What action should media employers take when one of their journalists crosses the line on Twitter? And what are the implications for freedom of expression when a news organisation seeks to sack, or censor a journalist over an independently published tweet? These are questions I’ve been pondering as I complete my PhD thesis – The Twitterisation of Journalism - and as I deliver social media training to journalists in newsrooms around Australia. 

To demonstrate the potential real world consequences of an indiscreet or injudicious tweet in a journalism education/training setting, I often cite the sacking of CNN’s Octavia Nasr (who was booted for tweets sympathetic to a deceased Hezbollah leader) and The Age columnist Catherine Deveny (sacked over that questionable satirical Bindi Irwin tweet), among others. 

But I also encourage debate about the implications of media employers effectively censoring journalists’ individual Twitter accounts. 

The ABC of Tweeting 

The ABC is assisting with my PhD project and I recently completed a qualitative survey of nearly 300 editorial staff about their experiences of, and views on, the intersection of Twitter and journalism. I’m still analysing the data but there is evidence of significant self-censorship among tweeting respondents, based in part on concern about being seen to bring the ABC into disrepute on Twitter. This may reflect the very simple and effective (as I have previously described it) ABC social media policy. But it also points to broader emerging questions about journalists and their implied right to freedom of expression as global citizens. 

The latest ‘Twitter incident' involving an Australian journalist is the case of one of the ABC’s most experienced foreign correspondents, Eric Campbell. Campbell’s Twitter feed is as engaging and entertaining, as it is informative. Well, at least it was – until he stopped tweeting a week ago, after three of his tweets (I’ll come back to these in a moment) were declared sexist by conservative columnists (See Andrew Bolt's , Gerard Henderson’s and Cut & Paste's typically anti-ABC critiques) and became the subject of complaints raised with ABC Managing Director Mark Scott by Liberal Senator Eric Abetz during a Senate Estimates hearing. Scott has (necessarily) referred the issue to ABC management for investigation.
  
Eric Campbell's Twitter gags

So, let’s look at Eric Campbell’s tweets – specifically the ones being investigated by the ABC. Here they are, in succession:
 
 ONE Complete this joke: Tony Abbott's COS and a mussel walk into a bar ... 

TWO Ouch! That hurt' said the mussel. Why didn't you duck? said the COS
  
THREE The bar was actually, like an iron bar. And the mussel hit even though it's really short. And ... never mind, I'm going home sick 

The context required to understand the potential offence caused includes reports of a sexist and defamatory joke made about Federal Opposition leader Tony Abbott’s Chief of Staff Peta Credlin. But it also includes the debate over shock jock Alan Jones’ universally condemned attack on PM Gillard in reference to her dead father, the sleazy text messages sent by the former Speaker Peter Slipper and the broader global story of Gillard’s anti-misogyny ‘smackdown’ speech in the Australian parliament.  

Sexism is in the eye of the tweet beholder

When I saw Campbell’s tweets, as a long time follower of his on Twitter who had witnessed his anti-sexist tweeting in the preceding period, I interpreted them as a satirical critique of the sexist humour and political discourse dominating recent headlines. I thought he was trying to make the point that much debate about the so-called ‘Gender Wars’ in Australian politics amounted to a bad joke. When I asked my own Twitter followers what they thought of Campbell's tweets this week, all respondents essentially agreed that they weren't sexist. Journalist Nici Lindsay replied: “I thought it was an absurdist gag acting as a critique of the absurd political situation,” while Kristie Cavanagh saw “(Campbell’s) tongue firmly in (his) cheek.” Tammi Jonas called the tweets “incomprehensible” but described them as an “inoffensive bad joke.” As writer/broadcaster Helen Razer tweeted about one of her own jokes that fell flat during the exchange, “I guess if one must explain a joke then it hasn’t functioned.” But a weak attempt at satire does not a sexist make. And while Peta Credlin is, of course, entitled to be offended at Campbell’s gags, as a feminist Twitter user, I didn’t read them as sexist and neither did I find them offensive.  

