Tag Archives: social media law

Privacy as a value for democratic societies – Beate Roessler #mediaiplaw

By MARK PEARSON

It is only in the past twenty or so years that the societal value of privacy has become of interest and still more recently that there has been a particular focus on the value of privacy for democracies, University of Amsterdam Professor of Ethics Beate Roessler proposed to the 2015 IP and Media Law Conference at the University of Melbourne Law School today (November 24).

“Privacy protection is necessary not only for individual freedom and autonomy but also for the functioning of the democratic society,” she said.

Professor Beate Roessler from the University of Amsterdam

Professor Beate Roessler from the University of Amsterdam

Beate Roessler is Professor of Ethics at the University of Amsterdam and chair of the Capacity group of Philosophy and Public Affairs. She also chairs its Department of Philosophy. In her keynote address she explored her work examining the difficulty of keeping up privacy standards on social network sites and the role of anonymity in social/political relations and the consequences of the loss of that anonymity.

Professor Roessler pointed to statements by Edward Snowden in 2013 and 2015 as an interesting focus upon the democratic value of privacy, where he had justified his revelations partly upon the contest between the state’s surveillance and the individual citizen’s privacy.

She listed three steps in the conceptualisation of privacy – firstly, the classic conception of Warren and Brandeis as the right to be let alone, the fundamental idea being that the right to freedom is protected by, and dependent upon, the right to privacy.

The second step after Warren and Brandeis was the ‘social dimensions of privacy’.
“The social norms which regulate privacy enable us to play different roles,” she said. “They enable us to play these different roles and have these different relations.
“If I started telling you now about my grandmother I would violate the demand of the role I am playing here. It is not just my autonomy, but it is also the norm itself that regulates our relations.
“Privacy is also a social practice, meaning the norms protect individual privacy and the right is part of the practice.
“Also respect for the privacy of other people is part of the practice. It is part of the deal of the social norms of privacy. The right to privacy and respect is always socially contextualised.

“The idea that we are democratic subjects is also the idea that our privacy is protected.”

She explained that the value of privacy has for the most part of the last hundred years been conceived of in purely individual terms: the protection of privacy being important or even constitutive for the protection of individual freedom and autonomy.

The third step after Warren and Brandeis was the significance of privacy for democracy.

“I want to argue that it is precisely this social and democratic value of privacy which is at stake in the digitized society,” she proposed.

She said events in Paris this month had not changed her mind about the value of privacy in democracy, but did make the issues more challenging to address publicly.
“Political participation is dependent on the protection of privacy,” she said.
The loss of privacy affects all social and political relations between people, she argued.
Although the right to privacy remains important as an individual right, the Snowden revelations have made clear that violations of privacy have immediate impact on our social lives as well as on liberal democracies.
Privacy is under pressure in the digitized society through state surveillance, consumer surveillance, via the ‘internet of things’, and through social network sites with the voluntary sharing of personal data including the self-tracking devices and the quantification of self movement.
“New technologies do have an impact on our relationships, for better or for worse.
“The right idea is to think about what does privacy do in our society, and if that changes how far can we go with that change?”
She used privacy settings as an example of the status of privacy in society: “Standard preferences are public, but privacy is an extra task or an achievement.”
“Our personal data are analysed by companies that are collecting, storing and mining as the default. It is what is happening if we do nothing.
“Forgetting, deleting is an extra task, an achievement.”
Anonymity was important to privacy, but as Snowden revealed our anonymity is not protected any longer.
“Lack of anonymity can cause loss of freedom, harmful for the individual and democratic society,” she said.
She pointed to the use of drones as the next “massive threat”.
She said arguments against anonymity such as accountability and public security did not allow for the fact that neither had increased markedly in recent years with large scale surveillance.
“The threat of a life without the protection of privacy involves the transformation of social and political relations,” she concluded.
“If we have to assume there is no privacy protection any longer in our social relations it means our social relations tend to get homogenized.
“How can I understand myself as a democratic subject if I can’t assume any longer that my privacy is not being protected?
“How do we change and how does society change, when our sense of privacy changes, when we lose the differences in self-presentation, possibilities of political participation, and when we lose the possibilities of control?”
From 2003-2010 Roessler was Socrates-Professor for the Foundations of Humanism at Leiden University. Before, she taught philosophy at the Free University, Berlin, Germany, and at the University of Bremen, Germany. Roessler studied philosophy at Tuebingen, London, Oxford, and Berlin and completed her PhD in 1988 at the Free University Berlin (on theories of meaning in analytic philosophy and hermeneutics). In November and December 2015 she is visiting as a research fellow at University of Melbourne, Melbourne Law School. Her publications include Social Dimensions of Privacy: Interdisciplinary Perspectives (edited with Dorota Mokrosinska, Cambridge: Cambridge University Press 2015) and The Value of Privacy (Polity Press, 2005).

