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Specialist Guide to the

Global Leaders in Media Law Practice

The year 2020 saw significant change in the Australian media law landscape, particularly to the way that digital media activity is dealt with by Australian laws.

 

The Digital Platforms Report issued in July 2019 identified the way digital platforms, particularly Google and Facebook, have disrupted various markets and subsequently recommended numerous reforms to Australian laws.


One recommendation was the introduction of a bargaining code between traditional news organisations and digital platforms, requiring the platforms to pay for news content that is made available to users.


The ACCC produced a draft code in July 2020 and, after significant public debate, introduced an amended version to parliament in December 2020 (Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020). The content remains controversial.


Separately, following the Digital Platforms Report, work has been undertaken on a voluntary code of practice to counter disinformation and help users better identify quality online news and information.


The role of social media platforms in regulating content on their networks has been a hot button issue due to Twitter and Facebook’s positions on President Trump’s social media posts.


In Australia, industry body DIGI released a draft voluntary code in October 2020 for consideration. ACMA indicated publicly that the draft code does not meet expectations including because it does not specify measures to be taken in response to disinformation.


Defamation on social media is increasingly in focus. The NSW Court of Appeal decision in Fairfax v Voller [2020] NSWCA 102 is particularly relevant.

It affirmed media platforms were “publishers” of material posted in the comments on public Facebook pages.


The Court of Appeal agreed that the first instance judge should not have made findings about whether or not media organisations were primary or secondary publishers, and as such whether the defence of innocence dissemination was available. The case could have far-reaching implications, given the prevalence and importance of business operated social media accounts.


The year 2020 also saw significant developments in Australian defamation law reform. After consultation, the Council of Attorneys-General approved amendments to Australia’s model defamation provisions in July 2020.


NSW led the way in enacting the amendments via the Defamation Amendment Bill 2020, the first significant updates to defamation laws since 2005.


These include the requirement that plaintiffs will have to prove they have suffered, or are likely to suffer, serious harm from the publication and introduction of a new defence of responsible communication in the public interest.  


Further proposed amendments are likely in 2021, as second stage reforms are considered, focusing on the responsibilities and liability of digital platforms for defamatory content published online.



Written by Rebecca Dunn

Partner, Media and IP

Gilbert + Tobin

TIER 1

Baker McKenzies Sydney office has a dedicated media and content practice group that works with new and established media entities in free-to-air television, pay television, radio, online service providers and multimedia companies. Andrew Stewart and Adrian J. Lawrence are the firm’s primary contacts for media who focus on defamation, pre-broadcast contempt, intellectual property and information technology.


With a broadcasting specialisation, Corrs Chambers Westgarth has leading expertise in communications, media, entertainment and technology. The firm’s work on corporate transactional cases includes Southern Cross Media’s takeover of Austereo Group Limited in a AUD 724 million deal. Lawyers have notable experience advising on broadcasting, spectrum licensing and commercial radio.  


Gilbert + Tobin is one of Asia Pacific’s leading firms for media law. The practice is known for advising on distribution and licensing of digital content, social media and digital platform matters. The team acts for recording companies, film industry associations and studios. In highlighted work lawyers advised the ABC on the renewal of its agreement with Broadcast Australia for its analogue transmission services nationwide. The media division works closely with the firm’s M&A team on restructurings, media public listings and private equity acquisitions and divestments.


MinterEllison is highly reputed for its world class defamation law advice. Clients describe lawyers as “disciplined, calm and able to react quickly to changing circumstances”. The team works with clients on cross-media ownership, copyright licensing, broadcasting and online content regulation. Head of department Peter Bartlett is widely recognised for his leadership in cases of defamation, and prepublication advice. This experience includes acting for clients including Fairfax, Bloomberg, Seven Media and Network Ten.