Disciplinary action  

Regardless, according to The Australian, Campbell faces possible disciplinary action over these tweets as a product of the ABC management investigation that, according to ABC policy, could lead to a misconduct charge. Campbell is undoubtedly one of the more outspoken ABC journalists on Twitter and he attracted international attention with his campaign against News Ltd columnist Greg Sheridan’s attacks on ABC journalists. The ABC’s critics have no doubt been waiting for him to err on Twitter. 

Certainly, ABC management has been made to feel uncomfortable by Campbell’s tweets – especially in such a heated political environment, one feature of which is the spectre of the budget axe that looms every time a Coalition government looks imminent. But is disciplinary action warranted in this case? What kind of precedent would it set? And what signal would such action send regarding the ABC's attitude to freedom of expression? These questions are likely already among those being contemplated by ABC editorial managers as they investigate the complaints raised by Senator Abetz.

The right to be offended 

While I have been a vocal critic of Alan Jones’ public statements on the PM’s father at that now infamous Sydney Young Liberals dinner, I do not believe he should have been sacked for making them. The right to be offended is the price we pay for supporting freedom of expression in a democracy. And the reality is that Australian and Communications and Media Authority regulations didn’t apply to that ‘off air’ after dinner speech, any more than the ABC Charter applies to Twitter. I would also argue that there’s a world of difference between Campbell’s trio of tweets and Jones’ highly offensive public statements (Ditto the donation of a chaff bag by the Woolworths executive who MCd the Jones dinner). 

Nevertheless, there is a strong argument that Campbell should have listened to his ABC radar (tuned to the corporation's social media policy) and steered well clear of Twitter gags in this risky territory, in the interests of good taste and in recognition of the significant potential for misinterpretation in the current climate. Some may judge his tweets as ill-advised, poorly timed and poorly executed. Others will maintain they were offensive. 

The private public clash and Twitter's limitations 

The Campbell case highlights the limitations of Twitter as a platform for nuanced satire. Despite Twitter's function as a public conversation platform which builds context over time, tweets are often viewed by users as decontextualised individual posts. The case also reflects one of the key themes of my PhD – the consequences of merger of professional and public journalistic lives on Twitter. Among these consequences is the recasting of journalists as opinionated citizens and associated debates about objectivity and transparency. Media employers want to leverage journalists' audiences on Twitter where opining is the norm. This is a particularly delicate balancing act for ABC journalists, who are professionally bound to standards of impartiality, as Media Watch's Jonathan Holmes has observed in reference to the ABC opinion website, The Drum. 

But it's also problematic territory for ABC managers and the Campbell case echoes some of the questions I’ve been pondering more broadly with regard to media employers' handling of such Twitter incidents. As the boundaries diminish between journalists' private and public lives on open social media platforms, it is arguably increasingly difficult for journalists to claim that their personal Twitter accounts "are not the views of my employer". But at the same time, it is growing more difficult for employers to apply standards of conduct required of journalists on official corporate platforms to their personal social media accounts.  

The problems with regulating social journalists 

Twitter can't be treated as just another chunk of traditional media real estate by employers attempting to control professional journalists’ activities in the space in the interests of corporate reputation management. There are several problems and a number of risks involved in trying to police an individual journalist’s Twitter feed by subjecting it to the same publication requirements applicable to a masthead or a radio program, for example. Some of the problems and risks with this approach include: 

