Instant download The journalist’s guide to media law: a handbook for communicators in a digital worl
The Journalist’s Guide to Media Law: A handbook for communicators in a
Visit to download the full and correct content document: https://ebookmass.com/product/the-journalists-guide-to-media-law-a-handbook-for-co mmunicators-in-a-digital-world-6th-edition-mark-pearson/
More products digital (pdf, epub, mobi) instant download maybe you interests ...
Mass Communication: Living in a Media World 6th Edition, (Ebook PDF)
MARK PEARSON (BA, DipEd, MLitt, LLM, PhD) is Professor of Journalism and Social Media at Griffith University in Queensland, where he is a member of the Griffith Centre for Social and Cultural Research. He is author of Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012) and co-editor of Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (with Shelton A. Gunaratne and Sugath Senarath, Routledge, 2015), and Courts and the Media: Challenges in the Era of Digital and Social Media (with Patrick Keyzer and Jane Johnston, Halstead Press, 2012). He has worked as a journalist with several media organisations, including The Australian. He blogs from journlaw.com and tweets from @journlaw.
MARK POLDEN is a Sydney barrister. After ten years in the media law practice group of a national law firm, and then as in-house counsel for Fairfax Media for the best part of two decades, he now advises and acts for Australian and international print, broadcast and online media, film and television production houses and for private clients.
All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10 per cent of this book, whichever is the greater, to be photocopied by any educational institution for its educational purposes provided that the educational institution (or body that administers it) has given a remuneration notice to the Copyright Agency (Australia) under the Act.
Allen & Unwin
83 Alexander Street
Crows Nest NSW 2065
Australia
Phone: (61 2) 8425 0100
Email: info@allenandunwin.com
Web: www.allenandunwin.com
A catalogue record for this book is available from the National Library of Australia
ISBN 978 1 76029 784 8
Internal design by Squirt Creative
Index by Puddingburn
Set in 11/15 pt Legacy Serif ITC Std by Midland Typesetters, Australia
Printed and bound by The SOS Print + Media Group
10 9 8 7 6 5 4 3 2 1
To my grandchildren—Oliver, Josie, Beatrice, Charlie, Annabelle, Maddox, Harriet and Poppy. May you be safe. May you be well. May you be content.
Mark Pearson
To my family. Mark Polden
Acknowledgements
Abbreviations
PREFACE TO THE SIXTH EDITION
One of the most exciting aspects of media law is its dynamic and everevolving nature. It is shaped by the changing nature of communication careers, rapid developments in technologies and the social dynamics of politics, economics and culture.
In no period of human history have such changes come about as quickly as in these first two decades of the twenty-first century. We have updated this book to reflect the many changes that have occurred in media law and its interpretation since our last edition in 2015.
Our target audience has broadened with each edition as technologies such as the internet and social media have combined to transform journalism and its allied professional communication careers, including public relations, strategic communication, social media management, professional blogging and their many hybrids.
While the book is Australian in its orientation, media law is now international in its application as the internet and its resultant communication platforms leave Australian communicators and their employers vulnerable to publishing laws across hundreds of jurisdictions internationally. The book tries to offer a taste of such risks faced by those working internationally, while still detailing the most important restrictions and defences in Australia’s nine jurisdictions at the national, state and territory levels.
Professional communicators are now working in the so-called ‘gig economy’. Their contract work might see them working as a freelance journalist on one assignment, as a media adviser in the next stage of their career, or perhaps as a new media entrepreneur hosting public comments on some innovative news platform. At a secondary level, they are also in a ‘gig economy’ because their outputs can involve many gigabytes of communication in an instant—presenting dangers for those ignorant of the laws and regulations that might apply.
This edition retains the basic chapter structure of its predecessor, but the content within those chapters has been revised to include
fresh and ground-breaking new cases, legislative amendments and important new laws and interpretations of some issues. Recent research has shown that media law is no longer a contest between large media organisations and the rich and famous of society. There is a much larger proportion of litigation between ordinary citizens over what they have said about each other on social media or on private websites. This is also reflected in the kinds of cases we profile in this edition.
