Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations


Richard Wainwright/AAP

Brendan Clift, The University of MelbourneAttorney-General Christian Porter is suing the ABC for defamation and claiming aggravated damages.

Porter is claiming that an article published last month included false allegations against him in relation to a historical rape. A statement from his lawyer says although Porter was not named, the article made allegations against a senior cabinet minister “and the attorney-general was easily identifiable to many Australians”.

So, how does defamation law work, what is its impact on the media, and why has Australia been labelled the defamation capital of the world?

What is considered defamatory?

Defamation can be defined as a false statement about a person to their discredit. The legal action has three elements for the complainant to prove: publication, identification, and defamatory meaning. Significantly, the falseness of the published material is presumed.

A statement has defamatory meaning if it would lead an ordinary, reasonable reader to think less of the complainant, or if it would cause the complainant to be shunned or subjected to more than trivial ridicule.

Publication is broadly defined, including any communication to someone other than the complainant, whether written or spoken.

And identification requires reference to the complainant, which could be indirect if the ordinary, reasonable reader is able to read between the lines — as Porter is claiming in his case.




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A news organisation might carefully avoid naming a person, as the ABC did, but it could still be liable if a reader would have known who that person was. Porter was named in social media chatter around the ABC’s story – whether that sort of speculation constitutes identification is questionable, but not inconceivable.

Where a complainant’s identity is confirmed after publication — as Porter’s was when he fronted the media two weeks ago — identification becomes straightforward for later downloads of the story. Each download is treated as a separate potential defamation under the law. At the time of writing, the ABC’s report was still on its site.

The elements of defamation are encapsulated in the expression cherished by news editors:

journalism is printing what someone else does not want printed.

This reflects the reality that the media is exposed to defamation risk daily — and the risk is serious.

A complainant can sue any person involved with the story’s production, such as journalist Louise Milligan in the ABC’s case. Add the fact the complainant doesn’t need to prove any harm was actually done — and aggravated damages awards are uncapped — and it’s easy to see why defamation inspires fear among media organisations.

What defences can media organisations use?

The defences to defamation are notoriously difficult to establish.

While the complainant need not prove the material is false, the defendant can escape liability by showing that it’s true. In the Porter case, this means the ABC would need to prove matters from more than 30 years ago raised in a letter by a woman who is now deceased.

Moreover, the defendant must prove the truth of the “defamatory stings” — the discrediting imputations that an ordinary, reasonable reader would take from the published material, regardless of whether those were the intended meanings.




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Even proving the truth of ordinary, factual reporting can be challenging in cases where journalists’ sources, such as whistleblowers, have legitimate reasons to preserve their anonymity.

These difficulties might be ameliorated if Australia had a “reportage” defence, like that of the United Kingdom. This defence excuses the media for reporting defamatory statements by third parties on matters of public interest, provided the media has merely reported the statement without adopting it.

Australia does have a “reasonable publication” defence, but its requirements have proven near-impossible for media organisations to satisfy in court.

For example, the defence is probably a non-starter in cases where a news organisation reports unproven criminal allegations and the person of interest, being unnamed, is given no right of reply in the story.

Reforming defamation

Changes to Australia’s defamation law are in the works. Some will help potential defendants, such as a new threshold of serious harm and tighter time limits for bringing actions.

Other reforms will require a wait-and-see approach, like the new public interest defence, which aims to rebalance defamation law in favour of public interest reporting but retains elements of the old reasonable publication defence.

This leaves room for courts to maintain a tough stance on what is regarded as “reasonable” media conduct when it comes to defamation. That stance recently saw NSW courts hold three Australian media companies liable for comments that were posted on their Facebook pages about a former youth detention detainee.




Read more:
Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet


More meaningful reform might have established stronger public interest and reportage defences, or required complainants to prove that the material published about them was false – or even that the publisher knew it to be false but published it anyway.

Defamation cases involving public figures in the United States require proof that the publisher knew the material to be false, which is why US politicians almost never sue for defamation.

In Australia, by contrast, politicians do sue – and successfully. They often opt for the Federal Court where, compared with the state courts, they are likely to have their matter heard by a judge alone, rather than having to convince a jury of the merits of their case.

Citizens and institutions seeking to hold those in power to account are too often being silenced by our current defamation laws. In a strong democracy like Australia, we can — and must — do better.The Conversation

Brendan Clift, Graduate researcher, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The TV networks holding back the future



The Nine and Seven playout centre at Frenchs Forest in Sydney.
NPC Media

Peter Martin, Crawford School of Public Policy, Australian National University

If I offered you money for something, an offer you didn’t have to accept, would you call it a grab?

What if I actually owned the thing I offered you money for, and the offer was more of a gentle inquiry?

Welcome to the world of television, where the government (which actually owns the broadcast spectrum) can offer networks the opportunity to hand back a part of it, in return for generous compensation, and get accused of a “spectrum grab”.

If the minister, Paul Fletcher, hadn’t previously worked in the industry (he was a director at Optus) he wouldn’t have believed it.

Here’s what happened. The networks have been sitting on more broadcast spectrum (radio frequencies) than they need since 2001.

That’s when TV went digital in order to free up space for emerging uses such as mobile phones.

Pre-digital, each station needed a lot of spectrum — seven megahertz, plus another seven (and at times another seven) for fill-in transmitters in nearby areas.

It meant that in major cities it took far more spectrum to deliver the five TV channels than Telstra plans to use for its entire 5G phone and internet work.

Digital meant each channel would only need two megahertz to do what it did before, a huge saving Prime Minister John Howard was reluctant to pick up.

His own department told him there were

better ways of introducing digital television than by granting seven megahertz of spectrum to each of the five free-to-air broadcasters at no cost when a standard definition service of a higher quality than the current service could be provided with around two megahertz

His Office of Asset Sales labelled the idea of giving them the full seven a

de facto further grant of a valuable public asset to existing commercial interests

Seven, Nine and Ten got the de facto grant, and after an uninspiring half decade of using it to broadcast little-watched high definition versions of their main channels, used it instead to broadcast little-watched extra channels with names like 10 Shake, 9Rush and 7TWO.

