By MARK PEARSON
Just how do journalists’ shorthand notes stand up against other means of recording interviews as courtroom evidence?
That is a question that has puzzled many a journalist, editor, media lawyer and journalism educator, particularly in countries like Australia, New Zealand and the UK where shorthand is usually required of entry level journalists.
Guardian columnist Professor Roy Greenslade recently questioned its value in the modern era and gave examples of where its less than perfect use stood to damage media defendants’ cases.
I worked with journalist and lawyer Jasmine Griffiths to examine this question in an article published in the latest issue of the Media and Arts Law Review ((2011) 16 Media and Arts Law Review).
We reviewed the laws of evidence and applied the Australian tests to compare the likely admissibility and weight of different journalistic records of interview. This is a summary of our findings…
New technologies have changed the way journalists gather news.
While the basic role of a journalist to find and report news remains unchanged, technology savvy reporters have embraced the digital age and are using technology to improve the way they operate.
Journalists now employ a variety of technologies during interviews to record notes:
- Taking shorthand (or some hybrid shortform) in notebooks;
- Typing notes directly into the computer;
- Recording telephone conversations with listening devices;
- Using digital recording devices to store audio on memory chips or downloading audio files on to computers;
- Using mobile phone technology and voice recording applications;
- Conducting interviews via email, text messaging (SMS) or instant messaging; and
- Using Facebook, Twitter and other social media as a source of quotes and photos.
The prevalence of technology poses a unique problem to news organisations seeking to defend defamation proceedings. New technologies call for new interpretations of established rules. However, both the courts and the legislature have failed to keep pace with technological developments, leaving the legal status of some digital evidence uncertain.
During research we canvassed case law and the rules of evidence to determine the evidential status of common industry practices for recording and storing information.
An understanding of how evidence laws apply to journalists’ notes would allow journalists and media organisations to assess their own methods and develop better working practices to avoid the costly embarrassment of having their evidence struck out by a court.
But we found it was difficult to predict how a court would determine the question of admissibility of, or in the alternative, the weight prescribed to evidence. The decision in each case falls on the facts.
A journalist’s notebook may be compelling as evidence based on the fact it is likely to be the only contemporaneous record of an interview or conversation. However, even an impeccable notebook where every interview is dated and every page accounted for can be problematic for the courts if it cannot be read by an ordinary person.
Quotes recorded in shorthand require translation and while it is possible an expert might be engaged, it is far more time and cost effective for journalists to provide a transcript of their notes.
This is particularly so where journalists have developed their own unique or hybrid shorthand style.
Some news organisations have conducted comprehensive training and strict requirements on note-taking and storage, while these practices have been largely ignored in many others.
Practices also vary widely among individual journalists. This could be problematic for a media defendant’s case if a story written by a journalist whose notes did not lend themselves to being good evidence later became the subject of defamation proceedings.
Traditionally when it seemed a journalist or their work might become involved in legal proceedings, whether by what they saw or heard or by what they published, their notes of interviews and associated research materials were gathered and stored in case they were required as evidence in a trial.
A journalist’s notebook was viewed by the courts as compelling evidence based on the notion that records taken during or immediately after an incident or conversation were more likely to portray an accurate account of the facts than witness testimony given months or years after the event.
But reporters’ notebooks were not specially valued because they were kept by journalists, more because contemporaneous notes are valued when taken by any record-keeper.
Where it can be proven that a journalist (or any record-keeper) has an established system of recording information a court will likely place high value on such evidence. Former New South Wales education minister Terry Metherell’s daily diary accounts of conversations with then Premier Nick Greiner were found to be compelling evidence before the Independent Commission Against Corruption in 1992.
The court will look to the methods of the note-taker and veracity of the notes, regardless of the individual’s occupation.
It is not the fact that the interviewer is a journalist that adds weight – more the issues of whether shorthand speed and notebook management practices win the court’s confidence in the record of the interview.
In 2004 the Mosman Daily in suburban Sydney successfully defended a defamation action brought by the proprietors of a real estate business as a result of an article about a dispute with their co-tenants sharing the premises. During the hearing the court heard evidence from the journalist who wrote the story and the tenants who had contacted the paper, along with each of the plaintiffs. Justice Hoeben stated: “I did not find (the first and third plaintiffs) to be impressive witnesses. Their evidence was at times internally contradictory and evasive… Where (their) evidence is in conflict with that of (the tenants), I prefer the evidence of (the tenants)”. The lesson for journalists who are called upon to give evidence in proceedings is that the court will look favourably upon witnesses who are honest and give a fair account of their version of events.