1. News organisations can’t regulate publication on Twitter. 
2. Regulatory policies (e.g. the ABC Charter and ACMA rules) are not designed for application to individual users’ social media accounts (in spite of references in journalists' social media bios to their employers). 
3. Media employers don't own individual journalists' personal social media accounts, nor their audiences. 
4. Editorial managers could find themselves being manipulated by politicians and others seeking to limit critique by journalists on social media sites. 
5. There is growing acceptance within media organisations internationally that social media audiences are capable of reconciling journalists' personal opinions and experiences with their capacity to independently report on the issues about which they commentate. 
6. Tweeting journalists are arguably more accountable to their audiences than they are as comparatively cloistered members of an inner-city newsroom. Their audience may be the best and most effective regulator of their commentary. 
7. Fear of putting a pinky toe out of place may make editorial staff reluctant to enter or be active in the Twittersphere when the media organisation is desperate to leverage their journalists’ audiences in the space, on which they’re increasingly dependent for content distribution. 
8. Threatening journalists with disciplinary action over tweets on their personal account may lead to their silencing in the space – depriving their audiences there of their insights and micro-reporting. 
9. Penalising or sacking a journalist for ‘saying things’ sends a negative message regarding media organisations’ investment in freedom of expression and self-regulation campaigns. 
10. News organisations now understand Citizen Journalism but they’re still coming to grips with the realisation that their journalists are themselves firstly and foremostly citizens - with views and experiences that citizenship entitles them to share.  

The most important thing 

In reflecting on the broader issue of the balance between regulation and freedom of expression on the Internet, UNESCO’s Director of Freedom of Expression and Media Development Guy Berger recently observed: “The biggest problem isn’t the abuse of freedom of expression but that freedom of expression isn’t being tolerated.” 

“The most important thing is not to bring limitations on freedom of expression but to promote freedom of expression,” Berger said. I think that’s also sage advice for media employers attempting to manage and regulate their journalists’ conduct on Twitter as the 'rules of engagement' continue to shift.    [read more]

The Australian sure knows how to maintain a vendetta. Indeed, Murdoch’s national broadsheet is the originator of what I call ‘vendetta journalism’ in Australia.

For abundant evidence, read Robert Manne’s excellent recent essay, Bad News, in which he assesses the anti-democratic impact of The Australian’s reportage in recent years. And you can watch him discuss the issues here.

#Twitdef

My own experience of being at the receiving end of one of The Australian’s vendettas began in 2010 when I defended the popular and thoughtful blogger Grogs Gamut, who was unmasked as public servant Greg Jericho by the paper, in a move which threatened his employment. But the attacks went ‘postal’ when I live-tweeted a public lecture given by a journalist who had recently left The Australian’s employ. She was threatened, and so was I, with defamation suits by the editor-in-chief of a newspaper which loudly proclaims itself a champion of freedom of speech and “The Right to Know” (Google #Twitdef and Chris Mitchell if you’re bored).

Many headlines and column inches later, Mitchell let the defamation threat lapse in accordance with the statute of limitations, but his newspaper has continued its bizarre, sarcasm-laden campaign against me, and any part I take in public debate.

Setting the record straight

Last time I asked the newspaper for an apology or correction over what I viewed as defamatory coverage of me, I was rebuffed. And I have recently practiced a policy of not responding to The Australian’s attacks. But its decision to use the harrowing Jill Meagher case to continue the vendetta has drawn me out - with a view to setting the record straight (which academic colleagues have encouraged me to do).

Trial by social media in the Jill Meagher case 
 
Over the past week, I’ve been doing my small part to try to educate social media commentators about the risks of sub judice contempt and what I’ve called ‘trial by social media’ in the tragic case of the rape and murder of Jill Meagher. As the investigators and media law experts have warned, along with Jill’s grief stricken husband Tom, speculation about ‘the accused’ (41 year old Adrian Ernest Bayley of Coburg) threatens to jeopordise his prosecution. (See my Storify on the issues, if you’re interested, and read my comments in The Age).

Cut N Pasted 

The Australian, ever keen to suggest that I’m an incompetent journalism lecturer, pretended to re-educate me in an anonymously penned section called Cut N Paste. Here’s what they published on Saturday:

"The Age on one aspect of the Jill Meagher case yesterday:

UNIVERSITY of Canberra journalism academic Julie Posetti said users needed to be aware of potential implications of "trial by social media" by posting about the accused. "In this particular case, it would be awful to think about the potential consequences including an incapacity to prosecute somebody because of trial by social media, for example," said Ms Posetti, who is writing a PhD on Twitter's role in journalism.