Micro-channels are better delivered by the internet

TV broadcasts are actually a good use of spectrum where masses of people need to watch the same thing at once. They use less of broadcast bandwidth than would the same number of streams delivered through the air by services such as Netflix.

But when they are little-watched (10 Shake got 0.4% of the viewing audience in prime time last week, an average of about 10,000 people Australia-wide) the bandwidth is much better used allowing people to watch what they want.




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It’s why the government is kicking community television off the air. Like 10 Shake, its viewers can be counted in thousands and easily serviced by the net.

The government’s last big auction of freed-up television spectrum in 2013 raised A$1.9 billion, and that was for leases, that expire in 2029.

Among the buyers were Telstra, Optus and TPG.

The successful bidders for leases on vacated television spectrum in 2013.
Australian Communications and Media Authority

The money now on offer, and the exploding need for spectrum, is why last November Fletcher decided to have another go.

Rather than kick the networks off what they’ve been hogging (as he is doing with community TV) he offered them what on the face of it is an astoundingly generous deal.

Any networks that want to can agree to combine their allocations, using new compression technology to broadcast about as many channels as before from a shared facility, freeing up what might be a total of 84 megahertz for high-value communications. Any that don’t, don’t need to.

All the networks need to do is share

The deal would only go ahead if at least two commercial licence holders in each licence area signed up. At that point the ABC and SBS would combine their allocations and the commercial networks would be freed of the $41 million they currently pay in annual licence fees, forever.

That’s right. From then on, they would be guaranteed enough spectrum to do about what they did before, except for free, plus a range of other benefits

The near-instant reaction, in a letter signed by the heads of each of the regional networks, was to say no, they didn’t want to share. The plan was “simply a grab for spectrum to bolster the federal government’s coffers”.

And sharing’s not that hard

It’s not as if the networks own the spectrum (they don’t) and it’s not as if they are normally reluctant to share — they share just about everything.

For two decades they’ve shared their transmission towers, and for 18 months Nine and Seven have been playing out their programs from the same centre.

Nine’s soon-to-be-demolished tower in Sydney’s Willoughby broadcasts Seven, Nine and Ten.
Dean Lewins/AAP

That’s right. Nine and Seven use the same computers, same operators, same desks, to play programs.

One day it is entirely possible that a Seven promo or ad will accidentally go to air on Nine, just as a few years back some pages from the Sydney Morning Herald were accidentally printed in the Daily Telegraph, whose printing plants it makes use of.

All the minister is asking is for them to share something else, what Australia’s treasury describes as a “scarce resource of high value to Australian society”.

There’s a good case for going further, taking almost all broadcasting off the air and putting it online, or sending it out by direct-to-home satellite, removing the need for bandwidth-hogging fill-in transmitters.

Seven, Nine and Ten have yet to respond. Indications are they’re not much more positive than their regional cousins, although more polite. They’re standing in the way of progress.The Conversation

Peter Martin, Visiting Fellow, Crawford School of Public Policy, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

This week’s changes are a win for Facebook, Google and the government — but what was lost along the way?



Shutterstock

Rob Nicholls, UNSW

After almost a year of heated discussion about the News Media Bargaining Code, there will shortly be a new law of the land – one that’s unlikely to be applied to the platforms it was intended to reign in. But that’s not to say it hasn’t done its job.

With some final tweaks expected to the draft legislation, Facebook on Tuesday announced it would restore news for Australian users and strike up commercial agreements with local publishers. It signed its first deal with Seven West media yesterday.

Google has already done deals with News Corp, Nine Fairfax, Seven West Media, The Guardian and regional news company ACM, turning back on its initial threat to pull Google Search from Australia.

Meanwhile, Facebook threatened to stop providing Australians access to news — and did (while also blocking domestic violence helplines, children’s cancer charities and the Royal Australian College of Physicians).

In return, the federal government said it would stop all advertising campaigns on the platform. Interestingly, it’s this move which most likely “assisted” the recent negotiated outcome with Facebook.

The amendments

The changes made to the code — other than the opportunity to sell advertising to the Commonwealth again — were small, but important. It’s worth remembering the code’s aim was to balance out the bargaining imbalance between big tech platforms and news media businesses.

Essentially, it provides a mechanism to force a deal when a commercial outcome can’t be reached voluntarily. The code is mandatory, since the Australian Competition and Consumer Commission (ACCC) took the view the platforms would not otherwise get to a commercial offer, let alone a commercial settlement.

As set out by Treasurer Josh Frydenberg, there were four changes made that have met Facebook’s needs:

  1. before a digital platform is made subject to the code by being “designated”, the minister must first take into account whether it has reached commercial agreements with news media businesses

  2. the government must give at least one month’s notice of designation to any platform it intends to make subject to the code

  3. the non-discrimination provisions (crafted as an anti-avoidance mechanism) will not be triggered in respect to remuneration amounts or commercial outcomes that arise in the course of usual business practice

  4. final offer arbitration will be a last resort and should be preceded by good faith mediation, provided this lasts no longer than two months.




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A major change?

The above amendments made by the government are not major, in terms of changing the scope of the News Media Bargaining Code. However, they do include some important clarifications regarding how the code will operate.

Both Google and Facebook were very concerned the approach of “final offer arbitration” would adversely affect them. In this, if a deal couldn’t be struck, both the platform and media business would have to present their offers and defer to an arbitrator to choose one.

Google and Facebook initially argued for “commercial arbitration”, where the arbitrator acts with more discretion. Commercial arbitration tends to favour the party with the most information or bargaining power.

The compromise of requiring good faith mediation before any compulsory arbitration (whether commercial or final offer arbitration) is a classic dispute resolution approach.

Win some, lose some

The News Media Bargaining Code has changed in a way that is a compromise, but hasn’t lost its original intention. The process of negotiating changes to the code has revealed the private values of Facebook, Google and any similar parties that could be impacted by the code.