In Field v Nationwide News Pty Ltd, a Sunday Telegraph journalist reporting on a Blue Mountains hotel that had fallen into disrepair was forced to recount her conversation with the proprietor to the court in circumstances where their recollections were very different. The trial judge concluded the journalist was more likely to be telling the truth based on the fact that she took notes of the conversation soon after it occurred, separate witness testimony supported her version of events and, importantly, she was a “credible and straightforward witness”. This indicates that even a journalist’s recollection of the contents of an interview without supporting evidence might alone outweigh the recollection of the interviewee.
However, while a court may prefer a journalist’s recollection over that of another witness it may not be enough to convince a court to find in their favour. The matter of Zunter v John Fairfax Publications Pty Ltd involved a claim for defamation over an article published in the Sydney Morning Herald which suggested the plaintiff caused a bushfire by carrying out an illegal backburn. The journalist who wrote the article produced accurate notes of her conversations with the local fire chief, which were not in dispute. The problem for Fairfax was that the story had been edited at the last minute to include information provided by the photographer who interviewed the plaintiff in the absence of the journalist. The court accepted that “not being a reporter, (the photographer) did not take notes of the conversation he had with Mr Zunter” and concluded the photographer’s evidence was “more likely” to be accurate than the plaintiff’s. But the plaintiff was still awarded $100,000 in damages.
One of the key principles of the rules of evidence is that any evidence adduced must be capable of being tested in court. This means that evidence will be subject to examination, cross-examination and, if necessary, re-examination in order for the court to ascribe weight to evidence and determine witness credibility.
In the case of journalists’ notes, “real” evidence – that is, the physical notebook – will almost always be accompanied by testimonial evidence by the person who made the notes to provide context and translation as needed. This may indeed present the opportunity for expert evidence from a shorthand instructor on the translation of the notes.
This process can be a professional minefield for journalists called into the witness box. Their practices and credibility become subject to public scrutiny among their peers, as BBC journalists Susan Watts, Andrew Gilligan and Gavin Hewitt discovered when they were called upon to give evidence at the UK’s Hutton Inquiry in 2003 into the suicide death of British defence expert Dr David Kelly after he was exposed for leaking intelligence information. During the hearing, the journalists were questioned and at times publicly criticised for their working practices, later prompting the BBC to issue new editorial guidelines on note-taking. The inquiry highlighted the importance of taking and keeping good notes.
The journalists’ shorthand, longhand and hybrid notes still sit at the inquiry’s website for the gratification of those interested in the subject.
As Greenslade illustrated, audio recordings of interviews and conversations are the most effective shield against accusations of sources being misquoted and, if dealt with properly, is convincing evidence in court.
If a media defendant can produce an original, unaltered recording of interviews given voluntarily it will be very difficult for a plaintiff to argue against the recording being admitted in evidence.
For this reason, the solicitors for Jack Thomas were unable to raise successful arguments against admitting an ABC Four Corners interview in evidence in an Australian terrorism trial. He had made certain admissions on tape in the media interview.
Difficulties arise when audio recordings have been compromised or recordings destroyed before a claim or writ has been served.
While in earlier times journalists were advised to archive tapes, modern day Dictaphones, mobile recording devices and smart phones are far more likely to record the contents of an interview on to a memory card, which can be difficult to preserve physically and expensive to replace.
The advantage of digital recordings is that they can be downloaded on to a computer using speciality software and stored electronically. In reality, time pressed journalists may be tempted to record the quotes they need and then erase interviews in order to free up memory on their recording devices.
This can have serious evidential implications.
One of the key traps journalists may face in having their audio recordings admitted as evidence is where questions are raised as to the legality of the recording.
Journalists may find themselves relying on recorded telephone exchanges or secret recordings of conversations in circumstances where the source was unaware they were being recorded. In most jurisdictions such recordings would be held to have been illegally obtained in contravention of surveillance or listening devices legislation.
If a court follows the black letter of the law, evidence of recordings which were illegally obtained would be rendered inadmissible. This is particularly so in criminal cases where the overriding interest is justice and a person’s constitutional right to a fair trial. However, civil cases may fall within a grey area where illegal recordings may be received in evidence.
It is not uncommon for journalists conducting telephone interviews to type notes of their conversations directly into the computer. Typically these notes are entered into a word processing program or recorded on screen using software employed by a newsroom to write, file and edit stories.
While this method may assist some journalists in taking down conversations and expediting the writing process, it presents a challenge to journalists who are called upon to defend their stories. Often the story itself will be the only evidence of a conversation having taken place.
Where notes have been preserved (i.e. the journalist saved the document in which they recorded the interview) it may be difficult to convince a court that the notes are in their original, unaltered state.
