Are bloggers and those who post in social media journalists are Australian law?

The question has important legal implications. The answer varies greatly depending on the area of law or legal context.

A great deal has been written on the question in schools of journalism and other social sciences. In some areas of law the question is not likely to be easily settled for years.

The notes in this post are triggered by a statement today by Australia’s federal attorney general, Senator George Brandis. On ABC Radio 702 Sen. Brandis took the position that bloggers are not journalists under Australia’s proposed metadata retention laws.

His observation is relevant to the treatment of journalists sources under those laws.

The short notes below sketch a range of laws in Australia relevant to the question of whether bloggers are journalists. They do not survey views from schools of journalism or other social sciences on whether bloggers are journalists.

      1. Social media posts are easily treated as publishing for the purposes of copyright law. Copyright is one of the fields of intellectual property law. There are probably hundreds of cases in English-speaking jurisdictions on copyright and the position of posts in blogs and social media.
      2. As many cases have ruled, a social media post can be found to be defamatory or to infringe trade mark rights.
      3. The law as regards evidence is inconsistent between the Commonwealth and NSW state law.
        • The Evidence Act 1995 (Cth) as amended has the following definition – “‘journalist’ means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.”.
        • The Evidence Act 1995 (NSW) as amended has a very different definition in section 126J – “journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium.
      4. I wonder if the proposed new act by Sen. Brandis is grounded on different or additional heads of power under the Constitution, eg the defence power in section 51(vi). If so, that may create an exception, giving the metadata laws a different legal context to the above four notes.

There’s one book in Australia on social media law, it’s a collection of chapters by different authors. My colleague Rosana She reviewed it in her “Social Media and the Law” book review, and covered some of the above topics at the end of her review.

Noric Dilanchian