The exposure draft, the introduction of the Bill, the Senate committee and Facebook’s petulant actions: all have acted to identify a financial outcome for each of Google, Facebook and the Australian news publishers.

The process has been a classic, but painful, exchange of information that would otherwise have been held close to the players’ respective chests.

For Google, it has shown Google Search must remain untouched, even if this means forking out millions in a matter of days. For Facebook, it has demonstrated that rapidly changing social media offerings (such as trying to remove news in Australia) can’t be done without major complications.

It may be too soon to judge whether Facebook’s approach of taking its lobbying to the brink worked in its favour, or to its detriment. The platform’s first interactions with the new UK Digital Markets Unit (a regulatory regime targeted at big tech firms) will likely shed some light.

And finally, the ACCC can claim it was right in its initial recommendation; after a long drought, there will soon be money flowing to public interest journalism.




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Who pays?

The intention of the News Media Bargaining Code was to create an environment where commercial deals would be struck between the platforms and news media businesses in Australia.

Now, under several deals, Google and Facebook will pay Australian news media businesses tens of millions of dollars each year for locally created content.

According to an Australian Financial Review report, Facebook Australia paid a little under A$17 million in tax in 2019.
Shutterstock

There’s also a reasonable expectation regional news businesses will receive funds in exchange for regional news — although a clear standard offer is yet to be made by the platforms.

This development will not change the inevitable shift of the news business model to a largely digital environment. But it does balance the value proposition between news creation and news curation.

It has also made clear to Facebook, Google and news media businesses that they exist and operate in a symbiosis. The status of this relationship? Well, it’s complicated.




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Google’s and Facebook’s loud appeal to users over the news media bargaining code shows a lack of political power


The Conversation


Rob Nicholls, Associate professor in regulation and governance, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The old news business model is broken: making Google and Facebook pay won’t save journalism


Amanda Lotz, Queensland University of Technology

The federal government is talking tough about making Google and Facebook pay Australian news businesses for linking to, or featuring, these publishers’ content.

The digital platforms have been talking equally tough. Facebook is threatening to remove Australian news stories and Google says it will shut off search to Australia if the government pushes ahead with its “mandatory bargaining code”.

The code is meant to help alleviate the revenue crisis facing news publishers. Over the past two decades they have made deep cuts to newsrooms. Scores of local print papers have become “digital only” or been shut down completely.




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Digital-only local newspapers will struggle to serve the communities that need them most


If legislated, the code will require the platforms to negotiate payments to news publishers, as well as disclose changes in algorithms affecting traffic to news sites.

But the code is unlikely to do much to fix the crisis faced by journalism in the internet age. It isn’t even a band-aid on the problem.

The traditional commercial news business model is broken beyond repair. If the government wants to save the social benefit of public-interest journalism, it must look elsewhere.

Newspapers didn’t sell news, but readers

To understand why the commercial news model is so broken, we first need to recognise what the primary business of commercial news media has been: attracting an audience that can be sold to advertisers.

Newspapers attracted readers with news and feature journalism that provided public value, but also information of interest such as weather forecasts, sports scores, stock prices, TV and radio guides and comics. Readers even sought out papers for their advertisements – in particular the “classifieds” for jobs, cars and real estate.

Before the internet the newspaper was the only place to access much of this information. This broad bundle of content attracted a wide range of readers, which the economics of newspapers – particularly the cost of producing the journalism – required.

Why the business model is broken

Internet technologies introduced two changes that have dismantled the newspaper business model.

They offered new and better ways to connect buyers and sellers, pulling advertiser spending away from newspapers. More than 70% of revenue for a typical daily newspaper came from advertising. Before 2000 print media attracted nearly 60% of Australian advertiser dollars, according to an analysis for the Australian Competition and Consumer Commission’s Digital Platforms Inquiry. By 2017 it was just 12%.


Australian advertising expenditure by media format and digital platform


Internet technologies also provided better ways to access the non-journalism information that had made the bundled paper valuable to a mass of readers.

Readers also now access news in many other places, through news apps, aggregators and social media feeds such as Twitter, Reddit, Apple News, Flipboard and many others, including Facebook and Google. Research by the University of Canberra’s News and Media Research Centre published in 2019 found just 30% of Australian news consumers accessed online news directly from news publishers’ websites.

The bargaining code doesn’t solve the main problem

If Google and Facebook are “to blame” for news publishers’ malaise, it is not in the way the bargaining code suggests. Separate from their linking to, or featuring, these publishers’ content, the digital platforms are just more effective vehicles for advertisers seeking to buy consumers’ attention. They serve ads based on consumer interests or in relation to a specific search.

The simple fact is news publishers’ core content is not that important to the platforms’ profitability.

Research by the Reuters Institute for the Study of Journalism during the 2019 UK general election – tracking 1,711 people aged 18-65 across mobile and desktop devices for six weeks – found news took up just 3% of their time online (about 16 minutes and 22 visits to news sites a week).

So if stories from Australian news outlets disappeared from Facebook or Google search results, it would barely make a scratch on their appeal to advertisers.




Read more:
It’s not ‘fair’ and it won’t work: an argument against the ACCC forcing Google and Facebook to pay for news


Save journalism, not commercial publishers

The Australian Competition and Consumer Commission’s Digital Platforms Inquiry has rightly noted the revenue crisis has crippled commercial provision of public-interest journalism “that performs a critical role in the effective functioning of democracy at all levels of government”.

But the core of the problem is that funding such journalism through advertising is no longer viable. Other solutions are needed – locally and nationally – to ensure its survival.




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Web’s inventor says news media bargaining code could break the internet. He’s right — but there’s a fix


Commercial news organisations no longer offer value to advertisers. Instead of searching for ways to make an obsolete business solvent, efforts should focus on alternative ways to fund public-interest journalism.

More funding for independent public broadcasters is one solution, and incentives for philanthropic funding and non-profit journalism organisations are proving successful in other countries.

It’s a global problem. To solve the crisis in Australia will require focusing on the core problem and thinking bigger than a bargaining code.