The potential problem with electronic records of interviews was raised in the Hutton Inquiry. Journalist Andrew Gilligan told the Inquiry that soon after an informal meeting with a defence official he recorded his recollection of the conversation on a personal digital assistant for later use in a story.
While ordinarily such evidence might be regarded highly because of its contemporaneous nature, in this case it was suggested he had later amended the notes when it became clear he would have to produce his notes to the inquiry.
As a result, two forensic computer analysts were called as expert witnesses to testify as to the reliability of the records at great expense and embarrassment to the BBC.
Lawmakers have sought to clarify the status of electronic evidence by introducing statutory provisions dealing specifically with computer-produced evidence.
While emails may be saved or archived, the same cannot always be said of more transient forms of communicating such as text messages on mobile devices or information gained from social networking sites. Facebook and Twitter provide fertile ground for journalists seeking information about a source.
However, the ephemeral nature of social networking combined with the ability of users to control the information that is shared publicly may present a problem for journalists who publish information gained via such means.
In these circumstances, a prudent journalist may print off the relevant information or store it in some other permanent form.
In addition to keeping good notes of interviews and conversations, journalists should keep a record of phone calls and other attempts made to contact a source or verify information before it is published.
In order to establish a defence of fair comment, honest opinion or qualified privilege in defamation proceedings, a journalist must prove good faith.
This can be difficult to prove without evidence to support the claim that a journalist acted fairly. The statutory defence of qualified privilege will also require evidence that a journalist at least made an attempt to provide a balanced story.
Section 30 of the Defamation Act 2005 (NSW version, but nationally uniform) states that when deciding whether a publisher’s behaviour was reasonable in the circumstances “a court may take into a range of factors including whether a reasonable attempt was made to obtain and publish a response from the individual being defamed and other steps taken to verify the information published”.
In other words, the Act effectively imposes record-keeping obligations on journalists who may wish to use the defence in potential legal proceedings. However, many journalists are unaware of these requirements until after the fact, at which point a lack of evidence may preclude them from successfully arguing a defence.
A basic understanding of the rules of evidence by news organisations and individual journalists would assist reporters and their editors in developing improved newsgathering and information storage practices.
While there are sometimes safety nets for journalists who have had less than meticulous note-taking and file storage practices, news organisations and tertiary programs should be emphasising best practice in notebook and file management and imbuing journalism students and graded reporters with the importance of preserving records of interviews.
While jurisdictional differences in evidence law might impact on the advice given by media lawyers, it should be sufficient for journalists and their news managers to understand the basic principles and incorporate them into their daily newsgathering and file management practice.
The challenge to journalists, their managers and their lawyers is that the laws of evidence are complex and remain unsettled, particularly in respect of technology-based evidence. As a result, it is difficult to anticipate how a court might receive a journalist’s evidence where new methods and technologies have been applied in practice, particularly if suitable records have not been kept or if some of the information has been obtained in breach of other law.
It would certainly be premature to call for the elimination of shorthand from industry entry requirements.
However, media outlets need to look carefully at their double standards. Newspaper companies insist upon 120 words per minute of shorthand for entry level recruits but do not apply the same requirement to the experienced reporters they hire and sometimes waive the shorthand speed for star rookies who excel in other areas.
It’s a little like a commercial airline poaching obese and sickly pilots from its competitors while insisting its entry level pilots pass a rigorous fitness test.
Whether or not they continue with shorthand, media outlets need to look carefully at their collection and storage of interview records in whatever format, and to train their staff in basic protocols for the recording and filing of interviews.
© 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.
journlaw 
Police Facebook wall raises fair trial questions
By MARK PEARSON Follow @Journlaw
Sunday Mail reporter Anthony Gough called me last week seeking my views on a Queensland Police Service Facebook site featuring public comments on crimes and arrests.
Of course, before making a media comment on the matter I took a closer look at the site.
I quickly formed the view that it seemed an excellent community policing tool and a great way for police to get information about unsolved crimes but that many comments crossed the line once suspects had been arrested.
One comment called for a firing squad for a suspect charged over an assault on a police officer. A common view was that despite good police work in making an arrest, justice would not be done in the courts and the suspects would get off with a mere ‘slap on the wrist’.
My interview featured in an article in the Sunday Mail yesterday (June 19) headed ‘Police social media site a disgracebook’.
The article became the most viewed item on the newspaper’s site yesterday and remains in the top ten most popular items this morning (June 20).
It has already generated almost 400 ‘likes’ and comments on the police Facebook wall where it was republished with the warning: “A timely reminder why we ask you to familiarise yourself with the terms of use of the QPS page, and to be circumspect in your comments.”
