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RSF names 39 leaders as Press Freedom Predators

3 May 2013
World Press Freedom Day

Media release from Reporters Without Borders – RSF (See http://www.rsf.org)

Website: http://en.rsf.org/asia,2.html
Twitter: @RSFAsiaPacific, @RSF_Asia (中文)
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39 leaders, groups named as Predators of Freedom of Information in 2013

On World Press Freedom Day, Reporters Without Borders is releasing an updated list of 39 Predators of Freedom of Information ­– presidents, politicians, religious leaders, militias and criminal organizations that censor, imprison, kidnap, torture and kill journalists and other news providers. Powerful, dangerous and violent, these predators consider themselves above the law.

“These predators of freedom of information are responsible for the worst abuses against the news media and journalists,” Reporters Without Borders secretary-general Christophe Deloire said. “They are becoming
more and more effective. In 2012, the level of violence against news providers was unprecedented and a record number of journalists were killed.

“World Press Freedom Day, which was established on the initiative of Reporters Without Borders, must be used to pay tribute to all journalists, professional and amateur, who have paid for their commitment with their lives, their physical integrity or their freedom, and to denounce the impunity enjoyed by these predators.”

Five new predators have been added to the list: the new Chinese president, Xi Jinping, the Jihadi group Jabhat Al-Nosra from Syria, members and supporters of Egypt’s Muslim Brotherhood, Pakistan’s Baloch armed groups, and Maldives’ religious extremists. Four predators have been dropped from the list: former Somali information and communications minister Abdulkadir Hussein Mohamed, Burmese President Thein Sein, whose country is experiencing unprecedented reforms despite the current ethnic violence, the ETA group, and the Hamas and Palestinian Authority security forces, which are harassing journalists less.

To draw attention to their abuses, Reporters Without Borders has drafted indictments against some of these predators in the hope that they will one day be brought before competent courts. To better highlight the gulf between propaganda and reality, the statements of some of them have been contrasted with the facts. And to show how some predators really think, we have presented their innermost thoughts in the first person. We had to use a little imagination, of course, but the facts alluded to conform to reality.

New names in the list of predators

A predator goes and is replaced by another. It is no surprise that Xi Jinping has taken former Chinese President Hu Jintao’s place as predator. The change of person has not in any way affected the repressive system developed by China’s Communist Party.

The list of predators has been impacted by the repercussions from the Arab Spring and uprisings in the Arab world. Members and supporters of Egyptian President Morsi’s party, the Muslim Brotherhood, have been responsible for harassing and physically attacking independent media and journalists critical of the party.

Jabhat Al-Nosra’s entry into the predators list reflects the evolution in the Syrian conflict and the fact that abuses are no longer attributable solely to the regime, represented on the list by Bashar al-Assad, but also to opposition armed groups, which are proving to be more and more intolerant and suspicious towards the media. At least 23 journalists and 58 citizen-journalists have been killed in Syria since 15 March 2011 and seven journalists are currently missing.

In Pakistan, Baloch armed groups, including the Balochistan Liberation Army, Baloch Liberation Front and Baloch Musallah Defa Army, have turned the southwestern province of Balochistan into one of the world’s most dangerous regions for journalists. Consisting of armed separatist groups and opposing militias created to defend the central Pakistani government, they have spread terror in the media and created information “black holes.” Pakistan’s intelligence agencies are also on the predators list because of their abuses against the media.

Ever since the army mutiny that overthrew President Mohamed Nasheed in the Maldives in 2012, extremist religious groups have tried to use their nuisance power to extend their influence. They have become more aggressive as the July 2013 presidential election approaches, intimidating news media and bloggers and using freedom of expression to impose a religious agenda while denying this freedom to others.

Unacceptable impunity for predators

Physical attacks on journalists and murders of journalists usually go completely unpunished. This encourages the predators to continue their violations of human rights and freedom of information. The 34 predators who were already on the 2012 list continue to trample on freedom of information with complete disdain and to general indifference.

The leaders of dictatorships and closed countries enjoy a peaceful existence while media and news providers are silenced or eliminated. Such leaders include Kim Jong-un in North Korea, Issaias Afeworki in Eritrea and Gurbanguly Berdymukhammedov in Turkmenistan. In these countries, as in Belarus, Vietnam, Uzbekistan and other Central Asian countries, the international community’s silence is not just shameful, it is complicit.

