Tag Archives: Code of Ethics

Updated: Privacy in Australia – a timeline from colonial capers to racecourse snooping, possum perving and delving drones

By MARK PEARSON

The interplay between the Australian media and privacy laws has always been a struggle between free expression and the ordinary citizen’s desire for privacy. I have developed this timeline to illustrate that tension.

1827: NSW Chief Justice Francis Forbes rejects Governor Ralph Darling’s proposal for legislation licensing the press, stating: “That the press of this Colony is licentious may be readily admitted; but that does not prove the necessity of altering the laws.” (Historical Records of Australia, Series 1, Vol. 13, pp. 290-297)

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The extract from the Sydney Gazette in 1830

1830: The Sydney Gazette and New South Wales Advertiser publishes an extract from London’s New Monthly Magazine on the prying nature of the British press compared with its European counterparts, stating: “The foreign journals never break in upon the privacy of domestic life”. But the London newspapers would hound a ‘lady of fashion’ relentlessly: “They trace her from the breakfast table to the Park, from the Park to the dinner-table, from thence to the Opera or the ball, and from her boudoir to her bed. They trace her every where. She may make as many doubles as a hare, but they are all in vain; it is impossible to escape pursuit.”

1847: NSW becomes the first Australian state to add a ‘public benefit’ element to the defence of truth for libel – essentially adding a privacy requirement to defamation law (ALRC Report 11, p. 117)

1882: First identified use of the phrase ‘right to privacy’ in an Australian newspaper. Commenting on a major libel case, the South Australian Weekly Chronicle (22.4.1882, p.5) states: “A contractor having dealings with the Government or with any public body has no right to privacy as far as those dealings go.”

1890: In a landmark Harvard Law Review article, the great US jurist Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis announce a new ‘right to privacy’ in an article by that very name. There is a ripple effect in Australia with several mentions of the term in articles between 1890-1900.

1937: A radio station used a property owner’s land overlooking a racecourse to build a platform from which it broadcast its call of the horse races. The High Court rules the mere overlooking of the land did not consti­tute an unlawful interference with the racing club’s use of its property. The decision viewed as a rejection of a common law right to privacy: Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479.

1948: Universal Declaration of Human Rights is proclaimed in Paris. Article 12 provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (United Nations Universal Declaration of Human Rights, GA. Res 217A(III), UN Doc A/Res/810 (1948).)

1966: The International Covenant on Civil and Political Rights (ICCPR) is proclaimed, protecting privacy at Article 17. (16 December 1966, [1980] ATS 23, entered into force generally on 23 March 1976)

1972: Australia signs the ICCPR.

1979: Australian Law Reform Commission releases its first major report on privacy – Unfair Publication: Defamation and Privacy, ALRC 11. It recommends a person be allowed to sue for damages or an injunction if ‘sensitive private facts’, relating to health, private behaviour, home life, and personal or family relationships, were published about him or her which were likely in all the circumstances to cause distress, annoyance or embarrassment to a person in the position of the individual. Wide defences were proposed allowing publication of personal information if the publication was relevant to the topic of public interest. (pp. 124-125).

1980: Australia ratifies the ICCPR and the Organisation for Economic Co-operation and Development (OECD) expert group led by Australian Justice Michael Kirby issues its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

1983: Australian Law Reform Commission releases its Privacy (ALRC Report 22), recommending the establishment of a Privacy Act to establish information privacy principles and the appointment of a Privacy Commissioner.

1984: Australian Journalists’ Association (AJA) revises its 1944 Code of Ethics to include a new clause (9) requiring journalists to “respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them”.

1988: The Privacy Act 1988 is enacted, applying initially only to the protection of personal information in the possession of Australian Government departments and agencies.

1999: Media Entertainment and Arts Alliance (MEAA) issues another revised Code of Ethics preserving the grief and privacy elements in clause 11.

2000: Privacy Act 1988 provisions are extended to larger private sector organisations, and 10 National Privacy Principles (NPPs) are introduced, determining how companies must collect, use and disclose, keep secure, provide access to and correct personal information. Media organisations are exempted from the provisions as long as they ascribe to privacy standards published by their representative bodies.

2001: High Court rejects an argument for a company’s right to privacy after animal liberationists trespass to film the slaughter of possums in a Tasmanian abattoir and someone gives the footage to the ABC, but the court leaves the door open for a possible personal privacy tort: Australian Broadcasting Corporation v. Lenah Game Meats (2001) 208 CLR 199.

2003: A Queensland District Court judge rules the privacy of the former Sunshine Coast mayor Alison Grosse had been invaded by an ex-lover who continued to harass her after their affair had ended. She is awarded $108,000 in damages: Grosse v. Purvis [2003] QDC 151.

2007: Victorian County Court Judge Felicity Hampel SC holds that a rape victim’s privacy was invaded when ABC Radio broadcast her identity in a news report despite state laws banning the identification of sexual assault complainants. She is awarded $110,000 damages: Jane Doe v ABC & Ors [2007] VCC 281.

2008: Australian Law Reform Commission releases its For Your Information: Australian Privacy Law and Practice (ALRC Report 108) recommending a cause of action for breach of privacy where an individual has a ‘reasonable expectation of privacy’, with a cap for non-economic loss of $150,000.

2011: Federal Government releases an Issues Paper floating a proposal for a Commonwealth cause of action for a serious invasion of privacy.

2012

  • The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Privacy Amendment Act) passed, to take effect in 2014, featuring new Australian Privacy Principles (APPs), more powers for the Australian Information Commissioner, tougher credit reporting rules and new dispute resolution processes. Media exemption remains unchanged.
  • Independent Media Inquiry (Finkelstein Review) releases its report recommending a News Media Council take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court. Privacy breaches cited as a reason for the move.
  • Commonwealth Government’s Convergence Review releases its final report rejecting the Finkelstein model but instead proposing a ‘news standards body’ operating across all media platforms, flagging the withdrawal of the privacy and consumer law exemptions from media outlets who refuse to sign up to the new system.

2013

  • The federal attorney-general directs the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era. The inquiry will address both prevention and remedies for serious invasions of privacy with a deadline of June 2014.
  • At the same time the government introduces legislation to establish a Public Interest Media Advocate with the power to strip media outlets of their Privacy Act exemptions. That part of the legislation is later withdrawn.
  • The federal attorney-general seeks state and territory input on the regulation of drones following the Privacy Commissioner’s concerns that their operation by individuals was not covered by the Privacy Act.

