Australian Media Law Round-Up

By Peter Bartlett and Veronica Scott*

Media Reform

While the UK had the Leveson Report, Australia had the Finkelstein Report[1] and the Convergence Review.[2]  In response to these two reports, the Australian Government introduced a package of legislation in March this year to establish what it described as a ‘press standards model’ of self-regulation for print and on-line news media and to create the statutory office of Public Interest Media Advocate, who would have had unprecedented power over the Media.  The Advocate was the idea of the Government.  The position was not recommended in any report.  The Chief Executive of Fairfax Media observed that “for the first time in Australian history outside of wartime, there will be political oversight over the conduct of journalism in this country.”

The legislation was not passed.

The Uniform Defamation Act (2005)

Sufficient time has passed since the introduction of the uniform Defamation Act to reflect on its operation. A major advantage of the legislation is that it remains uniform throughout Australia, with some very minor differences.  There are however criticisms of the legislation.

Firstly, the laws are significantly more ‘pro-plaintiff’ than in many other jurisdictions.  Secondly, the cap on damages sits at around AUD$350,000, a significant potential penalty for any media institution when also considering legal costs.  Thirdly, plaintiffs are using the multiple publication of the same article (or a slight variant) published under different mastheads and online to issue multiple actions against that company, and hence seek multiple caps for basically the same article.  Furthermore, the online environment does not have a statute of limitations; unlike an action against traditional media which must be taken within 12 months.  Also, the procedural steps within the court process remain too complex and take too long.

It is questionable what impact the offer of amends procedure in the Act has had on resolving claims.

Internet Service Providers

On 12 November 2012, Google Inc was ordered to pay Milorad (Michael) Trkulja AUD$200,000 after he successfully claimed that Google Inc had published material in Google Images and Google Search Results that conveyed defamatory imputations about him. Trkulja v Google Inc and Google Australia Pty Ltd [2012] VSC 533.  After Google applied non-obstante to have the jury verdict dismissed, Beach J held the jury was entitled to return a verdict; expressing the view that Google Inc was liable for publication.  Mr Trkulja’s lawyers had written to Google Inc to ask it to remove the material. Mr Trkulja’s alternative claim to Google Inc’s general liability for publishing everything on its search results, was therefore that Google Inc was liable for the period from notification. However Beach J found it was open to the jury to find Google Inc liable as publisher of the material without the need for it to have had prior notice. This decision follows an award of AUD$225,00 against Yahoo!7 in March 2012 in favour of Mr Trkulja regarding Internet search results that suggested he was  linked to Melbourne criminals.

Beach J’s decision will impact search engines, ISPs and other online content providers throughout the world, through which content can be downloaded in Australia.  While it clearly applies to search engines, Beach J suggests that even a purely passive ISP could be found to be a publisher under Australian defamation law.  The decision could therefore reach to any online program developers, or App developers, that develop software with the intention of generating new material, and even to an ISP providing an internet service to a website.

Privacy

The Australian Media and Communications Authority (ACMA) is investigating the prank telephone call made by DJs at one of Southern Cross Austereo’s radio stations to the King Edward VII hospital in London, where the Duchess of Cambridge was being treated for morning sickness. The nurse who put the call through took her own life following the incident. ACMA is considering issues such as whether the radio station Today FM, in broadcasting the telephone call, breached the condition of its licence that a licensee must not use its broadcasting service in the commission of an offence. The alleged offence is a breach of the Surveillance Devices Act of New South Wales by publishing the telephone recording of a private conversation. Southern Cross has applied to the Federal Court to stop ACMA making a finding that Today FM has breached its licence, claiming that ACMA has no power to investigate a breach of the Surveillance Devices Act. These proceedings continue.

Federal Attorney-General Mark Dreyfus QC has now appointed Professor Barbara McDonald to head the Australian Law Reform Commission’s (ALRC) inquiry into Serious Invasions of Privacy in the Digital Era. The inquiry will consider whether it would be appropriate to introduce a statutory cause of action for serious breaches of privacy.  But President of the ALRC, Professor Rosalind Croucher, explains that it will also “consider innovative ways in which the law may reduce serious invasions of privacy in the context of an increasingly pervasive digital environment.”

The question of a statutory cause of action for serious breaches of privacy has been the subject of numerous State and Federal inquiries including ALRC inquiries in 1979, 1983 and 2008.

In 1979, the ALRC recommended some privacy protection, but 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’, concluding that the ‘price of a general right of privacy might exceed the benefits gained.’

In 1983, the ALRC also recommended a general tort of invasion of privacy should not be introduced in Australia because such a tort would be ‘too vague and nebulous’.

However in 2008, the ALRC did recommend a statutory tort. But, while finding there was an ongoing need for the media exemption in Australia’s data protection laws in the Privacy Act 1988, most surprisingly, the ALRC’s recommendation did not include a public interest defence.

