Media Law vs Media Ethics - Assignment Example

Media Law Vs Media Ethics Name: Lecturer: Subject and Code: Date: Introduction The media is usually regulated by the use of legislation and codes of conduct. Although the media has freedom of speech, compliance with legislation and codes of conduct is a vital practice for journalists. This task explores issues concerning ethics and law. It presents a case analysis of infringement and breach of code of ethics and discusses breaches of Codes of Ethics in journalism, infringement of Copyright Act 1968(Cth), the remedies available to claimants and defences available to defendants. The task further discusses offences involving misleading and deceptive conduct under section 18(1) of the Australian Consumer Law. Part I (1) Breach of Codes of Ethics in relation to the collection of information Issue The central issue is whether Sam breached a set of prescriptive principles, rules and virtues guiding the conduct of journalists in collecting information. Codes of Ethics Ethics entails a systematic body of wrong or right behaviours. The behaviours entail the right conduct, obligation, moral character and responsibilities. In journalism, a set of ethics exists that set out obligations to comply with certain obligations concerning the right to report news accurately, responsibly and truthfully1. APC statement of principle requires that news should be reported honestly and fairly with respect for privacies of individuals. It further specifies that information should not be acquired using dishonest and unfair means, and such information should not be published unless there is an overpowering public interest. An almost similar code of ethics is set out by IFJ declaration of principles, which specifies that professionals in the field of journalism should use fair methods in collecting news. Another related code is the AANA code of ethics, which requires that such professionals should be responsible, honest and fair when seeking information. AANA code of ethics also specifies that journalists should use fair means on collecting news and should avoid exploiting the ignorance and vulnerability of other individuals while collecting information. Application In the case, Sam is determined to increase the subscribership for his online magazine. He used unscrupulous means to get information on Carey private life. For instance, he used a dishonest means to get Carey’s mother’s contact information. Additionally, he faked a British accent to call Carey’s mother in pretence that he is Carey’s doctor. In the ensuing conversation, Sam gathered that when Carey was in university, she had got pregnant and lost her baby. Sam then exposed this private information on his online magazine using the title ‘Carey update – not her first brush with the law.’ Conclusion It is clear that Sam has breached the codes of ethics related to collecting information. He pretended to be a doctor, lied to Carey’s mother and took advantage of her vulnerability and ignorance. (2) Breach of rights under the Copyright Act 1968 (Cth), remedies and defences Issue The key legal issue is whether Tom’s blog article ‘Carey and I – An affair to remember’ is an infringement of Tom’s copyright, the remedies available to Sam and the defences available to Tom. Laws and Application Section 31 of the Copyright Law 1968 (Cth) gives exclusive rights to the copyright owner to reproduce the work in material form, to publish the creative work, to communicate the work to the public and to make an adaptation of the creative work2. With regard to infringement of such copyrighted works, Section 36(1) of the Act specifies that copyrighted material will be infringed when a person who is not the owner of the copyright and who has not been permitted by the copyright owner reproduces or adapts the work. Section 36(1A) further sets out that in determining whether a person was authorised the copyright owner to reproduce the work, evidence must exist demonstrating that the person took reasonable steps to avoid infringing the copyright or to comply with the applicable industry codes of practice3. The next question is whether Sam’s work was copyrighted. In determining the status of the Sam and Tom’s article, section 29(1)(a) of the Act specifies that any literary work shall be deemed to have been published when the reproduction of the work or editions have been supplied to the public through sale or any other means. Infringement of copyright occurs when the “whole” or “substantial” part copyrighted material is reproduced or adapted4. Under the common law, substantial evidence is applied to the quality rather than the quantity of the reproduced or adapted work. This principle was applied in the case Theberge v. Galerie d’Art du Petit Champlain Inc where it was determined that “quality” should apply to the reproduction or adaptation of the most important section of the copyrighted work5. In the case, Sam published his article on Carey, with the title ‘Carey update – not her first brush with the law’. This means that Sam’ article was automatically copyrighted. It is therefore protected by the copyright. Tom later published an article entitled “Carey and I – An Affair to Remember” on his online blog. The article was a reproduction of Sam’s previously published article. It also had several adaptations directly picked from Sam’s article. Tom reproduced the most important section of the copyrighted work. It is also clear that Tom did not seek any reasonable steps to avoid infringing the copyright. Accordingly, Tom breached Sam’s rights when he published his article entitled ‘Carey and I – An affair to remember’? Given that Sam’s copyright has been infringed, several remedies are available to Sam. Section 115(1) of the Copyright Law specifies that the copyright owner may