Tag Archives: Reporters Without Borders

Any Australian #privacy tort must feature strong free expression protections

By MARK PEARSON

The Media Entertainment and Arts Alliance has released its latest annual press freedom report – Kicking at the Cornerstone of Democracy – with some excellent articles covering the gamut of media law and censorship issues in Australia.

It is essential reading for journalists, media lawyers and students – updating the material covered in their media law textbooks in an accessible journalistic style.

My article is on privacy law, and I reproduce it here in its extended, unedited form for the benefit of my blog followers:

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Privacy On Parade

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.

The court held his property rights had not been infringed but that he did have a right to privacy and that the photographer had infringed it.

Across the Atlantic in 1890 the top US jurist Samuel D. Warren teamed with future Supreme Court Justice Louis D. Brandeis to write the seminal Harvard Law Review article ‘The Right to Privacy’ after a newspaper printed the guest list of a party held at the Warren family mansion in Boston.

Warren and Brandeis wrote: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”

Thus celebrities, lawyers, paparazzi and the gossip media were there at the birth of the right to privacy – and the same players occupy that terrain today.

While both privacy and free expression are recognised in many national constitutions and in international human rights treaties, Australia is rare among Western democracies in that it has no constitutional or Bill of Rights protection for either.

That distinguishes us from the United States, United Kingdom, Canada and New Zealand which all have constitutional or rights charter requirements that proposed laws must be considered for their potential impact on free expression.

It is one of the main reasons for the complex array of legislation, court decisions and industry codes of practice limiting Australian journalists’ intrusion into the affairs of their fellow citizens.

The myriad of laws of defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright all have a privacy dimension. The Privacy Act controls the collection and storage of private information by corporations and government.

There are very few situations of media intrusion into privacy not covered by one of these laws or by the framework of codes of ethics and practice controlling journalists’ professional activities.

Proposals to replace the self-regulatory and co-regulatory ethics systems with a statutory news media regulator would add yet another layer to the regulation of privacy intrusions.

The crux of the proposed ‘statutory cause of action for a serious invasion of privacy’ is whether a citizen should have the right to sue over a privacy breach and receive either an award of damages or an injunction to stop publication.

Over the ditch, Kiwi journalists now have to navigate a judge-made right to privacy, developed interestingly from a celebrity suit in which the plaintiffs lost the case.

Mike and Marie Hosking were New Zealand media personalities who had adopted twins and later separated. They asked for their privacy, but a magazine photographer snapped the mother walking the twins in their stroller in a public place. They sued, claiming breach of privacy. The NZ Court of Appeal invented a new action for breach of privacy, but held it did not apply in that particular case. The Kiwi privacy invasion test requires “the existence of facts in respect of which there is a reasonable expectation of privacy” and that “publicity given to those private facts that would be considered highly offensive to an objective reasonable person”.

But this is set against the backdrop of the New Zealand Bill of Rights Act which protects free expression.

Australia’s High Court famously left the door open for a possible privacy tort in the ABC v. Lenah Game Meats case in 2001, when animal liberationists had secretly filmed the slaughter of possums in an abattoir in Tasmania and the ABC wanted to broadcast the footage – the fruits of the trespass.

It is hard to quarantine this latest push by the Federal Government from the News of the World scandal in the UK and the Greens-championed Finkelstein inquiry into media regulation.

The government had effectively sat upon the Australian Law Reform Commission’s proposal for the statutory cause of action for three years before progressing the matter with its Issues Paper last September in the wake of the phone hacking revelations from London.

Few journalists or their media organisations object to the notion of their fellow citizens’ embarrassing private information being kept secret.

However, it is in the midst of a breaking story like that involving collar bomb extortion victim Madeleine Pulver, a celebrity scoop like the Sonny Bill Williams toilet tryst images or the case of the fake Pauline Hanson photos that genuine ‘public interest’ gives way to audience gratification and the resulting boost to circulation, ratings or page views.

Free expression is already greatly diminished by this mire of privacy-related laws and regulations without adding a new statutory cause of action for privacy.

But if this latest proposal is advanced further, journalists should insist upon:

–   a free expression and public interest defence reinforced in the strongest possible terms;

–   removal of the existing laws it would duplicate; and

–   strong ‘offer of amends’ defence like that now operating in defamation law and alternative dispute resolution provisions to deter celebrity gold diggers.

Short of a bill of rights enshrining freedom of the press and free expression, these demands amount to the minimum the news media deserve in a Western democracy.