For transparency, please note The Conversation has also made a submission to the Senate inquiry regarding the News Media and Digital Platforms Mandatory Bargaining Code.The Conversation

Amanda Lotz, Professor of Media Studies, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

If Google does pull its search engine out of Australia, there are alternatives



Shutterstock/Wachiwit

Gianluca Demartini, The University of Queensland

The Australian government’s push to make Google pay news organisations for linking to their content has seen the search giant threaten to pull out of Australia.

Google Australia’s managing director Mel Silva said if the government’s proposal goes ahead, “we would have no real choice but to stop making Google Search available in Australia”.

Prime Minister Scott Morrison pushed back saying he won’t respond to “threats”. Even the Council of Small Business Organisations Australia says Google needs “strong and stringent” regulation because of its monopoly on searching the web.

What if Google pulls out?

Google’s proposal to make Google Search unavailable in Australia means we would need to search the web using other systems and tools. If this really happens, we could no longer go to google.com and google.com.au to search the web.




Read more:
It’s not ‘fair’ and it won’t work: an argument against the ACCC forcing Google and Facebook to pay for news


It is important to note that Google is not just web search. Google’s parent company Alphabet Inc also runs key web portals such as YouTube, and productivity tools such as Gmail, Google Calendar, Google Docs and Google Maps (which actually started in Australia). Those services are not going to be removed from the Australian market, even if web search does get pulled out.

Online advertising is another sector in which Google is the market leader and where it makes money. Pulling Google web search out from Australia does not mean businesses would no longer be able to advertise using Google’s services.

But with no Google Search here, those adverts would no longer appear ahead of any other search results and be visited by Australian users.

A Google Search result showing an ad for The Conversation ahead of any search results.
Google Search places paid advertising ahead of any search results.
Google.com/screenshot

Businesses would still be able to put their adverts on other Australian websites that use the Google Ads service.

The issue with this scenario is that Google’s key competitive advantage is the ability to access data from people using its search services. Pulling web search out from the Australian market would mean Google missing out on that data from people in Australia.

The alternatives to Google

Google is the dominant search engine in Australia — it has 94% of the web search market in Australia — but there are other search services.

The second most popular search engine in Australia is Bing, developed by Microsoft and often integrated into other Microsoft products such as its Windows operating system and Office tools.

Another less popular search option is Yahoo, which also offers its own news and email service.

Other alternatives include niche search engines that offer unique tools with special features.

For example, DuckDuckGo is a search engine that has recently risen in popularity thanks to a commitment to protecting its users’ privacy.

The DuckDuckGo homepage
DuckDuckGo is gaining support.
DuckDuckGo/Screen shot

Contrary to the web search products from Google and Microsoft, DuckDuckGo does not store its users’ search queries or track their interactions with the system.

The quality of DuckDuckGo’s search results has improved over time, and is now comparable to that of the most popular search engines.

It says it now processes a daily average of more than 90 million search queries, up from just over 51 million the same time last year.

Despite not drawing on users’ data to refine its search algorithms, the technology behind DuckDuckGo and other smaller players is based on the same machine-learning methods that others are using.

Search the web, save the planet

Another interesting and recent proposal of an alternative web search engine is Ecosia. This system is unique as it focuses on sustainability and positive climate impact.

Its mission is to reinvest the income generated by search advertisements (the same business model Google Search is using) to plant trees in key areas around the world.

So far, it says it has 15 million users and has contributed to planting more than 100 million trees, about 1.3 every second.

Will Google really abandon Australia?

Tim Berners-Lee, widely regarded as the inventor of the web, has pointed out that the idea of asking web platforms to pay to post links runs counter to his fundamental concept.




Read more:
Web’s inventor says news media bargaining code could break the internet. He’s right — but there’s a fix


That said, it is also unfair for a search engine to make money using content that others have created.

It is also true that most of Google’s revenue already comes from asking others to pay for links on the web. This is how Google’s online advertising works: Google Ads makes advertisers pay for every impression users get or click users make to navigate to the advertised web page.

If users end up buying the advertised product, Google gets an even higher payment.

More likely than Google pulling out of the Australian market, the government and the search giant should diplomatically find a compromise in which Google still provides its web search product in Australia and there will be a return to news organisations for Google making use of their content.The Conversation

Gianluca Demartini, Associate professor, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

To publish or not to publish? The media’s free-speech dilemmas in a world of division, violence and extremism



AAP/AP/ John Nacion/STAR MAX/IPx

Denis Muller, University of Melbourne

Terrorism, political extremism, Donald Trump, social media and the phenomenon of “cancel culture” are confronting journalists with a range of agonising free-speech dilemmas to which there are no easy answers.

Do they allow a president of the United States to use their platforms to falsely and provocatively claim the election he has just lost was stolen from him?

How do they cover the activities and rhetoric of political extremists without giving oxygen to race hate and civil insurrection?

How do they integrate news-making social media material into their own content, when it is also hateful or a threat to the civil peace?

Should journalists engage in, or take a stand against, “cancel culture”?

How should editors respond to the “assassin’s veto”, when extremists threaten to kill those who publish content that offends their culture or religion?

The West has experienced concrete examples of all these in recent years. In the US, many of them became pressing during the Trump presidency.

When five of the big US television networks cut away from Trump’s White House press conference on November 6 after he claimed the election had been stolen, they did so on the grounds that he was lying and endangering civil peace.




Read more:
To stay or cut away? As Trump makes baseless claims, TV networks are faced with a serious dilemma


Silencing the president was an extraordinary step, since it is the job of the media to tell people what is going on, hold public officials to account, and uphold the right to free speech. It looked like an abandonment of their role in democratic life.

Against that, television’s acknowledged reach and power imposes a heavy duty not to provide a platform for dangerous speech.

Then on January 6 – two months later to the day – after yet more incitement from Trump, a violent mob laid siege to the Capitol and five people lost their lives. The networks’ decision looked prescient.

