Tag Archives: The Australian

Defending truth: case study from our new edition

By MARK PEARSON

DEFENDING a defamation action using the truth or justification defence can have its hurdles, but this case we profile in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019) demonstrates how a major publication used it effectively.

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The Vocational Education case

Charan v Nationwide News Pty Ltd [2018] VSC 3

Facts

In late 2015, The Australian newspaper published a print article (‘Watchdog Takes Peak Training College to Court’) and a similar online version (‘ACCC to Take Top Training College Phoenix Institute to Court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up, and stated that the parent company was under investigation by both the federal Department of Education and the Australian Skills Quality Authority (ASQA) and that its shares had been suspended from trading on the stock exchange for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated that he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, ‘whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct’ (para. 2). Mr Charan had in fact left the company about a year earlier and the next day The Australian published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded that eight imputations arose from the article, which the judge grouped into four headings (para. 27):

  1. Mr Charan was head of ACN, a company that engaged in unscrupulous business practices that took advantage of vulnerable consumers.
  2. Mr Charan was head of ACN, a company that engaged in misleading and deceptive conduct.
  3. Mr Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers.
  4. Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards.

The defendant, Nationwide News—publisher of The Australian—argued successfully that imputations 2 and 3 did not arise in the articles and defended the imputations of unscrupulous business practices and significant non-compliance with quality standards using the justification (truth) defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the substantial truth of the unscrupulous conduct allegations, it had to convince the court under the civil burden of proof—the ‘balance of probabilities’—that there was ‘clear and cogent proof’. To do so, it drew upon a host of material obtained after the publication, including:

  • the oral testimony of a number of witnesses who had worked in the Community Training Initiatives (CTI) group
  • the oral testimony of three ‘students’ allegedly enrolled in CTI courses conducted by CTI companies
  • the contents of a series of audit reports, student interviews and file reviews (with associated documentation), carried out in 2015
  • a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies (para. 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider, Telstra.

Justice Forrest found that the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para. 111). He concluded with a concise summary of his 768-paragraph judgment:

(a)   Mr Charan was defamed in both the written and online versions of the article;

(b)  the article defamed him by conveying imputations that:

(1)       Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2)       Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations (paras 762–3).

Lessons for professional communicators

Several lessons arise from this rare successful use of the justification (substantial truth) defence by a publisher:

  • Considerable evidence can be needed to prove the truth of imputations stemming from an article, and sometimes this has to be located after publication and before trial, although as much evidence as possible should be available at the time of publication;
  • A publisher defendant can still win a case on the pleaded imputations even if there is a basic error in the story—in this case, the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided.)
  • Defamation cases can be enormously expensive. In this case, the 35-day trial was reported to have cost both sides more than $3.5 million in legal fees (Houston, Duke and Vedelago, 2018)

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Like earlier editions, our text aims to give professional communicators and students a basic working understanding of the key areas of media law and ethical regulation likely to affect them in their research, writing and publishing across media platforms. It tries to do this by introducing the basic legal concepts while exploring the ways in which a professional communicator’s work practices can be adapted to withstand legal challenges.

If you wish to request a copy for course inspection or media review please contact the publisher, Allen & Unwin, who will have printed copies available from late November.

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 2018

 

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Watergate revisited: Is it fundamentally unethical to guarantee a source confidentiality?

A shorter version was published 22-6-15 in The Conversation as:

How surveillance is wrecking journalist-source confidentiality

By MARK PEARSON

Washington Post reporter Bob Woodward famously used cloak and dagger methods to communicate with his secret source – “Deep Throat” – in the 1972 Watergate investigation which led to the Nixon administration’s downfall.

Woodward said he would move a pot plant on his balcony to signal to his confidential, high-level source that he wanted a meeting. If Deep Throat wanted a meeting, he would draw a clock face on page 20 of Woodward’s newspaper to indicate the time they should rendezvous in a disused underground car park.

These very 20th-century means of communication helped preserve the iconic source’s anonymity – until former FBI deputy director Mark Felt outed himself more than 30 years later.

It was significant, then, that Washington was the venue for the release of preliminary findings of a study by the University of Wollongong’s Julie Posetti into the threats to source confidentiality in a new era of sophisticated surveillance technologies and powers.

Leaving a trail

The study poses worrying questions about whether sources can ever be sure their communications with journalists remain confidential no matter how determined a reporter might be to protect them.

Journalists have a sacrosanct relationship with their confidential sources. It is enshrined in ethical codes internationally with some qualified protection under “shield laws” in Australia. Journalists don’t “rat” on their sources. In recent decades in Australia, three journalists have been jailed for refusing to reveal their sources in court – Tony Barrass, Joe Budd and Chris Nicholls.

Four decades on, in a digital era of surveillance and data storage, Watergate remains a useful yardstick for assessing the value of source confidentiality.

We can only speculate as to whether Woodward would have been able to preserve Deep Throat’s confidentiality with the surveillance tools and legislative reach agencies have at their disposal today. Some have argued that modern journalists need to return to those analogue means of communicating if they are to have a hope of protecting their sources, particularly when investigating national security, high-level corruption and matters embarrassing to governments.