Reporters Without Borders urges the international community not to hide behind economic and geopolitical interests. Thanks to their rich natural resources, Azerbaijan’s Ilham Aliyev and Kazakhstan’s Nursultan Nazarbayev are confident that no one will rap their knuckles. Economic interests come before everything else, as they do with China. It is the same with countries that the West regards as “strategic.”

Iran’s two predators – President Mahmoud Ahmadinejad and the Supreme Leader, Ayatollah Ali Khamenei – have already taken steps to deter the media from providing independent coverage of next June’s presidential election. The waves of arrests of journalists that began on 27 January, “Black Sunday,” are clear evidence of this.

Criminal organizations and paramilitary groups that are often linked to drug trafficking – Mexico’s Zetas, Colombia’s Urabeños and the Italian Mafia – continue to target journalists and media they regard as too curious, independent or hostile. In Mexico, a country that is especially deadly for media personnel, 87 journalists have been killed and 17 have disappeared since 2000. Justice has not been properly rendered in any of these cases.

Since Vladimir Putin’s return to the presidency in Russia, the authorities have tightened their grip even further in response to unprecedented opposition protests. The country remains marked by a completely unacceptable level impunity for those responsible for violence against journalists. A total of 29 have been murdered since 2000, including Anna Politkovskaya.

Why are predators never brought to justice?

The persistently high level of impunity is not due to a legal void. There are laws and instruments that protect journalists in connection with their work. Above all, it is up to individual states to protect journalists and other media personnel. This was stressed in Resolution 1738 on the safety of journalists, which the United Nations security
council adopted in 2006.

Nonetheless, states often fail to do what they are supposed to do, either because they lack the political will to punish abuses of this kind, or because their judicial system is weak or non-existent, or because it is the authorities themselves who are responsible for the abuses.

The creation of a mechanism for monitoring adherence to Resolution 1738, which Reporters Without Borders has proposed, would encourage member states to adopt specific provisions for penalizing murders, physical attacks and disappearances that target journalists, would extend Statesʼ obligations to non-professional “news providers” and would reinforce their efforts to combat impunity for such crimes.

At the international level, the legal protection of journalists is also guaranteed by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Conventions and other instruments. The United Nations recently published an Action Plan on the safety of journalists and measures to combat impunity for crimes of violence against them.

The International Criminal Court’s creation has unfortunately not helped advance the fight against impunity for those responsible for the most serious crimes of violence against journalists, although journalists play a fundamental role in providing information and issuing alerts during domestic and international armed conflicts. The ICC only has jurisdiction when the crime takes place on the territory of a state that is a party to the Rome Statute (which created the ICC) or if the accused person is a citizen of a state party.

Furthermore, the Rome Statute provides for no specific charge for deliberate physical attacks on journalists. Article 8 of the statute needs to be amended so that a deliberate attack on media professionals is regarded as a war crime.

Dropped from the predators list

Abdulkadir Hussein Mohamed
Also know as “Jahweyn,” this Somali politician is no longer minister of information and telecommunications. His successor does not seem to be directly responsible for harassment, intimidation or other abuses against media personnel. Journalism nonetheless continues to be very dangerous in Somalia, with a total of 18 journalists killed in 2012.

Burmese President Thein Sein
Installed as president in March 2011, Thein Sein no longer qualifies as a predator of freedom of information. Under his presidency, the military junta has disbanded and all jailed journalists and bloggers, including Democratic Voice of Burma’s 17 video-journalists, have been freed. In 2012, prior censorship was abolished and many exile media began operating openly inside the country. The first privately-owned daily newspapers appeared in early 2013.

Hamas and Palestinian Authority security forces
The security forces of the Palestinian Authority in the West Bank and those of the Hamas government in the Gaza Strip have been dropped from this year’s list of predators because the number of their press freedom violations has fallen considerably in the past four years. The situation of freedom of information in the West Bank and Gaza Strip is nonetheless still the subject of concern. The Hamas government recent banned local journalists from working for Israeli media, and many journalists are prosecuted for insulting President Mahmoud Abbas.

ETA
The organization ETA has been dropped from the 2013 list. It announced the “definitive end to armed actions” in 2011 and has carried out no attacks on journalists or news media since then. Reporters Without Borders has
of course not forgotten all the journalists who were physically attacked or killed by ETA and continues to demand justice for those crimes of violence. Reporters Without Borders will also continue to be on the lookout for any future threat to media freedom by ETA.