2014

  • The Australian Law Reform Commission (ALRC) releases a Discussion Paper, Serious Invasions of Privacy in the Digital Era (DP 80, 2014)The proposed elements of the action include that the invasion of privacy must occur by: a. Intrusion into the plaintiff’s seclusion or private affairs (including by unlawfulsurveillance); or b. Misuse or disclosure of private information about the plaintiff. The invasion of privacy must be either intentional or reckless. A person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstance. The court must consider that the invasion of privacy was ‘serious’, in all the circumstances, having regard to, among other things, whether the invasion was likely to be highly offensive, distressing or harmful to a person of ordinary sensibilities in the position of the plaintiff. The court must be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest in the defendant’s conduct.

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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 2013/2014

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US ethics expert says diet book’s non-disclosure could trigger a retraction

By MARK PEARSON

A leading US medical ethics expert says a conflict of interest should be declared by the author of a medical journal article if he has a popular diet book on the market.

The comment follows this week’s revelation by journlaw.com that the best selling diet book author Dr Michael Mosley had co-authored an article in the British Journal of Diabetes and Vascular Disease but had not declared a conflict of interest.

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Adam Marcus from Retraction Watch … conflict deserved declaration

Adam Marcus, co-founder of Retraction Watch and managing editor of Anesthesiology News, rejected the explanation offered by the authors and editors that the review article did not need to declare a conflict of interest because the diet book  The Fast Diet was not cited.

“If the article is indeed plugging the diet or could reasonably be construed as endorsing it, even implicitly, then clearly there is a conflict of interest, and that conflict should be disclosed,” he said.

“I think COPE [the Committee on Publication Ethics] would agree that the default should be declaring conflicts rather than ignoring them.”

He said some journal editors have taken the extreme measure of retracting an article with undisclosed interests.

“We certainly have seen cases of retractions for undeclared or insufficiently declared conflicts of interest,” he said.

“How journals address them varies but can include corrections or retractions as the editors see fit.”

He gave the example reported in Retraction Watch of an obstetrics and gynaecology journal that retracted an article in 2011 over an undeclared conflict.

Marcus said the authors would be obliged to declare such an interest in any future scientific journal articles.

“I think the short answer is that if a conflict of interest exists, they are obligated to declare it regardless of whether someone has raised questions about a previously undeclared conflict of interests,” he said.

Read original journlaw.com article here, complete with audio and video interviews with experts.

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© Mark Pearson 2013

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.

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The doctor, the Fast Diet and medical journal ethics

By MARK PEARSON

A British medical journal has published an article about intermittent fasting without disclosing that it is written by the author of a best-selling diet book on the subject.aaDiabetesJournalarticleFastDietCover

Dr Michael Mosley is the BBC health journalist who co-authored The Fast Diet which sold more than 400,000 copies in the UK alone in the first six months of this year and is a top seller in the US and Australia.

The book’s January release preceded the publication of an academic article on that very diet method – intermittent fasting – co-authored by Dr Mosley in the March-April issue of the British Journal of Diabetes and Vascular Disease.

Its Article Notes featured the statement: “The authors declare no conflicts of interest in preparing this article”.

DeclarationOfInterestsWhen asked about this, lead author Dr James Brown and the journal’s executive editor Dr Caroline Day, both from Aston University, said there was no conflict of interests because the research review article did not cite Dr Mosley’s book.

However, bioethics experts and the ethical codes for medical journals do not appear to use this as a criterion for disclosure.

The journal states on its Sage home page that it is a member of the Committee on Publication Ethics (COPE).

The ethical codes do not state explicitly that authors of popular books must declare a conflict. Rather, they state personal interests and commercial relationships should be declared.

The COPE Code of Conduct directs journal editors to have systems in place for dealing with conflicts of interest (s17.2) and in turn references the British Medical Journal (BMJ) transparency policy and the International Committee of Medical Journal Editors (ICMJE) requirements.

The BMJ guidelines state a conflict of interest exists when authors “have a financial interest that may influence, probably without their knowing, their interpretation of their results or those of others.”

The ICMJE requirements include “dual commitments, competing interests, or competing loyalties” in their definition of conflicts of interest. Even without the book, Dr Mosley appears to have such competing interests – as the presenter of a top-rating Horizon program that popularised this diet method when in it was broadcast on BBC2 in August 2012. Dr Mosley is also on the speaking circuit, with his appearances with the JLA group advertised in the £2500-£5000 per appearance fee band and Catalyst World Class Speakers billing him in the £1000-£5000 category.

The Sage guidelines drill down to even individual biases that “might arise from relationships, allegiances or hostilities to particular groups, organizations or interests, which may influence excessively one’s judgments or actions. The issue is particularly sensitive when such interests are private and/or may result in personal gain.”

Clinical ethicist at Bond University in Australia, Associate Professor Katrina Bramstedt, has performed more than 800 ethics consultancies and says such a conflict should normally be disclosed.

“I can’t imagine not making a disclosure … just as you would need to disclose any consulting relationships,” she said.

“You have a self interest when you publish something for popular media – you make income off that.

“Writing a peer reviewed article can be a form of marketing your book, so there’s a connection between the two. Because there’s a connection you need to have full disclosure.”

Dean of Arts at the University of Tasmania, bioethics researcher Professor Susan Dodds, agrees.

“I think if the book’s out and the researcher is publishing work that adds credibility to their commercial book by getting people interested in that area there could be a conflict of interest,” the bioethics researcher said.

“Some of the health issues don’t get regulated at all so there’s a concern that people are lending scientific credibility to areas that are much more at the level of marketing or the level of building a consumer base rather than what we ordinarily think of as tested research practice.

“If I’m trying to choose between diets and I can see that what looks like credible medical expertise saying that this approach is one that’s going to be successful and it’s safe and whatever then it’s likely that consumers will be influenced by that. It is a conflict of interests.”

That’s exactly what appears to have happened in some quarters, with readers on a dedicated online forum about the Fast Diet citing the research article as support for the diet proposed by the book.

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According to the article’s lead author Dr Brown, the research article had been downloaded more than 10,000 times by July.

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Some forum commenters started to raise concerns back in April about the journal’s lack of a disclosure of a conflict of interests by Dr Mosley.

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Associate Professor of Urology and Pathology at the Duke University Medical Center in Durham, North Carolina Dr Stephen Freedland, has researched in the area but was quoted in a recent edition of the Canadian Medical Association Journal expressing his scepticism about diet books.

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Lead author Dr Brown has shown an interest in medical research ethics in his Twitter feed.

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But he and editor Dr Caroline Day feel there is no need to disclose a conflict of interests in this case. Instead, they argue there was no need to declare Dr Mosley’s book, publishing contracts or sponsored appearances as conflicts of interest because the book was not cited in the article.

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Clinical ethicist Dr Bramstedt said she did not accept the authors’ and editors’ argument that there was no need for a conflict declaration because the diet book was not cited in the article.