© 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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Don’t shoot the messenger #RSF #UN #censorship

By MARK PEARSON

Don’t shoot the messenger

(My closing address to Brisbane Model United Nations conference, Queensland Conservatorium, 15 April 2012)

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What a wonderful concept this is – students from a diverse array of disciplines having the opportunity to put your knowledge and abilities into practice over three days in this model United Nations setting – and to gain so much more understanding and skills through the process.

I have no doubt many of you will look back on this conference as an important landmark in your lives and will take many of the lessons and friendships into successful careers, wherever they may lead you.

You have applied your minds to important and innovative challenges – crimes against humanity, a right to death, impoverished nations, new weaponry, space rights, the economics of polio and the international criminal court. Journalists from the international press gallery have reported on proceedings while representatives of non-government organisations have attempted to negotiate suitable outcomes for their constituencies.

My address to you relates to these latter elements and how one Paris-based NGO – Reporters Without Borders – has worked since 1985 to defend the interests of journalists and cyber-dissidents attempting to report on these kinds of issues internationally and to promote the global right to free expression.

Reporters Without Borders is registered in France as a non-profit organisation and has consultant status at the United Nations.

For the past several years I have been Australian correspondent for RSF, filing regular reports to my colleagues in Paris on the threats to media freedom in this liberal Western democracy.

Sadly, I have had much to report because there has been a legislative creep factor at play which means that politicians will pay lipservice to free expression and media freedom yet continue to propose and pass laws that impinge upon that core democratic value.

Australia is rare among liberal democracies in that we do not have free expression explicitly enshrined in our Constitution and we lack the bills and charters of rights of comparable nations where it stands alongside other important human rights.

Of course we are not among the worst offenders.

But it made news recently when RSF demoted Australia from 18th to 30th position in its World Press Freedom Index among the 179 countries ranked.

First to the latest ranking: what factors contributed to Australia’s decline in its media freedom status since 2010? For a start, the fact that there were five simultaneous government inquiries into news media regulation at the time it was being compiled sent a message to the international community that, for a Western democratic nation, the Australian government and its agencies were entertaining tougher regulatory measures.

They included the Convergence Review, its subsidiary Independent Media Inquiry, the National Classification Scheme Review, the Commonwealth Government’s Privacy Issues Paper and the Australian Communications and Media Authority’s review of privacy guidelines for broadcasters.

Between them they raised the prospects of new controls on print, broadcast and online media; a new tort of privacy; tough new classification systems across media; and the conversion of some self-regulatory bodies to regulatory status.

RSF was specially concerned by suggestions at the hearings of the Independent Media Inquiry that journalists should be licensed and at that inquiry’s recommendation that a government-funded statutory regulator be established, with ultimate powers to refer editors to courts on contempt charges with potential fines and jail terms as punishment.

The trial of Victorian police officer Simon Artz for alleged leaks to The Australian newspaper about a counter- terrorism operation raised several media freedom issues, with Crikey senior journalist Andrew Crook allegedly breaching a suppression order by revealing the name of a former member of Victoria’s Special Intelligence Group involved in the hearing; warnings over Crikey journalist Margaret Simons’ live tweeting from the hearing; and The Australian’s Cameron Stewart being ordered to reveal his sources.

Victorian Police launched an investigation into an alleged hacking of an ALP electoral database by four journalists at The Age, including editor-in-chief Paul Ramage.

Government control over media access to detention centres prompted condemnation from the journalists’ union and RSF issued a release. The Department of Immigration introduced new guidelines to restrict reporting of, and access to, detention centres.

The Federal Court’s ruling that hate speech laws should trump free expression was of concern when a judge ruled Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act in his criticisms of fair-skinned indigenous people.

Senior Fairfax executives were summonsed by the Police Integrity Commission to produce documents revealing sources in September in relation to articles by Herald journalists Linton Besser and Dylan Welch about the NSW Crime Commission.

Fairfax’s deputy technology editor Ben Grubb, 20, was arrested after reporting on a conference presenter’s alleged hacking at the AUSCert IT security conference.

RSF has also expressed concern for some years at the Federal Government’s determination to introduce an Internet filtering scheme.

RSF does not claim its index is a precise scientific measure. It could never be, given the enormous variables at stake, and has to rely on an element of expert qualitative judgment when making the final determinations of a country’s comparative ranking.

The process centres upon a questionnaire sent to partner organisations (18 freedom of expression groups in all five continents), to its network of 150 correspondents around the world, and to journalists, researchers, jurists and human rights activists.