_______________________

3 mai 2013
JOURNEE MONDIALE DE LA LIBERTE DE LA PRESSE

39 Prédateurs de la liberté de l’information recensés par RSF en 2013

A l’occasion de la Journée mondiale de la liberté de la presse, Reporters sans frontières publie une liste de 39 Prédateurs de la liberté de l’information, chefs d’Etats, hommes politiques, chefs religieux, milices et organisations criminelles qui censurent, emprisonnent, enlèvent, torturent et parfois assassinent les journalistes et autres acteurs de l’information. Puissants, dangereux, violents, ces Prédateurs se considèrent au-dessus des lois.

“Ces prédateurs de la liberté de l’information sont responsables des pires exactions contre les médias et leurs représentants. Leurs actions sont de plus en plus efficaces : 2012 a été une année historiquement violente pour les acteurs de l’information, avec un nombre record de journalistes tués”, déplore Christophe Deloire, secrétaire général de Reporters sans frontières. “La Journée mondiale de la liberté de la presse, instaurée à l’initiative de Reporters sans frontières, doit être l’occasion de rendre hommage à tous les journalistes, professionnels et amateurs, qui payent leur engagement de leur vie, leur intégrité physique ou leur liberté, et de dénoncer l’impunité dont bénéficient ces prédateurs.”

Cinq nouveaux prédateurs rejoignent la liste : le nouveau président chinois Xi Jinping, le groupe djihadiste Jabhat Al-Nosra en Syrie, les membres et partisans des Frères musulmans en Egypte, les groupes armés baloutches du Pakistan et les extrémistes religieux des Maldives. Quatre prédateurs ont disparu de la liste : l’ancien ministre somalien de l’Information et des Télécommunications, Abdulkadir Hussein Mohamed ; le président birman Thein Sein, dont le pays connaît une ouverture sans précédent, malgré une situation instable ; le groupe ETA, ainsi que les forces de sécurité du Hamas et de l’Autorité palestinienne, dont les exactions envers les médias sont en sensible diminution.

Pour mieux dénoncer les Prédateurs, Reporters sans frontières formule des actes d’accusation étayés dans l’espoir que ces individus ou ces mouvances soient un jour forcés de rendre des comptes à la justice. Pour mettre en évidence le décalage entre leurs propagandes et la vérité, leurs assertions officielles sont confrontées aux faits. Pour démontrer leurs intentions profondes, Reporters sans frontières se met dans leurs têtes et présente leurs pensées au style direct, à la première personne. La transcription est librement établie par l’organisation, mais les faits invoqués conformes à la réalité.

De nouveaux noms dans la liste des Prédateurs

Un prédateur en remplace un autre : Xi Jinping reprend sans surprise la place de prédateur de l’ancien président chinois Hu Jintao. Le changement d’individu ne remet en rien en cause le système liberticide porté à bout de bras par le Parti communiste chinois.

La liste des prédateurs subit elle aussi le contre-coup des printemps arabes et des mouvements de soulèvements populaires. Les membres et partisans du parti des Frères musulmans en Egypte se rendent responsables d’actes d’agressions, de pressions et de harcèlement envers les médias indépendants et les journalistes critiques du parti et du président Morsi.

L’entrée de Jabhat Al-Nosra symbolise l’évolution du conflit syrien et le fait que les exactions ne sont plus du seul fait du régime, représenté dans la liste des prédateurs par Bashar Al-Assad, mais également de groupes armés de
l’opposition, qui s’avèrent de plus en plus intolérants et suspicieux envers les médias.
Du 15 mars 2011 au 3 mai 2013, au moins 23 journalistes et 58 citoyens-journalistes ont été tués en Syrie. A ce jour, 7 journalistes sont toujours portés disparus.

Au Pakistan, les groupes armés Balochistan Liberation Army (BLA), Baluch Liberation Front (BLF) et Musallah Defa font du Balochistan l’une des régions les plus dangereuses au monde pour les journalistes. Ils ont instauré la terreur au sein des médias, assassiné des journalistes et créé des trous noirs de l’information. A noter que les services de renseignement pakistanais, également responsables d’exactions contre la presse, figurent déjà dans la liste des prédateurs.

