Digital technologies and social networking websites have radically altered the nature of news reporting. In particular, news reporting has succumbed to modern society’s need for immediacy. The Internet has given rise to the “citizen journalist”, who is able to upload one-off breaking news items when arriving first upon the scene of an event.
Whilst the increased access to newsworthy items via the citizen journalist has many benefits, including free discussion and self-development, it also has implications for the law.
Freedom of expression and freedom of the press:
Citizen journalists and online bloggers are not protected by any express right to freedom of expression in Australia. While the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects the freedom to seek, receive and impart information, the right does not receive direct legislative protection and is only applicable to the decisions of public authorities. One aspect of freedom of expression, freedom of political communication, receives implied constitutional protection, but this only extends communications relating to a political issue.
Yet the media has a right to freedom of the press which, for example, exempts media organisations acting ‘in the course of journalism’ from the Privacy Act 1988 (Cth), if the organisation has publicly committed to observe privacy standards (see section 7B). Furthermore, although subject to judicial discretion, ‘professional journalists’ are entitled in most jurisdictions in Australia to protect the identity of their sources under so-called ‘shield laws’ (see for example section 126K of the Evidence Act 2008 (Vic)). The issue of whether a citizen journalist should be entitled to the same special protections is a complex one. When does a blogger become a ‘journalist’? Although they may act as journalists, citizen journalists are not subject to the same constraints and ethics codes applying to media organisations. For example, citizen journalists may be less likely to be concerned with fair and accurate representations, avoiding biases, conveying the truth and notions of a fair trial. Further, citizen journalist reports may be viewed out of context, and citizen journalists are not accountable to anyone.
Bloggers and citizen journalists need to take care in embarking on any personal vendettas or promoting any personal or political agendas. The general principles of defamation apply equally to anything written online. To be defamatory, material identifying an individual, containing something about that person that could lower or harm their reputation, must be published or communicated to a third party. The publication or communication of the defamatory material does not need to occur via a particular medium. In the information sharing online environment, the risks in defamation increase as the writer, publisher and distributor of the material, as well as anyone who forwards on or repeats it, can all be sued.
The rise of the citizen journalist also brings into question the operation of exceptions to copyright. For example, under section 42 of the Copyright Act 1968 (Cth), a dealing with a work will not constitute an infringement if it is for the purpose of reporting news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made.
The exception applies across all media, and is not restricted to traditional print newspapers. However, in the context of blogging, determining whether a dealing is made for the purpose of “reporting news” may be grey area. Is there a standard of news reporting that we should expect in order to apply the exception? Where do we draw the line as to what constitutes “news reporting”?
Blog posts, and news reports by citizen journalists will likely attract copyright protection as a literary work. The Copyright Act grants authors copyright in their work, which entitles them to exercise certain exclusive rights, including the right to publish and communicate their work to the public. Copyright is automatically granted to an author, without requiring registration, provided the work is original, connected to Australia and recorded in a material form. Many people continue to operate under the impression that content on the internet is there for the taking, and where content can be ‘shared’ with a click of a button, copyright liability is often the last thing on anyone’s mind. However, in the US case of Agence France Presse v Morel  (see our post on this here), a series of iconic images of the Haitian earthquake taken by photojournalist Daniel Morel and uploaded to Twitter was held to have been wrongly used by global news companies. Both Agence France Presse, Getty Images and their client The Washington Post, obtained his images and, without his consent and without crediting the photos to him, redistributed them worldwide. Online content is afforded the same protection under law as other content, and the mere fact of its accessibility does not detract from this protection.
Right to privacy:
Freer from accountability than more traditional media outlets, the potential for citizen journalists and bloggers to breach privacy rights is also significant. While governmental agencies and corporate entities must respect certain privacy rights (for example under the new Australian Privacy Principles that commenced 12 March 2014), individuals are not subject to these same obligations. A cause of action for breach of privacy does not yet exist in Australia –although the Australian Law Reform Commission has recommended one be enacted in its latest Discussion Paper ‘Serious Invasions of Privacy in a Digital Era’ (see our post here), the Federal government continues to reject the proposal. At best, an individual may be able to rely on the equitable action for breach of confidence, but the extent of protection for personal matters remains relatively untested in Australia.
It is possible that a photograph or film footage may fall within the ambit of the Surveillance Devices Act 1999 (Cth), which prohibits individuals from using an optical surveillance device to visually record, and subsequently publish, without consent a private activity to which they are not a party. However, the Act excludes activities occurring outside a building, and therefore is unlikely to be of much relevance to most subject matter of citizen journalism.
It is clear that technologies continue to challenge both traditional news media, and the law. It will be interesting to see how the law reacts to society’s increasing desire for instantaneous and accessible news.
Edited by Daniella Phair