The questionnaire features 44 main criteria indicative of the state of press freedom. It asks questions about every kind of violation directly affecting journalists and ‘netizens’ (including murders, imprisonment, physical attacks and threats) and news media (censorship, confiscation of newspaper issues, searches and harassment).

It also measures the level of self-censorship in each country and the ability of the media to investigate and criticise.

Many countries’ rankings change from year to year but there is little movement at the extremes. Europe typically dominates the top 10, with Scandinavian countries like Norway and Finland among the top few, while the usual suspects feature at the other end of the scale: Iran, North Korea, Vietnam, China, Burma, Turkmenistan and Eritrea.

Free expression is not absolute, although its opposite, censorship, can be.

The major difference is in what the lawyers call ‘prior restraint’ – censorship before publication or broadcast. Those at the top of the scale have high levels of transparency and welcome media scrutiny of government processes, with a minimum of licensing, suppression and no physical intimidation of journalists. At the other extreme journalists are murdered, jailed and tortured, publishers of all kinds require a licence, and Internet access is restricted.

Over the past five years, Australia’s ranking has fluctuated between 16 and 30 of the 179 countries surveyed, typically ahead of the United States but well behind New Zealand in the level of media freedom.

Governments might take issue with the methodology and dispute their nations’ rankings, but the index draws on the energies of experts throughout the world and in Paris and is thus taken seriously in international circles.

It serves to raise awareness about media and Internet freedom, which cannot be a bad thing in an age of government spin.

And there are almost 150 nations RSF ranks lower than Australia in its index.

I devote a chapter of my recent book – Blogging and Tweeting Without Getting Sued – to the difficulties you can encounter when writing about them online.

There I explain that the only country outside the US, Europe and the Commonwealth to rank highly in free expression rankings over recent years has been Japan. Despite having regional charters of human rights, several countries in Africa and Central and South America have shown little respect for Internet or media freedom.

The so-called ‘Twitter revolutions’ throughout the Middle East and North Africa in 2010 and 2011 showed how social media could help accelerate movements for better human rights.

But despite the impact of ‘people power’ in such countries there is still evidence of censorship and intimidation throughout much of the world. No regional human rights convention exists in Asia and the Hong Kong-based Asian Human Rights Commission provides an ongoing chronicle of abuses, many involving the gagging of journalists, bloggers and dissidents.

The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority.

These are places where you get labelled a ‘dissident’ and face jail if you blog or tweet to express your political views. Reporters Without Borders has released a list of enemies of free Internet speech: Bahrain, Belarus, Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so.

Governments in such countries block access to full Internet use via systems like the so-called ‘Great Firewall of China’. While the Internet is seen by many as a wonderful new tool for democracy, there is a downside to the use of social media and blogs if your nation does not value free speech: your Web-based activities can be monitored quite easily by security forces and your careless use of such media can leave you dangerously exposed.

Blogger Nay Phone Latt was only released from a Burmese jail in January after reporting in his blog about the unfolding demonstrations against the government in Rangoon in 2007 and for describing how hard it was for young Burmese to express themselves freely.

Chinese blogger Ran Yunfei was among several arrested in a crackdown on dissent by government authorities in 2011. He spent six months in prison and was released on the condition he did not speak with the media or continue to share his political views online.

Many more languish in jails throughout such countries today for expressing themselves freely.

Repressive regimes also engage in modern age propaganda techniques such as cyber-attacks on target websites and on ‘phishing’ to steal dissident password information to access their email addresses and other contact details. The US has declared cyberspace the new ‘fifth sphere of war’ after land, air, sea and space.

Some countries have laws making it an offence to insult the royal family, with Thailand, a nation with an otherwise free and vibrant media, the most active in its use. It is called ‘lèse majesté’, and in that country it can carry a maximum jail term of 15 years.

Authorities have charged as many as 100 people a year with the offence in recent years, with several unsuspecting foreigners including an Australian jailed because of their published criticisms of royalty. Many other nations have lèse majesté laws or similar.

As you enter your international careers, you need to be concerned for both your own safety and the liberty of others in your blogging and social media activity.

