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Roger Clarke's 'Media Standards'

Current Concerns about Media Standards

Preparatory Notes for a Round Table on Media Standards
for the Australian Press Council
Sydney, 23 February 2015

Draft of 21 February 2015

Roger Clarke **

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Although the focus of the Round Table is on Media Standards, a current, major threat to the freedom of the press may loom large in the minds of participants in the event. The first section accordingly discusses the implications of the data retention Bill for the media.

1. The Data Retention Bill

A Bill is before the Australian Parliament that would impose new obligations on Internet Service Providers to gather and retain data relating to communications traffic. The proposal is incoherent, but what is clear is that a vast amount of data would be gathered, would be stored for an extended period, and would be available to large numbers of law enforcement agencies on request, without effective controls. Evidence to the three Committees that have considered it has demonstrated a vast array of inadequacies, summarised most succinctly in APF (2015).

The Bill admits of no exceptions. For example, it would greatly compromise legal privilege. More relevantly to this Round Table, however, the Bill would destroy the balance that presently exists in relation to the shielding of newspapers' sources. Submissions on this aspect were made to the most influential of the three Parliamentary Committees, jointly by a large number of media organisations, by Guardian Australia, by Private Media (publisher of Crikey), by MEAA, and by journalist Bernard Keane.

I made the further point in verbal evidence to the Committee that the implications of this mass surveillance measure for the media is very serious indeed: "A conundrum that arose in discussion when the MEAA was before [the Committee] -- is [this]: supposing there was a decision that the media should be exempt ... It is inactionable. It is virtually impossible to specify how you can have a mass surveillance scheme which either fails to collect data about designated categories or which enables it to be collected but precludes it from being accessed by law enforcement agencies because somehow, magically, the holder of that data knows that the person to whom that data relates is a member of the media. Once you have moved into a mass surveillance scheme, you do not have any exceptions; you have built the kind of infrastructure that we used to associate with unfree countries" (Hansard, Parliamentary Joint Committee on Intelligence and Security, 30 January 2015).

Despite the Bill's massive deficiencies, the Bill, in some form, still has real prospects of being passed. This is due to the 'bipartisan' approach adopted in the Parliament to matters that are labelled with the 'national security' tag, whereby the major parties suspend rational debate in order to avoid being misunderstood by the electorate.

Measures Needed:

Countermeasures against uncontrolled government agency surveillance powers are necessary in any case. The prospect of passage of the present Bill, of an amended version of the Bill, or of a replacement Bill, makes it essential that media organisations take action now.

The most critical measure needed is convenient means for sources to actively protect their identities and locations. A significant contribution to the security of sources is the SecureDrop software, managed by the Freedom of the Press Foundation. A possible element within a comprehensive facility is the Australian-developed competitor to DropBox, Podzy.

The list of SecureDrop implementations includes a number of prominent organisations, including The Washington Post and Forbes Magazine. Indicative of the guidance that needs to be provided by media organisations to the public is that published by The Intercept in Lee (2015).

In Australia, shortly before it closed its doors in February 2014, The Global Mail implemented such a service (Martin & Sonnad 2014). Guardian Australia can be reached via the UK Guardian SecureDrop site. However, it does not appear that any other Australian newspapers have yet made the move.

It is vital that Australian media organisations that conduct investigative reporting implement arrangements that provide reasonable levels of identity and location protection for their sources, by means of a facility such as SecureDrop.

2. Conditions for Casualised Staff

There has been a considerable change in the employee/contractor mix used by media organisations. Unless contractors have comparable support to employees, the public interest in the exposure of information is seriously threatened, and democracy suffers.

Measures Needed:

Investigators and writers need support from media organisations, not least in relation to access to information and guidance, secure communications, quality assurance, indemnities and insurance particularly in relation to defamation, and access to legal advice particularly in relation to defamation, law enforcement agency activities and court orders.