“I’m an associate editor for a bioethics journal and I wouldn’t buy that – no,” Dr Bramstedt said.

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“I don’t think whether you cite it or not is material. You have an interest and whether that interest is officially documented as a citation or not I don’t think that is material to the fact. You have an interest, and that is what is material.”

Professor Dodds said if a work was not being sourced it need not be cited, but that was a separate issue from a declaration of interests.

“It may well be the case that a person who is making a killing off diet books that they ought to at least express an interest but they do not necessarily need to refer directly to the work,” she said.

Author of the best selling GI Factor series of books, Professor Jennie Brand-Millerroutinely discloses her potential conflict in peer-reviewed journal articles.

For example,  she made the following disclosure as co-author of a research article in the January 2013 edition of Nutrients:

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Clinical ethicist Dr Bramstedt doubted a failure to disclose an interest would require a retraction of the article, but an addendum or erratum could be added to at least the online issue of the journal.

“I’ve seen missed disclosures reported like that in various journals,” she said.

“I think in those types of situations the editor should take a second look at the paper to see if that paper actually needs to go back to peer reviewers to see if there might in fact be any bias now that this new revelation of conflict of interest has been disclosed.

Lead author Dr Brown would not confirm whether he has co-authored further academic articles with Dr Mosley, but his Twitter feed suggests more co-authored articles and review articles on intermittent fasting are in the pipeline for publication.

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Dr Bramstedt suggested the authors should consider declaring such a conflict in any future papers they co-author with the best-selling author.

“I think so unless they still have in their mind a philosophy that says ‘we really don’t think we have to do this’, but you would think that they would wise up a little bit,” Dr Bramstedt said.

This is certainly not a one-off case. In fact, as Ivan Oransky reported in MedPage Today last week, non-disclosure is common with at least half of clinical trial study authors failing to report relevant conflicts of interest, according to a Danish analysis of papers.

Dr Mosley has not yet answered my requests for a response but I will certainly update this blog with any comments he provides.

Meanwhile, what are your views on this? Is there an ethical obligation on popular diet book authors to disclose that in their scientific journal articles? Please comment below. (All comments are moderated).

© Mark Pearson 2013

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.

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The Guardian, GCHQ, the leaked security files and the airport arrest – an Australian view

By MARK PEARSON

It is fascinating when an area of your research suddenly launches into life in a real event.

That happened in the UK this week when Guardian editor Alan Rusbridger revealed senior government officials had ordered him to destroy computer hard drives containing leaked National  Security Agency (NSA) files or face court action which would almost inevitably result in an order to hand the material over.

We also learned the partner of a Guardian journalist was held at Heathrow Airport for nine hours under anti-terrorism laws, prompting the question ‘Could this happen in Australia?’.

The answer – put simply – is ‘Yes’, as I explained to Richard Aedy on Radio National’s Media Report this week.

You can download that interview here.

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I’ve been working with Griffith University colleague Associate Professor Jacqui Ewart and lawyer Joshua Lessing in this space and our article on Australia’s anti-terrorism laws (including some comparison with  the UK situation) was published in the latest edition of the prestigious Journal of Media Law, edited by the legendary media law expert, Professor Eric Barendt.

Our article’s citation is: Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

The abstract follows below.

I hope you enjoy the Media Report interview, and I’m happy to correspond with other scholars interested in this space, and to have contact with students looking to pursue higher degree research in this area and other topics of media and social media law, ethics and regulation.

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“The 9/11 terrorist attacks in the United States triggered an escalation of national security laws globally, including at least 54 in Australia, with some having implications for news reporting and open justice. This article backgrounds the Australian experience with such laws at a time when the United Kingdom is in the midst of a debate over the free expression impacts of its Justice and Security Bill. It uses case studies to highlight tensions between Australia’s security laws and the media’s Fourth Estate role and compares the Australian and UK human rights contexts. The article asks whether anti-terror laws restricting free expression should continue indefinitely in a democracy when national security breaches are likely to remain a major issue of public concern and there is no constitutional or human rights guarantee of free expression. It suggests a cautious approach to the renewal of such laws, particularly those restricting public debate about national security and its impact on human rights.”

– Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

© Mark Pearson 2013

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.

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Our ‘news media and anti-terror laws’ article published in Journal of Media Law

By MARK PEARSON

It’s great when you get the chance to work with other scholars, so I’m delighted our collaborative article has been published in the latest edition of the prestigious Journal of Media Law, edited by the legendary media law expert, Professor Eric Barendt.

It’s an even greater pleasure to have co-authored it with my new colleague at Griffith University, Associate Professor Jacqui Ewart (the lead author), with expert research assistance from lawyer Joshua Lessing (also co-author). [Joshua’s late father John became a close family friend after teaching me in the very first subject of my LLM – Company and Partnership Law – way back in 1990.]

Our article’s citation is: Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

Here is the abstract to give you a taste, but you’ll need to subscribe to the journal or borrow it from a library to read the full article.

I’m happy to correspond with other scholars interested in this space, and with students who might want to pursue higher degree research in this area and other topics of media and social media law, ethics and regulation.

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“The 9/11 terrorist attacks in the United States triggered an escalation of national security laws globally, including at least 54 in Australia, with some having implications for news reporting and open justice. This article backgrounds the Australian experience with such laws at a time when the United Kingdom is in the midst of a debate over the free expression impacts of its Justice and Security Bill. It uses case studies to highlight tensions between Australia’s security laws and the media’s Fourth Estate role and compares the Australian and UK human rights contexts. The article asks whether anti-terror laws restricting free expression should continue indefinitely in a democracy when national security breaches are likely to remain a major issue of public concern and there is no constitutional or human rights guarantee of free expression. It suggests a cautious approach to the renewal of such laws, particularly those restricting public debate about national security and its impact on human rights.”

– Ewart, Jacqui; Pearson, Mark; and Lessing, Joshua. ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’. Journal of Media Law, Volume 5, Number 1, July 2013 , pp. 104-132(29).

© Mark Pearson 2013

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.

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Shield laws might not protect bloggers and citizen journalists

By MARK PEARSON

Q: When is a journalist not a journalist? A: When trying to earn a shield law privilege.

Sadly, that is too often the situation for those using confidential sources for their online reportage, even when it is exposing serious wrongdoing.

So-called ‘shield laws’ are limited protections offered to journalists trying to keep their sources confidential. But, even in the US, they are even more restricted when it comes to bloggers, ‘citizen journalists’ and social media users.

Shield laws vary widely in their scope, sometimes only applying to material that has already been ‘published’ and sometimes specifically naming ‘journalists’ and ‘news media’ as those protected.

