When ‘off the record’ becomes ‘I am secretly recording’

By MARK PEARSON Follow @Journlaw

We heard this week that Victorian Labor Party staff destroyed an Age reporter’s dictaphone earlier this year after listening to its contents and hearing secretly recorded conversations.

As I blogged in NoFibs, The Conversation and Mumbrella this week, it is a sad day when senior political figures steal a journalist’s recording device and destroy its contents. But it is an even sadder day when we hear a major newspaper – The Age – justifying a senior reporter secretly recording their conversations with sources.

That newspaper’s editorial thundered at state opposition leader Daniel Andrews:

Here is a lesson in the law, Mr Andrews: it is not illegal in this state to record people without their consent if you are a party to the call.

The journalist involved – Sunday Age state political editor Farrah Tomazin – went even further in her account:

It is not illegal or against our code of ethics to record private conversations for the accuracy of note-taking – but it was my responsibility to keep that information secure.

While I accept the mea culpa on the lack of information security, I am sceptical that the newspaper and the reporter are on solid ground legally or ethically. But before we go into a quick review of the relevant law and ethics let me tell you why I think it is such a sad day.

There is not much new that the community has learned about its politicians and their minders from this mess: they cheat and lie for political advantage. The far more newsworthy – and depressing – news in this story is that journalists’ sources can never be sure whether their trusted reporter is secretly recording their telephone or face-to-face conversation.

We are coming to expect that of our federal policing and security agencies, particularly as they are given progressively more legal powers to do this, but there are laws, ethical codes and damn good reasons to stop journalists doing it.

This kind of practice is selling out the brand of quality journalism as we knew it – that trust between a journalist and a source was a two-way street and that a contact could confide in a reporter with background or off-the-record comments or information knowing it was as safe as houses. They would go to jail to keep it secret.

We continually hear that the future of the legacy media is in the trust capital they have earned with audiences over centuries of fair and accurate reporting. This incident seriously erodes that – particularly when we hear a major newspaper excusing it as acceptable practice for its journalists.

In that commentary, I proceed to analyse the journalist’s actions in recording the conversations secretly in the context of The Age’s own Code of Conduct and the MEAA’s Journalists’ Code of Ethics.

I then proceed to consider its legal implications, federally under section 7(1) of the Telecommunications (Interception and Access) Act 1979, and under Victorian legislation at Section 11 of the Surveillance Devices Act 1999.

Interested in my analysis? Feel free to read the full blog at NoFibs, The Conversation or Mumbrella.

Thanks to colleagues for being so welcoming of my analysis.

© Mark Pearson 2014

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.