Recently departed Guardian editor-in-chief Alan Rusbridger said:

I know investigative journalism happened before the invention of the phone, so I think maybe literally we’re going back to that age, when the only safe thing is face-to-face contact, brown envelopes, meetings in parks.

Associate editor at The Australian Cameron Stewart told me that investigative journalists had to leave their smartphones at the office when heading out to meet confidential sources. The 1970s Watergate methods were again becoming necessary.

However, following Woodward’s approach with Deep Throat would not, on its own, be enough in the digital surveillance era. CCTV footage and geolocation technology on mobile devices carried by either party could potentially link the journalist with their source.

As security expert Bruce Schneier explained, security agencies can also use device inactivity in a process of elimination to identify a source.

If they can account for the location of nine possible government sources’ phones over a set period – but the tenth has either been turned off for a long period or left at home – then that employee becomes the prime whistleblowing suspect. Despite their limitations, such primitive contact methods might make a one-off leak harder to trace than it would if there were email records and stored telco and internet provider metadata such as phone tower locations, call durations and IP addresses. These are all easily accessible under Australia’s new data retention laws. Stewart explained:

The thing I’ve got to my ear now [a smartphone] is your biggest enemy in every single sense, as the Snowden revelations have shown. The ability of authorities to track movements of journalists is really of great concern as far as protecting sources goes.

Veteran investigative journalist Ross Coulthart offered detailed insights into the detectable trail of communications between reporters and sources last month. He explained a major problem was the “first contact” from a whistleblower with a story.

If they contact me by phone or email now, though, I now warn them they’re compromised.

Coulthart also explained his use of encrypted communications and secure platforms in his efforts to disguise his contacts with sources or to expunge records of his contacts with sources. Guardian Australia’s Paul Farrell recently ran a masterclass on source and data protection for journalists teaching them about surveillance, encryption and freedom of information laws.

Paying the price

However, recent research by Curtin University associate professor Joseph Fernandez has shed light on how ignorant many journalists are of the risks of compromising their source confidentiality and even of whether recently legislated shield laws offer them any protection in the states or territories where they work. His survey of 154 journalists found that while almost all journalists expressed unreserved commitment to the confidentiality of their sources, three quarters were uncertain about the extent to which shield laws might cover them and almost half expressed no alarm at official surveillance of their communications. The price of a detected link can be high and many whistleblowers have paid the price of their liberty or careers.

They include the most infamous – Chelsea Manning – serving what is likely to be the rest of her life in a US military prison for her releases of information to Wikileaks.

In Australia, the list of discovered sources include former customs officer Allan Kessing, Victorian detective Simon Artz and design college part-timer Freya Newman.

If journalists are to have any hope of protecting confidential sources into the future it will require a multi-faceted approach along the lines recommended by Posetti in her UNESCO study.

It proposes an ambitious 11-point framework for enhancing free expression, strengthening legislative and policy shields for journalists and whistleblowers, and training reporters.

In 1989 Janet Malcolm used her long-form article ‘The Journalist and the Murderer’ in the New Yorker to question the ethics of the journalistic interview. She wrote:

“Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance or loneliness, gaining their trust and betraying them without remorse.”

A quarter of a century later, the fundamental question facing journalists is whether the very act of promising confidentiality to a source (particularly a government whistleblower) is unethical, given the likelihood that agencies have the power, the will and the technology to detect and identify sources.

A 2015 Deep Throat would be unlikely to survive a week without detection, regardless of whether a journalist has promised them and even if a shield law allows the reporter to refuse to identify the source in court.

Sadly, despite such undertakings, the trail of metadata would likely produce enough evidence to nail the confidential source, further damaging the public’s right to know.

An abridged version of this article was originally published on The Conversation.

Read the original article.

© 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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Journalists, whistleblowers and the law – the end of the era of the confidential Watergate-style source? My #AusCERT2015 address

By MARK PEARSON

My speech to the AusCERT2015 conference on the Gold Coast, Queensland, on Friday June 5.

Abstract

The practicalities of protecting confidential sources are a huge challenge for journalists in the modern era. New shield laws excusing journalists revealing the identity of a whistleblower in court seem pointless if litigants or government agencies have already been able to detect them using the surveillance regime that is ubiquitous in modern society. It prompts the serious questions: Could the Watergate investigation by the Washington Post three decades ago happen in the modern era? How long would Carl Bernstein and Bob Woodward’s White House source ‘Deep Throat’ remain anonymous today? This presentation considers the toll of the era of geo-locational tracking, phone and social media e-records, CCTV in private and public spaces, email logs, surveillance technologies and drones on journalists and their sources. It reviews the key laws in the field of confidentiality, privacy and national security to assess the level of whistleblower and journalist protection they really offer.

Audio 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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Greste release is welcome, as would be a free media in Australia #FreeAJStaff

By MARK PEARSON

My contribution to the Griffith Red Couch blog, first published here. Follow the Red Couch Blog for commentary from Griffith University academics.