Federal shield laws introduced in Australia in 2011 extended to bloggers and tweeters – but only to those ‘engaged and active in the publication of news’.

Some US state shield laws can be interpreted to cover new media users, while others are narrowly construed to apply to journalists in the mainstream media. Montana’s shield laws were held to apply to anonymous Internet commenters in 2008 when a former political candidate launched a defamation action over material on the Billings Gazette’s site.

But a blogger who was sued for defamation over comments on a message board failed to win protection under the New Jersey shield law in 2011. The former Citizen Media Law Project’s Justin Silverman  developed a useful state-by-state analysis of shield laws for bloggers.

The application of Californian shield laws to bloggers was questioned in 2010 when Gizmodo gadget blog editor Jason Chen appeared in a video on the site displaying a prototype of an Apple iPhone 4G which had been lost then purchased by an intermediary for about $5000. Police seized six computers and other items from Chen’s home. But the matter was not tested when charges against Chen were not pursued.

There were calls for a US federal shield law after travel bloggers Chris Elliott and Steve Frischling were subpoenaed in late 2009 to find the anonymous correspondent who had provided them with a Transportation Security Administration security directive they had posted after a failed terrorist attack. But the TSA backed off and withdrew its demands. 

The waters get murkier as the traditional media contract throughout the developed world and continue to retrench journalists, with many then turning to the Web and social media to continue their work. Some can only do it part-time and may not be defined as  ‘engaged and active in the publication of news’. The same goes for students who often produce excellent investigative journalism but are not yet doing it for a living. It is debatable whether they would earn the protection of shield laws under many definitions.

And then there is the serious blogger with an agenda – not meeting the usual definition of ‘journalist’ and perhaps even rejecting the term. Nevertheless, should such an individual’s claim to a shield law privilege be allowed? Policy makers in most jurisdictions think not.

What do you think? I welcome your comments below.

Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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.

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‘Mindful journalism’ – introducing a new ethical framework for reporting

By MARK PEARSON

This is an abridged version of the conference paper I presented to the Media, Religion and Culture division of the International Association for Media and Communication Research Conference, Dublin City University, on Saturday, June 29, 2013.

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This paper explores the possibility of applying the fundamental precepts of one of the world’s major religions to the practice of truth-seeking and truth-telling in the modern era and asks whether that ethical framework is compatible with journalism as a Fourth Estate enterprise. It is not meant to be a theological exposition as I am neither a Buddhist nor an expert in Buddhist philosophy. That said, no academic paper topic like this arises in a vacuum, so I must first explain the personal and professional context from which this issue has arisen over four decades and has intensified in recent years. Most of my academic work has been in the field of media law – and its focus has been mainly upon the practical application of laws and regulations to the work of journalists. From time to time that ventures into media ethics and regulatory frameworks – the philosophical, self-regulatory and legislative frameworks that inform and relate to any examination of the actual laws impacting upon journalists.

Professional ethical codes are not religious treatises, and neither were holy scriptures spoken or written as codes of practice for any particular occupation. This paper attempts to do neither. Rather, it sets out to explore whether the foundational teachings of one religion focused upon living a purer life might inform journalism practice. At some junctures it becomes apparent that some elements of the libertarian model of journalism as we know it might not even be compatible with such principles – particularly if they are interpreted in their narrowest way. The teachings of other religions might also be applied in this way. When you look closely at Christianity (via the Bible), Islam (the Koran), Hinduism (the Bhagavad Gita), Judaism (the Torah) and throuth the Confucian canon you find common moral and ethical principles that we might reasonably expect journalists to follow in their work, including attributes of peace journalism identified by Lynch, (2010, p. 543): oriented towards peace, humanity, truth and solutions.  The Dalai Lama’s recent book – Beyond Religion – Ethics for a Whole World (2011) – explored his vision of how core ethical values might offer a sound moral framework for modern society while accommodating diverse religious views and cultural traditions. It is in that spirit that I explore the possibilities of applying some of Buddhism’s core principles to the secular phenomenon of journalism. It also must be accepted that Buddhist practices like ‘mindfulness’ and meditation have been adopted broadly in Western society in recent decades and have been accepted into the cognitive sciences, albeit in adapted therapeutic ways (Segal et. al, 2012).

We should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary which requires a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process. They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.  The recent inquiries triggered by poor journalism ethical practices have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to explore new ways to recapture this.

The Noble Eightfold Path attributed to the Buddha – Siddhartha Gautama (563 BCE to 483 BCE) – has been chosen here because of the personal reasons listed above, its relative brevity, and the fact that its core elements can be read at a secular level to relate to behavioural – and not exclusively spiritual – guidelines. Gunaratne (2005, p. 35) offered this succinct positioning of the Noble Eightfold Path (or the ‘middle way’) in Buddhist philosophy:

The Buddhist dharma meant the doctrine based on the Four Noble Truths: That suffering exists; that the cause of suffering is thirst, craving, or desire; that a path exists to end suffering; that the Noble Eightfold Path is the path to end suffering. Described as the “middle way,” it specifies the commitment to sila (right speech, action and livelihood), samadhi (right effort, mindfulness, and concentration), and panna (right understanding and thoughts).

It is also fruitful to explore journalism as a practice amidst the first two Noble Truths related to suffering (dukka), and this is possible because they are accommodated within the first step of the Eightfold Path – ‘right views’. The Fourth Noble Truth is also integrative. It states that the Noble Eightfold Path is the means to end suffering. Here we consider its elements as a potential framework for the ethical practice of journalism in this new era.

 

Application of the Noble Eightfold Path to ethical journalism practice

Each of the constituent steps of the Noble Eightfold Path – understanding free of superstition, kindly and truthful speech, right conduct, doing no harm, perseverance, mindfulness and contemplation – has an application to the modern-day practice of truth-seeking and truth-telling – whether that be by a journalist working in a traditional media context, a citizen journalist or a serious blogger reporting and commenting upon news and current affairs. Smith and Novak (2003, p. 39) identified a preliminary step to the Buddha’s Noble Eightfold Path that he saw as a precondition to its pursuit – the practice of ‘right association’. This, they explained, acknowledged the “extent to which we are social animals, influenced at every turn by the ‘companioned example’ of our associates, whose attitudes and values affect us profoundly” (Smith & Novak, 2003, p. 40). For journalists this can apply at a number of levels. There is the selection of a suitable mentor, an ethical colleague who might be available to offer wise counsel in the midst of a workplace dilemma. There is also the need to acknowledge – and resist – the socialization of journalism recruits into the toxic culture of newsrooms with unethical practices (McDevitt et. al, 2002). Further, there is the imperative to reflect upon the potential for the ‘pack mentality’ of reportage that might allow for the combination of peer pressure, competition and poor leadership to influence the core morality of the newsgathering enterprise, as noted by Leveson (2012, p. 732) in his review of the ethical and legal transgressions by London newspaper personnel. Again, there is a great deal more that can be explored on this topic, but we will now concentrate on a journalistic reading of the steps of the Eightfold Path proper. Kalupahana (1976, p. 59) suggests its constituent eight factors represent a digest of “moral virtues together with the processes of concentration and the development of insight”.

