Dr Marc Edge: MINFO right if Fiji TV drew link to Media Decree

Wednesday, February 20, 2013

Fiji's Ministry of Information is absolutely correct if Fiji TV reported that the Fiji Times' contempt of court conviction was a case brought under the Media Decree, but it would hardly be the broadcaster's fault alone. Unfortunately this is a myth perpetuated by David Robie. Many countries prohibit disparagement of their courts, which are thus literally above criticism. Scandalising the court is an ancient law, which the UK Law Commission recommended late last year be abolished there. It is not on the books in the U.S. because of that country's strong press freedom guarantees under its First Amendment, and it has been found contrary to Canada's Charter of Rights and Freedoms, but it has been used against journalists in other jurisdictions, including Australia and New Zealand. Journalists in countries with such a law may not report anything which undermines public confidence in the legal system, no matter how well-justified it might be. Any journalism student who stayed awake during first-year Media Law class knows that. (At least, any of the students in my Media Law class would.) The offending news item has obviously been removed from the online version of the 6 p.m. Fiji TV newscast for 20 February. The lead item on the Times case by reporter Cheerieann Wilson that is archived on the Fiji TV website is introduced by anchor Viliame Lega, while the rest of the 6 p.m. newscast is anchored by Mere Nailatikau, so it is instead likely the corrected version from the 9 p.m. broadcast.

Do you know who else is absolutely right in this case? Justice William Calanchini is when he notes in his ruling that the contemptuous publication was entirely the fault of Times management and/or journalists. The fact that such a problematic piece slipped through the safety net and wound up being printed in the Times on 11 November 2011 was the result of a breakdown in any systems the newspaper had in place to guard against such errors. Calanchini noted that the Times claimed staff and copy shortages that day led to the failure to detect the legal peril inherent in the article, which was a soccer story reprinted from the previous day's Sunday Star-Times in New Zealand. Almost unbelievably, noted Calanchini, it appears that "no person involved in the steps that lead to publication read the whole article."

Even if that was due to unforeseen staff absences and time deadlines, the fact that the article was not read in its entirety, that there was additional pressure due to staff being absent and a shortage of material with time constraints all point to either inadequate workplace systems or inadequate staff in terms of quantity and/or quality of staff.

Whether a fine of $300,000 is an appropriate penalty is another matter altogether, but as Calanchini notes, the Times was fined $100,000 for contempt in 2009. A fundamental principle of sentencing is the escalation of penalties if an accused does not learn from their mistakes and change their ways. Even worse, the Times aggravated the offence with the subsequent publication of an article and a picture of Oceania Football Confederation General Secretary of Oceania Tai Nicholas, who made a $25,000 donation to the Prime Minister's Flood Relief Appeal Fund. Not only did the article repeat details of the contemptuous story, noted Calanchini, but the accompanying photo suggested that the donation would somehow ameliorate the contempt, similarly suggesting the Fiji judiciary was corrupt.

Details of the contemptuous article, of course, are not legally allowed to reach Fijians, who will likely not get them from their country's media. The Internet, of course, is another thing, as they are widely available there. While the offending article has been removed from the Fiji Times website, it is still available elsewhere online. It involved OFC treasurer Muhammad Shamsud-Dean Sahu Khan, who had been disbarred in Fiji and thus should have been ineligible to sit as a senior member of its disciplinary committee. Nicholas told Sunday Star-Times reporter Simon Plumb that the situation had to be seen within the context of Fiji politics.

If we're honest, there's debate around the coup regime, who are ostracising lawyers who are involved with the constitutional reforms. You should be aware that with no judiciary there, his case has been reviewed by one Australian judge. It's not a court per se.

That drew the ire of Attorney-General Aiyaz Sayed Khaiyum, who issued contempt proceedings against the Times and Nicholas, who was earlier fined $15,000 in absentia when he did not appear for sentencing after pleading guilty. Sayed Khaiyum and Smith-Johns have rightly taken much heat for their blatant bullying of Fiji media, but in many ways journalists in the Republic are their own worst enemies. The need to raise journalism standards in Fiji has long been the contention of this corner and others, to which some in the Fiji media and elsewhere have taken great umbrage. The propensity for both Fiji TV and the Fiji Times to hire untrained cadet journalists straight out of Form 7, without training in Media Law or even Journalism, is coming back to bite them. The fact that no one at the Times bothered to even read the story all the way through is a harsh indictment on the paper's standards of journalism. Such indolence is rife in Fiji. Any journalist would have heard loud alarm bells go if they had merely taken the time to read such words as "coup regime, who are ostracising lawyers." Heads should roll. Hopefully this will not be the end of the 143-year-old daily, but even if it continues publishing its journalism may well be more chilled than before by this second contempt finding. That would make it frozen.