Free Speech and Media Law Reading Guide PDF

Preview

Summary

Subject/Reading guide for BLAW10002...

Description

Reading Guide

Free Speech and Media Law BLAW10002 Credit points:

12.5pts

Availability:

Semester 2, 2020

Timetable: Please refer to your student timetable for your class schedule for this subject: https://my.unimelb.edu.au/ Subject Coordinator: Associate Professor Jason Bosland [email protected] Teaching Staff: For an up-to-date list of tutors and their contact details please check the LMS subject page.

THIS COMPILATION OF STUDENT READING MATERIAL HAS BEEN MADE IN ACCORDANCE WITH THE PROVISIONS OF PART VB OF THE COPYRIGHT ACT FOR THE TEACHING PURPOSES OF THE UNIVERSITY. FOR USE ONLY BY THE STUDENTS OF THE UNIVERSITY OF MELBOURNE ENROLLED IN THE SUBJECT: Free Speech and Media Law – BLAW10002

ACKNOWLEDGEMENT Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which the law school stands. We pay our respects to their Elders both past and present.

Free Speech and Media Law BLAW10002 – Semester 2, 2020 © Melbourne Law School

BLAW10002 Free Speech and Media Law Semester 2, 2020 Lecturer and Subject Coordinator Associate Professor Jason Bosland Room: 955 Telephone: 9035 4118 Email: [email protected] For an up-to-date list of tutors and their contact details please check the LMS subject page.

Subject Materials There is no prescribed textbook for this subject. The required readings highlighted in the reading guide are available online via the LMS subject page.

Subject Overview Our current laws regarding free speech and media have grown up in an era of mainstream media institutions. Now every individual with a computer or mobile device and access to the internet can record, report and comment on events, and frequently does. The old focus on organised media and largely passive audience is breaking down. As a result, the regulation of free speech and media has to contemplate the whole gamut of media from highly institutionalised to highly diffused, and the question is whether these diverse arrangements can be addressed without unduly constraining public debate. Principal topics: • Introduction: law's regulation of free speech and media; • History and philosophy of free speech; • Development of a 'media law': the inherited British tradition of law-making and interpretation, role of the High Court, international influences on local law, etc; • The High Court's implied constitutional freedom of political communication; comparisons with explicit rights frameworks in other jurisdictions (especially US); problems of the national law approach in an interconnected environment; • Reporting the courts and constraints on freedom of speech: contempt, suppression orders and the right to a fair trial; • Censoring the media: defamation laws and the significant constraints they impose on speech; • Contemporary and comparative defamation laws and their reform; • Confidentiality, privacy and the media; • The protection of journalists' sources;

1

• •

Blasphemy and obscenity laws and the shaping of public opinion; racial and religious vilification and other forms of 'offensive' speech; and Possible futures - disaggregating free speech and media.

Learning Outcomes On completion of this subject students should: • Recognise that free speech and the media have various legal connection points; • Appreciate the multiple ways in which free speech and the media may be protected and restricted by the law; and • Understand the basic features of the legal treatment of free speech and the media.

Generic Skills On completion of the subject the student should have: • Capacity for self-directed learning, specifically the ability to plan work and use time effectively; • Cognitive and analytical skills; • Ability to speak about complex ideas in a clear and cogent manner; • An awareness of diversity and plurality; • Write essays which develop structured argumentation; and • Capacity to judge the worth of their own arguments.

Assessment Tasks Class Participation Weighting 10% Media Diary (via discussion board on LMS) Weighting 20% Assessment Various dates throughout the semester (to be advised). due date Assessment This information will be provided in class and uploaded to LMS. criteria Written assignment 1,000 words Weighting 20% Assessment Please refer to the assessment due dates posted on the Assessments tab on the LMS due date subject page. Submissions will not be accepted more than three calendar weeks from the advertised due date and time. Submission Submission of your written assignment is to occur electronically via the LMS. Please Method note that your assignment will be subjected to a plagiarism detection programme such as TurnItIn. TurnitIn is an online, web-based software that works by comparing electronically submitted papers to billions of pages of content located on the internet and proprietary databases as well as the work of all students whose papers have also

2

been submitted into the system. Please familiarise yourself with the university’s policy on academic honesty, further information on page 4 of this reading guide. Marking code Marking code 2 applies. Code 2: Work judged grossly in excess of any word limit will incur a marking penalty. Work will be judged grossly in excess of a word limit if its length exceeds that word limit by 10% or more. In calculating the number of words for the purposes of enforcing the word limit, citations in footnotes, synopses or abstracts and bibliographies will not be counted.

Assessment criteria

Penalty: Any penalty incurred will be equal to 5% of the total available marks for the piece of work for each 10% or part thereof by which the number of words exceeds the applicable word limit. For example, for an assessment task with a limit of 2,500 words, a penalty of 5% of the total available marks will be imposed for every 250 words or part thereof by which the submission exceeds (a) 2500 words where Code 1 is applied or (b) 2,750 words where Code 2 is applied. This information will be provided in class and uploaded to LMS.

