13: Journalism: the legals
Journalism never admits that nothing much is happening.
Media law applies as much to bloggers and those not paid for their work as it applies to professional journalists and media organisations.
Understanding the laws around journalism allow us to assert our rights while keeping the lawyers from our doorstep.
I HAVE TO START by saying that what follow is not legal advice. It is simply my understanding of law as a non-lawyer. For this reason that I quote from reputable sources.
The law of copyright is covered separately in a following chapter.
Like any other type of law, media law in Australia is complicated. It acknowledges our tradition of freedom of speech while stipulating several limitations. Here we look at the main media laws that could affect citizen journalists:
- inciting racial, ethnic or religious hatred and violence
- use of copyright materials (see chapter on copyright)
- bringing someone into disrepute and lowering their reputation among their peers; this is defamation and it could result in court action
- identifying certain people working in national security organisations.
Intercepting — bugging — phones, wifi and online systems to listen to and/or record communications unknown to the person being eavesdropped is illegal under the Telecommunications (Interception and Access) Act 1979.
It is unlawful to publish information obtained in this way. There are exemptions for talkback radio.
Ask if the interviewee minds an interview being recorded when conducting an interview via phone or VoIP (Voice over Internet Protocol, the technology used for video and audio conversations on Zoom, Skype and similar services). Recording an interview allows accurate quotes to be made, helps clarify what was said and documents the interview.
A working definition of defamation is publishing or saying something that lowers the reputation of a person among their peers. This includes statements made online, including on social media.
The defamation must have been communicated by some means and must have had a negative affect on the reputation of another person.
Under Australia’s Uniform Defamation Law some organisations can take legal action where they claim to have been defamed:
- corporations with ten or more employees cannot take defamation cases to court; The News Report, a resources for media and journalists, says: “be warned that individuals or groups of individuals employed by or associated with that corporation — such as company directors, CEOs or managers — can still sue if they are identified by the publication”.
- not-for-profit organisations can sue for defamation, no matter how many employees or members they have.
Defamation must demonstrate that the allegedly-defamatory item has been communicated to a person or people beyond the person alleging defamation and the person alleged to have made the defamation, and that it is defamatory.
In law, statements may not be defamatory where they can be demonstrated to be:
- substantially true
- opinion or comment based on authentic sources
- a fair report of proceedings including statements made at public meetings
- unintentionally distributed
- in the public interest such as book, film and other reviews.
Writing in Australian Street Photography Legal Issues, photographer and solicitor, Andrew Nemeth, writes of defamation law:
Until the introduction of nationally uniform defamation laws on January 1st 2006, even lawyers considered Defo a hopeless quagmire.
Thankfully the new NSW Defamation Act 2005 (and its state equivalents) has — finally — swept away the judicial waffle and archaic dross.
The threat of defamation proceedings has been used in attempts to silence or censor media coverage. As citizen journalists we need ensure what we write about someone, even on social media, is true and in the public interest.
Offence will happen unintentionally simply by choosing to write, photograph or video some topic because the offended doesn’t like that topic or our approach to it. It can also be alleged through our use of some term they prefer not be used and the way in which we write about or report something.
Claims of offence, especially when stated in an assertive manner, can be verbal bullying intended to shut down discussion.
Individuals and groups in society are easily offended these days. Claims of offence are often defensive moves about deflecting an argument by painting the offended as victim and to discredit the alleged offender.
Giving offence other than that prescribed in the Racial Discrimination Act 1975 and state defamation laws (which are to do with degrading the reputation of a person among their peers) is not a crime in Australia because of the assumption of the democratic principle of freedom of speech.
This I state as a principle and not a licence for citizen journalists to go out and vilify a person, ethnicity, religion, gender or other social group.
Section 18C of the Racial Discrimination Act 1975 prohibits offending, insulting, humiliating or intimidating a person “of a certain race, colour or national or ethnic origin”.
Wikipedia has a clear explanation of the Act:
The Racial Discrimination Act 1975 forbids hate speech on several grounds. The Act makes it ‘unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person, or of some or all of the people in the group.
The intention of the Act is to maintain civility in public life. Exemptions to the Act include:
- artistic works
- academic and scientific works
- fair reporting and fair comment; this protects journalists reporting acts of vilification; the reportage must not appear to endorse the vilification
- reviews of books, videos and other media products that contain vilification.
The Act does not inhibit public or private discussion of matters of ethnicity, skin colour, nationality or other things, just the denigration of people.
In regard to national security, the ASIO Act prevents citizens, including journalists, from disclosing the identity of employees of the Australian Security Intelligence Agency (ASIO) without written authorisation by the director general.
There is a similar provision for the Australian Secret Intelligence Service.
Some authorities can eavesdrop. According to the Electronic Frontiers Australia:
In the general atmosphere of fear created partly by terrorist attacks and partly by the new laws (to do with terrorism) themselves, laws restricting electronic interception were amended so police and intelligence agencies could eavesdrop on private conversations and tap into personal communications more easily.
The anti-terrorism legislation overrides defences of privileged information and effectively strips away whatever limited shield law protection journalists enjoy to protect their sources, so that contact with terrorists could expose you to serious risk of prosecution in what you do or write.
Developments like this has led to journalists and others who wish to keep their communications confidential making use of messaging apps that encrypt messages and conversations and self-delete after reading, such as Snapchat, Telegram and StealthChat. These retain no history of communications. In 2016, the use of such apps by federal politicians came in for scrutiny.
This covers the main legal aspects of what we do as responsible citizen journalists.