1. Right views. Smith and Novak (2003, p. 42) explained that the very first step in the Eightfold Path involved an acceptance of the Four Noble Truths. Suffice it to say that much of what we call ‘news’ – particularly that impacting on audiences through its reportage of change, conflict and consequence – can sit with Smith and Novak’s (2003, p. 33) definition of dukka, namely “the pain that to some degree colors all of finite existence”. Their explanation of the First Noble Truth – that life is suffering – is evident when we view the front page of each morning’s newspaper and each evening’s television news bulletin:

The exact meaning of the First Noble Truth is this: Life (in the condition it has got itself into) is dislocated. Something has gone wrong. It is out of joint. As its pivot is not true, friction (interpersonal conflict) is excessive, movement (creativity) is blocked, and it hurts (Smith & Novak, 2003, p. 34).

This is at once an endorsement of accepted news values and a denial of the very concept of there being anything unusual about change. As Kalupahana (1976, p. 36) explains, a fundamental principle of Buddhism is that all things in the world are at once impermanent (anicca), unsatisfactory (dukkha) and nonsubstantial (anatta). News, too, is about the impermanent and the unsatisfactory. It is premised upon identifying to audiences what has changed most recently, focusing especially on the most unsatisfactory elements of that change. Yet given Buddhism’s premise that all things are subject to change at all times and that happiness is achieved through the acceptance of this, it might well erode the newsworthiness of the latest upsetting accounts of change in the world since we last looked. Yet in some ways this step supports the model of ‘deliberative journalism’ as explained by Romano (2010, p. 11), which encourages reports that are ‘incisive, comprehensive and balanced’, including the insights and contributions of all relevant stakeholders. Most importantly, as Romano suggests:

Journalists would also report on communities as they evaluate potential responses, and then investigate whether and how they have acted upon the resulting decisions (Romano, 2010, p. 11).

Thus, the notion of ‘right views’ can incorporate a contract between the news media and audiences that accepts a level of change at any time, and focuses intention upon deeper explanations of root causes, strategies for coping and potential solutions for those changes prompting the greatest suffering.

2. Right intent. The second ingredient relates to refining and acting upon that very ‘mission’, ‘calling’ or drive to ‘make a difference’ which is the very human motivation for selecting some occupations. For some, it is a religious calling where they feel spiritually drawn to a vocation as a priest, an imam, a rabbi or a monk. But for others it is a secular drive to aid humanity by helping change society in a positive way – a career motivation shared by many teachers, doctors and journalists. It becomes the backbone to one’s professional enterprise. Smith and Novak (2003, p. 42) describe it thus:

People who achieve greatness are almost invariably passionately invested in some one thing. They do a thousand things each day, but behind these stands the one thing they count supreme. When people seek liberation with single-mindedness of this order, they may expect their steps to turn from sliding sandbank scrambles into ground-gripping strides.

In journalism, this might necessitate a change in mindset from bringing news ‘first’ in a competitive sense but ‘best’ and most meaningfully to an audience in a qualitative sense. Of course, it would not be ‘news’ if were not delivered relatively soon after its occurrence, but in this era of instant communication this step reinforces the notion of ‘responsible truth-seeking and truth-telling’ – authoritative and credible news, obtained ethically, and delivered as soon as possible to retain its relevance and utility without losing its veracity.

3. Right speech. This step relates to both truthful and charitable expression and, interpreted narrowly, that second element of ‘charitable expression’ could present a fundamental challenge to the very concept of journalism as we know it. It certainly places serious questions about the celebrity gossip orientation of many news products today. The notion of telling the truth and being accurate lies at the heart of journalism practice and is foremost in most ethical codes internationally. It is an unquestionable truth that, while a single empirical fact might be subject to scientific measurement and verification, any conclusions drawn from the juxtaposition of two provable facts can only constitute what a scientist would call a ‘theory’ and the rest of us might call ‘opinion’. In defamation law, collections of provable facts can indeed create a meaning – known as an ‘imputation’ – that can indeed be damaging to someone’s reputation (Pearson & Polden, 2011, p.217). Thus, it becomes a question of which truths are selected to be told and the ultimate truth of their composite that becomes most relevant.

Smith and Novak (2003, p. 42) suggest falsities and uncharitable speech as indicative of other factors, most notably the ego of the communicator. In journalism, that ego might be fuelled in a host of ways that might encourage the selection of certain facts or the portrayal of an individual in a negative light: political agendas, feeding populist sentiment, peer pressure, and corporate reward. They state:

False witness, idle chatter, gossip, slander, and abuse are to be avoided, not only in their obvious forms, but also in their covert ones. The covert forms – subtle belittling, ‘accidental’ tactlessness, barbed wit – are often more vicious because their motives are veiled (Smith and Novak, 2003, p. 42).

This calls into question the very essence of celebrity journalism for all the obvious reasons. Gossip about the private lives of the rich and famous, titillating facts about their private lives, and barbed commentary in social columns all fail the test of ‘right speech’ and, in their own way, reveal a great deal about the individual purveying them and their employer, discussed further below under ‘right livelihood’. Taken to its extreme, however, much news might be considered ‘uncharitable’ and slanderous about an individual when it is in fact revealing their wrongdoing all calling into question their public actions. If the Eightfold Path ruled out this element of journalism we would have to conclude it was incompatible even with the best of investigative and Fourth Estate journalism. Indeed, many uncomfortable truths must be told even if one is engaging in a form of ‘deliberative journalism’ that might ultimately be for the betterment of society and disenfranchised people. For example, experts in ‘peace journalism’ include a ‘truth orientiation’ as a fundamental ingredient of that approach, and include a determination “to expose self-serving pronouncements and representations on all sides” (Lynch, 2010, p. 543).

4. Right conduct. The fourth step of ‘right conduct’ goes to the core of any moral or ethical code. In fact, it contains the fundamental directives of most religions with its Five Precepts which prohibit killing, theft, lying, being unchaste and intoxicants (Smith and Novak, 2003, p. 44). Many journalists would have problems with the final two, although the impact upon their work would of course vary with individual circumstances. And while many journalists might have joked that they would ‘kill’ for a story, murder is not a common or accepted journalistic tool. However, journalists have often had problems with the elements of theft and lying in their broad and narrow interpretations. The Leveson Report (2012) contains numerous examples of both, and the extension of the notion of ‘theft’ to practices like plagiarism and of ‘lying’ to deception in its many guises have fuelled many adverse adjudications by ethics committees and courts.

