Page updated:
Wednesday, 12 September 2007

SPECIAL REPORT...

Getting your message across

MEDIA LAW ONLINE and in print...

Copyright and defamation are perhaps the laws of greatest interest to online producers.

Following are brief notes on some legal aspects of publishing and obtaining information.

Copyright

Copyright offers a period of exclusive use to the creator of a media product - text material such as articles, books, instructional material, photography, illustrations such as drawings and animations. A website is considered a work copyright to its creator or to the organisation that has hired its creator. An email is copyright to its author. Copyright applies to online as well as print media.

If you publish the work of someone else online or in print - and this includes taking material (text, photographs etc) from other websites - you may be contravening their copyright unless:

• you obtain permission in writing to use the material
• you copy a small amount for educational purposes or review and criticism, such as a book review
• the original material is issued under the General Public Licence (GPL); GPL, although not properly formulated for media products, relinquishes copyright; the Linux computer operating system is an example of GPL; such material may be called 'open source'; the Creative Commons licence is another legal strucure for placing material in the public domain that replaces copyright with a licence to reuse the material in accordance with conditions stipulated by its creator.

Defamation

A person or organisation is defamed when their reputation is brought into question such that it affects their dealings with others. They are entitled to seek redress in court.

In some states, defamation may be a fact even if the information published about the person is true.

Racial vilification

Australia has laws against vilifying a person on the basis of their ethnicity, race, skin colour or religion.

This does not prevent the public discussion of these matters, only using them to degrade a person in the opinion of others.

Spam

The Australian Spam Act 2004 makes it an offence for organisations based in this country to distribute unsolicited material online.

Legal aspects of obtaining information for publication

Recording conversations

In most states it is not legal to record telephone conversations unless the interviewee agrees.

Most journalists use small digital or tape recorders in face to face interviews or press conferences; this is legal. It is courteous to ask the interviewee if they mind your recording the interview. Explain that recording will enable you to quote them accurately and will serve as a check on the notes you take.

Small devices are available to attach to a telephone handset and pick up a voice signal to feed into a tape or digital recorder.

Photography

There is no right to privacy in Australia and photographs taken in public places may be published.

Laws of trespass prevent photographers, including photojournalists, entering without invitation a private property to take photographs. Although it remains unclear, even using a high-magnification telephoto lens to obtain photographs of people on private property may be challengable in court.

It is not necessary to obtain permission to make use of photographs of people taken for editorial purposes, such as those made by photojournalists and published in a newspaper or magazine in a news or current affairs context. However, with the exception of images where spontaniety or action is required, it is courteous to ask people if they mind being photographed for publication purposes if they are the main subject in the image.

Photographers making images of people for commercial, non-editorial purposes should obtain the agreement of the subject or, if they are children, their guardian. This takes the form of a signed release (sometimes called a 'model release') that stipulates that they are in agreement that the images can be used.

Restriction on publishing photographs

If your print or online publication covers defence matters, remember that you cannot publish an image of special forces military personnel in which individuals are recognisable. This is to protect the identity of personnel on missions.

Taking photographs and video for non-editorial commercial use in the national parks of some states may require permission and the payment of a fee. This is controversial among professional photographers, particularly those producing picture books, who see the regulations as restricting their professional activity and contrary to the role of national parks. A national parks slogan used to be: "Take nothing but photographs; leave nothing but footprints", however it appears that those days are gone for anyone wishing to publish images made in the parks.

Even more vexed are Parks Australia's regulations on photography, videography and fine arts such as painting and drawing in the national parks they control. Images of Uluru Kata Tjuta cannot be published without vetting of the images and permission from the parks authority. This draconian regulation applies even when the images were originally made for personal use and not publication and even if they were made before the legislation came into force.

This means that if visitors place online or publish those pictures they took on holiday at Uluru they are breaking the law and can be prosecuted by Parks Australia. Writing in Australian Photography (November 2003), professional photographer Ross Barnett described how a photograph of Uluru Kata Tjuta made by a German photographer was removed from an exhibition at Sydney's Museum of Contemporary Art because the photogrpaher did not have permission to show it in public.

Supposedly, the restrictions are in place because of Uluru Kata Tjuta's cultural value to local Aboriginies. Some sites cannot be photographed at all because they are culturally sensitive and available for viewing only by certain people. But as Barnett pointed out in his article, one of those sites - the north-east face of Uluru that is off-limits to photographers - is in view of all who travel past it. And the contradictions do not stop there. Barnett found pictures of Aboriginal art sites that are off-limits to photographers on sale in a 'Park Notes' publication at the Uluru Kata Tjuta cultural centre. An aerial photograph of the area that showed sensitive sites was reportedly on sale at the same place.

Most professional photographers do not want to make images of cultural sites that are genuinely sensitive, however the restrictions on what and how the national park can be photographed, the need for approval to use images, the retrospective nature of the regulations and the restriction on amateur publication of images are seen as draconian and as censorship.