In my book I explain how you need to be extra careful that your words or images do not implicate someone in a country with a stronger censorship regime than your own. Remember, your blogs, tweets and Facebook pages can be accessed by authorities in other countries, even if they have an Internet firewall in place for their citizens. Also you need to be careful with what you write about the activities of your friends and colleagues from other countries. I’m sure you would not want another blogger’s imprisonment or torture on your conscience if the security agencies in their home country arrest them over something you have posted from the cyber-safety of your free expression haven. You need to bear this in mind because your new networks may well extend to vulnerable individuals living in such regimes.

So what can you do to help elevate free expression as a fundamental human right?

I would encourage student journalists to sign up with RSF and perhaps one of the other free expression NGOs like Article 19 or Index on Censorship. The rest of you might become more active within Amnesty International which also has a strong free expression chapter.

Free expression is a right Amnesty regards as “important for the personal development and dignity of every individual and vital for the fulfillment of other human rights”.

And rightly so. For without free expression, victims of human rights abuses would be unable to communicate their predicament and their supporters would be prevented from issuing their rally cries for change.

While the United Nations Universal Declaration of Human Rights enshrined free expression for all the world’s citizens at Article 19 in 1948, it was only ever meant to be a declaration of a lofty goal and has many limitations.

Better safeguards came internationally in 1966 when the UN adopted the International Covenant on Civil and Political Rights, which also protected free expression, again at Article 19.

But many countries have not ratified the covenant and you are left without regulatory bite. Complaints about individual countries’ breaches can be brought to the Office for the High Commissioner for Human Rights, but the processes can take several years and are often unresolved.

The journalists among you should have truth-seeking and truth-telling as your absolute mission.

The rest of you might sometimes have other obligations which sometimes limit your ability to reveal everything about a topic, but you should make it your own mission to defend the rights of others to speak their minds.

In journalism we use the expression ‘don’t shoot the messenger’ – and we mean it both literally and metaphorically.

While the world has changed markedly since the UN was established in 1945, a constant has been the natural tendency of those in power to gag their critics.

Active membership of organisations like Reporters Without Borders and Amnesty International can at the very least remind those who abuse their positions that they are being watched, and at best motivate them to change their ways.

© 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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My Online Opinion piece explains Australia’s fall to #30 in RSF World Press Freedom Index

By MARK PEARSON

The international media freedom group Reporters Sans Frontières (RSF – Reporters Without Borders) has released its 2011-12 World Press Freedom Index and Australia has slipped 12 places from 18th to 30th among the 179 countries ranked.

That result and the organisation’s methodology deserve explanation and debate, which I offer in my article in Online Opinion today.

As RSF’s Australian correspondent for the past six years, I offer some insights on both fronts.

First I assess the factors contributing to Australia’s decline in its media freedom status since 2010.

Then I explain why the RSF ranking process is indicative rather than scientifically precise.

Interested? Read my piece in Online Opinion today.

© 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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Pressures on the media in a Western democracy #RSF #pressfreedom #censorship

By MARK PEARSON

Each year I file a report on key incidents and developments in the areas of media law and censorship as Australia’s correspondent for Reporters Without Borders.

This data, when combined with submissions from several journalism and academic colleagues in Australia and throughout the world, feeds into RSF’s annual World Press Freedom Index where most nations’ levels of media censorship are compared in a league table format.

I have just filed my 2011 report with the assistance of research assistant Kiri ten Dolle and share some of the highlights with you here, in reverse chronological order.

November 2011:

By far the most important threat to media freedoms in Australia came in the form of at least five government inquiries into media regulation conducted throughout the year, which I have blogged on previously. Between them they raised the prospects of tougher regulation regimes for print, broadcast and online media; a new tort of privacy; tough new classification systems across media; and the conversion of some self-regulatory bodies to regulatory status.  RSF was particularly concerned by suggestions at the hearings of the Independent Media Inquiry that journalists should be licensed or that the Australian Press Council should be given powers to fine media organizations for ethical breaches. See their release on the matter.

The trial of Victorian police officer Simon Artz for alleged leaks to The Australian newspaper about a counter-terrorism operation raised several media freedom issues, with Crikey senior journalist Andrew Crook allegedly breaching a suppression order by revealing the name of a former member of Victoria’s Special Intelligence Group involved in the hearing; warnings over Crikey journalist Margaret Simons live tweeting from the hearing; and The Australian’s Cameron Stewart being ordered to reveal his sources to the hearing.

In a separate matter Victorian Police were investigating an alleged hacking of an ALP electoral database by four journalists at The Age, including editor-in-chief Paul Ramage. The Age claims they received access to the private information of high-profile individuals through ‘appropriate journalistic methods’ and authorisation by a whistleblower.