bring an action for infringement of copyright. Section 115(2) of the Act further specifies that the court may grant an action for copyright infringement, which may include injunction or damages or in some instances, an account of profits. Based on these sections, Sam can bring an action for infringement to seek damages, an account of Tom’s profits or to stop Tom from further publishing the online blog. There are however some defences that accord Tom the privilege to publish his online blog containing adaptations and reproductions of Sam’s copyrighted work. Under fair dealing, Tom is accorded some publishing privileges. Section 42(i)(a) of the Copyright Law 1968 specifies that an action may not be deemed to have infringed copyright when it is done for the purposes of reporting news. The central issue is therefore to determine whether this provision applies to Tom’s work. Under the common law, this can be established by examining the purpose of publishing the article6. This principle was demonstrated in the case Hawkes & Sons (London) Limited v. Paramount Film Service, Limited, where the court held that fair dealing may be awarded if a section of the copyrighted material is infringed for purposes of reporting news on condition that the copyright owner or source of the information is acknowledged7. To conclude, Tom can be awarded fair dealing on condition that he acknowledges Sam as the original author of the information. Tom however copied a substantial part of Sam’s article without taking any reasonable steps to acknowledge the order. Tom breached Sam’s rights under Copyright Act 1968(Cth) when he published his article ‘Carey and I – An affair to remember’? Sam can seek injunction to stop Sam from publishing the article further. Lastly, Tom’s article does not qualify for an award of fair dealing although it was published for news purposes; he failed to acknowledge the original author. (3) Misleading and deceptive conduct under section 18(1) of the Australian Consumer Law Issue The key legal issue is whether Sam’s offer of a steak of knives for new subscribers was misleading and deceptive under section 18(1) of the Australian Consumer Law. Law Section 18(1) of the Australian Consumer Law stipulates that businesses should not engage in deceptive or misleading commerce or that is likely to be so. For commerce to be classified as being deceptive or misleading, it must misrepresent facts as well as have the capacity to influences others to make an error8. Here, misrepresentation means false statements, as was demonstrated in the case Buckland v. Threshold Enterprises, Ltd9. The statement must also be misleading or deceptive or be intent to do so. The person who makes the statement must also be aware that the statement is false, misleading, incorrect or deceptive10. Application In the case, Sam decided that he needed to draw attention to increase his online magazine’s subscriber base. He therefore posted a notice on the site informing the public that: ‘All new subscribers get a free set of steak knives!’ The statement was however misleading and deceptive as it was coined with the main intention of drawing attention to the website since Sam did not intend to offer the knives. The statement had the potential to influence the public to take an action by subscribing to the site. To compound the lie, Sam informed the new subscribers demanding the steak knives that he was out of stock. Therefore, it is clear that Sam’s statement misrepresented facts. Conclusion Therefore, Sam’s conduct was misleading and deceptive under the Australian Consumer Law s18(1). This is since the statement to offer a set of steak knives for new subscriber’s misrepresented facts; because it was incorrect as well as dishonest. Concluding Remarks It is clear that Sam has breached the codes of ethics related to collecting information. He pretended to be a doctor, lied to Carey’s mother and took advantage of her vulnerability and ignorance. On the other hand, Tom breached Sam’s rights under Copyright Act 1968(Cth) when he published his article ‘Carey and I – An affair to remember’? Because of this, Sam can seek injunction to stop Sam from publishing the article further. Lastly, Tom’s article does not qualify for an award of fair dealing as although it was published for news purposes, he failed to acknowledge the original author. Sam’s statement is misleading and deceptive under the Australian Consumer Law s18(1). This is since the statement to offer of a set of steak knives for new subscribers misrepresented facts, was incorrect as well as dishonest. Part II Select the most correct answer for the following 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. (2) Which of the following would be permitted under the Listening Devices Act 1992 (ACT)? (1 mark) 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)? (1 mark) b) A sign that is not distinct from the goods or services themselves. References Articles, Journals and Books Agnew, Paul, Misleading And Deceptive Conduct (Mortgage Settlement Australia, 1991)1, 2 Cook, David, "Post-Judgment Remedies in Reaching Patents, Copyrights and Trademarks in the Enforcement of A Money Judgment" (2010) 9(3) Northwestern Journal of Technology and Intellectual Property 132 Hardy, Trotter, "Criminal Copyright Infringement" (2002) 11(1) William & Mary Bill of Rights Journal 305-329 MBN, Journalistic Code of Ethics (n.d.) Okpaluba, John, LLLM - Legal Regulation Of The Music Industry (2004) Pila, Justine, "Copyright and Internet Browsing" (2012) 128(1) Law Quarterly Review 204-207 Case Laws Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798, 819, (2007). Hawkes & Sons (London) Limited v. Paramount Film Service, Limited [1934] 1 Ch. 593 (C.A.) Theberge v. Galerie d’Art du Petit Champlain Inc. [2002] 2 S.C.R. No. 336 Read More