Aux Maldives, depuis la mutinerie militaire de 2012, qui a renversé le président Mohamed Nasheed, les groupes religieux extrémistes tentent d’user de leur force de nuisance pour étendre leur influence dans le pays. A l’approche des élections présidentielles de juillet 2013, ils durcissent leurs positions. Ils intimident les médias et les
blogueurs et instrumentalisent la liberté d’expression pour imposer un agenda religieux en refusant que cette liberté soit étendue aux autres.

Ces Prédateurs qui jouissent d’une intolérable impunité

Les agressions et assassinats de journalistes se soldent généralement par une impunité totale des responsables. C’est pour les Prédateurs un encouragement à poursuivre les violations des droits de l’homme et de la liberté d’information. Les trente-quatre Prédateurs qui figuraient déjà sur la liste 2012 continuent de piétiner la liberté d’information dans le dédain le plus complet et l’indifférence générale.

Les dirigeants des régimes dictatoriaux et des pays les plus fermés coulent des jours paisibles tandis que la presse et les acteurs de l’information étouffent ou ont été réduits au silence. C’est le cas de Kim Jong-un en Corée du Nord, Issaias Afeworki en Erythrée ou Gourbangouly Berdymoukhamedov au Turkmenistan. Pour ces pays, ainsi que pour le Bélarus, le Vietnam, l’Erythrée et les autres dictatures d’Asie centrale (Ouzbékistan en tête), le silence de la communauté internationale est plus que coupable, il est complice. RSF appelle la communauté internationale à ne plus se cacher derrière les intérêts économiques et géopolitiques. Forts de leurs ressources naturelles, Ilham Aliev en Azerbaïdjan, et Noursoultan Nazarbaïev au Kazakhstan savent pertinemment que nul ne viendra leur taper trop fort sur les doigts. Les intérêts économiques passent avant tout, comme avec la Chine. Même scénario pour des Etats ‘stratégiques’ pour les pays occidentaux.

Les deux prédateurs iraniens – le président Mahmoud Ahmadinejad et le Guide Suprême, l’Ayatollah Khamenei – ont déjà pris des mesures pour dissuader les médias d’assurer une couverture indépendante de l’élection présidentielle du 14 juin 2013. En témoignent les vagues d’arrestations de journalistes et détentions préventives qui se succèdent depuis le dimanche noir, 27 janvier 2013.

Les organisations criminelles ou paramilitaires, souvent liées au narcotrafic – Zetas au Mexique, Urabeños en Colombie ou mafias italiennes – continuent de prendre pour cibles journalistes et médias jugés trop curieux, trop indépendants, souvent hostiles. Pays particulièrement meurtrier pour les journalistes, le Mexique en compte 86 tués et 17 disparus depuis 2000. Justice n’a été réellement rendue dans aucune de ces affaires.

En Russie, un tour de vis répressif a été mis en place depuis le retour à la présidence de Vladimir Poutine, en réponse à une mobilisation sans précédent de l’opposition. Le pays reste marqué par l’impunité intolérable de nombreux assassins et agresseurs de journalistes. Pas moins de 29 journalistes ont été tués en lien direct avec leur activité professionnelle depuis l’année 2000, dont la journaliste Anna Politkoskaïa.

Pourquoi les prédateurs échappent-ils à la justice ?

La persistance d’un haut niveau d’impunité ne s’explique pas par l’existence d’un vide juridique. Des normes et des mécanismes existent pour protéger les journalistes dans l’exercice de leur profession. La protection des journalistes et autres acteurs médiatiques incombe en premier lieu aux États comme le rappelle la résolution 1738 relative à la sécurité des journalistes, adoptée par le Conseil de sécurité des Nations Unies en 2006. Pourtant, les Etats sont trop souvent défaillants, soit par manque de volonté politique de réprimer de telles exactions, soit parce que leur appareil judiciaire est inexistant ou affaibli, soit encore parce que les autorités sont responsables de ces exactions. La mise en place d’un mécanisme de contrôle du respect et du suivi de la résolution 1738 par les Etats membres des Nations unies, proposée par Reporters sans frontières, inciterait les Etats à adopter des dispositions pénales spécifiques incriminant les crimes, agressions et disparitions de journalistes, à étendre les obligations des États envers les acteurs de l’information non-professionnels et à renforcer leur lutte contre l’impunité.

Au niveau international, la protection juridique des journalistes est également garantie par la Déclaration universelle des droits de l’homme, le Pacte international relatif aux droits civils et politiques, les Conventions de Genève entre autres textes. Les Nations unies ont récemment publié un Plan d’Action sur la sécurité des journalistes et la lutte contre l’impunité.