Australian Prime Minister Tony Abbott celebrated the release of journalist Peter Greste after 400 days in an Egyptian prison with these words at the National Press Club in Canberra on February 2:

 “…sometimes as Australians we do take our most precious freedoms for granted. And as a former journalist myself it would be remiss of me at such a gathering of journalists not to express my personal delight and our nation’s relief at the overnight release of Peter Greste and to reiterate our support as a government and as a people for a free media and a free press.”

Peter_Greste_2012_WikiCommons

Australian journalist Peter Greste – jailed for a year in Egypt. Photo: Wikimedia Commons

GlobalFreeAJSTAFFactionThe Prime Minister was quite correct in stating Australians often take free expression for granted, but they might take the lead from both his government and the former Labor government in doing so. The Paris-based NGO Reporters Without Borders (RSF) ranked Australia 28th of 180 countries on its World Press Freedom Index last year.

That is relatively high in the league table, and Australia rarely jails its journalists and has never murdered them. Such acts are more common in nations much lower down the press freedom ladder.

According to the Committee to Protect Journalists, Peter Greste and his al Jazeera colleagues were among 221 imprisoned globally in 2014 and already this year 15 journalists have lost their lives in the course of their work.

However, Mr Abbott’s expressed “support as a government and as a people for a free media and a free press” rings somewhat hollow in the context of recent moves by Australian governments to shackle that freedom.

It is ironic that in the same week he made that statement the Prime Minister was calling for bipartisan support for his data retention laws which would force telecommunications companies to retain – and make available to government agencies – metadata including the time and location of phone calls, texts, emails, internet browsing, social media discussions and webcam communications.

That step alone – taken in the name of better national security – stands to damage irreparably the confidentiality of journalists’ sources.

This is just one of several indicators that Australia has recently embarked upon a shift towards a “state of secrecy”.

It comes against the backdrop that, unlike the United States, the United Kingdom, Canada, New Zealand and even Papua New Guinea, Australia has no national Bill of Rights or written constitutional or legislative protection of free expression or a free media.

Australia has only an “implied freedom” that our High Court justices have sadly read down over many decisions.

In its first year in office, the Abbott Government:

This is not simply an Abbott Liberal-National conservative government phenomenon. Governments have a natural inclination to control public debate. If they have the resources, mechanisms and opportunities available to them they will do so.

Australia’s previous Labor government wanted a new mechanism of media accountability because they were copping so much unfair criticism from the Murdoch press. Their knee-jerk reaction was to try to install a regulatory mechanism that any government of whatever political persuasion could use in the future.

All these measures undermine the role of Australia as a beacon of free expression in the Asia-Pacific region.

Whistleblowers are being snared by the various surveillance laws and the technologies available to detect them. They are being found and they are going to court. The proposed data retention laws will increase that likelihood.

In the area of spin, the media finds it very hard to gain access to and report upon asylum seekers and detainees – stories that are really an international human rights issue of legitimate public interest.

Australia has at least purported to be some sort of exemplar to the region of media freedom, transparency and good governance. It has spent millions on aid projects designed to enhance such values internationally. But sadly Australia is moving towards a “state of secrecy” with no constitutional brake on censorship.

A perfect storm of factors has contributed to this including the rise of spin (we now have more PR practitioners than journalists), the demise of traditional media and its budgets to defend and lobby for media freedom, and the political capital available to parties of all political persuasions in getting tough on terrorism and immigration.

We can quite rightly celebrate free expression with the release of Peter Greste after more than a year of imprisonment for simply doing his job as a journalist.

But my great fear is that fragile freedom is seriously under threat in the very country he calls home.

© 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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Is Australia an emerging Secret State?

By MARK PEARSON

My speech to the Pacific Journalism Review 20th Anniversary conference in Auckland, on November 27, 2014 was titled: ‘Suppression, sentences, surveillance, security and cynical spin: Is Australia an emerging Secret State?’

PJR Review Conf Notice 2014 550wideYou can read an abridged version of that speech in The Conversation here.

You can also hear the full audio of my presentation here.

In it I track the first year in office the Abbott Government, where it has:

  • blocked the media from information on the important human rights issue of the fate of asylum seekers
  • initiated major budget cuts on the publicly funded ABC
  • used anti-terror laws to win a ‘super injunction’ on court proceedings that might damage its international relations
  • ramped up surveillance powers of national security agencies and banning reporting of security operations
  • proposed increased jail terms for leaks about security matters
  • moved to stop not-for-profits advocating against government policy in their service agreements
  • abolished the Office of the Information Commissioner for abolition, promising tardy FOI appeals
  • proposed the taxing of telcos to pay for its new surveillance measures, potentially a modern version of licensing the press.

Australia has at least purported to be an exemplar of media freedom, transparency and good governance throughout the region, but continues to censor those who teach and counsel on those initiatives throughout the region. Here is the standard gag clause from the most current ($3 million Transparency International) contract:

Gagclause

My conclusion is that Australia might not be a secret state like North Korea but it is certainly moving towards a “state of secrecy” and it is doing so with no constitutional brake in our country on censorship.

It is now sending a mixed message to the region on free expression, transparency and good governance.

You can read an abridged version of that speech in The Conversation here.

You can also hear the full audio of my presentation 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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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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