Importantly, as Smith and Novak (2003, p. 43) explain, the step of right conduct also involves ‘a call to understand one’s behavior more objectively before trying to improve it’ and ‘to reflect on actions with an eye to the motives that prompted them’. This clearly invokes the strategic approach developed by educationalist Donald Schön, whose research aimed to equip professionals with the ability to make crucial decisions in the midst of practice. Schön (1987, p. 26) coined the expression ‘reflection-in-action’ to describe the ability of the professional to reflect upon some problem in the midst of their daily work.  The approach was adapted to journalism by Sheridan Burns (2013) who advised student journalists:

You need a process for evaluating your decisions because a process, or system, lets you apply your values, loyalties and principles to every new set of circumstances or facts. In this way, your decision making will be fair in choosing the news (p. 76).

Even industry ethical codes can gain wider understanding and acceptance by appealing to fundamental human moral values and not just offering a proscriptive list of prohibited practices. A recent example is the Fairfax Media Code of Conduct (undated) which poses questions employees might ask themselves when faced with ethical dilemmas that might not be addressed specifically in the document, including:

  • Would I be proud of what I have done?
  • Do I think it’s the right thing to do?
  • What will the consequences be for my colleagues, Fairfax, other parties and me?
  • What would be the reaction of my family and friends if they were to find out?
  • What would happen if my conduct was reported in a rival publication?

While this specific approach seems to focus on the potential for shame for a transgressor, it offers an example of a media outlet attempting to encourage its employees to pause and reflect in the midst of an ethical dilemma – what Schön (1987, p. 26) called ‘reflection-in-action’. Such a technique might offer better guidance and might gain more traction if it were founded upon a socially and professionally acceptable moral or ethical scaffold, perhaps the kind of framework we are exploring here.

5. Right living. The Buddha identified certain livelihoods that were incompatible with a morally pure way of living, shaped of course by the cultural mores of his place and time. They included poison peddler, slave trader, prostitute, butcher, brewer, arms maker and tax collector (Smith and Novak, 2003, p. 45). Some of these occupations might remain on his list today – but one can justifiably ask whether journalism would make his list in the aftermath of the revelations of the Leveson Inquiry (2012). That report did, of course, acknowledge the important role journalism should play in a democratic society, so perhaps the Buddha might have just nominated particular sectors of the media for condemnation. For example, the business model based upon celebrity gossip might provide an avenue for escape and relaxation for some consumers, but one has to wonder at the overall public good coming from such an enterprise. Given the very word ‘occupation’ implies work that ‘does indeed occupy most of our waking attention’ (Smith and Novak, 2003, p. 44), we are left to wonder how the engagement in prying, intrusion and rumor-mongering for commercial purposes advances the enterprise of journalism or the personal integrity of an individual journalist who chooses to ply that trade. The same argument applies to the sections of larger media enterprises who might sometimes produce journalism of genuine social value, but on other occasions take a step too far with intrusion or gossip without any public benefit. This is where journalists working in such organisations might apply a mindful approach to individual stories and specific work practices to apply a moral gauge to the actual tasks they are performing in their work and in assessing whether they constitute ‘right living’.

 

6. Right effort. The step of ‘right effort’ was directed by the Buddha in a predominantly spiritual sense – a steady, patient and purposeful path to enlightenment. However, we can also apply such principles to the goal of ethical journalism practice in a secular way. Early career journalists are driven to demonstrate success and sometimes mistake the hurried scoop and kudos of the lead story in their news outlet as an end in itself. There can also be an emphasis on productivity and output at the expense of the traditional hallmarks of quality reportage – attribution and verification. Of course, all news stories could evolve into lengthy theses if they were afforded unlimited timelines and budgets. Commercial imperatives and deadlines demand a certain brevity and frequency of output from all reporters. Both can be achieved with continued attention to the core principle of purposeful reflection upon the ethics of the various daily work tasks and a mindful awareness of the underlying mission – or backbone – of one’s occupational enterprise – striving for the ‘right intent’ of the second step.

Institutional limitations and pressure from editors, reporters and sources will continually threaten a journalist’s commitment to this ethical core, requiring the ‘right effort’ to be maintained at that steady, considered pace through every interview, every story, every working day and ultimately through a full career. As the Dalai Lama wrote in Beyond Religion (2011, p. 142):

The practice of patience guards us against loss of composure and, in doing so, enables us to exercise discernment, even in the heat of difficult situations.

Surely this is a useful attribute for the journalist.

7. Right mindfulness. This is the technique of self-examination that Schön (1987) and Sheridan Burns (2013) might call ‘reflection in action’ and is the step I have selected as central to an application of the Eightfold Path to reportage in the heading for this article – ‘Mindful Journalism’. Effective reflection upon one’s own thoughts and emotions is crucial to a considered review of an ethical dilemma in a newsgathering or publishing context. It is also essential to have gone through such a process if a journalist is later called to account to explain their actions. Many ethical decisions are value-laden and inherently complex. Too often they are portrayed in terms of the ‘public interest’ when the core motivating factor has not been the greater public good but, to the contrary, the ego of an individual journalist or the commercial imperative of a media employer. Again, the Leveson Report (2012) detailed numerous instances where such forces were at play, often to the great detriment to the lives of ordinary citizens.

As Smith and Novak (2003, p. 48) explain, right mindfulness ‘aims at witnessing all mental and physical events, including our emotions, without reacting to them, neither condemning some nor holding on to others’. Buddhists (and many others) adopt mindfulness techniques in the form of meditation practice – sometimes in extended guided retreats. While I have found this practice useful in my own life, I am by no means suggesting journalists adopt the lotus position to meditate in their newsrooms or at the scene of a breaking news event to peacefully contemplate their options. The extent to which individuals might want to set aside time for meditation in their own routines is up to them, but at the very least there is much to be gained from journalists adopting the lay meaning of ‘being mindful’. In other words, journalists might pause briefly for reflection upon the implications of their actions upon others – the people who are the subjects of their stories, other stakeholders who might be affected by the event or issue at hand, the effects upon their own reputations as journalists and the community standing of others, and the public benefits ensuing from this particular truth being told in this way at this time. Most ethical textbooks have flow charts with guidelines for journalists to follow in such situations – but the central question is whether they have an embedded technique for moral self-examination – a practiced mindfulness they can draw upon when a circumstance demands.

