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Legal Update for Journalists - 2013 Press Freedom Report

This article was originally published in July 2013.

Melbourne Press Club committee member and senior partner at Minter Ellison, Peter Bartlett, has written a review of events in media law as part of the 2013 Walkley Press Freedom Report. Here is his summary of how media law is developing.

The media itself was very much in the news over the last 12 months. Traditional media continued to face challenges from the online environment. We saw further revelations coming out of Britain through the Leveson Inquiry. In Australia, we have had the Finkelstein report, the Convergence Review and many other developments in the media law space.

Defamation

It was not a great year for the media. Fraud squad detective Rafiq Ahmed was awarded $325,000 against Nationwide News over a story in The Sunday Telegraph that labelled him “corrupt”. Invalid pensioner Mise Petrov won damages of $350,000 against the publishers of a Macedonian language newspaper who failed to turn up to court. Milorad Trkulja, who in March 2012 was awarded $225,000 damages against Yahoo! over an internet search result that made him appear linked to Melbourne criminals, was in November awarded $200,000 against Google Inc. Andrew Holt, a man who used money from an insurance payout to his terminally ill wife to buy himself a speedboat, among other things, was awarded $4500 against TCN Channel 9 over a report on A Current Affair about his actions. And former Tasmanian policeman Andrew Gunston won $124,500 against the Hobart Mercury over stories that referred to him as “Sergeant Sleaze”.

In addition, Justice Peter Hall is presently considering the level of damages in the long-running Gacic v John Fairfax Publications matters, in which an unfavourable review by Matthew Evans was claimed to have caused the failure of the Coco Roco restaurant at Sydney’s King Street Wharf.

The Ahmed and Petrov decisions are two of the highest awards made against the media since the introduction of the Uniform Defamation Act in 2005.

There were also a number of awards against non-media defendants and various websites.

The 2005 defamation act

Sufficient time has now passed since the introduction of the Defamation Act to reflect on just how it is operating. The huge positive is that it is uniform throughout Australia, with some very minor differences.

It is clearly not perfect. It is far more pro plaintiff than we see in most major jurisdictions. The cap on damages is now around $350,000, which is a significant potential penalty for the media. Added to that would be significant legal costs. A real problem is that plaintiffs are using the multiple publication of virtually the same article in differentm mastheads and online to issue multiple actions against that company, to seek multiple caps.

There is also a problem in that the online environment does not have a statute of limitations, whereas an action against traditional media must be taken within 12 months. The procedural steps within the court process are still far too complex.

Media regulation

The communications minister, Senator Stephen Conroy, had the advantage of thorough reviews of media regulation from the Finkelstein report (February 2012), the Convergence Review (March 2012) and the UK’s Leveson report (November 2012). He announced his proposals for changes to Australia’s media regulation in mid-March 2013, and gave the federal parliament a week to pass them or he’d take them off the table.

The bills sought to establish the office of the Public Interest Media Advocate, a government appointee, who could declare an organisation as a news media self-regulation body (eg the Australia Press Council) and also take away its accreditation. If media companies did not become a member of the declared organisation by a specified date, they would no longer be exempt from the Privacy Act.

The journalism exemption was inserted into the Privacy Act in 2001 to recognise the essential role that free journalism plays in a healthy democracy, and to achieve a balance between the public interest in allowing a free flow of information to the public through the media and an individual’s right to privacy. Removing the exemption would severely impact the way news journalists gather and report stories. The Australian Law Reform Commission had looked at the media exemption in 2008 and supported keeping the exemption.

The media collect, use and disclose to the public large amounts of personal information (including photographs) each day. Without the exemption:

•the media would be required to notify individuals about all personal information collected

•the media could not collect sensitive information, such as information relating to health, racial or ethnic origin, political opinions, sexual preference or criminal record without the individual’s consent

•individuals would have a right to correct information, and

•individuals could complain to the Privacy Commissioner.

The media’s position is that Australia does not need statutory intervention. The media point out that the Press Council works pretty well. The media has doubled funding to the Australian Press Council (APC) and is now contractually bound to publish the APC findings and consult on placement and prominence.

Online publishers Nine MSN and Crikey have now joined the Press Council. All good developments. That said, it is very disappointing that the West Australian pulled out of the Press Council.

It has to be recognised that Australia does not have evidence of significant breaches of ethics such as Leveson examined in the UK. The UK has some 5000 potential phone-hacking victims, 300 phone-hacking claims, millions of pounds paid in compensation and some 50 people charged.

