Media Law and Code of Ethics - Assignment Example

Case Analysis: Media Law and Code of Ethics Name: Lecturer: Subject and Code: Date: Introduction This paper presents an analysis of a case involving copyright infringement and violation of code of ethics. It starts by examining the breaches of Codes of Ethics in relation to the collection of information, infringement of Copyright Act 1968(Cth), the remedies and defences and lastly, commission of misleading and deceptive conduct under section 18(1) of the Australian Consumer Law. Part 1 (1) Breach of Codes of Ethics Journalism standards and ethics consist of principles of ethics or good practices relevant to particular professional issues that journalists go through. As a subset of media ethics, they are professionally known as “code of ethics1.” In relation to collection of information by Sam, various codes of journalism codes of ethics are applicable to his conduct. According to clause 5 of the APA statement of principle, information acquired through unfair or dishonest means, or a publication that is in breach of confidence should not be published unless there is an overwhelming public interest. Clause 4 further specifies that news should be presented fairly and honestly with respect to sensibilities and privacies of individuals. According to clause 6 of the IFJ declaration of principles, a journalist should only use fair methods to acquire new, documents and photographs. Clause 8 of the AANA codes of ethics provides that journalists should be fair, honest and responsible when obtaining information. Further, they should also not exploit an individual’s ignorance and vulnerability in the process of gathering information. Based on the facts presented by the case, it is clear that Sam’s conduct in collecting information for his articles is in breach of several codes of ethics. For instance, Sam decided that he had to find a new way to seek information about Carey and Darren’s private life in an effort to keep his readers happy. Sam afterwards tracks down Carey’s mother phone number and pretends to be Carey’s doctor. Through this, he is able to find out that Carey had had a previous pregnancy that he publishes. To conclude, Sam breached codes of ethics by collecting private information about Carey’s previous pregnancy using unfair and dishonest means and by taking advantage of Carey’s mother ignorance and vulnerability. (2) Breach of Copyright Act 1968 The central issue is whether Tom infringed Sam’s copyright by reproducing an article whose content was similar to that of Sam. Under the Australian Copyright Law 1968 (Cth), the appropriation of existing creative works to oneself without the copyright owner’s permission creates a risk of copyright infringement. Sections 30 and 31 of the Copyright Law 1968 specify that ideas expressed in material from and which are published automatically become copyrighted. Therefore, copyright protects ideas or information or expression of such. The underlying significance is that the information or idea has to be expressed or recorded in some material form. Based on this provision, it is clear that Sam’s work was copyrighted2. To determine the status of Tom and Sam’s article, Section 29(1)(a) of the Copyright Law 1968 can be applied. According to the section, any literary, artistic or musical work shall be considered to have been published once it is supplied to the public. Therefore, since Sam published the article titled ‘Carey and I – An affair to remember’ on his online blog, it is considered to have been published and therefore is subject to examination as to whether it infringes someone else’s copyright3. Basically, creative work is protected when it is protected by copyright, when the whole or substantial part of the article is used. Therefore, infringement of copyright will also happen when one reproduces the “whole” or “substantial” part of copyrighted material4. Here, substantial refers to the quality rather than the quantity of what has been reproduced, even as the more the quantity is reproduced, the more likely it becomes “substantial.” Such facts were held in the case Sandoval v New Line Cinema Corp5. By quality, it means reproducing the most or least important part of the original work. Based on the facts of the case, three issues are clarified that determine whether Tom’s article infringed Sam’s copyright. First, Tom infringed the work as he reproduced a substantial part of Sam’s work without Sam’s permission. Second, the work was reproduced as it has been copied and communicated online (published). Third, a substantial part of the work has been reproduced as it was the most important part of the work6. To conclude, Tom breached Sam’s rights under the Copyright Act 1968 (Cth) in publishing on his blog the article ‘Carey and I – An affair to remember’? Remedies Since copyright is Sam’s work is infringed, Sam can bring proceedings for infringement against Tom, and obtain remedies such as injunctions to stop Tom from publishing the work. He can also seek for damages to obtain money that Sam has generated from the publication. In any case, Sam has several defences that give him the privilege to publish the article7. Defence The major defence available to Tom for copyright infringement includes fair dealing. In determining the defences available to Tom, the central legal issue would be to determine whether his work that reflected