Some highlights of important new content covered in this edition include:
• consideration of several recent High Court decisions impacting on free expression, publication and media law defences
• legal implications of ‘fake’ or false news
• a new table summarising the mindful approach to media law practice, mapping situations against approaches
• major criminal cases challenging the boundaries of open justice, including that involving Cardinal George Pell
• new case studies in navigating crime reporting with a focus on the Yahoo!7 story that prompted the discharge of a jury in a murder trial
• significant developments in defamation law, including record damages awards to actor Rebel Wilson (reduced after appeal) and barrister Lloyd Rayney, and litigation involving actor Geoffrey Rush
• important new research showing that many more defamation actions are being brought by private individuals over internet and social media publications, as distinct from celebrities suing the media
• examination of publisher liability for the comments of third parties in the wake of several new cases, with some holding publishers responsible
• an update on confidentiality of sources, including some new breach of confidence actions and some cases testing the limits of new shield laws for journalists
• a review of the suite of new anti-terrorism laws impacting the media’s reporting of crime and national security and jeopardising the confidentiality of their sources
• key new intellectual property cases that have shed light on the media’s use of material sourced from the internet and social media
• significant cases showing the rapidly developing body of privacy law in the digital era
• new material in the law of freelancing, public relations and new media entrepreneurship showing the growing legal risks and responsibilities at the business end of communication practice.
There is also an increased emphasis on the higher pressure and pace of the 24/7 news cycle across a range of media, exacerbating the risks to communicators and publishers through their own work and the contributions of third-party commenters on their social media feeds and sites.
Like earlier editions, the book 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.
We do not aim to prepare all readers to make complex legal decisions. Our modest hope is that the book will help to provide a basic grounding in media law that allows you to make a cursory risk assessment and sound the alarm bells when legal advice might be needed.
We must stress that we do not offer actual legal advice in the pages of this book. That is the role of lawyers. If in any doubt, seek their advice. Many of the cases and examples we have used would never have emerged if legal advice had been sought prior to publication.
ACKNOWLEDGEMENTS
First, we must acknowledge some previous authorship upon which we have drawn to make this edition as fresh and engaging as possible. Some of the sections exploring the application of media law to digital and social media have been adapted from co-author Mark Pearson’s Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012). Much of the foundational material stems from the first three editions written by Pearson in 1998, 2004 and 2008. Some other content has been adapted from Pearson’s blogs and from some academic articles and commissioned media and online commentaries by both authors.
Many friends and colleagues deserve our thanks.
Our greatest and heartfelt gratitude goes to our respective families for their support throughout the process.
Scores of others deserve thanks too, including teaching colleagues at Griffith University (particularly in the Griffith Centre for Social and Cultural Research); journalists from Fairfax Media, News Corporation, and the ABC, whose real-life examples volunteered in training sessions have enriched the work; journalism and communication education colleagues, who have made insightful suggestions for improvements upon the earlier editions; the journal editors and reviewers for their comments on academic articles that have fed into this edition; international colleagues Kyu Ho Youm, David Goldberg, Judith Townend, Dirk Voorhoof and Doreen Weisenhaus for their global media law perspectives; and students and journalists whose questions in courses helped shape the revisions and the postgraduate students whose special projects and theses have explored useful topics.
As always, the production of the book within a tight deadline has been made possible through the professionalism of the Allen & Unwin team led by publisher Elizabeth Weiss, her assistant Jennifer McGrath, editor Samantha Kent and copyeditor Susan Jarvis, whose patience with our ongoing updates and corrections is appreciated.
And, of course, thank you to the students and journalists who have found the earlier editions useful enough to justify this sixth edition.
