Media Law Essay

           Creating a website is not a difficult chore. Anyone with Internet access and basic typing skills has the ability to publish content, instantaneously available for the world to read. As an international student living and studying in Australia, I’ve decided to create my own website. It will include multimedia entertainment, information services, content sourced from other websites and media sources, gossip and celebrity news, adult audiovisual content from a reality television show and music downloads. But before I embark upon my extreme cyber adventure, I need to pack some life vests and prepare for the worst; there are major legal issues that will impact my service, and if I don’t educate myself about them, I could be facing some very expensive and time-consuming lawsuits. Defamation and copyright are two areas of media law that have been discussed throughout the course, and are very important issues to consider throughout the construction of my site.

As Professor McAuslan noted in Week 9, defamation is often about playing a game. The World Wide Web offers a plethora of free-flowing information, most of which is available without charge to anyone and everyone with access to an Internet connection. Anyone has the capacity to publish whatever information he or she chooses—whether true or false—at any given time.  But in recent years, this freely flowing spectrum of information has been monitored, regulated and censored; the Australian court system has determinedly decided that you can’t just say anything you please in cyberspace. It’s not difficult for a person with minimal technological knowledge to post a blog, facebook status, twitter feed or even write an e-mail about somebody else—but if the communication is defamatory, legal action can be taken.

In 2006, nearly uniform laws were established in all the Australian states and territories on the issue of defamation (Pearson 2007, p. 175).  Under section 4 of the revised Defamation Act, defamatory matter is defined as a “...thing communicated by means of television, radio, the Internet or any other form of electronic communication” and defines electronic communication as “information in the form of data, text, images or sound (or any combination of these).” Websites are communicated via the Internet, and so anything published on my site—including images or sound—is susceptible to defamation laws. Therefore, I would think twice before posting music downloads of a scandalous Eminem song, streaming a reality television program that contains defamatory language or showing a photograph of a celebrity in a compromising position.

I must also take caution that the information or multimedia that I source from other websites is not defamatory; this is especially important when considering the nature of gossip and celebrity news. Though I may not have written the original content, I will still be held accountable for everything published on my website and am subject to the same defamation laws as the original author. It doesn’t matter if I include quotations around the defamatory material or cite the content as belonging to someone other than myself—republication is just as dangerous as the original publication (Pearson 2007, p. 196).

For example, say I include on my website a paragraph from an Australian magazine article that accuses a female bathing suit model of being overweight and unfit for the runway. A picture of the model is included, and I post that on my site, as well. According to the common law definitions—which have three forms—the material can be deemed defamatory because it exposes the victim to ridicule, may lower the celebrity in the judgment of “right-thinking members of society” and may cause her to be avoided—especially in the pursuit of work as a model (Pearson 2007, p. 181).  It is considered defamatory because of the above three reasons, in addition to the facts that her name is clearly stated in the article, and it is published to at least one other person other than the model (Pearson 2007, p. 184).

            An important aspect of defamation law is knowing the place of publication. When it comes to the Internet, however, websites are downloaded and thus published all over the world, where numerous different state and national laws exist. As more and more people began to go online for information, multimedia, news and entertainment, lawmakers debated as to whether online content was to be considered by defamation laws in the jurisdictions where it was downloaded or in the jurisdictions where it was uploaded. In 2002, this issue was resolved by Australia’s High Court with the Dow Jones & Company Inc v. Gutnick case; publication occurs where the content is downloaded, not where it is uploaded. As a result, if my website is viewed in the United States and a defamation case is presented, Australian courts are required to apply American laws, as they apply in the state where my site was downloaded. However, Pearson notes that there is “little real risk” of successful lawsuits from foreign countries over content published in Australia, because it is impractical and expensive (Pearson 2007, pp. 191-194).

            The Defamation Act also discusses this issue in section 11(2), stating that if the defamatory content is published throughout multiple jurisdictions, the courts will turn towards the jurisdiction in which the harm “has the closest connection” and will use the laws of that state, territory or nation.  The act also provides suggestions as to where the harm might have its closest connection (Defamation Act 2005).

            Another area of law to consider when creating my website is copyright.  As discussed in week 8, copyright issues that pertain to the media include protecting my own work, using other people’s work, the Copyright Act of 1968 and the MEAA Code of Ethics, which quite clearly states: “10. Do not plagiarise” (MEAA Code of Ethics).

            In section 31 of the Copyright Act 1968, copyright is defined as the “exclusive right to reproduce literary, dramatic, musical and artistic works as well as compilations such as films, sound recordings, published editions and broadcasts.” This means that the news stories I source, the music I make available for downloading, the reality television shows I stream, and all other content that I use from other websites or media sources are susceptible to violation of copyright laws. The author or owner of the material alone has the right to reproduce his or her work, and I should consult the owner before publishing the content on my website.

 I need to pay attention to any copyright messages that are shown on sites. For example, a copyright statement appears at the bottom of every news story published on an American website, msnbc.com: Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. Likewise, the Australian news website news.com.au offers this warning on the Terms and Conditions page: Unless expressly stated otherwise, you are not permitted to copy, or republish anything you find on the Site without the copyright or trademark owners’ permission. In these cases, it would be wise to seek written permission before republishing any of the news content. However, even if a website advertises “free use” of its content, I should investigate the freedoms and limitations on the license, and double-check that the website owner actually owns the website content—and, more importantly, that he or she has the legal ability to license its use (Pearson 2007. p 351).

