging and Tweeting Without Getting Sued in the leading journal Journalism & Mass Communication Educator.

Prof Youm is Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication and immediate past president of the 3700 member Association for Education in Journalism and Mass Communication.

His review was a lesson in academic book reviewing. He did considerably more than just criticise or praise the book (though he did both at various points!). Prof Youm manage to inject new gems of knowledge and insight about the field in the process, including the suggestion of additional reading and cases that have been since decided.

He concludes by recommending it as a text:-).

Screen Shot 2014-03-06 at 5.23.20 PM

Read the full review at http://jmc.sagepub.com/content/69/1/90.citation.

© 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.

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February 24, 2014 · 10:34 am

Republished: We all must learn from the #CharlotteDawson saga

With the sad news of the death of television personality Charlotte Dawson over the weekend,  I repost this commentary I wrote for The Australian in September, 2012 after she had attempted to take her own life.

———-

By MARK PEARSON

[Note: First published in The Australian on September 3, 2012.]

THERE are important lessons for us all in the near tragic saga of TV personality Charlotte Dawson and Twitter. [2014 note: clearly, it is now tragic]

And those lessons must be learnt not just by the media, but also by policymakers and the broader community.

The story of Dawson’s hospitalisation [in 2012] after receiving a torrent of life-threatening and demeaning tweets contained all the contradictions of our Web 2.0 world: risk versus reward, connection versus alienation, celebrity versus anonymity and freedom versus censorship.

When Dawson revealed a Monash University staffer was the source of some earlier postings and the employee was suspended, that “outing” triggered the final spate of insults and threats, and Dawson’s own sad messages from her @MsCharlotteD handle before her hospitalisation. The tweets raised the contentious legal issues of defamation, cyber-bullying, confidentiality, privacy, racial discrimination, jurisdiction and even unfair dismissal.

Dawson is [was] a former fashion model who has traded on her own harsh comments to contestants in a reality-TV program and in newspaper interviews where she has pilloried her home country of New Zealand.

Like many celebrities she has established a strong Twitter following of 21,450 [in 2012]- now seen as a crucial dimension to any wannabe A-lister’s public profile. In May, she tweeted a call for someone to “please kill” a fashion blogger, @BryanBoy, which she defended as a joke.

Of course, none of this justifies anonymous trolls threatening her life or urging her to kill herself, but it provides some context to the vitriol. It also defies the simplistic media story line of “evil social media causes real-life tragedy”. Dawson has previously spoken of life events that have rendered her emotionally vulnerable.

The issue of the media’s interaction with the vulnerable in our society recently gained traction with changes to journalism ethical codes in the wake of the federal government’s Mindframe media training initiative and associated research projects.

Some of that research demonstrated the flow-on effect of celebrity suicides and threats upon their vulnerable fans, making this example even more concerning.

Mindframe has been extended to schools, public relations courses and the courts, but social media proves the sensitivities of the vulnerable have not yet pierced the consciousness of many ordinary citizens.

It’s just one example of the rift between traditional and digital media in the Dawson event and its reportage. Journalists and executives in the old media are frustrated by the two-speed regulatory system. News organisations face legal and ethical brakes on their coverage while rumour, gossip and vitriol run wild on social media in defiance of legal prohibitions. Despite the predictable opportunism of some politicians, the case does not call for tougher laws to “control” social media. They already exist.

Earlier this year [2012], the Federal Court ordered News Limited to pay $12,000 to the mother of indigenous boys killed in a car accident over anonymous comments it hosted on its website Perthnow.

A Queensland “troll” was jailed last year [2011] for defacing the Facebook tribute pages of two slain children. In 2010, an anonymous poison penner in Victoria was hit with a $30,000 defamation judgment over comments about a Perth businessman.

[Former] Communications Minister Stephen Conroy has lobbied US-based social media platforms such as Twitter and Facebook to provide speedier action over breaches of their terms of use.

But legal proceedings are unlikely to have any effect given the First Amendment and legislative protection for internet hosts in the US.