a substantial part of Sam’s publication can be categorised under fair dealing8. Section 42(i)(a) of the Copyright Law stipulates that a conduct shall not be deemed to have infringed a copyright if the purpose of its publication is strictly for reporting of news. This implies that the doctrine of fair dealing gives Tom a privilege to use the contents of the article without the permission of the owner of the copyright (Sam) on condition that the author is acknowledged9. In determining whether fair dealing exists, courts are often willing to examine the purpose of publishing the article, as was demonstrated in the case Religious Technology Center v. Pagliarina the court held that fair dealing can be awarded if a portion of the article was for news purposes10. In the case, Hustler Magazine, Inc. v. Moral Majority Inc, the court ruled that fair dealing shall be awarded if the infringing article does not affect the sale of the original11. To conclude, Tom’s conduct does not qualify for fair dealing defences. Tom copied a substantial part of Sam’s article and published in his blog for the purpose or new reporting. Tom’s article affected the online traffic for Sam’s article. Tom also failed to acknowledge the original author (Sam). (3) Misleading and Deceptive Conduct The central legal issue is determining whether Sam’s notice was misleading and deceptive. The Australian Consumer Law (set out in Competition and Consumer Act 2010) prohibits business from engaging in misleading or deceptive ventures. The Australian Consumer Law s18(1) specifies that “a person must not engage in commerce or trade that is deceptive, misleading or that is likely to deceive or mislead.” For a conduct to be considered as deceptive or misleading, it must pass through three tests12. First, it must represent facts as well as have the capacity to persuade the targeted group to take an action. By misrepresentation, it means false statements facts as was held in the case CRW Pty Ltd v Sneddon13. Second, whether the conduct misleads or deceives or is intended to do so. This, silence is also considered as misleading if a ‘reasonable expectation of disclosure’ is anticipated. Further, courts will often be willing to regard opinions, predictions and promises as misleading or deceptive, and whether the person who made the statement knew it was false or incorrect. Based on the facts presented by the case, it is indeed clear that Sam engaged in commerce that was misleading and deceptive by promoting his article by making false claims that he would reward all new subscribers. For instance, he posted a notice saying: “All new subscribers get a free set of steak knives!” The notice persuaded knew subscribership, who he lied to that he was out of stock. The statement was also a misrepresentation of facts. Facts on the ground were that he was not rewarding new subscribers. Sam was also aware as he made the statement knowing it was a false attempt to increase his subscribership. To conclude, Sam committed misleading and deceptive conduct under the Australian Consumer Law s18(1) in relation to his offer of a set of steak knives for new subscribers. Conclusion Sam breached codes of ethics by collecting private information about Carey’s previous pregnancy using unfair and dishonest means and by taking advantage of Carey’s mother ignorance and vulnerability. Second, Tom breached Sam’s rights under the Copyright Act 1968 (Cth) in publishing on his blog the article ‘Carey and I – An affair to remember’? Tom’s conduct does however not qualify for fair dealing defences. Lastly, Sam committed misleading and deceptive conduct under the Australian Consumer Law s18(1) in relation to his offer of a set of steak knives for new subscribers. Part 2 (1) Which of the following statements best describes the common law? a) Proceedings are largely inquisitorial where the court shapes the issues. (2) Which of the following would be permitted under the Listening Devices Act 1992 (ACT)? d) Recording a private conversation where the other party consents to the recording. (3) Which of the following would not be capable of registration under the Trade Marks Act 1995 (Cth)? a) A sign that is not distinct from the goods or services themselves. References Books, Articles and Journals Deazley, Ronan, "The Myth of Copyright at Common Law" (2003) 6(21) Cambridge Law Journal 106-13 Higgs, Robin ML5: What Is Misleading Or Deceptive Conduct? (2013) Ingham, Lorraine, Australian Shield Laws for Journalists: A Comparison with New Zealand, the United Kingdom and the United States (Australian National University, 2007) 2-5 O'Brien, Damien and Brian Fitzgerald, “Digital copyright law in a YouTube World” (2006) 9(7) Internet Law Bulletin 71-74. Posker, Dan & Patience Cameron, Appropriation Art: an overview of copyright and consumer protection for artists (2012) Arts Law centre of Australia Sloan, Jason, An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying (2013) American Bar Association Snow, Lisa, A Broader Approach to the Substantial Truth Defense (1988) 3(3) Boston College Law Review, 769-786 Wrays, Infringement of Copyright (2013) Case Laws CRW Pty Ltd v Sneddon (1972) SR (NSW) 17 Hustler Magazine, Inc. v. Moral Majority Inc., 606 F. Supp. 1526 (C.D. Cal. 1985) Religious Technology Center v. Pagliarina, 908 F. Supp. 1353 (E.D. Va. 1995). Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998) Read More