The full conference program is here. Our paper (Pearson, Bennett and Morton) was titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here) and was presented yesterday (November 23).

Those interested in privacy as a topic might also see my timeline of privacy in Australia here.

———–

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

© Mark Pearson 2015

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Stakeholder theory as a way of viewing social media policies and risk

By MARK PEARSON

My Skype guest of the week for our Social Media Law and Risk Management course this week is Professor Andrew Crane from York University in Toronto, Canada, the author of one of our key readings for the week on stakeholder theory.

The article is co-authored with Trish Ruebottom and is titled ‘Stakeholder Theory and Social Identity: Rethinking Stakeholder Identification’, Journal of Business Ethics, Vol. 102, Supplement 1: Ethics, Corporations, and Governance (2011), pp. 77-87

We discussed the application of stakeholder theory to social media risk management and policy development. Professor Crane starts by explaining the basics of stakeholder theory (video and transcript below). Enjoy!

INTERVIEW TRANSCRIPT

Mark Pearson (@Journlaw): I am delighted to be joined here today by Professor Andrew Crane who is the George R Gardiner Professor of Business Ethics and Director of the Centre of Excellence in Responsible Business at the Schulich School of Business in the York University in Toronto, Canada. Welcome Andy.

Professor Andrew Crane: Thank you Mark, it’s a pleasure to meet you.

MP: Well you’ve done a lot of research and writing in Stakeholder Theory, and my students have actually been reading one of your co-authored articles on the topic. And for postgrad students who are relatively new to this theory, would you mind just giving a nutshell summary for them?

AC: Sure. Stakeholder Theory is a pretty simple idea in many respects, you know. It’s really about the idea that corporations in particular are not just there to serve the interests of shareholders. So Stakeholder Theory was designed to give us a way of thinking about other ways of understanding both the ownership of corporations, but in particular how decisions should be made. So, who should be involved in decision making, and how should the benefits that are, driven by corporations, the value that is created by them; who should it go to? So Stakeholder Theory is really about those sorts of questions, so who can affect organisations, but also who is affected by them, and what sort of rights do they have in respect to that stake they have, how should they be consulted, how should they be involved in the decision making, and those sorts of things. So it’s a very broad theory, and I saw that in one of your other readings you had the paper What Stakeholder Theory is Not, because there is a whole sort of set of different ways of understanding what it is – you know, it’s a very simple idea: there are multiple constituencies in any organisation, but then when it comes to [the question] of well, who is actually included and what are the implications of that, then it becomes a much broader discussion of the purpose of corporations.

MP: Yes, and we see that at its simplest level, I guess it’s just simply a matter of stakeholders being there to serve the interests of a company, and the main stakeholders being the shareholders and the customers and the corporate directors. But really your article and the other one you mentioned certainly extends that a lot further and it enters that corporate ethics field, where a company and its decisions have so many more stakeholders interests at play.

AC: Exactly

MP: So, coming to your article which starts to talk about social identity and basically presenting a grid which shows some intersection of what might be seen as a traditional role in relation to a corporation, and other social roles someone might play. Would you mind just talking us through the basic principles there and your spin on that?