Some people claim that the posting of material online establishes an “implied licence” for free use (Pearson 2007, p 358). On the social networking site facebook, one group called “Free Flow of Information on the Internet” is over 13,000 members strong. They argue that information flow is important because “our ability to solve other problems is generally limited by our ability to communicate with other people, sharing ideas and information” (Free Flow of Information).  But the Australian Copyright Council (ACC) begs to differ, advising users to take caution when using other people’s material. Express permission, they warn, is given only when it is clearly stated that you take certain actions, such as downloading documents for personal or non-commercial use. The ACC also suggests e-mailing the owner of the content for specific permission, and reminds users that the right to use copyrighted material is limited by the terms of permission given (Pearson 2007, p. 258).

As section 31(1)(a) of the Copyright Act 1968 states, a print journalist’s work is within the literary category, and having copyright of a literary work includes the exclusive right to “communicate the work to the public” or to “publish the work.” Duplicating a news story on my website would be breaching both of these conditions, and an obvious case of copyright would be at hand. While no copyright notices may be found within the printed copy of the Sydney Morning Herald, it is still illegal to duplicate published news stories without the journalist’s permission. The act also clearly prohibits the online publication of copyrighted material by defining the word communicate as “making available online” (Pearson 2007, pp. 346-347).

It doesn’t take much for a work to be copyrighted, either. In fact, under Australian law a work is protected under copyright from the moment it’s created. It is not necessary to put a copyright symbol anywhere on the material for this protection to take place, and section 32 of the Copyright Act states that all that is needed for the work to be copyrighted its publication in Australia or that its creator is “an Australian citizen, an Australian protected person or a person resident in Australia.” So although I’m an American citizen (and not an Australian citizen), my website—as long as the work is original—is automatically copyrighted the second it goes on the Internet, because I’m an international student living in Australia. My website is protected from copyright just as The Australian online is (Pearson 2007, p. 347). Of course, if my website was based on content sourced from other websites and media sources, no copyright would exist. The material must be original.

      There are exceptions to the copyright laws, however, which would allow me to use large amounts of other people’s works without penalty. Section 41 of the Copyright Act 1968 states that if the borrowing of material is for “criticism or review,” copyright is not taking place. So if I wanted to stimulate discussion about a particular news event, and I wrote a review about a newspaper article, I would be able to cite large chunks of the article without infringing any copyright laws. I just need to clearly state who wrote the article, where it was published, and when.  This exception to the copyright law applies to numerous varieties of writing, including columns, entertainment and restaurant reviews, book reviews and letters to the editor (Pearson 2007, p. 352).

      Sections 41A and 42 of the Copyright Act outline the other two fair dealing defences for copyright, those for the purpose of reporting news and those for the purpose of parody or satire. If I wanted to write a news article about a news article, or poke fun at someone else’s material in a satirical style of writing, I would be allowed to do so.  Again, as section 10(1) of the act points out, it is important to acknowledge the author if I decide to use a “substantial” part of the work, and this would mean quoting an entire paragraph (Pearson 2007, p. 351).

      In general, the audience for a website has far greater capacity than the circulation of a weekly newspaper. Not only is it easier for most people to access the Internet than it is to run to the newsagent and pick up a newspaper or magazine, but the accessing most articles online is free. Furthermore, the number of people that visit a website can increase exponentially, as news tends to travel quickly on the web. If someone likes my website, they can post it onto facebook, twitter and personal blogs. They can mass e-mail it to entire address books and send links through AIM chat, Skype, or MSN Messenger. Videos from my site can be posted onto YouTube, where links to my homepage are also provided. Search engine optimisation can allow my site to appear at the top of a list of strategically searched keywords. With a few well-placed links, the number of people that view my site could increase by the thousands within days, or even hours. Such is the speed of information technology.

      Because of this potential for mass readership, it is especially important to keep in mind all of the legal issues involved with online publication. The more people that read my site, the more likely it will be that a strong defamation case can be made. Similarly, higher readerships mean that authors will want to be given due credit for their work, and would perhaps prefer people to read their work on their own sites; I could more likely be sued for copyright infringement. If a major news service or popular blog picks up on my site, the audience could spiral out of control quite quickly. Therefore, it would be wise for me to think twice before publishing, double check the legal status of everything I write, and always give credit when credit is due. When it comes to the law, it’s better to be safe than sorry.

Works Cited

Copyright Act 1968, viewed on 2 October 2009,

     <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/>

Defamation Act 2005 No 77 (NSW), viewed on 2 October 2991,

     <http://www.austlii.edu.au/au/legis/nsw/num_act/da2005n77126/>

“Free Flow of Information on the Internet,” on Facebook, viewed on 4 October 2009,

     <http://www.facebook.com/group.php?gid=2208601394>

Media Alliance Code of Ethics, viewed on 2 October 2009, 

     <http://www.alliance.org.au/code-of-ethics.html>

Pearson, Mark 2007, The Journalist’s Guide to Media Law, 3^rd edn, Ligare Book

     Printer, Sydney.