They had acted on the principle that a clear and present danger to civil peace, based on credible evidence, should be prioritised over commitments to informing the public, holding public officials to account and freedom of speech.

This case also raised a further dilemma. Even if the danger to peace did not exist, should journalists just go on reporting – or broadcasting – known lies, even when they come from the president of the United States?




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Newspaper editors and producers of pre-recorded radio and television content have the time to report lies while simultaneously calling them out as lies. Live radio and television do not. The words are out and the damage is done.

So the medium, the nature and size of the risk, how the informational and accountability functions of journalism are prioritised against the risk, and the free-speech imperative all play into these decisions.

Should the media report known lies, even if uttered by the president of the United States?
AAP/EPA/White House handout

Similar considerations arise in respect of reporting political extremism.

The ABC’s Four Corners program is about to embark on a story about the alt-right in the US. Having advertised this in a promotional tweet, the ABC received some social media blow-back raising the question of why it would give oxygen to these groups.

The influence of the alt-right on Western politics is a matter of real public interest because of the way it shapes political rhetoric and policy responses, particular on race and immigration.

To not report on this phenomenon because it pursues a morally reprehensible ideology would be to fail the ethical obligation of journalism to tell the community about the important things that are going on in the world.

It is not a question of whether to report, but how.

The Four Corners program will not be live to air. There will be opportunity for judicious editing. Journalists are under no obligation to report everything they are told. In fact they almost never do.

Motive matters

Whether the decision to omit is censorship comes down to motive: is it censorship to omit hate speech or incitement to violence? No. Because the reporter doesn’t agree with it? Yes.

Integrating social media content into professional mass media news presents all these complexities and one more: what is called the news value of “virality”.

Does the fact something has gone viral on social media make it news? For the more responsible professional mass media, something more will usually be needed. Does the subject matter affect large numbers of people? Is it inherently significant in some way? Does it involve some person who is in a position of authority or public trust?

Trump’s use of Twitter was an exploitation of these decision-rules, but did not invalidate them.

Social media is also the means by which “cancel culture” works. It enables large numbers of people to join a chorus of condemnation against someone for something they have said or done. It also puts pressure on institutions such as universities or media outlets to shun them.

It has become a means by which the otherwise powerless or voiceless can exert influence over people or organisations that would otherwise be beyond their reach.

There are those who are worried about the effects on free speech. In July 2020, Harper’s magazine published a letter of protest signed by 152 authors, academics, journalists, artists, poets, playwrights and critics.

While applauding the intentions behind “cancel culture” in advancing racial and social justice, they raised their voices against what they saw as a new set of moral attitudes that tended to favour ideological conformity.

In the aftermath of the police killings of black people in 2020 and the law-and-order response of the Trump administration, “cancel culture” began to affect journalism ethics. Some journalists on papers such as The Washington Post and The New York Times began taking public positions against the way their papers were reporting race issues.

In the aftermath of the Black Lives Matter protests, some journalists began to question how their papers covered race issues.
AAP/AP/Evan Vucci

It led to a lively debate in the profession about the extent to which moral preferences should shape news decisions. The riposte to those who argued that they should, was: whose moral preferences should prevail?

This was yet another illustration of the complexities surrounding free speech issues arising from the social media phenomenon, the Trump presidency and the combination of the two.

Terrorism has also added its contribution. Over the decade 2005-2015, what became known as the Danish cartoons confronted journalists and editors with life-and-death decisions.

In 2005, the Danish newspaper Jyllands Posten (Jutland Post) published cartoons lampooning the Prophet Mohammed. It was a conscious act of defiance against “the assassin’s veto”, violent threats to free speech by Islamist-jihadis.

In 2009, a Danish-born professor of politics wrote a book, The Cartoons that Shook the World. Yale University Press, which published it, refused to re-publish the cartoons after having taken advice from counter-terrorism experts about the risks.

In November 2011, the French satirical newspaper Charlie Hebdo published an issue called Charia Hebdo, satirically featuring the Prophet as editor. The real editor was placed on an Al-Qaeda hit list and in January 2015, two masked gunmen opened fire on the newspaper office, killing 12 people, including the editor.




Read more:
Charlie Hebdo: the pen must defy the sword, Islamic or not


The world’s media were confronted with the decision whether to re-publish the cartoons again in defiance of “the assassin’s veto”. Some did, but most – including Jyllands Posten – did not.

The necessary limits of free speech

Free speech is an indispensable civil right under assault from all these forces. But none of the philosophers whose names we immediately associate with free speech have claimed it to be absolute.

The social media platforms, having for years proclaimed themselves extreme libertarians, have in recent times begun to recognise this is indefensible, and strengthened their moderating procedures.

Some of Australia’s senior politicians seem baffled by the issue.

When Twitter shut down Trump’s account, acting Prime Minister Michael McCormack didn’t seem to know where he stood, saying in one breath it was a violation of free speech to shut down Trump while in the next that Twitter should also take down the false image of an Australian soldier slitting the throat of an Afghan child.

And he is a former country newspaper editor.

This was followed by Treasurer Josh Frydenberg’s remark that he was “uncomfortable” with the Twitter decision. He quoted Voltaire as saying something Voltaire never said: the famous line that while he disagreed with what someone said, he would defend to the death his right to say it. It was a fabrication put into Voltaire’s mouth by a biographer more than 100 years after his death.

Voltaire, Milton, Spinoza, Locke and Mill, to say nothing of the US Supreme Court, have not regarded free speech as an absolute right.

So while the media face some extremely difficult decisions in today’s operating environment, they do not need to burden themselves with the belief that every decision not to publish is the violation of an inviolable right.The Conversation

Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Web’s inventor says news media bargaining code could break the internet. He’s right — but there’s a fix


Tama Leaver, Curtin University

The inventor of the World Wide Web, Tim Berners-Lee, has raised concerns that Australia’s proposed News Media and Digital Platforms Mandatory Bargaining Code could fundamentally break the internet as we know it.

His concerns are valid. However, they could be addressed through minor changes to the proposed code.

How could the code break the web?