AC: The basic way we understand stakeholders is the kinds of interactions that they have with the firm; so we think about them as either customers or employees and suppliers, regulators or NGOs or whatever else they might be. That’s typical kind of transactional view of who those different constituencies are. But the reason why different groups may actually mobilise or try and gain legitimacy in relation to firm, how they might press their claims, the kind of stake that they think they have, is not always about those simple transactions that they are engaged with. The reasons that people do things, the reasons people collect together to collaborate and press their claims upon firms are also about who people believe they are, about their social identity. So what are the bonds that connect me to other people that means these are the things that bring people together and make them mobilise in a social movement or some sort of pressure towards companies. So it may well be that I’m a customer of a firm, but I’m might simultaneously also be an employee, I might also hold shares in that firm; and I’ve got all kinds of different relationships with that firm at any one time. What we are trying to do with (Stakeholder) Theory with our paper is to say well, when people actually do try and press their claims, it is often about who we feel connected to that’s important. So the fact that I’m a white, British male for example who lives in Canada, that is very important for why I may be involved, why I might connect with certain firms. For example, it might be very different if I was a woman or a person of colour, or any other kind of quality which might impact on how I connect with companies.

MP: Well it seems, because of that very reason, to lend itself to an examination of social media in relation to a corporation; and particularly in the case of an emerging crisis because people with different social identities might fluctuate more towards social media for different reasons and in different places. Have you thought yourself about the interaction of Stakeholder Theory and social media in the corporation?

AC: I think one of the important ways of connecting up Stakeholder Theory and social media as well if a firm is trying to work out who it should be communicating with through social media; who the constituencies who are important; Stakeholder Theory provides a framework for that, because it gives us a way of thinking through who are the legitimate constituencies that we should be connecting with, how can we distinguish between legitimate and illegitimate, and also between who are the more powerful or less powerful that we should be connecting with. Stakeholder Theory is often seen in very instrumental terms in that sense; it is a strong instrumental approach there which says firms will care about stakeholders that matter – those that have power, those that have legitimacy, those whose stakes are very urgent. So social media is all about power in many respects; it’s about who you can influence, who you can connect to, how many people in your list of Twitter followers and what have you. So for firms it provides a framework for them to establish who matters in terms of their different constituencies. If we take it in an ethical dimension, take it in a more normative perspective, we say well ‘what rights do those people then have’? What sort of rights do you have as an employee, as a consumer, as a broader stakeholder of an organisation in relation to how it is going to communicate to you – in terms of protection of privacy, protection of various rights in terms of bullying and other things through social media?

MP: Yes – and also I think it can catch some corporations by surprise if they haven’t thought through particular social media stakeholders, or people who are using social media who may be stakeholders. And we see this with these grassroots campaigns against major corporations where they’ve underestimated the power of public momentum and social conscious using social media – which fits with your social identity perspective on that, doesn’t it?

AC: Absolutely. I think one of the interesting things here is that we tend to think of stakeholders in terms of a hub with spokes, right? Here’s the firm, here’s the decision making unit, and here’s the employees, here’s the consumers, here’s the suppliers, here’s the others; but social media is all about interconnections between different stakeholders and between different groups. You can’t think in those terms anymore if you’re trying to understand social media. Stakeholder Theory has limits in its traditional view and understanding it, unless you take it to a much more networked, much more nuanced kind of understanding of the types of environments that firms are interacting with.

MP: Well, while Stakeholder Theory might be very useful in research and the academic and looking at corporations and their interaction with various stakeholders, how useful is it as a practical tool in an organisation? So if you were a marketing manager or a public relations manager and you wished to avert some crisis in your company by trying to ascertain who the various stakeholders are and their respective interests.