Gough quoted me as saying some of the public comments about arrests could jeopardise convictions and perhaps even lead to acquittals.
“Police need to be concerned about this because prejudicial comments about arrests can actually finish up jeopardising the trial,” I told him.
“It may be counterproductive for a conviction or it may cause a delay.
“Either way it’s a huge cost to the community and I’m surprised the minister for police and the attorney-general are allowing this to continue.”
I questioned whether it was appropriate for the police service to be hosting a site with such comments and suggested it could prompt actions for contempt of court or defamation suits.
Criminal defence lawyer Bill Potts shared my concerns.
QPS media director Kym Charlton was quoted as saying the police were aware of the legal issues but felt the benefits outweighed the risks and the site was monitored and the users educated on appropriate use.
It was only after I revisited the QPS Facebook site after the interview that I found even more concerning material.
A 19-year-old man had been charged with armed assault after allegedly hitting a five-year-old boy with a golf club. The police report outlined the basic facts, then the public let fly with scores of comments:
“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag.”
“Any one who can attack a young child like that needs to be put in the prison system and not protected lets see him be such a big man when other prisnors find out he injured a 5 year old boy, i got to say i do not think they will be treating him withh open arms….justice i think…”
“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag. HOW DARE YOU! It’s people like you that make me sick to the stomach.”
A relative of the victim entered the fray: “No Jason and Julia – He is just pure scum and the facts are all there. Agree with Steph. It was not on the backswing and our nephew was not in the way. Totally unprovoked attack. I hope this horrible man gets everything he deserves.”
A Queensland police moderator called for restraint: “We understand the emotion that incidents like this evoke. Please keep it civil. Offensive language posts deleted.”
The following day the boy’s father entered the discussion: “Just to clear things up for everyone, it was my boy who was hit & this was no accident. The guy was standing near the door of the shop at the range and as we walked in he held the club up as to hit me but he side stepped me and took a full “baseball style” swing which hit my son in the neck. [deleted] you will be pleased to know i used the clause in the law you described. My son is recovering & we can only hope justice is done to keep this freak from harming anyone else. For all the people who are commenting on the two sides to every story i agree, i don’t know what his side of the story is, all i can say is we had never seen this man before, we did not speak to him, it was a totally random, violent & cowardly attack. It is pure luck that my sons injuries were not more serious.”
In the interim the accused had appeared in court on the serious charges and had been refused bail.
From the moment of his arrest, the matter had become part of the justice process, when public comment has traditionally been restricted to fair and accurate reports of what occurs in the courtroom – along with the basic undisputed facts of the matter.
The traditional media still have to work within these rules or face charges of sub judice contempt of court for posing a substantial risk to the fair trial of the accused. It is a charge that has seen Australian journalists fined and jailed.
There is particular sensitivity about comments going to the guilt or innocence of the accused, and many of the police media site comments do exactly that.
Another important aspect of this law is that the comments of witnesses should not be published during the sub judice period so it does not affect their testimony when given as evidence in court.
Witnesses are not expected to know this themselves but here the Queensland police site provides the platform for them to vent their views and give their versions of events that should be reserved for the appropriate time in the courtroom.
In this matter the father was a key witness and mainstream media would have held back on publishing his comments unless as a fair and accurate report of his testimony in court.
Another factor is that child victims and witnesses cannot be identified. By hosting the publication of the father’s comment under his name, the police Facebook page is indirectly identifying the child.
The QPS Facebook site has an audience of more than 200,000, higher than most daily newspapers. Other law enforcement agencies with a social media presence. Examples are the Northern Territory Police Force, SA Police News, Victoria Police Forcebook, and NSW Police Force.
They are a wonderful emergency communication tool and the Queensland Police site was used to great effect during last summer’s floods.
They are also an excellent vehicle for police to get information on unsolved crimes. Postings before a suspect has been arrested are not subject to contempt laws, although there is always the ongoing risk of defamation.
Apparently the technology does not allow for certain items to be comment-free, so the personnel monitoring the site need to delete offensive comments already posted.
I suggest they restrict items to the emergency, community information and intelligence seeking functions, deleting the announcements of arrests -unless a mechanism can be found for running them without comments.
The alternative would be a major overhaul of the justice publicity rules to accommodate the social media era, which would give us a system closer to that in the US where there is much more freedom to comment on cases in progress.
But such a change would need to come via legislative changes across Australia’s nine state, and territory and federal jurisdictions, not through via the communication offices of police forces.
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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.
© Mark Pearson 2011
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