There is a special need for journalists to be mindful of the vulnerabilities of some individuals they encounter in their work. Many have studied the interaction between the news media and particular ‘vulnerable groups’, such as people with a disability, those with a mental illness, children, the indigenous, the aged, or those who have undergone a traumatic experience. Our collaborative Australian Research Council Linkage Project on ‘Vulnerability and the News Media’ (Pearson et. al, 2010) reviewed that research and examined how journalists interacted with those who might belong to such a ‘vulnerable group’ or who might simply be ‘vulnerable’ because of the circumstances of the news event. We identified other types of sources who might be vulnerable in the midst or aftermath of a news event involving such a ‘moment of vulnerability’ and assessed the question of ‘informed consent’ to journalistic interviews by such individuals. Ethical journalists are mindful of such potential vulnerabilities and either look for alternative sources or take considered steps to minimise the impact of their reportage.

This concern for others also invokes the notion of compassion for other human beings, a tenet central to the teachings of all major religions, and a hallmark of Buddhism. The Dalai Lama has explained that it is often mistaken for a weakness or passivity, or ‘surrender in the face of wrongdoing or injustice’ (Dalai Lama, 2011, p. 58). If that were the case, then it would be incompatible with Fourth Estate journalism which requires reporters to call to account those who abuse power or rort the system. However, the Dalai Lama explains that true compassion for others requires that sometimes we must do exactly that:

Depending on the context, a failure to respond with strong measures, thereby allowing the aggressors to continue their destructive behaviour, could even make you partially responsible for the harm they continue to inflict (Dalai Lama, 2011, p. 59).

Such an approach is perfectly compatible with the best of foreign correspondence and investigative journalism conducted in the public interest – and is well accommodated within the peace journalism model explained by Lynch (2010, p. 543).

8. Right concentration. Some have compared ‘right concentration’ to being in ‘the zone’ in elite sporting terminology – so focused on the work at hand that there is a distinctive clarity of purpose. Smith and Novak (2003, p. 48) explain that concentration exercises – often attentive to a single-pointed awareness of breathing – are a common prelude to mindfulness exercises during meditation.

Initial attempts at concentration are inevitably shredded by distractions; slowly, however, attention becomes sharper, more stable, more sustained (Smith and Novak, 2003, p. 48).

It is such concentrated attention that is required of consummate professionals in the midst of covering a major news event. It is at this time that top journalists actually enter ‘the zone’ and are able to draw on core ethical values to produce important reportage and commentary within tight deadlines, paying due regard to the impact of their work upon an array of individual stakeholders and to the broader public interest. It is in this moment that it all comes together for the mindful journalist – facts are verified, comments from a range of sources are attributed, competing values are assessed, angles are considered and decided and timing is judged. And it all happens within a cool concentrated focus, sometimes amidst the noise and mayhem of a frantic newsroom or a chaotic news event.

Towards a secular ‘mindful journalism’

This paper does not propose a definitive fix-all solution to the shortcomings in journalism ethics or their regulation. Rather, it is an acknowledgment that the basic teachings of one of the world’s major religions can offer guidance in identifying a common – and secular – moral compass that might inform our journalism practice as technology and globalization place our old ethical models under stress.

Leveson (2012) has identified the key ethical and regulatory challenges facing the British press and Finkelstein (2012) has documented the situation in Australia. One of the problems with emerging citizen journalism and news websites is that their proponents do not necessarily ascribe to traditional journalists’ ethical codes. The journalists’ union in Australia, the Media Alliance, has attempted to bring them into its fold by developing a special “Charter of Excellence and Ethics” and by the end of April already had 12 news websites ascribe to its principles, which included a commitment to the journalists’ Code of Ethics (Alcorn, 2013). This might be a viable solution for those who identify as journalists and seek a union affiliation, but many do not, and in a global and multicultural publishing environment the challenge is to develop models that might be embraced more broadly than a particular national union’s repackaging of a journalists’ code.

I have written previously about the confusion surrounding the litany of ethical codes applying to a single journalist in a single workplace. There is evidence that in many places such codes have failed to work effectively in guiding the ethics of the traditional journalists for whom they were designed, let alone the litany of new hybrids including citizen journalists, bloggers, and the avid users of other emerging news platforms.

My suggestion here is simply that core human moral principles from key religious teachings like the Noble Eightfold Path could form the basis of a more relevant and broadly applicable model for the practice of ‘mindful journalism’.

References

Alcorn, G. (2013, April 29). ‘Want to be a journalist? Bloggers, online media sites invited to sign on to journalism code of ethics’. The Citizen. Retrieved from http://www.thecitizen.org.au/media/want-be-journalist-bloggers-online-media-sites-invited-sign-journalism-code-ethics

Allan, S. (ed). (2010). The Routledge Companion to News and Journalism. Routledge: London.

Dalai Lama, (2011). Beyond Religion – Ethics for a whole world. Rider: London.

Dutt, R. (2010). The Fiji media decree: A push towards collaborative journalism. Pacific Journalism Review, 16(2): 81-98.

Fairfax Media (undated). Fairfax Code of Conduct. Retrieved from http://www.fairfax.com.au/resources/Fairfax_Code_of_Conduct.pdf.

Finkelstein, R. (2012). Report of the independent inquiry into the media and me­dia regulation. Department of Broadband, Communications and the Digital Economy: Canberra. Retrieved from http://www.dbcde.gov.au/digital_economy/independent_media_inquiry

Galtung, J. and Ruge, M. (1965). The structure of foreign news: the presentation of the Congo, Cuba and Cyprus crises in four foreign newspapers. Journal of International Peace Research 1: 64-90.

Gandhi, M.K. (1949). Autobiography: The Story of my Experiments with Truth. Phoenix Press: London.

Grenby, M., Kasinger, M., Patching, R. and Pearson, M. (2009). Girls, girls, girls. A study of the popularity of journalism as a career among female teenagers and its corresponding lack of appeal to young males. Australian Journalism Monographs, vol 11: Centre for Public Culture and Ideas, Griffith University. Retrieved from http://www.griffith.edu.au/__data/assets/pdf_file/0010/171991/Australian-Journalism-Monograph-Vol-11-2009-.pdf

Gunaratne, S. (2005). The Dao of the Press. A Humanocentric Theory. Hampton Press: Cresskill, NJ.

Hutchins, R.M. (1947). A Free and Responsible Press. A General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines and Books. [Report of the Commission on Freedom of the Press]. University of Chicago Press: Chicago.