AC: It can be very useful. It depends how you use it. It can be very effective at helping firms become prepared for identifying the various constituencies they need to be concerned about. If you take it seriously you need to be creative about trying to imagine who those constituencies are, because it is not just who is going to affect you now, when you think about a particular decision, who is going to be affected further down the line. So it can help you to identify these constituencies, but it can also help you to start thinking about, well, how can we predict what the type of response will be from those constituencies, depending upon how much power they have, how much influence, leverage, whether they are connected to other stakeholders in ways that mean they can leverage even greater influence and those sorts of things. So you can start to predict the kind of responses that may happen based on simple stakeholder framework that then gets into the idea of who has power, who can influence what is going to happen in the firm.

MP: And could you see it fitting in any way into the planning and drafting of a social media policy within an organisation?

AC: Certainly, yes. Both in terms of identifying who should be included in that policy, but perhaps more importantly, who should actually be involved in even devising the policy. Stakeholder Theory is all about who should be involved in decision making, so the question will be can we just set up a policy and then kind of send it out and everyone is going to abide by it. Well, realistically, that is not how social media works is it? It is a very unruly phenomenon. So it’s also thinking about who should be involved in the decision making. Who are the parties who are affected by this, and with our social identity card on it. So it’s not just ‘okay we need to involve our employees, or we need to involve our consumers’, but what particular subgroups of those employees or consumers might we need to be concerned with? So Facebook had its big issues with lesbian, gay, bisexual and trans community a couple of years ago by making sure that everyone had their real name as part of their Facebook profiles. This community was saying that they wanted also to express other identities as part of their names. So if you don’t have those groups involved when you’re setting up that policy in the first place, you’ve got all sorts of problems down the line when you realise you’ve upset core constituencies without thinking what it is that bind us all together in terms of our identity.

MP: Well that’s terrific, thanks Professor Crane. It’s great to have one of the authors of our readings talking to us about the subject matter at hand, and I would really thank you for your time today.

AC: It’s been a pleasure, thank you very much.

© Mark Pearson 2015

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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New course helps manage social media risk

By MARK PEARSON

Griffith University has issued the following release on our fully online global social media law course which I will be teaching from March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

New course helps manage social media risk

Managing your social media risk and protecting your brand is the focus of a fully online global social media law course to be offered at Griffith University from March 2015.

Social Media Law and Risk Management is aimed at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management.

“It addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies,’’ says course convenor Professor Mark Pearson.

“The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in averting communication crises.

“It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business and the general public.”

Professor Pearson is the author of Blogging and Tweeting Without Getting Sued – A Global guide to the Law for Anyone Writing Online, co-author (with Mark Polden) of The Journalist’s Guide to Media Law and the Australian correspondent for Reporters Without Borders. His Twitter handle is @journlaw.

Social Media Law and Risk Management is offered online as a stand-alone course or as part of a suite of four courses in the Graduate Certificate in Crisis Communication for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

Media Contact: Deborah Marshall, 0409 613 992, d.marshall@griffith.edu.au

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Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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

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Course outline for global social media law course starting in March

By MARK PEARSON

WE have now posted the course profile for our fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

 

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course outline, including the learning activities and assessment, can be viewed here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2015

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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Griffith Uni to offer online global social media law course

By MARK PEARSON

WE are now taking applications for a fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

 

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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

Leave a comment

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See @ConversationEDU for @journlaw’s five reasons the Australian #natsec laws damage media freedom

By MARK PEARSON

The Abbott government’s latest tranches of national security and counter-terrorism laws represent the greatest attack on the Fourth Estate function of journalism in the modern era. They are worse than the Gillard government’s failed attempts to regulate the press.

Unlike most other Western democracies, Australia has no constitutional instrument protecting free expression as a human right. Few politicians can resist the temptation to control the flow of information if the law permits.

Here are five reasons that this latest move is damaging the democratic cornerstone of press freedom:

  1. It is legislative over-reach
  2. It gags reportage of a key public issue
  3. It compromises the separation of powers
  4. It spells the end for the confidential source
  5. Exemptions effectively license old media over new media.

See The Conversation today for the full article.

[Thanks to media freedom interns Jasmine Lincoln and Satoshi Horiuchi for their research assistance.]