Mark Pearson and Mark Polden
ABBREVIATIONS
AANA Australian Association of National Advertisers
AAP Australian Associated Press
AAT Administrative Appeals Tribunal
ABA Australian Broadcasting Authority (now Australian Communications and Media Authority (ACMA))
ABC Australian Broadcasting Corporation
ACCC Australian Competition and Consumer Commission
ACMA Australian Communications and Media Authority
ACT Australian Capital Territory
ACTV Australian Capital Television
AFL Australian Football League
AFP Australian Federal Police
ALRC Australian Law Reform Commission
AMA Australian Medical Association
APC Australian Press Council
ASB Advertising Standards Bureau
ASIC Australian Securities and Investments Commission
ASIO Australian Security Intelligence Organisation
ASIS Australian Secret Intelligence Service
ASQA Australian Skills Quality Authority
auDA .au Domain Administration Ltd
AVO apprehended violence order
BBC British Broadcasting Corporation
BLF Builders’ Labourers Federation
CCC Crime and Corruption Commission (Qld)
CMC Crime and Misconduct Commission
COAG Council of Australian Governments
CPJ Committee to Protect Journalists
CPSC Consumer Product Safety Commission (US)
DIGO Defence Imagery and Geospatial Organisation
DIO Defence Intelligence Organisation
DM direct message
DSD Defence Signals Directorate
EPA Environment Protection Authority
FOI freedom of information
HREOC Human Rights and Equal Opportunity Commission
ICAC Independent Commission Against Corruption
ICANN Internet Corporation for Assigned Names and Numbers
IGIS Inspector-General of Intelligence and Security
INSLM Independent National Security Legislation Monitor
INTA International Trademark Association
IoT Internet of Things
IP intellectual property
IP Internet Protocol
IPO initial public offering
ISP Internet service provider
MEAA Media, Entertainment and Arts Alliance
MFI marked for identification
NBN National Broadband Network
NDB Notifiable Data Breaches
NPP National Privacy Principles
NRL National Rugby League
OHCHR Office of the High Commissioner for Human Rights
ONA Office of National Assessments
PIO public information officer
PJCIS Parliamentary Joint Committee on Intelligence and Security
PMW Pacific Media Watch
PPR Professional Public Relations
PRIA Public Relations Institute of Australia
RTI right to information
SBS Special Broadcasting Service
TGA Therapeutic Goods Administration
TPP Trans-Pacific Partnership
TPP-11 Comprehensive and Progressive Agreement for Trans-Pacific Partnership
URL Uniform Resource Locator
VCAT Victorian Civil and Administrative Tribunal
VNR video news release
WARU West Australian Rugby Union
WIPO World Intellectual Property Organization
PART 1
JOURNALISTS, COMMUNICATORS AND THE LEGAL SYSTEM
CHAPTER 1
Media law in the Web 2.0 era
KEY CONCEPTS
Media law
An array of laws affecting journalists and other professional communicators in their research, publishing and social media use. Key areas are defamation, intellectual property, contempt and court publishing restrictions, confidentiality, privacy, national security, discrimination and freedom of information.
Publication
The act of ‘publication’ is foundational to many media laws because legal responsibility typically applies from the moment material is sent from one person to another. It could be as simple as pressing a Facebook ‘like’ symbol.
Jurisdiction
This legal term applies to the ‘reach’ of a particular state or country’s legal powers, and can also apply to the power of a particular type of court to hear a civil or criminal case or other dispute.
Self-regulation
A particular profession’s system of rules and procedures, including for ethical and other complaints that it can handle internally without involving the criminal or civil powers of a court or government-appointed tribunal. A hybrid system called ‘co-regulation’ involves a government authority, like the Australian Communications and Media Authority (ACMA), with power to intervene when self-regulation in the broadcast media has failed or a decision has been appealed.
Media law reform
The process of revising existing laws and regulations affecting the media, and of developing proposals for new ones, typically undertaken by law reform
commissions, parliamentary committees or government-appointed inquiry bodies, although sometimes proposed as legislation as a draft Bill in the parliament.
Fake news
Disinformation published on websites and social media for political purposes or to drive web traffic which would not qualify for media law defences requiring truth or factuality as an element.
Advances in communication technology in this new millennium have redefined the ways most of us share news and information. Industry upheaval and technological disruption have prompted many journalists to retool as bloggers, public relations consultants, multimedia producers and social media editors. These roles add exciting new dimensions to journalism and strategic communications—including conversations and engagement with audiences and instant global publishing at the press of a button. But they also present new legal risks that most professional communicators did not envisage in the twentieth century.
