Social networking a media minefield – Sydney Morning Herald

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Published: May 27, 2011

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In that case, the material posted by the complainant was open to public view, and the fact that the information was publicly accessible was key to the PCC’s assessment as to whether or not the tweets were private. In a 2006 decision of the Victorian Supreme Court (in a case brought by the AFL and Players Association against a variety of media organisations), Justice Kellam held that, notwithstanding the disclosure of confidential information about three AFL players’ drug tests on online football forums and on a pay TV program known as “Fox Footy”, the confidential information (eg their names) had not entered the public domain, and therefore had not lost its confidential nature. Justice Kellam said that whether or not confidential material has entered the public domain is a matter of fact, determined by the accessibility of the information, the size of the audience, whether limited publication would become known to an “ever-widening group of people”, and whether the information referring to the confidential information is merely speculation or has some authority. If a journalist obtains confidential information from social networking sites, then they must consider these factors to determine whether, although available on the internet, the information has actually entered the public domain and whether there are other reasons why the law would allow them to publish information which is otherwise confidential. If a tweet or a statement made on Facebook is defamatory, and the journalist quotes it and the newspaper publishes it, then subject to the usual defences, the journalist and the newspaper could be liable for defamation. Finally, journalists should be aware that, under the new shield laws (which recently amended the Commonwealth Evidence Act 1995), in any Commonwealth legal proceedings, the law will favour the journalist not disclosing the identity of the sources of their information if the journalists have promised their source that they will not. click here to read more

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