Instead of introducing more gags on free expression and policing them, politicians should invest those resources in funding education and training initiatives for responsible social media use in schools, tertiary institutions and the broader community.

For information about cyberbullying go to cybersmart.gov.au or contact Lifeline on 13 11 14.

© Mark Pearson 2012 and 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.

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February 1, 2014 · 10:20 am

Abbott’s attack on ABC proves politicians are free press chameleons

By MARK PEARSON

Politicians are free expression chameleons. Regardless of their political colours, they are inevitably staunch advocates of a free media and the free flow of information while in opposition.

When they win government they tend to shut down criticism and negative press by implementing policies and passing laws to limit scrutiny.

Tony_Abbott

Australian Prime Minister Tony Abbott … called the ABC ‘unpatriotic’. [Image: Google free usage]

We saw this happen in Australia this week Prime Minister Tony Abbott’s criticisms of the Australian Broadcasting Corporation on the eve of his government’s announcement of an ‘efficiency study’ on the independent national broadcaster.

Less than a year ago, the former Gillard Labor government’s proposed media regulations which risked journalists and media organisations being shackled by a new privacy bureaucracy.

Less than two years ago the Finkelstein Report had journalists potentially being jailed or fined for disobedience of its proposed regulatory regime.

At the time I blogged about the potential implications of the Finkelstein recommendations (The Drum: ‘Media Inquiry: Be Careful What You Wish For’) and then communications minister Stephen Conroy’s poorly named News Media (Self-Regulation) Bill. [Also see my commentary in The Conversation putting all this in an international media freedom context.]

Those proposals arose in a highly politicised context where the then government believed some media outlets were biased against them.

The new Abbott conservative government – despite having opposed those reforms under the banner of press freedom – now seems to have adopted the public soap box and budgetary strategies with the ABC directly in its sights.

Prime Minister Abbott used a populist radio program to label the ABC ‘unpatriotic’ following the broadcaster’s publication of claims by asylum seekers that they had suffered burns during an Australian navy operation. [Well detailed by former ABC Media Watch host Jonathan Holmes here in The Age.]

In the same radio interview Mr Abbott criticised the ABC’s reportage of the Edward Snowden NSA leaks, including the revelation that Australia’s spy agency had secretly tapped the phones of Indonesian president Susilo Bambang Yudohoyono and his wife in 2009. He questioned the funding of the ABC’s FactCheck Unit which a few days earlier disproved his claim asylum seekers who alleged mistreatment by the Navy were breaking the law.

His criticisms came only hours prior to the Minister for Communications Malcolm Turnbull announcing an “efficiency review” of the ABC and its sister national broadcaster SBS (Special Broadcasting Service). The review will be looking for cost-saving measures in the lead-up to the May budget.

Reporters Without Borders has a long history of dealing with governments that demand national broadcasters be more patriotic in their coverage under threats to withdraw funding. But these cases rarely occur in Western democracies with a relatively high media freedom ranking. (Australia’s was 26/179 in 2013).

A free news media and a truly independent national broadcaster should be neither patriotic nor unpatriotic – such calls to nationalism are anathema to genuine truth-seeking and truth-telling in society.

An independent national broadcaster is not the equivalent of the marketing arm of a large corporation.

The ABC’s reportage of both the asylum seeker allegations and the spying scandal is understandable given the Australian Government’s policy of withholding information about the fate of asylum seekers who have attempted to reach Australian shores by boat.

The Australian Government’s policy of refusing to provide the media with details of such operations and in limiting media access to detention centres deprives Australian citizens and the international community of important information on a key human rights issue.

When journalists are deprived of basic information they are within their rights to publish serious allegations like those of the asylum seekers who claimed to have been injured at the hands of Australian defence forces, particularly if government sources are refusing to offer information about the circumstances.

They are simply reporting the truth that the allegations have been made. Authorities and other media or citizen journalists can set the record straight with evidence if the allegations are unfounded.

It is quite different from false allegations about an individual citizen – where that person could sue for defamation.

