We Need to Talk: Press Freedom and the Law – vol 3

with Associate Professor Jason Bosland

Welcome to We Need to Talk – an interview series about media law brought to you by the Film, Art, Media and Entertainment (FAME) Law Students’ Association and the Communications Portfolio of the LSS. Vol 3 of the series features Associate Professor Jason Bosland.

Jason is the Director of the Centre for Media and Communications Law at Melbourne Law School, where he teaches media and communications law. He holds degrees from the University of Melbourne and the London School of Economics. His primary research interests lie in media law, including defamation and privacy, open justice and the media, contempt of court and freedom of speech.

Jason sat down with Peter Turner for Purely Dicta to discuss his career in academia, suppression orders in the light of the Pell decision, open justice and essential reforms to Australian defamation laws.

What was Jason Bosland like as a student? Did he imagine he would be where he is now?

Not a very good one in my first two years! I commenced the 5-year LLB straight out of high school and was too distracted by the social aspects of being young and exploring university life. I hit my stride in later years and, to be honest, I wouldn’t change a thing if I had my time again. 

In terms of career, I certainly didn’t think I would end up teaching and researching in law. I think some of my friends from my university days are still quite surprised.

What prompted your interest in media law? Where did the fascination begin?

I was initially interested in intellectual property law. However, after doing some research work in media law I saw that there was so much to explore.

What was your first job upon graduating from university? What made you decide that academia was the path for you?

My first ‘real’ job after university was working as a Research Fellow for the Centre for Media and Communications Law on a project exploring the regulatory aspects of the transition from analogue to digital television. My decision to stick with academia only occurred after I started teaching. I really enjoy and value engaging with my students.

Many academics at Melbourne Law School are constantly engaged in other projects with the wider community. What have been some career highlights that you are proud of, alongside your research and teaching?

I’m probably most proud of the impact that my research has had on open justice, both in terms of law reform and in practice. I also regularly provide commentary to the media on all aspects of media law, which I thoroughly enjoy.

Given the recent outcome in Pell v The Queen [2020] HCA 12, do you think the previously made suppression orders provided an appropriate balance between the competing interests of open justice given the eventual disregard to the convictions of the jury in its appeal to the High Court?

I think it did provide an appropriate balance. There was quite a lot of criticism of Chief Judge Kidd for making the order. I think this criticism was largely unwarranted. The order was wholly consistent with previous case law (at least in Australia) and even media lawyers who typically argue against suppression said to me that this was the type of case where a suppression order was clearly warranted. 

The media did not put in an objection at the time that the order was made, and it was only once news of the conviction was leaked online that the media started complaining about being censored. I’m not sure that the High Court’s decision has any bearing on the suppression order aspect of the case.

Courts, like many of us, are navigating a COVID-19 induced transition to the digital realm, what challenges does this bring to the ideals of open justice? How can we ensure that Courts can still maintain the administration of justice?

The transition to online courts can be problematic from an open justice perspective. If proceedings are conducted wholly online and are not accessible to the media or the public, open justice is significantly limited. This means that many of the salutary effects of open justice – such as court accountability, public confidence in the administration of justice and public education – cannot be achieved. I’m currently writing a book on this very topic!

One of the most pressing areas for reform would be to introduce a robust and workable public interest defence for journalists.

One of our previous interviewees in this series, Tess McGuire, highlighted that Australia is one of the easiest places in the world to succeed in a claim of defamation – what aspects of this law are in need of reform in order to aid freedom of the press?

There are many. Defamation law in Australia is particularly ‘claimant friendly’. It is extremely easy for claimants to establish the cause of action, and extremely difficult for defendants to establish a defence. 

The problem is both substantive (the low threshold for bring a claim and extremely limited defences) and procedural (claimants can achieve a tactical advantage by pleading their case in ways that block the availability of otherwise viable defences). One of the most pressing areas for reform would be to introduce a robust and workable public interest defence for journalists.

Outside of your working life, what opportunities are you most grateful for? What advice do you have for students who wish to make a splash in media law in the coming years?

First, enrol in Media Law! Second, come along to events hosted by the Centre for Media and Communications Law. These events provide a great opportunity for students to make connections with lawyers working in firms with strong media law practices. It’s a niche field but a number of my former students now work in media law, including at the bar and in-house at media companies.

How are you staying occupied in your down time? What books are you reading? Do you have a TV show that is keeping you going at the moment?

To be honest, work has been occupying most of my time lately. Helping to lead the transition of the law school to online delivery of teaching really is as tricky and time consuming as it sounds! 

I’m currently reading American Pastoral by Philip Roth. It’s for my newly formed book club. We’re doing our own version of the University’s 10 Great Books lecture series. In terms of TV, I’ve just started watching Normal People on Netflix and am devastated that Schitt’s Creek is coming to an end this season. I will miss Moira’s vocabulary lessons.

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