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Australia-Press-Freedom-Chilling-Effect-Meaa.Pdf 2 3 CONTENTS FOREWORD ebruary 28 2017 is an extraordinary example of are made in astonishing numbers compared to the Australian lawmakers’ confused approach to press relative lack of orders needed in other jurisdictions. 3 FOREWORD 49 CONFIDENTIAL SOURCES freedom. On that day, a parliamentary committee, Despite Victoria trying to reform the system in 2013, Paul Murphy F after inquiring into “freedom of speech” over nearly the problem is as out of control as ever. MEAA believes Shield laws four months, admitted that it was unable come up with reform is needed not just at a state level but also a definitive plan on what to do about section 18C of nationally so that the media’s responsibility to report on 4 IN THEIR OWN WORDS The threats to journalist sources Racial Discrimination Act. Instead, it offered no less than the courts in the public interest is maintained without are very real six options – including doing nothing. judges acting as editors, as censors, and even – way outside their responsibilities – as determiners of what is 5 THE LAW Joseph M. Fernandez On the same day, the Director-General of Asio told in the public interest. another parliamentary committee that his agency is The year in Australian media law Whistleblower protection spying on journalists and media organisations using Media organisations are also not helpful even when Peter Bartlett and Sam White Journalist Information Warrants to secretly trawl it’s in their own best interest. The sheer scale of Whistleblowers need more through their telecommunications data in the hunt for redundancies that have taken, and continue to take, 8 DEFAMATION protection Adele Ferguson whistleblowers and confidential sources. place at leading media houses demonstrates that media outlets are still engaging in the time-worn failed exercise Bully for you, chilly for me 58 THE INDUSTRY Such is the nature of press freedom’s political of slashing staff in order to achieve cost-savings rather battleground in Australia: lots of talk about freedom of than investing in smarter solutions. There is a limit to Michael Bachelard speech in the midst of an actual legislated assault on more being done with less. Paul Murphy CEO, MEAA Gender press freedom. Social media and defamation law Audiences will not invest with time or money in pose threats to free speech Redundancies For it is the parliament that created Journalist media that does not deliver consistent, high quality David Rolph Information Warrants, as part of the introduction of journalism. Removing layers and layers of editorial 65 THE ASIA-PACIFIC mandatory two-year metadata retention. The parliament staff may provide a short-term redress for the bottom A defamation law case study has now legitimatised the government secretly line but the damage to the masthead and to audience’s using metadata to pursue whistleblowers who reveal expectations is long-term. Virginia Peters Press freedom in New Zealand government stuff-ups. Colin Peacock But more insidious, is the gender gap that exists in The “freedom of speech” inquiry The parliament has also introduced prison terms for media outlets. As Women in Media, a MEAA initiative, Press freedom in the Asia-Pacific reporting on Asio special intelligence operations. A discovered in its Mates Over Merit report, there is an 16 NATIONAL SECURITY LAWS Alexandra Hearne, International subsequent inquiry recommended modest changes albeit entrenched gender pay gap of 23.3 per cent between the Federation of Journalists not removing the prison terms. It was believed these pay of men and women working in Australian media. 2017 AUSTRALIAN PRESS changes would “protect” journalists. But the lawmakers’ Section 35P Asia-Pacific FREEDOM REPORT confused approach to press freedom struck again. In the survey produced for the report, almost half Thanks to a Senator’s suggestion, this “protection” with of the respondents (48%) said they’d experienced Journalist Information Warrants The Media Safety and its prison term penalties is to be extended to journalists intimidation, abuse or sexual harassment in the Asio spies on journalists Solidarity Fund reporting on Australian Federal Police operations. workplace. A quarter of the women who’d taken maternity leave said they’d been discriminated against Suppression orders 72 THE FUTURE While lawmakers’ efforts have focussed on criminalising upon return to work. legitimate public interest journalism and going after A staggering 41 per cent of women working in the whistleblowers, long-standing press freedom concerns media say they have been harassed, bullied or trolled Disorder in the court The way forward continue to be ignored. on social media, while engaging with audiences; and Editor: Mike Dobbie Padraic Murphy Mike Dobbie several were silenced, or changed career. Only 16 per Thanks to: There is a dire need to reform of Australia’s uniform cent of respondents were aware of their employer’s Michael Bachelard 