There is a policy reason large corporates and government entities like the Navy cannot sue for defamation over such allegations: in a democratic society such assertions deserve circulation so citizens can weigh their credibility.

Even if ultimately proven false, the allegations of mistreatment of asylum seekers had an element of plausibility when made because the Australian authorities – including the Navy, national security agencies and the border protection regime – had ‘form’.

It may be unpatriotic to say this, but documented incidents suggest it would be naïve to give Australian governments (of whatever persuasion) and agencies the benefit of the doubt in such situations.

They include (at the very least):

  • The ‘Children Overboard’ Affair in 2001 where Howard Government and defence claims about events concerning the Norwegian freighter MV Tampa proved to be politicised and misleading.
  • The recent revelations that Australian agents eavesdropped on the Indonesian President and spied on East Timor during oil and gas negotiations.
  • The Howard Government’s dogged determination to pursue Gold Coast doctor Mohamed Haneef, damage his reputation and cancel his visa as its terrorism allegations against him evaporated in 2007.
  • A litany of examples of unpublicized incidents at immigration detention centres, evident only months after the event through Freedom of Information requests and appeals by determined citizen journalists.
  • Recent allegations of ritual sexual abuse by Australian Navy personnel on board ships used for border protection duties.

The free flow of information is crucial to the democratic standing of a country like Australia. Such attacks by political leaders and calls for patriotism are what we expect from nations ranking much lower on RSF’s World Press Freedom Index.

The Australian Government should direct its energies to improving the free flow of information in society and granting better access and information to journalists and other citizens instead of name-calling, threats of fund cuts, and bizarre calls for media patriotism.

Hear my ABC 91.7 local radio interview on the issue:

Screen Shot 2014-02-04 at 1.24.20 PM

 

© 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.

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January 4, 2014 · 7:50 am

Immigration case shows process can take the news out of FOI requests

By MARK PEARSON

A recent decision by the Australian Information Commissioner has demonstrated that persistence with a Freedom of Information application can pay off – if you are willing to wait the year or more for the appeal process to take its course. 

Farrell and Department of Immigration and Border Protection [2013] AICmr 81  (21 November 2013) was decided recently and may well be subject to further appeal.

GlobalMailDetention

FOI data used in The Global Mail multimedia coverage

On November 15, 2012, he applied to the Department of Immigration and Border Protection for access to a series of incident reports about five self-harming events logged on the department’s FI disclosure log.

On January 14, 2013, the Department provided Mr Farrell with edited copies of five documents totalling 23 pages related to his request, citing its ‘operations of agency’ and ‘personal privacy’ exemptions under sections 47E and 47F of the Commonwealth FOI Act as its reasons for the deletion of material. On February 14, 2013, Mr Farrell applied to the Information Commissioner for review of the information exempted by the Department under s 47E.

The Privacy Commissioner ruled on November 21, 2013 that the Department’s decision should be set aside and the exempted information should be released to Mr Farrell. The exemption under  Section 47E(d) provides: ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

The Department had argued its operations would have been adversely affected if details had been released about an incident of self-harm while an individual was about to be deported from Australia on a scheduled commercial flight. It argued the information might help others avoid deportation by adopting the same behaviours. The Privacy Commissioner ruled (at paras 12 and 13):

“Much of the information exempted by the Department in document 1 is already in the public domain in the form of media articles relating to similar instances where disruptive behaviour had led to individuals being unable to be deported on commercial flights and charter flights having to be subsequently arranged. I have examined an unedited copy of document 1. Given that information of this nature is already publicly available, I do not consider that its disclosure would, or could reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of the Department’s operations or would result in the Department being required to alter its processes for deporting individuals.”

Lessons for journalists

The case holds important lessons about the workings of FOI and the exemptions that are available.

On the one hand, Farrell and his colleagues were able to publish a substantial body of material on their detentionlogs.com.au site as a result of numerous FOI requests – information later published as stories, searchable databases and graphics on other news sites including The Guardian, The Global Mail and New Matilda.