Examination (2 hours) Weighting 50% Assessment Scheduled during the semester 2 examination period. Further information on the due date exam timetable can be found here: http://go.unimelb.edu.au/sw6a Assessment This information will be provided in class and uploaded to LMS. criteria

Late Submission Penalty Please refer to the assessment schedule posted on the Breadth LMS community for the assessment due date. An assessment task is considered late if not submitted by the due date/time as prescribed on the assessment schedule or after any extension/special consideration has been granted. Assessment submitted late will incur a 5% penalty deduction of marks available for that particular piece of assessment for every day, or part thereof. Submissions will not be accepted more than three calendar weeks from the advertised due date and time.

3

Marking Policy and Feedback Responsibility for grading assessment lies with the examiners, who usually comprise the subject coordinator and other teachers in the subject concerned. Students have a right to look at all assessed work and to discuss the reasons for their grade, initially with the marker and if necessary with the subject coordinator. Ordinarily, feedback should only take place when a student has completed the assessment task and the mark returned to the student. Students completing a similar assessment task for the second time as a result of special consideration ought not receive feedback on their first attempt of the assessment until the second piece of assessment has been completed and the mark has been returned. The purpose of feedback is not to re-mark assessment, but to enable students to understand their grade and to learn from the assessment experience. Students may also have further discussions about their performance with the Course Directors. Second marking of assessment tasks is only available in the following circumstances: (i) Interim assessment: A piece of written interim assessment will be second marked prior to being returned to a student if a fail grade has been recorded on a first marking. (ii) Otherwise, assessment will not be second marked, unless a student has failed overall on the first marking. If a student has failed overall on the first marking, all pieces of the assessment will be second marked before a final result is returned.

Formatting Requirements It is essential you keep a copy of your submitted assessment for your records. File Naming Conventions Subject code – student id – assessment title.doc Example: BLAW10001-1234567-TakeHomeExam.doc Format of Interim Assignment Papers should: • have a 2cm (minimum) margin all around; • have all pages numbered; • use 1.5 line spacing with minimum 10-point maximum 12-point font; • include a footer with your student number (do not include your name); • have all references cited in accordance with the Australian Guide to Legal Citation (AGLC); • include a bibliography; and, • be saved as a single document in .rtf, .doc or .docx format (no PDFs)

LMS Subject Page on the Learning Management System (LMS) http://www.lms.unimelb.edu.au/ The Reading Guide, assessment details and all important notices will appear on the LMS Subject Page for this subject. You should ensure that you check the Subject Page of LMS regularly for announcements and news.

4

Program of Classes and Readings Background reading on law and the legal system: Michael Lambiris and Laura Griffin, First Principles of Business Law (Oxford University Press, 2017, 10th ed), Chapter 1 (The Organisation of Law and Government in Australia) – link to ebook. Class

Topic

Required reading

Lecture 1

Introduction to the course, free speech and the media

None.

Tutorial 1

Free speech rationales

Barendt, Freedom of Speech, 2nd ed, Oxford, 2007, ch 1 (Why Protect Free Speech?), pp 1-38 – also available through the library catalogue.

Lecture 2

Legal protection of freedom of speech

US Constitution (1789) First Amendment. UN Declaration on Human Rights (1948) Article 19. International Covenant on Civil and Political Rights (1966) Article 19. European Convention on Human Rights (1950) Article 10. Canadian Charter of Rights and Freedoms (1982), s 2(b). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (extract).

Tutorial 2

Perspectives on the media and free speech

MEAA Journalist Code of Ethics. Near v Minnesota 283 US 697 (1931) (extract). British Steel Corpn v Granada Television Ltd [1981] 1 All ER 417 (extract). R v Vice Media Canada Inc 2018 SCC 53 (extract).

Lecture 3

Defamation – cause of action

Carolyn Sappideen and Prue Vines (eds), Fleming’s: The Law of Torts (Lawbook Co, 2011, 10th ed), ‘Defamation’, pp 613-631. Barendt, Bosland, Craudfurd-Smith and Hitchens, Media Law: Text, Cases and Materials (Pearson, 2014, 1st ed), pp 369-377 (including extract from Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (HL)) and pp 395-401 (including extracts from Tamiz v Google [2013] EWCA Civ 68 and Crookes v Newton [2011] 3SCR 269).

Tutorial 3

The scope of defamation claims

Favell v Queensland Newspapers Ltd [2005] HCA 52; (2005) 22 ALR 186 (extract). Ettinghausen v Australian Consolidated Press (1991) 23 NSWLR 443. Youssoupoff v Metro-Goldwin-Mayer (1934) 50 TLR 581. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 (extract).