La mise en place d’une Cour pénale internationale n’a malheureusement pas fait progresser la lutte contre l’impunité des auteurs des crimes les plus graves contre les journalistes, malgré leur rôle fondamental d’information et d’alerte pendant les conflits armés internes et internationaux. La CPI n’est compétente que lorsque les faits ont lieu sur le territoire d’un Etat partie ou si la personne accusée du crime est ressortissant d’un Etat partie. En outre, le Statut de Rome (constitutif de la CPI) ne prévoit aucune incrimination spécifique des attaques délibérées contre les journalistes. Un amendement à l’article 8 est nécessaire pour que les attaques délibérées contre les professionnels des médias soient considérées comme un crime de guerre.

Ces personnalités et mouvements qui sortent de la liste des Prédateurs

Abdulkadir Hussein Mohamed
Surnommé “Jahweyn”, cet homme politique somalien a quitté son poste de ministre de l’Information et des télécommunications. Son successeur ne semble pas directement responsable de pressions, d’intimidations ni d’exactions à l’encontre de la presse. L’exercice du métier d’informer reste certes très périlleux en Somalie (où 18 morts ont été recensés en 2012).

Le président birman Thein Sein
Au pouvoir depuis mars 2011, Thein Sein ne mérite plus le qualificatif de prédateur de la liberté de la presse. C’est sous sa présidence que la junte militaire a été dissoute et que tous les journalistes et blogueurs emprisonnés, y compris les 17 vidéo-journalistes de la Democratic Voice of Burma, ont été libérés. En 2012, la censure préalable a été abolie, nombre de médias en exil sont rentrés. Les premiers quotidiens privés sont parus début 2013.

Les forces de sécurité du Hamas et de l’Autorité palestinienne
Les forces de sécurité de l’Autorité palestinienne en Cisjordanie et celles du gouvernement du Hamas à Gaza sortent cette année de la liste des prédateurs. Le nombre de violations de la liberté de la presse qu’elles ont commises a considérablement diminué au cours des quatre dernières années. Toutefois, la situation de la liberté de l’information reste préoccupante, en Cisjordanie et à Gaza. Le gouvernement du Hamas a récemment interdit aux journalistes gazaouis toute collaboration avec des médias israéliens, et très nombreux sont les procès pour ‘insulte à la personne du Président Mahmoud Abbas’.

ETA
L’organisation a été retirée de la liste des Prédateurs en 2013. ETA a en effet annoncé en 2011 la “fin définitive de ses actions armées” et depuis n’a pas réalisé d’attentats contre des journalistes ou médias. Reporters sans frontières n’oublie naturellement pas les journalistes tués ou agressés par ETA et continue de demander que justice soit faite pour les actes commis. A l’avenir, RSF demeurera extrêmement vigilante, attentive au moindre indice de menace contre la liberté de la presse dont se rendrait coupable ETA.

Benjamin Ismaïl
Head of Asia-Pacific Desk
Reporters Without Borders

Website: http://en.rsf.org/asia,2.html
Twitter: @RSFAsiaPacific, @RSF_Asia (中文)
Facebook : facebook.com/reporterssansfrontieres
Skype: rsfasia

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Press regulatory ‘stick’ so tough it’s licensing #mediareforms