TIER 2

With broad industry coverage, Ashurst works across segments. The team assists with matters involving e-commerce, data protection, intellectual property, gaming and commercial contracts. Lawyers advise on transactional and regulatory matters, mergers and acquisitions, joint ventures and structured finance.


Atanaskovic Hartnell’s corporate and commercial department is focussed on transactional,

regulatory and disputes within the TMT sector. Under the leadership of John Atanaskovic, the team advises on convergence of telecommunications and media, foreign investment restrictions, spectrum allocation and reallocation, carriage and content services and datacasting. Other areas of specialisation include joint ventures, licence rights and obligations.


McCullough Robertson lawyers have more than two decades of experience assisting broadcasters with cases of defamation and contempt. Alex Hutchens manages the media group, working with Bill Morrissey and the wider team on entertainment transactions. Team experience includes advising on music, film production, television licensing and production contracts and publishing agreements.


Webb Henderson specialises in high value corporate, commercial and regulatory matters. Founded by Angus Henderson, a former Gilbert + Tobin partner, the firm is best known for its emphasis on the communications sector. Ara Margossian is highlighted by peers for his experience advising broadcasters and telecom operators. In representative work the team assisted Foxtel, a leading pay-television provider, with its launch of triple play services in Australia.


TIER 3

Allens is recognised for its work in mergers, acquisitions and joint ventures in the media and technology sectors. Head of the TMT group, Niranjan Arasaratnam, has advised on numerous media licensing and procurement projects in Australia and Asia. Among work, the team acted for Disney on mobile application development agreements and commercial and licensing arrangements. Lawyers also advised NBCUniversal on corporate transactions.   


Clayton Utz combines commercial and regulatory experience. The firm has a strong position in the national market and is noted for its work on corporate and transactional issues involving mergers and acquisitions. Sydney-based partners Bruce Lloyd  and Kate Jordan lead the division advising on content arrangements and IT outsourcing, copyright and other intellectual property issues and commercial litigation.


Herbert Smith Freehills is known for its work in disputes and risk management in all areas of the TMT sector. The team includes litigators, arbitrators and mediators. Regularly advising broadcasters and content providers, lawyers are adept case handlers advising on disputes about ownership and control, access to networks, regulation and competition, content rights and agreements. Clients include BskyB, Microsoft and Telstra.


Full service firm King & Wood Mallesons specialises in all aspects of TMT with particular emphasis on the entertainment sector. Lawyers have substantial cross-border capabilities and advise on national broadband rollouts, regulatory reform and compliance, network access agreements and disputes. The firm represents clients in broadcasting, print, social media and gaming sectors. In representative work, the team acted for Universal Music on its acquisition of EMI’s recorded music business and its subsequent divestiture sale of nine recorded music assets.


TIER 4

Addisons groups media and intellectual property providing services across a range of media segments. The team advises on contractual and strategic matters, including pre-publication clearances, advertising contracts, sponsorship and talent agreements. Other aspects of work include digital media and regulatory issues. Key contacts include Karen Hayne and Martin O’Connor who specialise in commercial and litigation matters respectively.


Maddocks has global experience advising on digital matters including content application deals with Fox Sports and online marketing and promotional strategies. The practice is also recognised for its work involving broadcasting, recording and publishing clients from regions including Japan, Europe and the US.


Top

Ranking and editorials

TIER 1

Baker McKenzie

Corrs Chambers Westgarth

Gilbert + Tobin

MinterEllison


TIER 2

Ashurst

Atanaskovic Hartnell

Banki Haddock Fiora

Bird & Bird

McCullough Robertson

Webb Henderson


TIER 3

Allens

Clayton Utz

Herbert Smith Freehills

Johnson Winter & Slattery

King & Wood Mallesons


TIER 4

Addisons

DLA Piper

Maddocks

Macpherson Kelley

Mark O’Brien Legal

Simpsons Solicitors


TIER 5

HWL Ebsworth

Kennedys

Norton Rose Fulbright

Piper Alderman


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