So how did she go? Posetti on Twitter yesterday:

DEAR tweeters: your anger & anguish @ #JillianMeagher's murder is understandable but commentary about her accused may risk his prosecution.
And a little later:

... IN the social media age everyone needs a media education.

Good idea. In that spirit, Julie, some free media education from your friends at Cut N Paste: 
WHEN linking a crime to the accused - as you have by using the word "his" - don't forget to use the word "alleged". Or use "death" in lieu of the M word. Tell your friends, tell your Twitter followers and, most importantly, tell your journalism students.

Hope this example helps. One headline on australian.com yesterday: 

"ALLEGED killer faces Meagher family."

Tweet fine: "The whole thing is absurd"

So, was my tweet legally risky? No. Not in the least. But don’t take my word for it, take that of lawyer and former ABC TV Media Watch host, Richard Ackland.

He emailed the following comments on the Cut N Paste piece to me and he’s permitted me to publish them here:

“The whole thing is absurd.

Your tweet was perfectly fine.

They seem to be suggesting that it might have been prejudicial. How exactly?

It's the obligation of journalists and others not to prejudice the trial of an accused.

There was no prejudice in what you said.

You used the word "accused" in relation to the person charged. 

That implies, even to the most half-witted person, that prior to a verdict of guilt it is an accusation.
Their example "Alleged killer faces Meagher family" in no way contradicts or corrects what you tweeted.

What are they saying? - that you should have tweeted "Accused man charged with alleged murder of Jill Meagher". The allegation relates to the accused, unless the police are saying that somehow Jill Meagher dug a shallow grave, jumped in and covered it over herself.” 

Another day, another jibe
 
And The Australian was at it again yesterday. The paper’s Legal Affairs Editor, Chris Merritt, is taking exactly the opposite view to Cut N Paste on the social media risks in the Jill Meagher case. But he still found reason to ridicule me for suggesting to social media users that they’d be wise to exercise caution in their commentary on the accused man, given the potential risks. Merritt’s point is that trying to change the behaviour of social media users is futile; it is the sub judice contempt law that needs to be changed, to accommodate new patterns of communication.
 
As I’ve said on Twitter, in interviews and in the Storify I posted on the issue, I agree that law reform may be necessary in response to the disruptive influence of social media. But until the law is changed, I believe we must work with it. And I’d rather go hoarse urging caution and promoting media literacy, than throw my hands up and advocate a social media free-for-all that could derail the trial of Jill Meagher’s alleged killer under current law.
 
What is weird about Merritt’s story is that he chose to target me alone for criticism, when my concerns regarding the Jill Meagher case echoed public comments from those prosecuting the case and many legal experts. Among them, one of Australia’s leading media law experts, Mark Polden:
“For anyone to publish what is claimed to be an image of an accused person is fraught with danger and it’s very bad for the justice process…quite unknowingly an image like that can replace itself in the mind of an eyewitness and it renders eyewitness testimony inherently unreliable,” Polden told 2SER in a report last Friday which also quoted me.
 
“It’s not unfathomable that there could be such a conflagration, such a firestorm of social media commentary about a particular case that an application could be made that an individual cannot get a fair trial,” he said. “Individuals need to ask themselves: does what I’m doing have the potential to interfere with a fair trial? Could my sense of moral outrage lead to someone not being able to get a fair hearing?” Polden also told Crikey.
 
The big picture
 
The risks are so great, in fact, that following Facebook's refusal to remove potentially prejudicial pages pertaining to the case, Australia's Attorneys General will hold a special meeting on Friday in an effort to consider the implications and the possibilities for law reform.
 
Yes, the big picture here is the horrendous murder of Jill Meagher and the fascinating but problematic impacts on judicial processes of social media disruption.
 
Nevertheless, I’m encouraged to see The Australian taking a progressive approach to social media issues, in Merritt's piece at least – it sure beats using defamation law to threaten a journalist who used Twitter to accurately report a speech the Editor-in-Chief wanted no one to hear.    [read more]