Privacy

Mark Dreyfus, in his first week as federal attorney-general,raised doubts as to whether we should have a statutory tort of privacy.

Yet the communications minister has yet again referred this issue to the Australian Law Reform Commission (ALRC). The ALRC has previously looked at this question in 1979, 1983 and 2008.

You would be a brave person if you tried to guess what the ALRC will say this time. In 1979 it recommended some privacy protection but it sought to strike a balance between privacy and other competing interests. It noted that “the price, in terms of freedom of speech, must not be excessive.”

It concluded that “the price of a general right of privacy might exceed the benefits gained”. In 1983 the ALRC recommended, in a further report, that a general tort of invasion of privacy should not be introduced in Australia because “such a tort would be too vague and nebulous”.

Then in 2008 the ALRC did an about-face and recommended the introduction of a surprisingly wide statutory cause of action for serious invasion of privacy. In an extraordinary move, it did not include a public interest defence.

The ALRC is likely to produce another report that will gather dust. It should take note of the report by the UK Joint Committee on Privacy and Injunctions. The report argues strongly against the introduction of a statutory tort. It recommends that the area of privacy should be left to the courts to develop. According to the committee, “the concepts of privacy and the public interest are not set in stone and evolve over time.” They concluded that “the current approach, where judges balance the evidence and make a judgment on a case by case basis, provides the best mechanism for balancing privacy and freedom of speech rights.”

Anti-discrimination

The government released a bill that extended the definition of discrimination to include anything which “offends, insults and humiliates”. After significant criticism of the foreshadowed amendment, the then attorney-general Nicola Roxon confirmed that the government would review the bill.

While we all accept that we need anti-discrimination legislation, it has to be acknowledged that it creates issues for the media. We need a system where the regulator should dismiss frivolous complaints without requiring the media to go to great lengths to explain why they are frivolous, to be required to attend mediation and then face court. It’s a significant expense if the complaint is frivolous.

Whistleblowers

Legislation to protect whistleblowers has been introduced into federal parliament with the Public Interest Disclosure Bill. This is an initiative of the new attorney-general, Mark Dreyfus, who in 2009 chaired the parliamentary inquiry into whistleblowing. It is a significant step in the right direction, although critics have pointed out that in the legislation’s current form, public servants blowing the whistle on corrupt politicians or anything to do with intelligence agencies would not be protected.

Disclosure of sources

The federal government and the state governments of New South Wales, Victoria, Western Australia and the Australian Capital Territory are to be commended for introducing shield laws. However, it is a pity that the legislation is not uniform. Journalists may still be ordered to disclose sources where it is in the public interest or in the interest of justice to do so.

Online media is covered to varying degrees. Whether people in this environment are defined as “journalists” and so can rely on a journalist’s privilege is a question that is sure to arise.

There is an increasing number of applications for journalists to disclose sources. We have seen one application in the Federal Court for a journalist to disclose who gave them the applicant’s mobile phone number. The application failed.

Two of Australia’s top investigative reporters, Nick McKenzie and Richard Baker, are facing two applications to disclose sources. Justice Lucy McCallum ordered them to disclose sources in the Helen Liu case in New South Wales. The decision is on appeal.

More recently they were ordered into the witness box in Victoria in the Securency committal. The Victorian Court of Appeal overturned the decision. If the Liu appeal fails they will get into the witness box and, in line with the Media Alliance’s Journalist Code of Ethics, will decline to reveal their sources. They could then face contempt proceedings and jail – this for doing their job.

Then we have Gina Rinehart seeking disclosure of sources from Adele Ferguson from Fairfax Media, exposing Ferguson to criminal sanctions for contempt simply for doing her job well.

In the Ashby v Commonwealth of Australia (No. 2), former federal speaker Peter Slipper issued a summons against Steve Lewis from News Limited, seeking to prove whether James Ashby had disclosed material to Lewis. Lewis sought to avoid being required to disclose his sources by relying on the Commonwealth Act. His solicitor filed an affidavit noting that Lewis had promised confidentiality to the source and that if Lewis was compelled to produce the document sought, it would disclose the identity of his source. The application was adjourned with no final decision made by the judge at the time of publication.

Suppression orders

Most judges accept the observation of Justice Michael McHugh in Fairfax v Police Tribunal New South Wales: “The publication of fair and accurate reports of court proceedings is … vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice.”

The problem is that too many judges, especially in Victoria, then go on to say “but” and suppress reporting of the case or some aspect of it.