3. Slow Development of a Comprehensive Media Code

In the face of the ongoing proliferation of sources of 'news', media organisations need to secure the professional and moral high ground.

In 2011-12, I reviewed the state of play in relation to the regulatory mechanisms applying to the investigative and publishing behaviour of media organisations (Clarke 2012a), concluding that privacy needs were not currently being satisfied, but that prospects existed of a formal regulatory scheme, or of more effective self-regulatory arrangements. The work included documentation of existing Codes (Clarke 2012b), and a Code Template, designed to support the evaluation or revision of existing Codes or the development of new Codes (Clarke 2012c).

The Council's project to articulate its Statement of General Principles, and its Statement of Privacy Principles (versions of 1 August 2014), Specific Standards (2), and Advisory Guidelines (16), still has some significant gaps.

Measures Needed:

It is important that the Council's Standards project be continued and accelerated.

A review against the Code Template that I proposed in Clarke (2012c) is desirable.

The most pressing aspects appear to me to be:

4. Standards for Video-Capture and for Drone Usage

At a previous Council Round Table, I presented material relating to 'point-of-view surveillance devices' and drones (Clarke 2013). During the intervening two years, the technologies have advanced.

In relation to drones, see Clarke (2014a), Clarke & Bennett Moses (2014) and Clarke (2014b). Adoption is increasing, despite the failure of the aviation safety regulator, CASA, to adapt its regulatory framework to the new realities.

Measures Needed:

The Council has an opportunity to provide a service to its members by getting out ahead of the problems of appropriate and inappropriate media uses of concealed cameras, and of drones. I believe that a consultative process to develop an Advisory Guideline on each topic would be highly beneficial for all concerned.

5. Some Other Key Concerns

I draw attention to the need for Council attention to the following specific matters that are currently not , or not adequately, represented in its list of 'Issues Raised About Aspects of Media Practice':




APF (2009) 'APF Policy Statement re Privacy and the Media' Australian Privacy Foundation, 26 March 2009, at

APF (2015) 'Data Retention Bill Fails Every Test' Australian Privacy Foundation, 5 February 2015, at

Clarke R. (2012a) 'Privacy and the Media - A Platform for Change?' Uni of WA Law Review 36, 1 (June 2012) 158-198, PrePrint at

Clarke R. (2012b) 'Privacy and the Media - Extracts from Media Organisation Codes of Conduct' Xamax Consultancy Pty Ltd, January 2012, at

Clarke R. (2012c) 'Privacy and the Media - A Code Template' Xamax Consultancy Pty Ltd, January 2012, at

Clarke R. (2013) 'The New Meaning of 'Point of View':Media Uses and Abuses of New Surveillance Tools' Notes for a presentation to and discussion with the Australian Press Council, Xamax Consultancy Pty Ltd, 25 February 2013, at

Clarke R. (2014a) 'Understanding the Drone Epidemic' Computer Law & Security Review 30, 3 (June 2014) 230-246, PrePrint at

Clarke R. (2014b) 'The Regulation of Civilian Drones' Impacts on Behavioural Privacy' Computer Law & Security Review 30, 3 (June 2014) 286-305, PrePrint at

Clarke R. & Bennett Moses L. (2014) 'The Regulation of Civilian Drones' Impacts on Public Safety' Computer Law & Security Review 30, 3 (June 2014) 263-285, PrePrint at

Lee M. (2014) 'How To Leak to The Intercept' The Intercept, 18 January 2015, at

Martin L. & Sonnad N. (2014) 'Introducing the TGM SecureDrop Vault' The Global Mail, 11 January 2014, at


Preparation for the Round Table was materially assisted by comments offered by my colleagues on the APF Board, Adam Molnar and David Vaile.

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University.

He is also currently a Board member and Immediate Past Chair of the Australian Privacy Foundation (APF) and a Board member and Company Secretary of the Internet Society of Australia (ISOC-AU).

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