Bloggers, journalists and the law

By Legal Eagle

Richard Ackland has an interesting piece in the SMH on the laws protecting journalists versus the laws protecting bloggers, with some thoughts about the blurred line between journalism and blogging as well. He says:

Justice William Gummow of the High Court asked the question last year during an appeal in Ray Chesterton’s defamation action against 2UE: ”What does the word journalist mean, by the way?”

Are bloggers journalists? Can citizens be journalists? Anyone with a computer? Of course, if journalism is the process of collecting, distilling and reporting information.

However, there’s a way to go before bloggers have the protections of the law afforded to mainstream journalists.

In England in November the chairwoman of the Press Complaints Commission, Baroness Buscombe, suggested it should regulate bloggers’ professional standards. One leading blogger, Sunny Hundal, asked: What professional standards? He told Baroness Buscombe to stick her regulatory pitch, saying bloggers had higher standards than those enforced by the commission. This came hard on the heels of the commission’s lame investigation of the News of the World phone-bugging-of-celebs scandal, so Hundal may have a good point.

The US administration proposed to give reporters, traditional and online, greater protections from divulging the identity of confidential sources. The protections do not extend to citizen journalists.

In Australia it’s yet to be tested whether bloggers, Twitter users and various hybrid forms of news gatherers are in the ”business” of proving information and therefore protected from the false and misleading conduct provisions of the Trade Practices Act – the ”media safe harbour” that looks after regular journalists.

When it comes to pre-litigation discovery, we know as a result of the case brought by tennis player Lleyton Hewitt’s wife, Bec Hewitt, against New Idea that paparazzi are not protected against having to provide early identity of sources, etc. If paparazzi are not protected, it’s not too much of a leap to say bloggers are outside the velvet rope as well.

This piece made me think of the question differently. The question is not should bloggers be protected in the same way as journalists? The question is should journalists be protected from the operation of s 52 at all? Section 52 prohibits “misleading and deceptive conduct”. My co-blogger, SL, wrote an excellent piece on this a few years back in which she suggest that perhaps the exception added to the Trade Practices Act 1975 (Cth) in s 65A for “information service providers” (i.e. the media) should be rolled back. I tend to think that we would be better served by s 52 than defamation laws, as these would better maintain freedom of speech. This would also be paralleled by a tort of invasion of privacy (which, as discussed previously, is what the breach of confidence law is edging into anyway).

Bloggers, too, should be subject to the misleading and deceptive conduct rules, although of course, they will be subject to State Fair Trading regimes because the Federal Trade Practices Act only covers corporations (eg, Fair Trading Act 1999 (Vic)). Nonetheless, it’s not an uncomplicated proposition. To be liable under a s 52 equivalent (eg, s 9 of the Fair Trading Act 1999 (Vic)), a blogger would have to be “in trade and commerce”. A blog such as this one would be “in trade and commerce”, but I can think of others which are more borderline (what about solely personal ones? what about ones which promote someone’s artwork, for example, but don’t have ads which lead to payment?) I wonder about the blogger who made defamatory comments to the effect that a particular model was called a NYC skank. If you abolished defamation, it’s an interesting question to consider whether that blogger would be liable under s 9 of the Fair Trading Act, for example. I suspect not. However, the blogger may be liable for breach of a tort of invasion of privacy (which would protect the “personality interest” in the absence of defamation). And then there’s also the question of who you’d sue (the website host? the blogger? what if the blogger is anonymous? what if material is published on an overseas server? – see the Gutnick case.)

This is really just speculation from me (playing with ideas) but I’d be interested to know what other people thought about this. Should the media be subject to s 52? Would s 52 serve us better than defamation laws? What about a tort of invasion of privacy? What about bloggers? What kind of regulation or laws should apply to blogs?

5 Comments

  1. see below
    Posted January 15, 2010 at 6:50 pm | Permalink

    The MSM are in a business, but the application of s 52 is conceptually tricky; at least it is to me. If they advertise, for example, that they have a product of a particular kind (ie useful), and it transpires that they were aware that their product (ie paper) was not actually useful other than as tinder, then s52 could and should apply (ignoring the slightly silly example).

    But here we are talking about s52 applying in a slightly different sense, ie to representations about, not the product, but the content and nature of the product.

    To flesh out what I (think I) mean, s52 would seem capable of application if a newspaper represented that their reporting was objective and it was in fact not. But as long as the paper does not represent that their reporting is objective (I don’t believe that many papers do explicitly represent that their reporting is objective) then how can s 52 apply other than by some rather stretched argument of implicit representation?

    – [insert here] delenda est

  2. see below
    Posted January 15, 2010 at 6:52 pm | Permalink

    Where’s the edit function, that first sentence horrifies me!

    [I’ve fixed it up myself – hope it’s okay now – LE]

  3. Posted January 15, 2010 at 8:03 pm | Permalink

    I think if we do give defamation law the boot, and go for something like s 52, it will have to be combined with the tort of invasion of privacy. Every lawyer knows there are serious problems with defamation law, but it has evolved over many hundreds — even thousands — of years (if you include the concept of fama in Roman law). People want to protect their reputation in the same way as firms want to protect their goodwill. That basic desire is not going to go away.

  4. Posted January 15, 2010 at 9:34 pm | Permalink

    Though it’s fair to point out that the major part of the “protection” enjoyed by MSM journalists is not in fact provided by the law, it’s provided by the bottomless funds of their multinational employers who can afford lawyers good enough to ENFORCE the law. A subtle but important difference. Even perfecting the law doesn’t guarantee access to it – ask anyone defamed by a paper who’s not been amongst the ‘great and the good’.

  5. Posted January 15, 2010 at 9:43 pm | Permalink

    That’s part of the rationale for going down the s52 route, DEM. Competition law mechanisms are much, much cheaper for the plaintiff than torts like defamation. That said, a legal system that has contingency fee arrangements probably doesn’t need to get rid of defamation, but it does need to brace itself for an initial burst of litigation in the area.

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