Publication risk – ten questions to ask

I’m often confronted with disbelief when I explain the legal complexities of publishing content in Australia. Here’s a simple guide: if you answer “yes” to any of these ten questions, your content probably needs legal review.

1. Does the publication include adverse comments about anyone?

A defamatory publication is one which tends to lower a person’s reputation. For example, by alleging that a person is corrupt, violent, unethical, or has broken the law, or even by ridiculing them. There is no defence that the person is a public figure, or that the publication is unlikely to cause serious harm. You can be liable for quoting a third party, even if your publication doesn’t endorse their comments. Some entities such as small companies, can also sue.

2. Does the publication include adverse comments about a particular group?

Australia has anti-vilification laws protecting groups defined by race, religion and other characteristics. The “18C” federal racial vilification law is particularly controversial as it has been applied to publications such as cartoons and opinion pieces.

3. Does the publication discuss Australian court proceedings?

Australian courts enforce restrictions on reporting of legal proceedings, particularly trials by jury. This means that publishing material which would usually be OK, may not be while a trial is on foot. Even after proceedings are completed, there may still be suppression orders which continue. These are strict liability offences.

4. Does the publication discuss Family Court matters, child custody, children involved in court proceedings, adoption or guardianship?

There are a range of publication restrictions on domestic related court matters such as Family Court proceedings, apprehended violence orders, adoption, guardianship, mental health and family custody orders. There are also restrictions on identifying children involved in criminal proceedings.

5. Does the publication discuss a sexual offence?

It is generally prohibited in all states and territories to identify a rape victim. In some states the victim can consent to identification, in others a court order is required. In some circumstances the perpetrator also cannot be identified.

6. Was any audio or audio-visual recording made secretly?

Surveillance laws in Australia differ according to which state or territory they were made in. The making or publication of secret recordings, or transcriptions of them can be a breach of criminal law.

7. Was any footage or information obtained as the result of unauthorised access to private or restricted lands?

Material, such as activist footage, which is obtained in the course of a trespass can be risky to use even though the publisher did not obtain it themselves.

8. Will any confidential or sensitive private information be revealed without consent?

Your publication may be at risk of legal action if it reveals confidential information which its owner wishes to protect. There is also an emerging law of privacy. Australia does not yet have a general tort of privacy, but some cases suggest that it is developing. Various media codes of conduct also regulate privacy.

9. Has any participant or interviewee been misled as to the nature of the publication?

A person depicted or interviewed in a publication may be entitled to damages if they can prove they were misled as to the nature of the publication or their involvement in it. A person may also be able to “revoke” consent to participate in such circumstances.

10. Is third party material to be used without a copyright clearance?

Generally speaking, all third party copyright material should be licenced. However, sometimes it is not possible to get a licence, or there may be a “fair dealing” or other defence available.  Australian fair dealing laws can differ quite significantly from those in other countries.

This article is not legal advice nor is it a comprehensive review of publication risks under Australian law. If you require legal advice on your publication, please contact me. I give practical, responsive advice on how to maximise your editorial and creative freedom while minimising legal risks.

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