However, the case also provides an insight into the bureaucratic, technical and time-consuming side of the FOI application process. A request had taken a full year to be filed, rejected and reviewed, and the Department still had 28 days to appeal to have the Privacy Commissioner’s decision reviewed by the Administrative Appeals Tribunal. That would then open the way to a series of court appeals over the decision if either party chose to pursue them.

Theoretically, it could take years before the release of the information which might then be only of historical value rather than of news value.

© Mark Pearson 2013

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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December 12, 2013 · 11:04 am

‘Dinosaur Wrangler’ sacked from ‘Jurassic Park’: Fair Work Commission upholds dismissal over Facebook abuse

By MARK PEARSON

Australia’s Fair Work Commission  this week (December 10) added to its developing body of social media case law by upholding the sacking of a worker who described himself as a ‘dinosaur wrangler’ at ‘Jurassic Park’.

The latest is cited as:

Cameron Little v. Credit Corp Group Ltd [2013] FWC 9642 (U2013/11522) 10 December 2013. < http://decisions.fwc.gov.au/ >

jurassic

‘Dinosaur Wrangler’ sacked from ‘Jurassic Park’. Photo: Flickr (free to use or share)

C.L. had worked as a customer relationship manager for Credit Corp Group for three years when in June 2013 he used his personal Facebook account to criticise an organisation he dealt with on behalf of his employer (Christians Against Poverty (CAP)) and to make sexually suggestive comments about a new colleague. L. had listed his employment on his Facebook account as a ‘Dinosaur Wrangler’ at ‘Jurassic Park’ but other details on his page made it possible to identify him as an employee of the Credit Corp Group. He dealt with Christians Against Poverty when the not-for-profit group was negotiating new debt arrangements with Credit Corp on behalf of their clients. He posted to their page:

‘For reals bro, you should put a little more of funding into educating consumers on how the world works rather than just weaseling them out of debt, blah blah blah, give a man a fish/teach a man to fish.’

and

‘No thanks, just take my advice and try to educate people about things like ‘interest’ and ‘liability’ rather than just weasel them out of contracts. #simple’

L. posted the following comment about his new work colleague:

 ‘On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, [colleague’s name]. I’m looking Forward to sexually harassing you behind the stationary cupboard big boy.’

The day after the posts came to the attention of his employer, he was called to a meeting where his employment was terminated. Two weeks later he filed a claim for unfair dismissal.

Fair Work Commission Deputy President Peter Sams ruled the dismissal had been fair, pointing to the following relevant factors:

  • L. had been issued with the Employee Handbook and the Employee Code of Conduct and made aware of their contents.
  • He had attended an induction at the commencement of his employment in 2010 and a ‘Working Together’ module in August 2012.
  • His employment contract stated that the company’s policies and procedures were directions from the employer to the employee.
  • He had the ability to access and change the privacy settings for his account.
  • It was irrelevant that L. had created the social media posts out of work hours.
  • It was implausible that L. believed his Facebook page was ‘private’ and he did not understand how Facebook worked.
  • He had been formally warned about an earlier incident where he had posted an inappropriate comment to a website.

The decision affirmed earlier Fair Work decisions in the Good Guys case (2011) and the Linfox case (2012). Those in the position of employer need to ensure all staff are fully aware of – and trained in – your organisation’s social media policy and that it is fair and up to date. Employees need to keep abreast of their organisation’s social media policy and ensure their social media accounts are set to private and that they do not post material related in any way to their work – and certainly not anything that is discriminatory or critical of colleagues, management or clients. This applies both during work hours and when off duty.

Co-author Mark Polden and I will be using this as a Key Case in a new chapter on Law for PR, Freelancers and New Media Entrepreneurs in our forthcoming fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014), due for release mid-year.

