Sophie Dawson, Partner and Jarrad Parker, Senior Associate at Bird&Bird, provide their insights into the recent major developments in Australia’s media laws.
How would you describe 2019 in the media law landscape?
2019 has been an unprecedented year of review and proposed reform of the Australian media law landscape. Governments and regulators have recognised that the media landscape is now global and converging, and responded by seeking to ensure that Australia’s media laws remain relevant in the digital age.
The year’s reform processes have culminated in a campaign by Australia’s major media organisations for reform to laws and practices to combat excessive government secrecy and to protect whistleblowers. The campaign has highlighted government secrecy, and the importance of the media’s role in exposing abuses of power and shortcomings of government.
Could you tell us a little more about the Digital Platforms Inquiry?
The Digital Platforms Inquiry, which is being conducted by Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), considered the effects of digital platforms (in particular, Google and Facebook) have on competition in media and advertising services markets, with a focus on the supply of journalistic content.
After a period of community consultation, the ACCC released its final report on 26 July 2019. The report contains 23 recommendations related to matters including competition, the relationship between digital platforms and traditional media, digital literacy, privacy law reform, tax and unfair contract terms. Refer to our team’s article regarding these recommendations.
The government is consulting in relation to the final report, and its response is expected to be released by the end of the year.
Would you be able to provide some insights into the planned National Defamation Law Reform?
While each of Australia’s states and territories have their own defamation laws, these laws are substantially similar as they adopt a set of model defamation provisions. In June 2018, the Council of State Attorneys-General formed a working group to conduct a review of the model defamation provisions.
The working group issued a Discussion Paper in February 2019, which examined a broad range of issues including whether Australia should adopt the UK’s single publication rule and/or serious harm test, whether Australia should adopt the US’s public figure defence, and whether the innocent dissemination defence should be amended to expressly deal with digital platforms.
Community consultation regarding the discussion paper closed on 30 April 2019. The working group is expected to release draft amended model defamation provisions for consultation, with the aim of finalising them by June 2020.
In which States are open justice reviews being conducted, and what will they cover?
The Law Reform Commissions of both New South Wales and Victoria are conducting a review regarding the principle of open justice.
In NSW, the Open Justice Review is considering the operation of legislative prohibitions on the disclosure or publication of NSW court and tribunal information, suppression and non-publication orders, and access to information in courts and tribunals. In particular, the review will consider whether current laws remain the appropriate regulatory settings in light of matters including the digital environment.
Preliminary submissions in this review closed on 31 May 2019. A consultation paper is expected to be released later in 2019.
Meanwhile, the Victorian Law Reform Commission is currently reviewing the law related to contempt of court, and the possible reform of statutory restrictions on publication of certain information (including enforcement of those prohibitions). The final report of this review is due to be published by 28 February 2020.
Lastly, would you be able to share what you know about the Press Freedoms Inquiry?
On 4 July 2019, the Commonwealth Parliamentary Joint Committee on Intelligence and Security commenced an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press.
This inquiry commenced following the execution of search warrants in June 2019 by the Australian Federal Police against media companies and journalists related to media coverage critical of the government and defence force. Each search warrant was in the course of an investigation into the alleged unauthorised disclosure of government information by a Commonwealth officer.
The inquiry is considering matters including the impact of the powers of law enforcement on journalists’ work, and whether any, and if so, what changes could be made to procedures and thresholds for the exercise of those powers in relation to journalists and media organisations. The inquiry will also examine whether a better balance is required between the need for press freedom and the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats.
Submissions in relation to the inquiry have now closed, with the Committee to report back to both Houses of Parliament by 28 November 2019.
Whatever the outcome of each law reform process, 2020 will clearly be a significant year for the Australian media law sector.
To hear more insights and practical advice on the changing landscape of Australia’s media law sector, consider attending our 2nd Annual Media Law Conference.
Sophie Dawson is a partner in Bird & Bird’s Sydney office, and head of the Disputes practice in Australia. She specializes in media and technology advice and disputes, including data protection and publication laws. You may connect with Sophie via email sophie.dawson@twobirds.com or LinkedIn
Jarrad Parker is a senior associate in Bird & Bird’s Dispute Resolution Group. He has diverse experience in dispute resolution and compliance systems, with a special interest in the media and technology sectors. You may connect with Jarrad via email jarrad.parker@twobirds.com or LinkedIn