The changes have been so profound that they have impacted the ways we live and organise our lives and work practices. It is only when we review some of the milestones of the internet and Web 2.0, together with the legal and regulatory changes they have prompted, that we start to appreciate the need for all professional communicators to be knowledgeable about media law.
BACKGROUND AND INTERNATIONAL CONTEXT
While the worldwide connection of computers, giving rise to the phenomenon we know as the internet, dates back to the early 1980s, it did not start to impact the lives of ordinary citizens until the mid-1990s. Melbourne’s Age newspaper became one of the first in the world to offer an online edition in 1995 (van Niekerk, 2005). Over the ensuing years, entrepreneurs started to embrace the commercial potential of the World Wide Web, just as consumers began to use it to source products and services, and students began to engage with it
as an educational tool—predominantly from their desktop computers. By the end of 2016, there were approximately 13.5 million internet subscribers in Australia (ABS, 2017).
It was not until August 2003 that the first major social networking platform, MySpace, was launched in California. It was the leading social networking site in the world from 2005 until 2008, when it was surpassed in popularity by Facebook, which by 2017 had almost two billion monthly users, including 15 million in Australia (Media Watch, 2017). In the six months to June 2016, 93 per cent of internet users aged 18 to 24 used social networking sites (ACMA, 2016: 58). Streaming of entertainment and news has also become part of daily life. In June 2016, 39 per cent of Australian adults had watched Netflix in the previous seven days, while 27 per cent had watched professional content on YouTube and 16 per cent had viewed the pay television service Foxtel (ACMA, 2016: 82). In the United States by 2017, six out of ten young adults were primarily using online streaming to watch television (Rainie, 2017). Associated with this was the remarkable uptake of the mobile telephone and other devices. The iPhone was only launched in 2007, but by 2016 more than three-quarters of Australians owned a smartphone (ACMA, 2016: 18). The iPad was born in mid2010 into a market segment that many experts thought did not exist, but by 2016 more than half of Australians used or owned a tablet device (ACMA, 2016: 55). Even more technologies are unfolding rapidly, with implications for both the media and the law, with the increasing use of drone devices for news-gathering purposes and the awe-inspiring Internet of Things (IoT), where everyday devices are all interconnected, offering novel news-gathering and delivery systems for the media but also complex legal ramifications—particularly in the realm of privacy and security law.
Governments, courts and other regulators have been forced to decide on the various rights and interests affected by these new media forms, and some of their decisions have taken private enterprise by surprise. It is a far more difficult task, however, to educate the broader community about social media legal risks. The core message is that we are all publishers in the eyes of the law when we publish a blog or post
to a social media platform, and in that role all citizens are subject to the same laws that have affected journalists and publishers for centuries. Further, the instantaneous and global nature of the media means that we may also be the subject of foreign laws of countries other than Australia—particularly if we work for a multinational corporation, or choose to travel to, or have had material we wrote downloaded in, a place where our posts might have broken the law or infringed upon someone’s rights. These laws include defamation, contempt of court, intellectual property, confidentiality, privacy, discrimination and national security.
DIGITAL DIMENSIONS
As co-author Mark Pearson explained in his book Blogging and Tweeting Without Getting Sued (Pearson, 2012), now that ordinary citizens are publishers on social media, they have been caught up in the tangle of media laws. There was the juror Joanne Fraill, who was sentenced to eight months’ imprisonment for contempt of court for friending the accused on Facebook (Pearson, 2012: 45). Then there was Andrew Farley, who had only recently finished high school in Orange, NSW, when he launched into a vicious character attack on social media against a former music teacher, making her so upset she had to take extended sick leave. The case became Australia’s first Twitter defamation case to proceed through the courts when the District Court judge awarded the teacher $105,000 in damages (Farley’s case, 2013). Sixteen-year-old Texan teenager Alison Chang flashed a ‘V’ sign in a travel snap taken by her church youth counsellor. Her image was lifted from Flickr and posted on a bus stop on the other side of the world as part of a Virgin Mobile advertising campaign, triggering an international legal action by her parents over privacy, libel, contract, negligence and copyright. Virgin had put the caption ‘Free text virgin to virgin’ right under the teenager’s image (Pearson, 2012: 1).
