By MARK PEARSON Follow @Journlaw
Investigators need look no further than reporters’ desks in most Australian newsrooms to find evidence of journalists breaking surveillance and listening devices laws.
While there may be no evidence of blatant telephone and message bank hacking of the type revealed in the News of the World episode, technical breaches of state and federal laws are likely happening even as you read this.
Journalists often ask me whether their recordings of telephone interviews will stand up as evidence in defence of a defamation action. They are usually surprised to learn that they may be breaking state laws if they have not told an interviewee they are being recorded.
Most newsrooms also have emergency services radio scanners in operation for their police rounds reporting which is also a technical breach of eavesdropping laws, although law enforcement agencies have traditionally turned a blind eye to the practice.
As Mark Polden and I note in our book, The Journalist’s Guide to Media Law (Allen & Unwin, 2011), federal and state laws affect the use of surveillance and listening devices and place a range of restrictions on the publication of reports gained by the use of such devices.
Under Commonwealth law, it is an offence to intercept (listen to or record) a communication passing over a ‘telecommunications system’ without the knowledge of the person making the communication.
This is detailed in s. 7(1) of the Telecommunications (Interception and Access) Act 1979, which states:
A person shall not: (a) intercept; (b) authorize, suffer or permit another person to intercept; or (c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system.
It is also an offence to use or publish, or retain a record of, information gained in this way. The courts have held that this applies to the use of a scanner to listen to mobile telephone conversations.
The most famous example of this was the interception of the uncomplimentary mobile phone conversation between former Victorian premier Jeff Kennett and then shadow minister Andrew Peacock about future prime minister John Howard in 1987. Scanner enthusiasts recorded the very frank late night chat which caused a political uproar when it subsequently appeared on newspaper front pages. The transcript and audio has been posted for posterity on australianpolitics.com.
The newspapers were not liable for the publication of the material because they were not party to the recording.
The High Court made a similar ruling with regards to material gained during a trespass by a third party in the landmark ABC v. Lenah Game Meats case in 2001. There, the ABC was permitted to broadcast film obtained from animal liberationists who had broken into a possum abattoir. If the ABC had been involved in the trespass in any way, the court would have restrained the publication.
But let’s return to the reporters’ daily phone recording practices. Each of the states and territories has legislation prohibiting the recording of a private conversation without the consent of all parties to the conversation by someone who is not a party to the conversation. Victorian, Queensland and Northern Territory laws seem to allow such a recording by a party to a conversation. Reporters would be wise to look closely at their own jurisdiction’s law and consult a lawyer on their practices under it.
The NSW Surveillance Devices Act was updated in 2007 to reflect modern surveillance devices. It states at s.11: “A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.”
It is a defence to publish it with the express or implied permission from all parties to the conversation, or if there is an imminent threat of serious violence, property damage or a serious narcotics offence, or if it was recorded by someone else.
The general prohibition on listening devices applies to hidden tape recorders and cameras as well as emergency services radio scanners, and illegal private-eye-type bugging devices: it applies to any equipment used to record or listen to a private conversation.
When surveillance devices are accompanied by other deception, criminal laws can come into play, as they did with a story by Channel Nine’s A Current Affair in 2002. The ABC’s Media Watch reported that the program had hired undercover operatives to go into doctors’ surgeries in Brisbane, Adelaide and Perth to try to expose the ease with which GPs issued medical certificates to ‘sick’ employees wanting some time off work. After a complaint from one of the doctors stung by the set-up, one of the undercover operatives was arrested and convicted of ‘[imposing] upon any person . . . by any false or fraudulent representation either orally or in writing . . . with a view to obtain money or other benefit or advantage’ and fined $100.
In 2005, paparazzo photographer Jamie Fawcett was accused of planting a listening device outside actor Nicole Kidman’s Sydney property. However, police dropped the charges against him because they believed there was not enough evidence to satisfy a jury beyond reasonable doubt that Fawcett had planted the bug. However, when Fawcett later sued Fairfax, publisher of the Sun-Herald newspaper, for defamation, a Supreme Court justice found on the lower civil ‘balance of probabilities’ test that it was true that Fawcett had planted the bug. He lost the case as The Australian reported.
In June 2007, Channel Seven Perth was prevented from broadcasting a private conversation between an employer and employee, which it had obtained using a hidden camera. The Court of Appeal held that even though the hidden camera recording confirmed that the employee had been terminated after informing a manager that she was pregnant, which the court found was a matter of proper and legitimate public interest, the issue could have been covered adequately without the broadcast of the secret recording.
Karl Quinn pointed to other examples of Australian media use of private eyes and surveillance techniques in his Age article last week, including:
–The Sydney Morning Herald using a PI in 2006 to help find murderer Gordon Wood.
– A Current Affair reporter Ben Fordham and producer Andrew Byrne charged in 2009 over the secret filming of a man as he ordered a $12,000 contract killing. They were found guilty in July 2010 of breaching the NSW Listening Devices Act, but the charge was later dismissed.
– Private investigators hired by the rival tabloid television program Today Tonight posed as potential buyers of a helicopter owned by Larry Pickering, former cartoonist for The Australian. They secretly filmed and recorded Pickering piloting the helicopter.
– Investigative journalist Paul Barry used a hidden camera when interviewing serial killer Charles Sobraj in an Indian prison.
When you survey the above examples, it seems the most frequent defendants of charges over the misuse of surveillance techniques by the Australian media have been the evening commercial tabloid television current affairs programs Today Tonight and A Current Affair. That sector, along with the celebrity gossip infotainment found in tabloid newspapers and glossy magazines, have the most to fear from greater scrutiny of this kind of behaviour.
Meanwhile, reporters whose poor shorthand skills motivate them to record their telephone interviews would be wise to seek the permission of their sources before recording their conversations and probably even repeat that request after the recording starts so they have the permission on record.
Whatever recording they are doing is likely to come under close scrutiny in the wake of the News of the World developments, so they should seek legal advice before doing any phone recording, video surveillance or data tracking.
© Mark Pearson 2011
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.