It will be of interest to see how this inquiry differs from those in the past.  A consultation paper is expected by September, with the final report required by 30 June 2014.

Whistleblowers

Legislation to protect whistleblowers was passed in July by the Federal Parliament in the form of the Public Interest Disclosure Act 2012.[3]  This was an initiative of the Attorney-General, Mark Dreyfus QC, who in 2009 chaired the Parliamentary inquiry into whistleblowing and is aimed at improving the Government’s credentials on free speech. While the Act is a step in the right direction, it has been criticised for not protecting public servants blowing the whistle on corrupt politicians or intelligence agencies.

Shield Laws

The Federal Government and the State and Territory Governments of New South Wales, Victoria, Western Australia and the Australian Capital Territory, have introduced shield laws through their respective Evidence Acts.  While these laws are not uniform, they represent a significant increase in Australia’s protection of freedom of speech and a journalist’s right to protect the confidentiality of their sources.

Earlier this year, Gina Reinhardt’s company Hancock Prospecting issued subpoenas against journalist Steve Pennells and his employer Western Australian Newspapers (WAN) in the Western Australian Supreme Court for the production of documents in an on-going arbitration; a claim requiring the disclosure of confidential sources. It is one of the first opportunities a court has had to consider the new protections.  Justice Janine Pritchard delivered her judgment on 6 August 2013.  Justice Pritchard found the legislation applied so that a journalist could not be compelled to give evidence identifying confidential sources, accepting that an order of disclosure would ‘constitute a breach of a fundamental ethical obligation’.

Two of Australia’s most respected investigative reporters, Nick McKenzie and Richard Baker, of Fairfax Media, are facing two applications to disclose sources. Whilst Justice Lucy McCallum ordered them to disclose sources in the News South Wales Supreme Court, the decision is on appeal to the High Court of Australia.

Hancock Prospecting is also seeking disclosure of sources from Adele Ferguson of Fairfax Media, an application that will no doubt have implications for source confidentiality.

While Justice Pritchard’s judgment in Western Australia is most certainly a victory for freedom of speech, we wait to see what impact her judgment has upon other jurisdictions.  In the meantime, there have been calls for uniform shield laws, with the Attorney General Mark Dreyfus QC announcing in June that that the Australian Government would pursue uniform national protection for journalists and their sources.

Non-Publication Orders

Far too many non-publication orders are made in Australia, especially in the state of Victoria.  For example, Gina Rinehart (Australia’s richest person) 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.

The large, and in some cases complex, number of orders made over the last few years in the proceedings against Securency International and Note Printing Australia and some of their former executives in relation to foreign bribery is another example.

Following similar legislation passed by the New South Wales and the Federal Parliaments in recent years, the Victorian Government recently introduced the Open Courts Bill 2013.  This is an attempt to strengthen and promote open justice in Victoria’s courts by making it clear the limited basis on and duration for which non-publication orders can be granted.  The Bill also confirm that the media can appear and be heard on applications for such orders and to review them. However this does not resolve a major dilemma for the media, in that it must balance the tension between maintaining the free flow of information on one hand and the financial burden of court action on the other.

Injunctions and Super-injunctions

There are an increasing number of examples of business interests seeking to use injunctions to restrain the publication of damaging information on the basis of breach of confidence.  Gold Coast developer Sunland successfully obtained an ex parte injunction banning Fairfax Media from reporting the details of an agreement struck with a witness in relation to court proceedings the company had brought over a Dubai property deal.

Another ex parte injunction, which has since been lifted, related partially to defamation.  The judge noted that in order for an injunction to be granted to restrain publication, 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.  As such, these criteria recognise the public interest in free speech and make it difficult to obtain an injunction for defamation.

Australia has also had its experience of super-injunctions. Mining entrepreneur Nathan Tinkler obtained a super-injunction after claiming breach of confidentiality and defamation against Fairfax Media.  This injunction has since been lifted, albeit with some limits.

Online publications

As a general rule, the courts in any country have jurisdiction when an article is accessed within their country. 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 defamation claim was lodged In Jakarta claiming damages of US$1billion.

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.


* Peter Bartlett is a Partner, and Veronica Scott, Special Counsel, in the Melbourne, Australia office of Minter Ellison.

[1] Report of the Independent Inquiry into the Media and Media Regulation, by The Hon. R. Finkelstein QC, 28 February 2012. Available at http://www.dbcde.gov.au/__data/assets/pdf_file/0006/146994/Report-of-the-Independent-Inquiry-into-the-Media-and-Media-Regulation-web.pdf

[2] Convergence Review Final Report March 2012.  Available at http://www.dbcde.gov.au/__data/assets/pdf_file/0007/147733/Convergence_Review_Final_Report.pdf

[3] Available at http://www.austlii.edu.au/au/legis/act/consol_act/pida2012295/

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