Social media platforms might be configured so that people think they are just corresponding with a cosy group of social media friends— all with a shared sense of humour—but the reality is that remarks can go viral very quickly. Thirty-year-old corporate communications senior
executive Justine Sacco lost her job at leading internet and media company IAC after she tweeted tasteless remarks to her 170 followers about AIDS in Africa as she was boarding a flight to Cape Town. Her comments went viral over the duration of her eleven-hour flight and she was trolled ruthlessly for months afterwards, at enormous cost to her wellbeing and her career (Ronson, 2015). In another example, upand-coming fashion designer Dawn Simorangkir was delighted when she was asked to create some clothing for Courtney Love, but ended up getting $430,000 in defamation damages from the rock celebrity after she angered Love by sending her an invoice. The troubled star had fired off scores of blog and Twitter rants, accusing the designer of being a thief, burglar, felon, drug addict, prostitute, embezzler, cocaine dealer and unfit mother. Love issued an unconditional apology as part of a mediated court settlement, only to be sued by her former lawyers over another series of tweets in which she claimed that they had taken a bribe (Courtney Love case, 2009; Pearson, 2012: 19).
There is a clear danger here for professional communicators, such as journalists and public relations practitioners, when using social media. You either need a distinct ‘firewall’ between your work and your private communications and social media accounts, or you need to treat all your communications as though they are professional posts subject to the media laws we discuss in this book, and compliant with the social media policy of your employer. As we explain very carefully in Chapter 2 and throughout this book, you need to develop strategies to be ‘mindful’ of your media practices and their legal risks in both your personal and professional communications. Social media policies, codes of conduct and social media companies’ ‘terms of use’ arise on many occasions throughout this book, including in the cases we discuss. It is just as important for you to become familiar with these documents as it is to learn about the laws governing what you can and cannot publish.
With global communication becoming so easy, we need to think about the different legal jurisdictions in which we might be subject to a criminal charge or a lawsuit. Each time you post something to your niche news blog or your social media account, you may be subject to
the laws of more than 600 nations, provinces, states and territories. Of course, you might not have 600 hits, views or re-tweets, so you might only be reaching some of them. And, of course, authorities and litigants are generally unlikely to pursue you in your home country. But you can never quite be sure where your words, sounds and images might end up and what the legal consequences might be. As professional communicators, we need to at least be aware of those risks and work to minimise them.
Sometimes the same posting can trigger separate legal actions in different places. Courts and prosecutors might be at odds over whether the laws of one state or another—or even more than one—apply to your online publication or social media posting. When lawyers talk about the ‘where’ element of an action, the legal term they use is ‘jurisdiction’. The word can have a range of legal meanings, but for our purposes it applies to where your publication has reached people, and relates to whether a particular state or nation’s laws or courts have any authority over it— and you. For most of the last century, that was all fairly straightforward. Most media organisations were focused on audiences living within fairly well defined geographical areas. Even when a television network broadcast or a newspaper circulated across a state border, the media companies and their lawyers were usually only dealing with one or two sets of laws and court systems, or were able to deal with the problem by varying content between local and interstate editions. That became more complex with the advent of truly interstate and international media organisations in the internet era—first national daily newspapers like USA Today and The Australian; then international broadcasters like CNN and BBC World; and ultimately global media titles like the Huffington Post and BuzzFeed and social media platforms like Snapchat, Facebook, Instagram and Twitter. Now media professionals have to consider the legal implications of publishing everywhere, every time you upload your words, images and audio. Despite their best efforts, legislators and judges throughout the world—with their nineteenthand twentieth-century rituals and precedents—are behind the pace of technological change, and are often finding it hard adapting to the cross-border issues triggered by Web 2.0.
