Round up of Media Law in 2011: the view from Australia – Yvonne Kux

31 01 2012

It was a big year for media and the law. Rupert Murdoch’s tacky tabloid, News of the World, closed after revelations of widespread phone hacking. The UK government released a draft Libel Reform Bill. Australia came closer to a tort of privacy, defamation trials dwindled, documentary cameras entered Australian criminal courts and everyone had something to say about the uniform Defamation Act.

The former NSW Minister for Transport, David Campbell (pictured) learnt the hard way that there is no such thing as a politician’s private life. In February, the Australian Communications and Media Authority (ACMA) concluded it was in the public interest for Seven Nightly News to show him leaving a gay sauna.

Just before Christmas, ACMA introduced a shiny new set of privacy guidelines for broadcasters.

In March, the UK Press Complaints Commission decided that republishing a person’s “tweets” couldn’t possibly be private, given the tweeter’s (usually) hundreds of “approved” followers.

Meanwhile, the Lord Chief Justice of England announced guidelines for twittering in court.

Max Mosley, the former Formula One boss who was falsely portrayed as a participant in a Nazi sex orgy by News of the World, failed to convince the Court of Human Rights in Strasbourg that he should have been forewarned of its publication.

Across the Atlantic, California introduced tough new anti-paparazzi laws aimed at protecting its ever-burgeoning ranks of celebrities.

Back in Australia, various forces continued their push for a tort of privacy, as the Commonwealth called for submissions.

An updated edition of Patrick George’s Defamation Law in Australia included twice as many pages on privacy.

Defamation

Defamation actions that went all the way to trial were a rarity in Australia – at least against media defendants.

Plaintiffs appeared to accept that the cap on damages (currently indexed at Aus$311,000) and an historical award high of just Aus$240,000 since the 2005 Act came into effect were not great incentives in the pursuit of justice.

Media defendants appeared more than willing to settle the bulk of actions.

Juries in defamation trials got the thumbs up from the NSW Court of Appeal after a clumsy attempt by District Court Judge Len Levy to get rid of them.

The NSW Department of the Attorney General and Justice conducted a five-yearly review of the uniform Defamation Act (2005) and received plenty of suggestions for improvement – including that justice would be better served without juries, if companies and the dead could sue and if the cap on damages was removed.

The NSW Court of Appeal put to an end to the long-held NSW practice of pleading back the plaintiff’s imputations as part of the contextual truth defence, saying it was “unavailable” under the current Act.

The UK Secretary of State for Justice, Kenneth Clarke, released his government’s draft Libel Reform Bill, to mixed response.

Court

Documentary cameras were given access to Australia’s criminal courts for the first time – and produced a gripping ABC series On Trial.

Other forms of access proved more vexing.

After the NSW Court Suppression and Non-Publication Orders Act 2010 took effect in mid-2011, there was a noticeable increase in the daily stream of suppression orders from the Supreme Court.

Other state Attorneys General are contemplating a national roll out of the Act.

The Court Information Act 2010 regulating access to court documents has still not come into force in NSW.

Inquiries

The media world was alive with the sound of inquiries.

The UK’s phone hacking scandal grabbed public and media attention and resulted in the current judicial inquiry chaired by Lord Justice Leveson.

News International’s Rupert Murdoch told a UK parliamentary inquiry he was “shocked”, “appalled” and “humbled” by revelations of phone hacking at NoW.

His son and putative heir James concurred, telling the same inquiry he knew nothing of phone hacking and certainly didn’t try to cover it up.

Murdoch senior’s “tiger wife”, Wendi Deng, became an instant YouTube celebrity after whacking a man who attempted to throw a foam pie at the mogul during his appearance before the House of Commons Select Committee.

The UK phone hacking scandal’s tentacles stretched all the way to Australia, where News Limited CEO John Hartigan (since resigned) was confident nothing was amiss.

Unconvinced, the Australian government announced an independent inquiry into the print media, to be chaired by retired Federal Court Judge Ray Finkelstein QC.  It drew a robust number of submissions.

Journalist’s Shield Laws

NSW adopted the Commonwealth’s new journalists’ shield laws, the Evidence Amendment (Journalists’ Privilege) Bill 2011, which purports to strengthen the protections available to journalists and their sources.

Bloggers and tweeters remain at large, and unprotected.

Whistleblowers

2011 came and went without the Commonwealth producing its long-awaited whistleblowing legislation for federal public servants.

It announced a commitment to public interest disclosure in March 2010.

Meanwhile, Western Australia introduced public interest disclosure legislation, which is largely a copy of the Queensland provisions.

The Western Australia legislation seeks to link whistleblowing reform with protection of journalists’ sources – but only if journalists adhere to high standards of professional ethics.

The only other state with legislation to manage disclosure about wrongdoing is NSW.

Freedom of Information

Queensland also set the standard for freedom of information reform with its 2009 Right to Information Act.

NSW, Tasmania and the Commonwealth were not far behind with FOI reforms.

Among other things, the 2010 Commonwealth legislation established the Office of the Australian Information Commissioner.

Fini

Jeremy Griffith v ABC, possibly Australia’s longest running defamation action, stuttered to an end in the High Court, when the self-proclaimed prophet was refused special leave.

The final word went to Chief Justice Robert French:

FRENCH CJ: This all happened 16 years ago.

MR SMARK: Yes, it did.

FRENCH CJ: It is amazing anybody cares.

This report originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.


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