© Mark Pearson 2013

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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December 10, 2013 · 12:48 pm

Beware the co-regulators … key bodies wielding power over publishers

By MARK PEARSON

Several self-regulatory and co-regulatory bodies hold powers that can impinge on the work of journalists, PR consultants and new media entrepreneurs. They include:

  • The Australian Communications and Media Authority (ACMA). < http://www.acma.gov.au/ > The broadcast regulator’s powers can impact upon public relations consultants, freelancers and new media entrepreneurs in a range of ways. PR consultants need to ensure their audio packages and video news releases (VNRs) comply with the code of conduct and classification requirements of the particular broadcast media they are targeting (community, commercial radio, pay television etc). The ACMA also administers the national Do Not Call Register where citizens withdraw their phone numbers from telemarketing dial-ups. It also polices the Spam Act 2003 – the legislation ensuring you can unsubscribe from junk mail posts to your email, mobile phone and messaging services. It is important public relations consultants and new media startups work within the bounds of this legislation or they could face heavy fines. For example, in 2013 Cellarmaster Wines received a $110,000 infringement notice from the ACMA for sending marketing messages in breach of the Spam Act. Some of the messages were sent without an opt-out choice, while others were sent to customers who had earlier selected to opt out of the company’s email promotions (ACMA, 2013).
  • The Classification Board. < http://www.classification.gov.au/About/Pages/Classification-Board.aspx >. This is a unified system of classification of films, video games and some publications, established under the Classification Act 1995. Public relations consultants and new media entrepreneurs need to be aware of its requirements because almost all films and computer games have to be classified before they are legally permitted to be made available. The Board decides which of the classifications such as violence, sex, language, themes, drug use and nudity should apply. The Board also classifies material submitted by the police, Customs and the ACMA including internet sites, imported publications, films and computer games.
  • Advertising Standards Bureau (ASB). <http://www.adstandards.com.au> The Advertising Standards Bureau administers a national system of advertising self-regulation through the Advertising Standards Board and the Advertising Claims Board.  The ASB handles consumer complaints about advertisements across a range of media. For example, a complaint about the Facebook page for the beer Victoria Bitter in 2012 was upheld on the grounds that people had posted comments to the social networking site that were in breach of advertising standards. They included coarse language, sexual references and comments demeaning of women and homosexual people. Comments on the page were managed by an agency under the supervision of the Carlton and United Breweries marketing team which agreed to improve its frequency and effectiveness of comment moderation after the decision (ASB, 2012) [pdf file].
  • Therapeutic Goods Administration (TGA). < http://www.tga.gov.au/ > The TGA is a Commonwealth Government agency with the power to regulate therapeutic goods (medicines, medical devices and blood products). Some advertisements directed at consumers require approval before they can be broadcast or published while advertising prescription-only and some pharmacist-only medicines to the general public is prohibited. The term ‘advertisement’ is defined broadly in the Therapeutic Goods Act 1989 to include “any statement, pictorial representation or design, however made, that is intended, whether directly or indirectly, to promote the use or supply of the goods”. This can cover public relations material and advertorials so freelance health writers and public relations consultants to pharmaceutical companies need to be well versed in its requirements and restrictions.
  • Australian Securities and Investments Commission (ASIC). < http://asic.gov.au/ >. ASIC is an independent Commonwealth entity operating as Australia’s corporate, markets and financial services regulator. Its role is to ensure Australia’s financial markets are fair and transparent, supported by confident and informed investors and consumers. It is set up under the Australian Securities and Investments Commission Act 2001 (ASIC Act), and enforces large sections of the Corporations Act. Public relations consultants, freelance financial reporters and new media entrepreneurs need to be especially cautious about its restrictions on ‘rumourtrage’ – the spreading of false or misleading rumours about a company’s float or performance  which are associated with market manipulation – and its policing of the powers and duties of company directors. It also has tough requirements that advertisements for financial products do not mislead. For example, in August 2013 ASIC investigated advertisements for a 1% interest discount on a specified home loan package offered by Credit Union Australia Limited (CUA), run on television, in cinemas, on the company’s website and on public transport in major cities. However, it had not specified some of the terms and conditions of the discount in its ads. ASIC accepted ‘enforceable undertakings’ from CUA that it would honour the discount to all customers on the package as an alternative to court action (ASIC, 2013).

© Mark Pearson 2013

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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