Tag Archives: truth

John Stuart Mill predicted the likes of Trump and the echo chamber #MLGriff

By MARK PEARSON

A passage by the great philosopher John Stuart Mill in his seminal work ‘On Liberty’ seems prescient almost 160 years after it was published. It offers insights into ‘false news’ in a ‘post-truth era’.

Much has been written about the sycophants who surround some leaders of politics and business, too fearful to suggest that their views might just be wrong or misguided.

In modern times some have suggested that nobody in the White House would dare question or debate the assertions US President Donald Trump emits daily via Twitter and at rallies of supporters. They have called it the “Emperor with no Clothes” phenomenon.

Related to this is the suggestion that social media and modern means of communication adds to the “echo chamber” where we accept as truth the rumours and assertions of those we “follow” or of commentators on the media channels that best suit our world view.

Again, it is said that the echo chamber for Trump and his supporters centres upon information and commentary in Fox News, which he has excluded from his rants against what he labels ‘fake news’ in other media.

While the communication media might have changed since 1859, there is nothing new about this, because Mill warned us of both phenomena in his landmark text.

I stumbled upon the passage this week when researching an address for a conference session and thought it was timely to share it with you here.

It offers important insights into our conceptions of “truth” and adds credence to better education in fact checking and source assessment, not just for journalists but also for the broader citizenry:

Absolute princes, or others who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects. People more happily situated … place the same unbounded reliance only on such of their opinions as are shared by all who surround them, or to whom they habitually defer: for in proportion to a man’s want of confidence in his own solitary judgment, does he usually repose, with implicit trust, on the infallibility of “the world” in general. And the world, to each individual, means the part of it with which he comes in contact; his party, his sect, his church, his class of society … Nor is his faith in this collective authority at all shaken by his being aware that other ages, countries, sects, churches, classes, and parties have thought, and even now think, the exact reverse. He devolves upon his own world the responsibility of being in the right against the dissentient worlds of other people; … Yet it is as evident in itself as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.” – John Stuart Mill (1859). On Liberty. London: John W. Parker and Son. [underscore added by author]

 

© Mark Pearson 2018 and John Stuart Mill 1859

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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Case study shows the legal pros and cons of a media release

By MARK PEARSON

MEDIA releases are meant to enhance brand reputation but they can sometimes have the reverse effect, as we explain in the forthcoming sixth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2019).


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We profile the Born Brands case (2013), where two media releases had vastly different consequences for the manufacturers of a device to help better position infants during sleep.

The first was particularly successful, generating a news segment on Brisbane Extra about its Babywedge product and an appearance on national morning television (Born Brands case, para. 8).

But the second media release—this time emanating from the US Consumer Product Safety Commission (CPSC)—caused unexpected damage because it warned consumers against using infant sleep positioners.

Babywedge then featured on a Channel 9 news segment among other such products in a story about the potential dangers of infant sleep positioners (at para. 14).

As part of the fallout from the crisis, Born Brands sued the Nine Network for both defamation and injurious falsehood, claiming the news item damaged its reputation as a small corporation (fewer than 10 employees) and that it contained false statements, published with malice, which had caused it actual financial loss (injurious falsehood).

However, the company found no relief because the television network managed to defend both actions successfully, with the court finding the statements were not false and that no malice had been proven (paras 184–9).

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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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Filed under defamation, free expression, journalism, media law, Media regulation, public relations

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

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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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Filed under citizen journalism, defamation, free expression, journalism, media law, Media regulation