The news media bargaining code aims to level the playing field between media companies and online giants. It would do this by forcing Facebook and Google to pay Australian news businesses for content linked to, or featured, on their platforms.

In a submission to the Senate inquiry about the code, Berners-Lee wrote:

Specifically, I am concerned that the Code risks breaching a fundamental principle of the web by requiring payment for linking between certain content online. […] The ability to link freely — meaning without limitations regarding the content of the linked site and without monetary fees — is fundamental to how the web operates.

Currently, one of the most basic underlying principles of the web is there is no cost involved in creating a hypertext link (or simply a “link”) to any other page or object online.

When Berners-Lee first devised the World Wide Web in 1989, he effectively gave away the idea and associated software for free, to ensure nobody would or could charge for using its protocols.

He argues the news media bargaining code could set a legal precedent allowing someone to charge for linking, which would let the genie out of the bottle — and plenty more attempts to charge for linking to content would appear.

If the precedent were set that people could be charged for simply linking to content online, it’s possible the underlying principle of linking would be disrupted.

As a result, there would likely be many attempts by both legitimate companies and scammers to charge users for what is currently free.

While supporting the “right of publishers and content creators to be properly rewarded for their work”, Berners-Lee asks the code be amended to maintain the principle of allowing free linking between content.




Read more:
Google News favours mainstream media. Even if it pays for Australian content, will local outlets fall further behind?


Google and Facebook don’t just link to content

Part of the issue here is Google and Facebook don’t just collect a list of interesting links to news content. Rather the way they find, sort, curate and present news content adds value for their users.

They don’t just link to news content, they reframe it. It is often in that reframing that advertisements appear, and this is where these platforms make money.

For example, this link will take you to the original 1989 proposal for the World Wide Web. Right now, anyone can create such a link to any other page or object on the web, without having to pay anyone else.

But what Facebook and Google do in curating news content is fundamentally different. They create compelling previews, usually by offering the headline of a news article, sometimes the first few lines, and often the first image extracted.

For instance, here is a preview Google generates when someone searches for Tim Berners-Lee’s Web proposal:

Results page for the Google Search 'tim berners lee www proposal'.
This is a screen capture of the results page for the Google Search: ‘tim berners lee www proposal’.
Google

Evidently, what Google returns is more of a media-rich, detailed preview than a simple link. For Google’s users, this is a much more meaningful preview of the content and better enables them to decide whether they’ll click through to see more.

Another huge challenge for media businesses is that increasing numbers of users are taking headlines and previews at face value, without necessarily reading the article.

This can obviously decrease revenue for news providers, as well as perpetuate misinformation. Indeed, it’s one of the reasons Twitter began asking users to actually read content before retweeting it.

A fairly compelling argument, then, is that Google and Facebook add value for consumers via the reframing, curating and previewing of content — not just by linking to it.

Can the code be fixed?

Currently in the code, the section concerning how platforms are “Making content available” lists three ways content is shared:

  1. content is reproduced on the service
  2. content is linked to
  3. an extract or preview is made available.

Similar terms are used to detail how users might interact with content.

Extract showing the way 'Making content available' is defined in the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020
The News Media and Digital Platforms Mandatory Bargaining Code 2020 outlines three main ways by which platforms make news content available.
Australian Government

If we accept most of the additional value platforms provide to their users is in curating and providing previews of content, then deleting the second element (which just specifies linking to content) would fix Berners-Lee’s concerns.

It would ensure the use of links alone can’t be monetised, as has always been true on the web. Platforms would still need to pay when they present users with extracts or previews of articles, but not when they only link to it.

Since basic links are not the bread and butter of big platforms, this change wouldn’t fundamentally alter the purpose or principle of creating a more level playing field for news businesses and platforms.




Read more:
It’s not ‘fair’ and it won’t work: an argument against the ACCC forcing Google and Facebook to pay for news


In its current form, the News Media and Digital Platforms Mandatory Bargaining Code could put the underlying principles of the world wide web in jeopardy. Tim Berners-Lee is right to raise this point.

But a relatively small tweak to the code would prevent this, It would allow us to focus more on where big platforms actually provide value for users, and where the clearest justification lies in asking them to pay for news content.


For transparency, it should be noted The Conversation has also made a submission to the Senate inquiry regarding the News Media and Digital Platforms Mandatory Bargaining Code.The Conversation

Tama Leaver, Professor of Internet Studies, Curtin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Is news worth a lot or a little? Google and Facebook want to have it both ways


Tim Dwyer, University of Sydney

Executives from Google and Facebook have told a Senate committee they are prepared to take drastic action if Australia’s news media bargaining code, which would force the internet giants to pay news publishers for linking to their sites, comes into force.

Google would have “no real choice” but to cut Australian users off entirely from its flagship search engine, the company’s Australian managing director Mel Silva told the committee. Facebook representatives in turn said they would remove links to news articles from the newsfeed of Australian users if the code came into effect as it currently stands.




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Expect delays and power plays: Google and Facebook brace as news media bargaining code is set to become law


In response, the Australian government shows no sign of backing down, with Prime Minister Scott Morrison and Treasurer Josh Frydenberg both saying they won’t respond to threats.

So what’s going on here? Are Google and Facebook really prepared to pull services from their Australian users rather than hand over some money to publishers under the bargaining code?

Is news valuable to Facebook and Google?

Facebook claims news is of little real value to its business. It doesn’t make money from news directly, and claims that for an average Australian user less than 5% of their newsfeed is made up of links to Australian news.

But this is hard to square with other information. In 2020, the University of Canberra’s Digital News Report found some 52% of Australians get news via social media, and the number is growing. Facebook also boasts of its investments in news via deals with publishers and new products such as Facebook News.

Google likewise says it makes little money from news, while at the same time investing heavily in news products like News Showcase.

So while links to news may not be direct advertising money-spinners for Facebook or Google, both see the presence of news as an important aspect of audience engagement with their products.