The High Court of Australia became the world’s first final court of appeal to rule on the time and place of web publication in a transPacific dispute in 2002. In Dow Jones v Gutnick (Gutnick’s case), the court had to decide whether Australian businessman Joseph Gutnick could sue US-based publisher Dow Jones in his home city of Melbourne over the internet version of its weekly financial magazine Barron’s, which had 550,000 subscribers internationally, of whom only 1700 had Australia-based credit cards. The publisher argued that the article had been ‘published from’ New Jersey when it was uploaded, but the court ruled that it was actually published every time it was downloaded, read and understood anywhere throughout the world. The decision gave Gutnick the right to sue for defamation in Victoria, his place of primary residence and the location where he was best known, even though only a small proportion of the publication’s readers lived there. Gutnick’s case demonstrates just how long the arm of cyberlaw can be.
Even within Australia, separate state, territory and federal jurisdictions create complexities, because they often have different publishing laws on important matters like identification restrictions in criminal cases involving sexual crimes, juveniles and national security. For example, it is a serious offence to identify the accused in a serious sexual crime before they have been committed for trial in Queensland, the Northern Territory, or South Australia, but this is normally allowed in other jurisdictions. (Identification of the victim in such cases is banned throughout Australia.) This means journalists need a working knowledge of such laws in all jurisdictions because their online stories transcend these borders and they could face a hefty fine or perhaps a prison term by breaching such prohibitions—even if they are not aware of them.
While foreign countries cannot normally enforce their laws beyond their own borders, you might be called to account for your blogs and postings under their laws if you happen to travel there. And citizens in other countries can go to court to get an order against you in your absence, perhaps demanding that you pay a certain sum in damages for something you have published, or a declaration that what you published was false. That happened to US citizen Bill White in 2003
after he had trolled former colleague Dr Trevor Cullen and others with highly defamatory false allegations (Cullen’s case). Cullen took his action to the Supreme Court of Western Australia in his home state and won a declaratory judgment of $95,000. White did not defend the case and the damages had not been paid at the time of his death in 2004, but Cullen had at least achieved vindication of his good reputation through the courts.
Under international treaties, nations with equivalent laws to those in your own country can seek to extradite you from your homeland to face trial and punishment for serious publishing offences, like trafficking in child pornography or even breach of copyright, as happened to the New Zealand founder of Megaupload, Kim Dotcom, where the US government won an extradition order in the High Court of New Zealand over alleged copyright breaches it deemed ‘fraudulent’, along with money laundering, racketeering and wire fraud charges (Dotcom case, 2017, appeal pending). Foreign governments and lawyers might also seek information about you from internet service providers (ISPs) or social media networks based in another country—even for non-criminal actions like defamation or privacy infringement.
PROFESSIONAL COMMUNICATORS’ LEGAL RESPONSIBILITY AS ‘PUBLISHERS’
Whether you have thousands of friends on Facebook, a Twitter following of almost 40 million like US President Donald Trump (@realDonaldTrump), or just a single-figure viewing audience for your Instagram photos of a client’s media conference, in the eyes of the law you are now a ‘publisher’. Nineteenth- and twentieth-century media barons like William Randolph Hearst and Rupert Murdoch had teams of lawyers at their disposal to advise them on the risks they faced as their giant presses rolled. And they had war chests full of cash to stave off an action or appeal it to the highest courts. Today, even the largest media groups have cut back on staff as they struggle for advertising revenue and audiences. Regardless of whether you work for an internet or social media start-up, a boutique publishing house, a public relations consultancy or as a lone freelancer, you are unlikely
to have that scale of support when you find yourself in the midst of a legal dispute you could never have anticipated. You might be working as an independent contractor in the so-called ‘gig economy’ or your employer may not have the wealth to defend a lawsuit or even to raise bail if you are charged with a criminal offence over material you have published or posted.
Large media organisations traditionally paid the legal costs and damages awards for their journalists if they were sued, and gave them the services of their in-house counsel and external lawyers to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ (mainstream media) still do that today, but if you are a reporter or columnist thinking of going solo with your blog, you might weigh this up first. Another advantage of writing for a large media group is that your work is more likely to be checked by editors with some legal knowledge, and perhaps even vetted by the company’s lawyers before being published. Either way—and certainly if you are a freelancer or public relations consultant—you should investigate insuring yourself against civil damages.
