21 November 201919 December 2019 Journalism / Student rights Concerns notices and courtroom skirmishes: how defamation threats are suppressing student media Alan Zheng In Elif Batuman’s bildungsroman The Idiot, a young man with sideburns repeatedly tells the protagonist, Selin, that the Harvard student newspaper is his life. For much of this year, the last remaining weekly student newspaper in Australia has been mine. Over that time, student media has broken stories of national interest on data breaches, college hazing, student protests, and more. Each of these stories bridged campus life to broader society and placed student issues on the map in a manner no other institution can do. But I have also witnessed student media falter against an all-too-familiar threat. Hard-hitting stories have ended their lives as unpublished drafts, shelved after being spiked or strongarmed. In the background, the defamation law system continues to whir, pitting the resource-poor institutions of student journalism against the legal machinery of the privileged. As a result, important stories are silenced. At first glance, student rags are moored in a legal safe harbour. Defamation is a costly pursuit for litigants. There are reputational risks and long interlocutory processes to undergo. To top it off, the impecuniosity of student journalists becomes a strength in litigation. With limited money to recover, claimants are rarely incentivised to go all the way with defamation. Even when they do, the cases remain locked in directions hearings for an extended period, regardless of their merits. Most of the time, student journalists are more familiar with student misconduct processes than lawsuits. ‘We obviously do our best to avoid being defamatory and unethical, but a person’s only recourse is to sue our President, who is just a student without enough money to really make it worth their while,’ Rowan Evans, Editor in-Chief of the University of Queensland’s (UQ) Semper Floreat, has told me. Defamation threats typically begin their lives as quiet concerns notices. These notices arrive via email, are one or two pages long, and set out a list of demands that range from apologies to full article takedowns. As a specialist area of law, the notices often bear the watermark of an elite law firm. At the end of each notice is a deadline to make amends within 28 days. What happens next depends on the student newspaper, its structure and its legal capabilities. In general, student rags are either self-incorporated entities or part of existing campus institutions, like student unions which are typically unincorporated charities. The University of Sydney’s (USyd) Honi Soit and UQ’s Semper Floreat are informal organisations within their respective student unions. Union regulations ultimately govern who the publisher is in the event of a defamation lawsuit. For example, the regulations of the USyd Students’ Representative Council (SRC), stipulate that six ‘Directors of Student Publications’ (or DSPs) act as publisher. In contrast, the University of Queensland Union’s regulations stipulate that the Union’s President is the publisher of Semper Floreat. Over on Ngunnawal and Ngambri land, Australian National University’s student magazine, Woroni, stands out with a different model. After incorporating in 2010, Woroni became a standalone association under the name ANU Student Media. Talking to current student editors, it has become evident that the fear of defamation lawsuits has stifled the risk appetite of student publishers. And sometimes, defamation is politically instrumentalised by those within student organisations. At Honi Soit, the publishers are six students elected by the SRC who receive legal training. Most, if not all, come to the role with political interests, having been elected on the back of deals made between political factions. Their job is to audit the newspaper for legal risks before the paper goes off stone. But that privilege has been abused. Political loyalties often trump the duty to identify defamation risks impartially. This year, a DSP leaked the content of a story to a student who was named in it. The student went on to issue an ‘urgent concerns’ notice, stopping print in its tracks. In another case, a DSP flagged a defamation risk on an article which portrayed their factional allies in a negative light. In both cases, Honi Soit received legal advice that the content could be defended on the grounds of truth. The stories went to print eventually, but only after lengthy negotiations and legal advice was obtained. At UQ, Semper’s stories require the authorisation of the Union President, who can withhold it where legal advice suggests an article may be defamatory. Processes and regulations like those at Honi and Semper give significant discretionary power to internal organisational actors like the President or DSP. That discretion can be abused, generating a power asymmetry when those actors use the threat of defamation to justify blocking stories, even when the threat is immaterial, or their motives are politically expedient. The proximity of student media to student unions has mitigated some – but not all – of the risks associated with publishing. Union resources such as student legal services have become the chief advisors to editors when it comes to pre-publications advice and responding to external threats. The UTS Student Association Legal Service, which publishes Vertigo, provides advice to the editors there. A similar relationship exists at the UMSU, whose legal team vets Farrago, and at USyd, where the SRC Legal Service advises Honi. Their presence is comforting. But these services are imperfect. Typically lacking specialist media law expertise, most are designed to serve the student body at large with a range of issues in traffic offences, criminal law and debt issues, not engage in complex defamation defences at the District Court. Student editors are forced to rely upon the vicissitudes of pro bono legal advice – a process which privileges wealthier and better-connected student journalists – while leaving the rest to stare down costly legal fees. Against statutory deadlines, editors are forced to find legal advisors willing to act for free against claimants equipped with high-end support. In one case of many, the University of Melbourne’s Farrago intended to run a story about a staff member’s past convictions last year. The editors were given pro bono legal advice that the story was not defamatory. Nonetheless, Farrago’s student publisher, the student General Secretary, said the story bore defamation risks and refused its publication. When approached, UMSU Legal ended up giving editorial advice instead of legal advice. The story was delayed and never published. ‘UMSU Legal is a really important service for our union to have but unfortunately doesn’t provide much help for us student media-wise,’ Farrago editor Stephanie Zhang tells me. ‘On some occasions they have helped us check through stories, but generally the legal department is quite busy with other issues and do not have much expertise in relation to defamation.’ When concerns notices come through the door, Honi Soit is immensely privileged. Obtaining pro bono legal advice comes to us easier than most. But even when student editors receive such advice, the odds remain stacked against them, more so than any other branch of the journalism profession. In practical terms, the defences of truth and qualified privilege are also particularly difficult to employ for student journalists. Truth, because it relies upon credible sources who are willing to testify to their side of the story but are often dissuaded because student media lacks the infrastructure to properly support a source through a litigious process. Qualified privilege, because it requires a high standard that is notoriously difficult to establish, even for professional broadcasters like the ABC who have access to in-house legal advice. Ultimately, student media operates in an environment which provides services free of charge with limited financial and human resources. Many of its stories carry a public interest, covering the public functions of universities and associated student organisations. But – unlike in Canada, New Zealand and the United Kingdom – public interest is no defence against defamation in Australia. As the lifeblood of student journalists across the country, student media is vulnerable to this weaponisation of defamation law by internal actors like union presidents or DSPs. Looking outwards, student media’s financial limitations make every concerns notice a powerful force capable of shutting down the free press on campus. Fixing these problems requires concrete reform to the state of defamation law in Australia. Even closer to home, the institutions which currently house student media need to come to the table and guarantee its independence. Until then, there is a target on the back of every student journalist in this country. Alan Zheng Alan Zheng is a Sydney-based writer with experience in print journalism. His writing has been featured in Justinian and the Gazette of Law and Journalism. He also edited the University of Sydney student newspaper, Honi Soit. More by Alan Zheng Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places. If you like this piece, or support Overland’s work in general, please subscribe or donate. 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