On their own terms

While both companies are prepared to give some money to news publishers, they want to make deals on their own terms. But Google and Facebook are two of the largest and most profitable companies in history – and each holds far more bargaining power than any news publisher. The news media bargaining code sets out to undo this imbalance.

What’s more, Google and Facebook don’t appear to want to accept the unique social role of news, and public interest journalism in particular. Nor do they recognise they might be involved somehow in the decline of the news business over the past decade or two, instead pointing the finger at impersonal shifts in advertising technology.

The media bargaining code being introduced is far too systematic for them to want to accept it. They would rather pick and choose commercial agreements with “genuine commercial consideration”, and not be bound by a one-size-fits-all set of arbitration rules.




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Changing the rules to control monopolies could see the end of Facebook domination


A history of US monopolies

Google and Facebook dominate web search and social media, respectively, in ways that echo the great US monopolies of the past: rail in the 19th century, then oil and later telecommunications in the 20th. All these industries became fundamental forms of capitalist infrastructure for economic and social development. And all these monopolies required legislation to break them up in the public interest.

It’s unsurprising that the giant ad-tech media platforms don’t want to follow the rules, but they must acknowledge that their great wealth and power come with a moral responsibility to society. Making them face up to that responsibility will require government intervention.

Online pioneers Vint Cerf (now VP and Chief Internet Evangelist at Google) and Tim Berners-Lee (“inventor of the World Wide Web”) have also made submissions to the Senate committee advocating on behalf of the corporations. They made high-minded claims that the code will break the “free and open” internet.




Read more:
Web’s inventor says news media bargaining code could break the internet. He’s right — but there’s a fix


But today’s internet is hardly free and open: for most users “the internet” is huge corporate platforms like Google and Facebook. And those corporations don’t want Australian senators interfering with their business model.

Independent senator Rex Patrick hit the nail on the head when he asked why Google wouldn’t admit the fundamental issue was about revenue, rather than technical detail or questions of principle.

How seriously should we take threats to leave the Australian market?

Google and Facebook are prepared to go along with the Senate committee’s processes, so long as they can modify the arrangement. The don’t want to be seen as uncooperative.

The threat to leave (or as Facebook’s Simon Milner put it, the “explanation” of why they would be forced to do so) is their worst-case scenario. It seems likely they would risk losing significant numbers of users if they did so, or at least having them much less engaged – and hence producing less advertising revenue.

Google has already run small-scale experiments to test removing Australian news from search. This may be a demonstration that the threat to withdraw from Australia is serious, or at least, serious brinkmanship.

People know news is important, that it shapes their interactions with the world – and provides meaning and helps them navigate their lives. So who would Australians blame if Google and Facebook really do follow through? The government or the friendly tech giants they see every day? That’s harder to know.


For transparency, please note The Conversation has also made a submission to the Senate inquiry regarding the News Media and Digital Platforms Mandatory Bargaining Code.The Conversation

Tim Dwyer, Associate Professor, Department of Media and Communications, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

There’s no such thing as ‘alternative facts’. 5 ways to spot misinformation and stop sharing it online



Shutterstock

Mark Pearson, Griffith University

The blame for the recent assault on the US Capitol and President Donald Trump’s broader dismantling of democratic institutions and norms can be laid at least partly on misinformation and conspiracy theories.

Those who spread misinformation, like Trump himself, are exploiting people’s lack of media literacy — it’s easy to spread lies to people who are prone to believe what they read online without questioning it.

We are living in a dangerous age where the internet makes it possible to spread misinformation far and wide and most people lack the basic fact-checking abilities to discern fact from fiction — or, worse, the desire to develop a healthy skepticism at all.




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Journalists are trained in this sort of thing — that is, the responsible ones who are trying to counter misinformation with truth.

Here are five fundamental lessons from Journalism 101 that all citizens can learn to improve their media literacy and fact-checking skills:

1. Distinguishing verified facts from myths, rumours and opinions

Cold, hard facts are the building blocks for considered and reasonable opinions in politics, media and law.

And there are no such things as “alternative facts” — facts are facts. Just because a falsity has been repeated many times by important people and their affiliates does not make it true.

We cannot expect the average citizen to have the skills of an academic researcher, journalist or judge in determining the veracity of an asserted statement. However, we can teach people some basic strategies before they mistake mere assertions for actual facts.

Does a basic internet search show these assertions have been confirmed by usually reliable sources – such as non-partisan mainstream news organisations, government websites and expert academics?

Students are taught to look to the URL of more authoritative sites — such as .gov or .edu — as a good hint at the factual basis of an assertion.

Searches and hashtags in social media are much less reliable as verification tools because you could be fishing within the “bubble” (or “echo chamber”) of those who share common interests, fears and prejudices – and are more likely to be perpetuating myths and rumours.

2. Mixing up your media and social media diet

We need to be break out of our own “echo chambers” and our tendencies to access only the news and views of those who agree with us, on the topics that interest us and where we feel most comfortable.

For example, over much of the past five years, I have deliberately switched between various conservative and liberal media outlets when something important has happened in the US.

By looking at the coverage of the left- and right-wing media, I can hope to find a common set of facts both sides agree on — beyond the partisan rhetoric and spin. And if only one side is reporting something, I know to question this assertion and not just take it at face value.

3. Being skeptical and assessing the factual premise of an opinion

Journalism students learn to approach the claims of their sources with a “healthy skepticism”. For instance, if you are interviewing someone and they make what seems to be a bold or questionable claim, it’s good practice to pause and ask what facts the claim is based on.

Students are taught in media law this is the key to the fair comment defence to a defamation action. This permits us to publish defamatory opinions on matters of public interest as long as they are reasonably based on provable facts put forth by the publication.

The ABC’s Media Watch used this defence successfully (at trial and on appeal) when it criticised a Sydney Sun-Herald journalist’s reporting that claimed toxic materials had been found near a children’s playground.

This assessment of the factual basis of an opinion is not reserved for defamation lawyers – it is an exercise we can all undertake as we decide whether someone’s opinion deserves our serious attention and republication.