All over the world, a range of online material has been the subject of legal action, or even prior restraint in the form of court orders or restrictive legislation. This has included words, symbols, still and moving images, sounds, illustrations, headlines, captions and links. Sometimes it is the very words alone that are banned (such as the identity of a victim of a sex crime), while on other occasions it is the overall coverage that creates a meaning that damages a reputation or interferes with a criminal trial—such as a photograph of an accused person, or a story that mentions their prior convictions. Specific kinds of material may be associated with particular laws, with trade mark law protecting against the unauthorised use of others’ symbols in connection which the supply of a particular product, copyright covering other uses of other creators’ words or images, and defamation laws or more ancient offences such as blasphemy, lèse majesté or sedition applying to the use of your own words. In some countries, the simple act of publishing without an official permit is banned, as discussed in the next chapter. There are also many work situations where you
might find yourself at greater legal risk. We detail these in Chapter 2 and throughout this edition.
TRUTH, ‘FAKE NEWS’ AND THE LAW
Notions of truth-telling run deep in both the media and the law. As we learn in Chapter 2, the freedom of individuals and the media to speak and publish truths underscores the foundational philosophical principle of freedom of expression in a democracy. Truth and accuracy also underpin many of the key defences to the media laws covered in this book. However, the term ‘fake news’—disinformation published on websites and social media for political purposes or to drive web traffic—and ‘post truth’—where objective facts are less influential in shaping public opinion than appeals to emotion and personal belief—were named the ‘Words of the Year’ in 2016 by the Oxford and Macquarie dictionaries (Flood, 2016; Hunt, 2017). This was because the expressions had become so popularised through their association with the 2016 US presidential campaign, where successful candidate Donald Trump had gained traction by attacking the mainstream media in his speeches and Twitter feed for its ‘fake news’ portrayal of him and his policies. Co-author of this book, Mark Pearson (2017), explored the legal implications for those who publish falsified news, and identified defamation—where fake news can damage the reputation of real people—and commercial laws like consumer law, injurious falsehood and intellectual property laws as major hazards for those who choose to peddle false information as news. In essence, while ‘fake news’ might represent a business model for unethical offshore entrepreneurs preying on gullible audiences using social media, there are numerous media laws that would stand in the way of those attempting it in Australia—and the falsity of the material would destroy possible defences.
DEFINING ‘THE PUBLIC INTEREST’
Lawyers, prosecutors and judges will also look to the social purpose served by publishing the material you have written. In some places,
that may actually form a defence, while on other occasions your motive or purpose in publishing can be your undoing. Many statutes and court rulings use the expression ‘public interest’ as an element of a defence to a range of publishing crimes and civil wrongs. In such a case, you have to convince the court that some greater public good is being served by publication, and that society benefits in some way as a result. For example, your defence to a claim that your publication should be taken down because it disclosed confidential information might be that it was in the public interest for your audience to learn of an ‘iniquity’, such as the cover-up of a possible threat to public health. Sometimes, even though the term ‘public interest’ is not used, a defence may have come from a balancing of one set of public interests against the rights of others. For example, copyright law in most countries has a range of ‘fair dealing’ or ‘fair use’ defences, which allow parts of copyright material to be re-published without permission for the purposes of education, news or critique. Such defences exist because, through its elected representatives, the community has decided that there is a greater ‘public interest’ in being educated and informed about such important matters than in protecting the intellectual property owned by the creator of the work. As many judges have pointed out, however, what is in the ‘public interest’ does not always equate with what is simply ‘interesting to the public’, and you should not be allowed carte blanche simply because your gossip is particularly saucy.
SOCIAL MEDIA AND COMMUNICATION LAW IN AUSTRALIA
Individuals and media organisations have been slower to learn the risks of social media. Several prominent Australians have found themselves in legal strife over their posts. For example, former Test cricketer David Warner was fined by Cricket Australia over a Twitter rant against two journalists (Otto, 2013). Experienced journalist ‘Human headline’ Derryn Hinch (later a Senator) was jailed for refusing to pay a $100,000 fine over charges stemming from blog and Twitter comments he made about the Melbourne murder of Irish woman Jill Meagher, in breach of a suppression order (ABC, 2013). And the former federal