This is a continuing problem. Gina Rinehart made multiple applications to suppress the details of her family trust battle. The applications went to the NSW Court of Appeal and even to the High Court. The Court of Appeal (Chief Justice Tom Bathurst and Justice Ruth McColl) held that suppression orders should only be made in exceptional circumstances.

The media opposed Rinehart’s application and, initially, were the only party objecting to the suppression orders. This highlights the important role the media plays in maintaining the free flow of information, but it also illustrates the financial burden such court action places on media businesses. In the future, will media businesses be able to afford to attend court to oppose such applications?

While the decisions of the various courts detailed here emphasise the fundamental importance of open justice, we still see far too many suppression orders issued.

Court reporting

It was rather disturbing to see the NSW government looking at banning tweeting, smartphones and tablets from NSW courts. What
happens in the court should be up to the presiding judge.

Super-injunctions

These injunctions have become notorious in Britain where celebrities have obtained injunctions to stop the media publishing items, and even an order that the media cannot publish the fact that an injunction had been granted.

Two such injunctions were granted in December against Fairfax Media. The first related to defamation. The judge noted that to hold an injunction for defamation, the plaintiff needs to establish a prima facie case of defamation, that damages would be an inadequate remedy and that the balance of convenience favours the granting of the injunction. The judge recognised the public interest in free speech.

In light of this, it is difficult to obtain an injunction for defamation. That injunction has been lifted.

The second, brought by mining entrepreneur Nathan Tinkler, claimed breach of confidentiality and defamation. This is a greater challenge. It was lifted, but with some limits on Fairfax.

These injunctions are a significant threat to freedom of speech.

It has been suggested that Nathan Tinkler sought his injunction against The Sydney Morning Herald in Victoria (where he does not live) because the Victorian Courts have a record of ordering far more suppression orders than other states. Who would know if that is, in fact, the reason?

Online historical articles

Britain’s Law Commission has issued a consultation paper looking at the risk of jurors accessing the internet during a trial and if stronger powers should be given to a court to order the media to take down historical articles.

This is one of the areas where the Australian courts and parliament are ahead of the UK. The NSW Court of Appeal in Ibrahim and the Victorian Court of Appeal in Mokbel have set the ground rules.

I have made a submission to the Commission pointing out the Australian position:

i. Historical archived articles are not displayed on the face of the newspaper website as available and contemporaneous material

ii. They lie passively in the newspaper electronic archive until they are accesse

iii. They need a positive act of searching by a third party

iv. A third party would be more likely to search using a recognised search engine such as Google or Yahoo!, rather than going directly
to a newspaper site

v. There should be proper instruction to the jurors by the presiding judge

vi. Many Australian jurisdictions have a statutory provision making it an offence for a juror to access the internet researching an issue relevant to a trial that the juror is sitting in

vii. Jurors should be referred to that statutory provision, and

viii. The New South Wales Court of Appeal in Ibrahim and the Victorian Court of Appeal in Mokbel made it clear that courts should not make orders that they cannot enforce (where the online publisher is outside the jurisdiction) or that are ineffective (where local media take down the articles but there are still many online from foreign websites).

In Victoria, the court compared searching on the internet with searching in a library and stated that “it has never been suggested that a suppression (non-publication) order should be made requiring libraries that held newspaper articles to embargo those articles or references in some other way, stopping the searchers from having access to them.”

In New South Wales, in the Ibrahim decision, the court said that “as a matter of principle, to make the order effective, material must either be removed from any website globally to which access can be had from New South Wales or there must be an ability to prevent access by people living in New South Wales. The evidence did not disclose that either of these was a realistic possibility.”

Online publications

As a general rule, the courts in any country have jurisdiction where a particular article was accessed within that country. Often, while it might be reasonably safe to publish an article in hard copy in Australia as the potential plaintiff is unlikely to come to Australia to sue, there are added dangers in publishing online. A relatively recent example is the publication by Fairfax of a WikiLeaks article relevant to the president of Indonesia. As a result, a claim was lodged in Jakarta claiming damages of US$1 billion.

The action was a class action taken on behalf of the entire population of Indonesia. Fairfax did not need to defend the merits of the claim as it was able to have the claim struck out as it was not a proper class action known to Indonesian law.

The case does, however, highlight the added dangers in publishing online.

Contempt

A quiet year, although there were cases against the Hobart Mercury (fined $10,000) and the Sunday Tasmanian (fined $30,000) for disclosing the identity of rape victims.

Conclusion

It has been a challenging year for the media and for its advisers.

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