© Mark Pearson 2014

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

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Journalists face jail for reporting intelligence operations – with no public interest defence

By MARK PEARSON

The Australian Government’s passage this week of the National Security Legislation Amendment Bill (No. 1) 2014 is highly likely to impact on Australia’s standing in international media freedom rankings like Reporters Without Borders’ (RSF’s) World Press Freedom Index.

Media Watch cites this journlaw post

ABC Media Watch cites this journlaw post in its 6 October 2014 episode

The legislation amended the Australian Security Intelligence Organisation Act 1979 (‘ASIO Act), and the Intelligence Services Act 2001 (bizarrely abbreviated as the ‘IS Act’).

The new law leaves journalists and bloggers liable to up to five years in jail for ‘unauthorised’ disclosure of information related to a special intelligence operation – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’ (Section 35P of the ASIO Act).

The legislation seems aimed at whistleblowers like Edward Snowden or Wikileaks, but as Ben Grubb reported in smh.com.au, it casts its net so wide that it relies on the goodwill of the government of the day not to pursue ordinary journalists and commentators if they happen to stumble across such an operation and report upon it.

35P Unauthorised disclosure of information

(1)  A person commits an offence if:

(a)  the person discloses information; and

(b)  the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

Speaking to The Australian’s legal affairs editor Chris Merritt this week, I suggested an operation like that involving former Gold Coast doctor Mohamed Haneef in 2006 might have triggered such a consequence if it had been deemed a ‘special intelligence operation’.

That particular arrest was the result of an Australian Federal Police investigation, but it is not beyond the realms of possibility to see ASIO involved in future such operations.

It was only thorough investigative reporting based upon leaks that led to a Gold Walkley Award for journalist Hedley Thomas at The Australian that exposed the flaws in the prosecution case against Haneef, and led to his later release and exoneration.

While Thomas and other national security writers would not want to compromise an anti-terror operation, you could certainly see them pursuing rigorous reporting of such a matter if a serious injustice appeared to be done or public safety was being placed in jeopardy.

And that is the problem – there is no ‘public interest’ defence available under the laws that have just passed both houses of the Australian Parliament.

Further, there is nothing that would prevent prosecution of a journalist who inadvertently disclosed information about such an intelligence operation in the course of their normal reporting.

I was discussing this today with another Walkley Award winning editor of a regional newspaper who was concerned that an operation conducted in a regional centre would be such big news that it would be difficult not to cover it.

That might well meet the definition of such a disclosure, and the reporters dealing with it would likely not be as well briefed in national security laws as their national and metropolitan counterparts.

Either way, and as I explained to Chris Merritt in that interview this week, the law now presents journalists with a potential new conflict between their code of ethics and the law over which they might face jail.

Journalists have traditionally been willing to go to prison to protect their confidential sources – and in fact three Australian journalists have done time for just that over the past three decades.

Now we have this new situation where some journalists might be willing to defy this new law – and face up to 10 years in jail – if they see an overriding public interest in revealing the nature of such an operation.

If they choose to do so, sadly there will be no defence available to them.

This is just one of a series of detrimental developments for media freedom in Australia in recent months which I have documented previously – all of which are likely to see Australia’s ranking decline in the RSF index which is being compiled over the next two months.

The Australian measures are already on the international radar, as a recent World Association of Newspapers (WAN-IFRA) blog by media academic Julie Posetti demonstrated.

My frank view is that Australia is an ‘emerging Secret State’ – a topic I will be addressing at an upcoming conference marking the 20th anniversary of the Pacific Journalism Review in Auckland in November.

Of course I do not suggest Australia is at the far end of the spectrum like North Korea, China or Vietnam. We do not have the licensing of journalists or the jailing or torture of those opposing the government’s line.

However, when compared with other Western democracies we do not have the safeguards of free expression protections in a Bill of Rights or in a major constitutional amendment as in the US.

Sadly, this means new gags like this measure can be rushed through Parliament by a government seeking a tougher anti-terror image and an Opposition fearful of being seen to go soft on national security.

© Mark Pearson 2014

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

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