Australian Media Law - Assignment Example

Topic: Australian Media Law Name: Student No.: Institution: Tutor’s Name: Due Date: Question 1 1. A discussion of whether Sam breached any Codes of Ethics in relation to collection of information for, and the content of his article ‘Carey update-not her first brush with the law. It is evident that Sam breached the Australian Code of Ethics in Media practice by violating Clause 3 which states that Journalists must use fair, responsible and honest means to obtain material. Identify themselves and their employers before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability or ignorance of media practice (Sadler, 2005). According to actions of Sam in obtaining information about Carey’s past relationships, he breached all sections of this clause. As a he obtained information about Carey’s past relationships unfairly by pretending that he was an assistant to Dr. Delivery so that he could get the information from Carey’s mother. He did not identify his employer during his interview with Carey’s mother; on the contrary he provided misleading information about his employer. He also exploited the vulnerability of Carey as a result of being taken to the hospital and the vulnerability of Care’s mother to provide information that would enable treatment of her daughter. He took advantage of these vulnerabilities to obtain information about Carey’s past relationship from her mother which he went ahead and published. This clause was breached by Sam when he decided to pretend to be an assistant to Dr. Delivery so that he could obtain confidential information about Carey not because he wanted to use the information for her treatment, but to publish a newsletter that he would sell online and get the rewards from the sales. This is an unethical act because it results into disclosure of information about a patient for personal gains and defamation of the patient. In addition, according to this Code of Ethics, members shall safeguard the confidences of both former and present employers and clients, including confidential information about employer’s or client’s business affairs technical methods or processes, except upon the order of a court of competent jurisdiction. Sam breached this Code because he did not keep the information he obtained from Carey’s mother about Carey’s past relationship secret and for the purpose that he promised Carey’s mother that he would use the information. On the other hand, he used the information to publish this online newspaper that resulted into publicizing information about Carey’s past relationships. 2. A discussion of whether 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’. According to Copyright Act 1968 (Cth), Copyright in original materials involves an exclusive right that a person has towards production of a particular publication, communicating the information to the public and making adaptation of the work (Kenyon, 2007). This Act also states that the author is the rightful owner of the literary work if the copyright refers to reproduction of the work for the purpose of inclusion in a book or reproduction of the work in a form of a hard copy facsimile made from paper edition of, or from an alternative hard copy from another edition of , an issues such as newspaper, magazine or periodical with the exclusion of reproduction by the proprietor for the purpose of publication of the newspaper, magazine or a similar periodical (Martin, 2002). A breach in this act occurs when a person who is not the owner of the copyright and without a license of the owner of the copyright does something that compromises the contents of the copyright such as reproduction of the original work of the owner of the copyright. Therefore, Tom can be regarded as having breached Sam’s right by publishing similar information that had been published initially by Sam and was regarded a copyright of Sam. He breached this Act because he published the materials without the authority from Sam to publish the material. In addition, he knew that Sam had published the information but he did not take reasonable steps to prevent doing the act even if he had interest in publishing the information. There are a number of defenses that Tom can use to support his actions. For instance, he can explain that the information published by Sam in the article ’Carey update-not her first brush with the law’ was not accurate because he is the one who had a relationship with her in campus and he has the right information that should published about Carey’s past relationship (Keller, 2009). He would explain that he was concerned with the inaccuracy of the information published by Sam and would like the public to get the right information. Another defense that can be used by Tom is that he took the right steps to ensure the information is not similar to the one that was published by Sam by changing the topic of the publication from ‘Carey update-not her first brush with the law’ to ‘Carey and I-An affair to remember’. This creates the impression that he was focused on providing the affair he had with Carey and not the publication about Carey’s past affair that had been published by Sam. Another defense that can be used by Tom is that his publication was a personal commentary about Sam’s publication and he only wanted to add additional information that was not available in the article written by Sam (Bloy, 2007). He can explain that his act was a fair deal for the purpose of criticizing the work done by Sam by showing that the information in Sam’s article was not accurate as they should be. Another defense that can be used by Tom is that he imported the information in Sam’s article because