By MARK PEARSON (@journlaw)
It’s a great shame when political and commercial vested interests drown out compelling and principled arguments for free expression in this Australian media reform debate.
Firstly, I declare my own interest as Australia’s correspondent for Reporters Without Borders (RSF) – an interest in free expression and media freedom.
That said, here are my three reasons the proposed Public Interest Media Advocate proposal for control of press regulation deserves a sudden death.
1. It amounts to de facto licensing. I don’t believe the plan was sinister or Stalinist – I just don’t think the policy wonks looked at the impact of the ‘stick’ end of the ‘carrot and stick’ approach to ‘enforced self-regulation’. As I blogged last week, it would mean ‘death by a thousand consent forms’ for any newspaper/online company who refused to sign up (with $3m plus turnover). Why? The Privacy Act exemption for journalism exists for good reason: the Act is designed for government departments, banks, insurance companies and other large corporates and we all know that journalism is not “just another business”. Those bodies have predictable dealings with customers and are not in the business of publishing stories about them. The revised Privacy Act – effective from 2014 – gives the Privacy Commissioner tough new powers to audit corporations, wielding civil penalties of up to $1.7 million (See Mallesons brief). A relatively small newspaper group would reach the required $3 million annual turnover threshold to qualify and would be crippled by the paperwork involved in complying with the Privacy Act – consent authorities for all personal information collected – the very lifeblood of community news reporting such as people’s ages, workplaces, political and union affiliations. It would require consent from anyone identifiable in photographs – including those in the background. It would thus set up a statutory market differentiation between such a news organisation and its competitors – other media not subject to the Act, including newspaper groups in a press council, broadcast media not subject to this provision, and smaller media of all types exempt from the Privacy Act threshold. Law firm Minter Ellison issued a release on March 14 with the following stark advice: “The potential loss of the media exemption in the Privacy Act could make it difficult, if not impossible, for news media organisations to effectively continue their operations.”
So, it’s not a ‘stick’ but a shotgun to the head of newspaper companies to be in a registered press council or be out of business. That’s licensing – and ‘prior restraint’ on a news outlet’s ability to publish – a situation abhorrent to our system of law for centuries.
2. The Bill’s very terms are self-defeating and damage free political speech. Section 14 of the Bill proclaims that nothing within it should counter the High Court’s freedom to communicate on matters of politics and government. But the very mechanism does that in two ways. Firstly, the overall effect is to force newspaper companies into a regulated ‘self-regulator’. The alternative, as per point 1 above, is almost certain death. Newspapers have long been a key forum for political and governmental debate in our society. How informed about candidates for the upcoming election would voters in Tamworth be without their Northern Daily Leader and its website? Well, that would be the plight that community would face if its owner – Fairfax – decided to leave the Press Council on principle, could no longer afford the membership fee, or was expelled. Secondly, the very Privacy Act that is being held as the threatened ‘stick’ deems ‘trade union membership’ and ‘political affiliation’ as ‘sensitive information’ – subject to even more red tape. The mechanism forces a recalcitrant news organisation into a disadvantaged position in its election coverage because its hands would be tied by this level of bureacratic compliance. This would mean – at the very least – that the flow of political and government opinion in the community would be unacceptably delayed by privacy consent paperwork. Imagine the impact of such a brake on the web-based and social media divisions of such a newspaper – getting consent from everyone identifiable through a comment thread! This would give ample ammunition for a High Court challenge.
3. The instrument has already damaged Australia’s standing as a free Western democracy. We have no written constitutional free expression protection, which sets us apart from other democracies. Both Communications Minister Stephen Conroy and Prime Minister Julia Gillard cited RSF’s World Press Freedom Index in recent days, using the argument that Finland is in number one position there despite having a statutory mechanism for its press regulation. Perhaps – but Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws impacting on free expression that we have in this country which place us at number 26 on that same Index. We languish there partly because of the very threats to media freedom posed by the recent inquiries into its regulation. The UK’s latest move is also set against a European human rights free expression framework and is a reaction to much more heinous media acts than we have seen in this country. Australia has spent millions over recent decades ‘counselling’ our Pacific Island and Asian neighbours against exactly these kinds of government interference with a free media – in the form of AusAID training courses and other diplomatic interventions. Now we send the clear signal that the Australian government is willing to offer a handy lesson in managing adverse publicity – using a cynical device to subject non-compliant newspapers to death by red tape.
There you have it – a vent from someone whose only agenda is to encourage truth-seeking and truth-telling in our society through the long-established right of free expression. Oh, I do have another agenda – preserving an employment market for journalism graduates. And it looks like that challenge may get even harder!

PS. Find an inaccuracy here and I’ll correct it immediately and record that correction in a note below.

© 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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Gillard government should step carefully with its push for privacy tort

By MARK PEARSON

A tort of privacy is on the agenda again, with the Gillard Government purportedly considering enacting such a right.

West Australian lawyer Ainslie Van Onselen has outlined many reasons why such a privacy tort could be dangerous to free expression in a democracy like Australia’s, but unfortunately her article is behind The Australian’s paywall, so I republish my earlier article and blog here for the benefit of students and researchers interested in that debate.

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. Now it has revisited it as part of its media regulation review which included both the Finkelstein report and the Convergence Review recommendations.

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.

* An earlier version of this article was published in May 2012 in the annual press freedom report by the Media Entertainment and Arts Alliance  – Kicking at the Cornerstone of 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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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:

———

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)

———

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.

 ———–

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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