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4. Exploring the background and motives of media and sources

A key skill in media literacy is the ability to look behind the veil of those who want our attention — media outlets, social media influencers and bloggers — to investigate their allegiances, sponsorships and business models.

For instance, these are some key questions to ask:

  • who is behind that think tank whose views you are retweeting?

  • who owns the online newspaper you read and what other commercial interests do they hold?

  • is your media diet dominated by news produced from the same corporate entity?

  • why does someone need to be so loud or insulting in their commentary; is this indicative of their neglect of important facts that might counter their view?

  • what might an individual or company have to gain or lose by taking a position on an issue, and how might that influence their opinion?

Just because someone has an agenda does not mean their facts are wrong — but it is a good reason to be even more skeptical in your verification processes.




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5. Reflecting and verifying before sharing

We live in an era of instant republication. We immediately retweet and share content we see on social media, often without even having read it thoroughly, let alone having fact-checked it.

Mindful reflection before pressing that sharing button would allow you to ask yourself, “Why am I even choosing to share this material?”

You could also help shore up democracy by engaging in the fact-checking processes mentioned above to avoid being part of the problem by spreading misinformation.The Conversation

Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government funds are not ‘taxpayer money’ — media and politicians should stop confusing the two



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Jonathan Barrett, Te Herenga Waka — Victoria University of Wellington

Rhetoric plays an important role in tax debate and therefore tax policy. If your side manages to gain traction in the public imagination with labels such as “death tax” or “dementia tax”, you have gone a long way to normalising the labels and winning support.

Some truth underpins these particular labels — an estate tax is triggered by a person’s death, and the United Kingdom’s abandoned levy for end-of-life care would have been particularly relevant for dementia sufferers.

Nevertheless, these tags are essentially political messages and we should expect unbiased media to use neutral terminology. Fair reportage would not, for example, repeat the extreme libertarian claim that “tax is theft” — a baseless slogan incompatible with the rule of law.

However, both reputable media and politicians of every stripe invariably use the phrase “taxpayer money” to describe government funds, despite the phrase having no constitutional or legal basis.

This article argues that truth-based media should avoid the phrase, and progressive politicians should recognise they fall into a conservative trap when they repeat it.

Taxpayers don’t own their taxes

Richard Murphy, one of the founders of the UK’s Tax Justice Network and author of The Joy of Tax, explains that “taxpayers’ money” is the money left in our pockets after we have paid taxes that are legally due. Money payable through taxes is the government’s property.

This is quite easy to prove — try not paying your income tax and see if the courts will enforce government property rights in that money.

Murphy also observes that “taxpayer” is typically understood as “income tax payer”, thereby implicitly preferring high income earners while excluding beneficiaries. But a goods and services tax (GST) ensures everyone is a taxpayer, and indirect taxes disproportionately affect the poor.




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Similarly, at a local level, “ratepayer” has become synonymous with the propertied voice to which councils should pay heed, even though renters (rather than the registered ratepayer for a leased property) bear the effective burden of local rates.

If the government is the legal owner of its funds, then, does it hold tax revenue in trust for taxpayers? Not at all. Subject to the rule of law, governments can do what they choose with their money.

Elections decide how taxes are spent

Self-appointed watchdogs such as the Taxpayers’ Union claim to bring government waste to public notice. Rightly so — as citizens, we should demand proper stewardship of government funds.

But our actionable right as electors is to vote a wasteful government out of office. The electorate as a whole, rather than an ideological interest group, determines the size of government we should have.

Unlike trust beneficiaries, we do not have an equitable interest in the government’s money. If it were otherwise, groups of taxpayers might have some claim on the government to spend or not spend its money in particular ways.




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For example, paying taxes to fund belligerent activities is problematic for pacifists, notably certain religious groups. A Religious Freedom Peace Tax Fund Act, which has been regularly introduced to the United States Congress, would permit dissenting taxpayers to assign the defence portion of their taxes to supporting peace work and social services.

Proponents of the legislation have not sought to pay less tax than their fellow citizens but to direct how their tax contribution is spent. These attempts have failed, as they must do. Democratic political communities permit dissent, but nonconformism does not extend to directing how taxes should be spent.

Tax is part of the social contract

In The Variorum Civil Disobedience (1849), a reflection on his imprisonment for failing to pay a highway tax, Henry David Thoreau recognised that an individual citizen can protest against government by refusing to pay tax (and accept the consequences), but they cannot treat the government’s choices in its expenditure as if it were a cafeteria. He wrote:

It is for no particular item in the tax-bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually. I do not care to trace the course of my dollar, if I could, till it buys a man or a musket to shoot one with — the dollar is innocent — but I am concerned to trace the effects of my allegiance.

Liberal democracies are based on some form of metaphorical social contract, most obviously manifest in the constitution. Under this arrangement, parliamentarians are elected representatives, not agents for particular groups.

Henry David Thoreau
Henry David Thoreau: ‘the dollar is innocent’.
http://www.shutterstock.com

Like any government that fails to comply with the basic values of society, groups that seek to control government expenditure outside the electoral process can be seen as bending, if not breaching, the social contract.

A handbrake on decisive action

A progressive government should reject the suggestion that its funds are not its own to use as it sees fit for the betterment of society — as always, in accordance with New Zealand’s two fundamental constitutional principles of parliamentary sovereignty and the rule of law.

Kowtowing to a myth of “taxpayer money” may act as a handbrake on decisive action. We are taxed in accordance with statutory law. If Inland Revenue seeks to collect more from us than is due, we have access to various tribunals and courts.

These legal rules and processes determine what is mine and what belongs to the government. Broadly, we are free to deal with our own property as we see fit — and the government is too.

Media and progressive politicians should stop perpetuating the untruth that taxpayers retain some residual property interest in the taxes they pay. Taxpayer money is nothing more than their after-tax property and the government’s money is its own.The Conversation

Jonathan Barrett, Senior Lecturer in Taxation, Te Herenga Waka — Victoria University of Wellington

This article is republished from The Conversation under a Creative Commons license. Read the original article.