he was gathering information from a number of sources for his publication among which was Sam’s article (Armstrong, Lindsay & Watterson, 1997). He can explain that incidentally Sam’s article contained most of the relevant information thus a greater content of his article resemble that of Sam. There are also a number of remedies available to Sam. For example, Sam can take an action for infringement subject the Copyright Act of 1968. If he proves that Tom infringed into his publication and it is also established that Tom was not aware and did not have reasonable grounds for suspecting there was infringement of his article, he will not be entitled to any damages but he will be entitled to profits from the sales of Tom’s newspaper in respect of the infringement despite the existence of any relief under this section (Sadler, 2005). Furthermore if it is established that Tom infringed into Sam’s publication, Sam has the right to order detention of facilities used to make a similar publication as his and he will consider tom’s publications his since the time the copy was made. 3. A discussion of whether Sam committed a misleading and deceptive conduct under section 18(1) of the Australian Customer Law in relation to his offer of a set of steak knives for the new subscribers. According to Section 18(1) of the Australian Customer Law, corporations and individual companies in trade are prohibited from conducts that are misleading or deceptive or likely to mislead or deceive. This law states that a person is considered to have taken part in a misleading representation if the representation is made in a manner that is not reasonable (Beattie & Beal, 2007). Sam can be considered to have committed a misleading and deceptive act because he informed subscribers that those who subscribes for the first time for his online magazine would get free steak knives while the knives were not available. He tries to convince consumers to like the products by promising them additional benefits but does not fulfill his promise of providing the knives to the consumers. He can also be argued to have made a false or misleading representation about the goods or services sold. This is in contravention to Part 3 subsection 1 of the Australian Customer law which states that a person must not, during trade or commerce in connection with the possible supply of goods and services make a false or misleading representation that the goods are of a particular quality, value or composition, style or a model with a particular history or make a false representation that the services provided are of a particular standard (McNamara, 2005). This clause of the Australian customer Law was contravened by Sam because he promised customers who subscribed for his online magazine that they would get free steak knives while he did not actually have the knives to give them. This indicates that he falsely made the products he was selling online to be of a higher standard by associating them with free gifts while the truth is that they did not have additional value. Part 2 – 3 marks Selection of the most correct answer for multiple choice questions: (1) Which of the following statements best describes the common law? (1 mark) a) Proceedings are largely inquisitorial where the court shapes the issues. b) A set of principles and remedies developed to mitigate the harshness of Parliament-made law. c) A type of legal system developed in England which comprises both Parliament-made law and judge-made law. d) Law that regulates relations between individuals within the jurisdiction. Answer (b) (2) Which of the following would be permitted under the Listening Devices Act 1992 (ACT)? (1 mark) a) Recording a telephone conversation without the other person’s consent because you have bad handwriting and find it difficult to remember conversations. b) Recording a private conversation to which you are not a party. c) Communicating a private conversation which has come to your knowledge as a result of the use of a listening device in contravention of section 4 of the Listening Devices Act 1992 (ACT). d) Recording a private conversation where the other party consents to the recording. Answer (c) (3) Which of the following would not be capable of registration under the Trade Marks Act 1995 (Cth)? (1 mark) a) A sign that is intended to be used, but has not yet been used. b) A sign that is not distinct from the goods or services themselves. c) A sign that is a colour. d) A sign that is a scent. Answer (a) References A First amendment down under?. (2000) (pp. 43-45). Aldershot, UK: Ashgate Pub. Armstrong, M., Lindsay, D., & Watterson, R. (1997). Media law in Australia (pp.35-36). Melbourne [u.a.: Oxford Univ. Press. Beattie, S., & Beal, E. (2007). Connect + converge: Australian media and communications law (pp.89-92). Victoria [u.a.: Oxford Univ. Press. Bloy, D. (2007). Media law (pp.112-115). London: SAGE. Butler, D. A., & Rodrick, S. (2011). Australian media law 4th Edition (pp.156-159). Rozelle, N.S.W: Thomson Reuters (Professional) Australia Limited. Keller, P. (2009). Liberal democracy and the new media (pp.46-49). Oxford: Oxford University Press. Kenyon, A. T. (2007). TV futures: Digital television policy in Australia (pp13-17). Carlton, Vic: Melbourne University Press. Martin, J. B. (2002). Mass Media: A bibliography with indexes (pp.90-93). New York: Nova Science Publ. McNamara, L. (2005). The legal protection of reputation and the tests for what is defamatory (pp.19-22) . Ogawa, M. (2006). Protection of broadcasters' rights (pp.109-112). Leiden [u.a.: Nijhoff. Sadler, R. L. (2005). Electronic media law (pp.76-79). 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