5

Lecture 4

Defamation defences

Carolyn Sappideen and Prue Vines (eds), Fleming’s: The Law of Torts (Lawbook Co, 2011, 10th ed), ‘Defamation’, pp 634-639, 655-673. Defamation Act 2005 (Vic), ss 24, 25, 26, 30, 31, 32, 33.

Tutorial 4

Lecture 5

The scope of defamation defences Defamation reform

New York Times Company v . Sullivan, 376 US 254 (1964) (extract). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (extract). David Rolph, ‘Australia’s defamation laws are ripe for overhaul’, Sydney Morning Herald, 9 December 2018. Michael Douglas, ‘Hockey’s defamation win is dark news for democracy and free speech’, The Conversation, 1 July 2015.

Tutorial 5

Defamation problem-solving

Claire Macken and Madeleine Dupuche, Foundations in Australian Law (Lawbook Co, 2012), pp 180-195, 216-219.

Lecture 6

Reporting the courts –contempt

Pearson and Polden, The Journalist’s Guide to Media Law (Allen & Unwin, 2019, 6th ed), pp 134-154.

Tutorial 6

Reporting the courts –contempt

Hinch v Attorney-General (Vic) [No 2] (1987) 164 CLR 15 (Mason CJ extract). DPP (Cth) v Besim [2017] VSCA 165. DPP v Johnson & Yahoo!7 Pty Ltd [2016] VSC 699 (extract).

Lecture 7

Tutorial 7

Lecture 8

Tutorial 8

Reporting the courts – open justice and suppression

Pearson and Polden, The Journalist’s Guide to Media Law (Allen & Unwin, 2019, 6th ed), pp 99-115.

Reporting the courts – open justice and suppression

News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 (extract).

Confidential information (breach of confidence)

Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109, Lord Goff at 280-283H.

Confidential information (breach of confidence)

New Matilda, ‘Statement to New Matilda Readers Regarding Barry Spurr Federal Court Case’, New Matilda, 8 December 2014.

Open Courts Act 2013 (Vic) (extracts).

Jason Bosland, ‘Suppression Orders vs Open Justice’, Pursuit, 1 March 2017.

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (Gleeson CJ extract).

Christopher Walsh, ‘Raunchy Peris email Jump Start ATO Affair’, Northern Territory News, 29 October 2014. Media Watch, ‘Does the Nova Peris Story Pass the Public Interest Test?’, Media Watch, 3 November 2014 (transcript).

Lecture 9

Privacy and the law

Australian Press Council Statement of Privacy Principles. Eric Barendt, Jason Bosland, Rachael Craufurd-Smith and Lesley Hitchens, Media Law: Text, Cases and Materials (Pearson, 2014, 1st ed), pp 464-473 (including Campbell v MGN Ltd [2004] 2 AC 457). Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (reading from lecture 8).

6

Tutorial 9

Developing privacy law

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Summary of Final Report (2014) pp 5-22. Jeffrey Rosen, ‘The Right to Be Forgotten’ (2012) 64 Stanford Law Review Online 88.

Lecture 10

Protection of journalists’ sources

Butler and Rodrick, Australian Media Law (Lawbook Co, 2015, 5th ed) ch 7 pp 497-521.

Tutorial 10

Shield laws

Hannah Ryan, ‘The Half-hearted Protection of Journalists’ Sources: Judicial Interpretation of Australia’s Shield Laws’ (2014) 19(4) Media & Arts Law Review 325.

Lecture 11

Content regulation and harmful and offensive speech

David Rolph, Matt Vitins and Judith Bannister, Media Law: Cases, Materials and Commentary, Oxford, 2015, ch 16 pp 567-569, 575589, 592-602.

Tutorial 11

Hate speech

Dworkin, ‘Foreword’ to Hare and Weinstein, eds, Extreme Speech and Democracy, Oxford University Press, 2009, pp v-ix. Waldron, The Harm in Hate Speech, Harvard University Press, 2012, ch 5, pp 105-118, 130-143. Andrew Bolt, ‘It’s so hip to be black’, Herald Sun, 15 April 2009.

Lecture 12

Tutorial 12

New media challenges: surveillance, automation, accountability, and transparency New media challenges: surveillance, automation, accountability, and transparency

Jason Bosland, ‘Privacy in the Age of Surveillance’ in J Bosland and M de Zwart (eds), Watching Me, Watching You: Surveillance, Privacy and the Law, LexisNexis, 2016, 1-8. Daniel Joyce, ‘Data Associations and the Protection of Reputation Online in Australia’ (2017) 4(1) Big Data & Society 1. Tim Adams, ‘Facebook’s week of shame: the Cambridge Analytica fallout’, The Guardian, 25 March 2018. Seth Goldstein, ‘Solving the political ad problem with transparency’, The Conversation, 18 October 2017.

7...