October 2011

Leaks to the media were also central to a report by the Office of Police Integrity (OPI) found advisers to the Victorian police minister conspired to bring down the former police commissioner Simon Overland. Weston had allegedly leaked information to the media about Overland’s fallout with his former deputy, Ken Jones.

Government control over media access to detention centres prompted condemnation from the journalists’ union. Department of Immigration and Citizenship (DIAC) announced editorial control would be handed over to representatives of the immigration department under new guidelines introduced by DIAC that restrict reporting of and access to detention centres. Journalists and media organisations are required to sign a Deed of Agreement in accordance with the new policy which ultimately prohibits photography, film or interviews with individual detainees and rules that all footage must be submitted to department officials for approval before publication.

Defamation actions, even spurious ones, were alive and well despite uniform defamation laws introduced throughout Australia in 2005. Convicted killer Michael McGrane sought $30 million in damages from the Seven Network claiming he was defamed in a television show called “The Suspects: True Australian Thrillers”. A Queensland Supreme Court justice struck out the claim but gave McGrane leave to replead under a technical provision of the reformed laws.

The extent to which free expression should be trumped by hate speech laws was the subject of wide debate after a Federal Court judge ruled Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act when he wrote that some fair-skinned people used their indigenous identity to further their careers.

September 2011

Fairfax Media group general counsel Gail Hambly and the editor-in-chief and publisher of The Sydney Morning Herald Peter Fray were summonsed by the Police Integrity Commission to produce documents on September 23 in relation to articles by the Herald journalists Linton Besser and Dylan Welch about the NSW Crime Commission. The inspector sought information about sources of information.

Fairfax Radio broadcaster Michael Smith’s contract was suspended in September when he tried to air an interview a former union official who claimed alleged fraudulent conduct by a former boyfriend of Prime Minister Julia Gillard. Smith took Fairfax Radio to court, contesting his ‘planned dismissal’ under the Fair Work Act and alleging he was victimised over his political beliefs.

August 2011

Two Brisbane journalists and a producer were dismissed by the Nine Network for faking live crosses to the Daniel Morcombe search site and ‘unfair dismissal’ litigation was foreshadowed.

July 2011

Cancer-stricken Hinch was sentenced to home detention in July after being found guilty of breaching four suppression orders by naming two sex offenders on his website and at a crime rally in 2008.

June 2011

Fairfax Media announced it would outsource the sub-editing of news, sport and business content to Pagemasters, a subsidiary of the Australian Associate Press (AAP), with a loss 44 jobs at The Sydney Morning Herald and 38 at The Age, despite calls from the NSW Upper Tribunal to abandon the decision.

May 2011

The Australian Broadcasting Corporation used a programming exemption to FOI laws to deny The Weekend Australian and Herald Sun access to its audience data and employee salaries.

Fairfax’s deputy technology editor Ben Grubb, 20, was arrested after reporting on a conference presenter’s alleged hacking at the AUSCert IT security conference. During the week, Grubb had published a story explaining a demonstration shown at the conference of acquiring private photos from a Facebook user without being a ‘friend’. Police seized his iPad but released Grubb after questioning him.

Sixty Minutes reporter Liam Bartlett and his crew’s attempt to enter the main detention centre at Christmas Island led to a police investigation. Bartlett and refugee advocate Kate Gauthier were denied access to the centre after it was alleged Gauthier’s baby, who was with them, was fitted with a recording device.

March-April 2011

Fairfax Media, publisher of the Sydney Morning Herald, and two of its senior journalists Linton Besser and Dylan Welch were issued with subpoenas by the NSW Crime Commission demanding them to surrender mobile phone records, sim cards and other communication related to an investigation of organised crime and corruption in NSW. The Crime Commission dropped the subpoenas in April.

February 2011

The NSW Supreme Court considered forcing three journalists from The Age to reveal their sources in a defamation trial centred around a story about former businesswoman Helen Liu and former defence minister Joel Fitzgibbon.

The Australian Communications and Media Authority found there had been no breach of privacy when Channel Seven’s coverage of NSW Transport Minister David Campbell’s resignation included footage of him leaving a gay club. While the ACMA acknowledged the privacy rights of Campbell, they ruled public interest outweighed his personal privacy because he was a public figure.

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Have we missed some? Please email me at journlaw@gmail.com if you think there are other important threats to free expression in Australia during 2011 and I’ll add them to our brief for RSF.

© Mark Pearson 2011

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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