34 SAFETY 74 REFERENCES national defamation legislation that allows people to strategies to deal with threats. Peter Bartlett be paid tens of thousands of dollars damages for hurt Paul Farrell Adele Ferguson Impunity feelings without ever having to demonstrate they have There is clearly a problem that media organisations must Joseph M. Fernandez a reputation, let alone one that has been damaged. The address – for there can be no press freedom if journalists Alexandra Hearne regime was meant to be reviewed in 2011. That review exist in conditions of corruption, poverty or fear. Padraic Murphy 40 GOVERNMENT was revived in 2015. It is still stalled. Colin Peacock Finally, our lawmakers and their law-enforcement Virginia Peters Asylum seekers Meanwhile, Queensland, South Australia and the agencies have been woeful in ensuring justice for David Rolph Northern Territory continue to refuse to introduce shield murdered Australian journalists. Nine of our colleagues Peter Timmins Government muddles its way Sam White laws for journalists who face jail terms for refusing to have been killed and those responsible for their deaths through to hide details of boat name their confidential sources (as their ethics requires). are getting away with their murder. There is ample MEAA thanks all the contributors turnbacks Paul Farrell In the era of borderless publishing and jurisdiction evidence for investigations and for the laying of charges. to this report. shopping, it is only a matter of time before someone Design by Louise Summerton, Freedom of Information decides to use the courts to pursue a journalist who will The champions of press freedom need to do more than Magnesium Media then cop a fine, a jail term or both plus a conviction cloak themselves in glib phrases. Genuine roll back of The quest for open, transparent for contempt of court for maintaining their ethical laws that undermine press freedom is vital if genuine Approved by Paul Murphy, Media, Entertainment & Arts government Peter Timmins obligation. democracy in Australia is to function. Alliance 245 Chalmers Street, Media regulation The area of court reporting is becomingly increasingly Paul Murphy Redfern, NSW 2016 frustrating for journalists in Victoria and South Australia CEO, MEAA with the ongoing over-use of suppression orders that 4 5 IN THEIR OWN WORDS THE LAW The year in Australian media law International Federation of Journalists – Resources Minister Matt Canavan, By Peter Bartlett and Sam White “There can be no press freedom if journalists exist in December 22, 2016 – “Those reports have been conditions of corruption, poverty or fear.” nothing but fake news.” Defamation • Stephen Dank v Nationwide News – Dank was David Kaye, UN special rapporteur on the President-Elect Donald Trump, A Uniform Defamation Law came into operation in awarded $0 damages, NSW. promotion and protection of the right to January 11, 2017 – “You are fake news.” 2005 after some 30 years of lobbying. The law was a freedom of opinion and expression, October total compromise, needing the agreement of every • Graeme Cowper v Fairfax Media; Cowper v ABC – 13, 2015 – “It’s very common for a state to say ‘this Queensland Senator Pauline Hanson, state and territory and the Commonwealth. Cowper, the former NAB financial adviser, withdrew is national security and therefore there’s no right January 18, 2017 – “That probably is fake news.” after a two week trial, NSW. to either publish this information or disclose it’. So It only came about because every state and territory both the person who discloses the information and Treasurer Scott Morrison, February 6, 2017 had Labor governments and the Commonwealth had • Don Voelte v ABC – former CEO of 7 Group the source can be subject to all sorts of sanctions, – “I will leave the fake news to others.” a strong and determined Liberal Attorney-General. Holdings’s defamation claim failed before a jury. sometimes criminal. Those are having a real chilling effect, certainly on sources, and probably to a certain Turkey’s President Recep Tayyip Erdogan, After some 12 years of operation, it is clear that the • Nicholas Di Girolamo v Fairfax Media – Di Girolamo extent on the journalists as well.” February 16, 2017 – “The press freedom in Turkey Defamation Act is in urgent need of amendments. (lawyer to the Obeids) withdrew his action, NSW. is more than it is in most Western countries.” Again, we see most state and territory governments US presidential candidate Donald Trump, with Labor governments. Can we reach consensus as • Poniatowska v Channel 7 Sydney – Today Tonight February 26, 2016 – “I’ll tell you what, I think the President Donald Trump, February 16, 2017 – to the reform we badly need? succeeded on its pleaded defences (truth and fair media is among the most dishonest groups of people “Tomorrow they’ll say Donald Trump rants and comment). The plaintiff had initially been found I’ve ever met. They’re terrible… I’m going to open up raves at the press.
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