Kalupahana, David J. (1976) Buddhist Philosophy: A Historical Analysis. University Press of Hawaii: Honolulu

Law Commission (NZ) (2013). The news media meets ‘new media’: rights, responsibilities and
 regulation in the digital age. 
(Law Commission report 128). Law Commission: Wellington. Retrieved from http://www.lawcom.govt.nz/project/review-regulatory-gaps-and-new-media/report

Leveson, B. (2012). Report of An Inquiry into the Culture, Practice and Ethics of the Press (The Stationery Office, 2012) [Leveson Report]. Retrieved from http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780.asp

Lynch, J. (2010). Peace journalism. In Allan, S. (ed). The Routledge Companion to News and Journalism. Routledge, London: 542-553.

McDevitt, M., Gassaway, B.M., Perez, FG. (2002), “The making and unmaking of civic journalists: influences of professional socialization”, Journalism and Mass Communication Quarterly, 79(1): 87-100.

McQuail, D. (1987) Mass Communication Theory: An Introduction.Sage Publications: London

Pearson, M. (1988). “I Want to be a Journalist”: a study of cadetships, Australian Journalism Review, January-December, 10: 125-134.

Pearson, M., K. Green, S. Tanner & J. Sykes. (2010). Researching Journalists and Vulnerable Sources – Issues in the Design and Implementation of a National Study In Pasadeos, Y. (ed) Advances in Communication and Mass Media Research. ATINER, Athens: 87-96.

Pearson, M. (2012). The media regulation debate in a democracy lacking a free expression guarantee. Pacific Journalism Review, 18(2): 89-101.

Pearson, M. and Polden, M. (2011). The journalist’s guide to media law, Fourth edition, Allen & Unwin: Sydney.

Robie, D. (2011). Conflict reporting in the South Pacific – Why peace journalism has a chance, The Journal of Pacific Studies, 31(2): 221–240. Retrieved from: http://www.academia.edu/1374720/Conflict_reporting_in_the_South_Pacific_Why_peace_journalism_has_a_chance

Romano, A.R. (Ed.) (2010) International journalism and democracy : civic engagement models from around the world. Routledge:  New York and London.

Rosen, J. (1999). What Are Journalists For? Yale University Press: New Haven, CT.

Rosen, J.. (2003-2013). PressThink – Ghost of Democracy in the Media Machine. Weblog. Retrieved from http://pressthink.org.

Schön, D. (1987) Educating the reflective practitioner. Toward a new design for teaching and learning in the professions. Jossey-Bass: San Francisco.

Segal, Z., Williams, M., Teasdale, J. and Kabat-Zinn, J. (2012). Mindfulness-Based Cognitive Therapy for Depression, Second Edition. Guilford Publications: NY.

Sheridan Burns, L. (2013). Understanding journalism. Second edition. Sage: London.

Siebert, F.S., Peterson, T. & Schramm, W. (1963) Four Theories of the Press. Urbana: University of Illinois Press.

Smith, H. and Novak, P. (2003) Buddhism : A Concise Introduction. Harper San Francisco: New York.

 

Note: The author acknowledges funding from the Australian Research Council for funding the collaborative ARC Linkage Project LP0989758 (researchers from five universities led by Professor Kerry Green from the University of South Australia) which contributed to this study and to the Griffith University Arts, Education and Law Group for funding to present this paper.

© Mark Pearson 2013

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.

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Surveillance and investigative reporting: How would Deep Throat stay anonymous today?

By MARK PEARSON

We might support shield laws for journalists and bloggers but the actual practicalities of protecting confidential sources are a huge challenge for journalists in the modern era.

It’s of little value having a shield law to excuse a journalist revealing the identity of a whistleblower in court if litigants or government agencies have already been able to detect them using the surveillance regime that is ubiquitous in modern society.

It prompts the serious question: Could the Watergate investigation by the Washington Post three decades ago happen in the modern era? How long would Carl Bernstein and Bob Woodward’s White House source ‘Deep Throat’ (senior FBI  official Mark Felt) remain anonymous today?

It would be interesting to hear from Bernstein and Woodward about how they would manage their top secret source in an era of geo-locational tracking, phone and social media e-records, CCTV in private and public spaces, and email logs.

Add to that new technologies like Google Glass and you start to wonder where a journalist could possibly meet in secret with a government source without being caught in the surveillance net.

The volumes of private information held on every citizen by governments and corporations was highlighted in the documentary Erasing David, where the lead character went into hiding and hired some of Britain’s top investigators to try to find him by discovering everything they could about him via public and private files. He found it was impossible to lead a private and anonymous existence in the 21st century.

Our digital trail extends wherever and whenever we conduct business on the Internet. The typical web browser allows countless ‘cookies’ that track many of our online activities. Search engines, app stores, airlines, travel booking agencies and countless other online entities hold all sorts of digital information about us that may or may not be secure or subject to legal discovery in the case of a court action. Some European experts are so concerned about the amount of information about us that is out there and its irretrievable nature that they are proposing a new ‘right to be forgotten’ allowing citizens to have personal data permanently erased.

Law enforcement authorities throughout the world are winning court orders to search suspects’ Internet records. Facebook is a popular hunting ground, with Reuters reporting federal judges in the US had approved more than two dozen applications to retrieve incriminating data from Facebook accounts between 2008 and 2011, leading to several arrests and convictions. The Electronic Frontier Foundation has published a useful online Know Your Rights! guide for US citizens faced with the threat of search and seizure of their devices by law enforcement authorities. EFF attorney Hanni Fakhoury explained the volumes of private information the average citizen holds on their personal devices. “With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information,” Fakhoury said. “That smart phone in your pocket right now could contain email from your doctor or your kid’s teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data — your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that’s worth protecting from prying eyes.”

Of course, basic password selection and management is a fundamental starting point we often overlook. As the computer experts advise, choose your passwords carefully and change them often. Our laptops and smart devices also have geolocation capability, meaning our very movements can be recorded and abused, a point well explained by the Australian Privacy Foundation. This has serious implications for any meetings or communications we might have with confidential sources for our blogs or reporting.

As the Pew Research Center reported in 2011, more than half of people online had uploaded photos to be shared with others. As facial recognition (‘tagging’) is combined with geolocation capabilities, it means we are leaving a digital footprint via our images. That seem fine when we are just sharing an image with our small circle of friends on Facebook, but our ‘friends’ might choose to download and forward them and, depending on our privacy settings, these photos might well be viewable to the outside world.

Despite  whistleblower protection laws and shield laws, confidential sources face lengthy jail terms in most countries if they reveal state secrets because officials might not agree there was an ethical or public interest in the material being revealed. That was certainly the case with one of the most famous whistleblowers of the modern era – the military analyst Daniel Ellsberg who leaked the sensitive ‘Pentagon Papers’ about the true story of the US involvement in Vietnam to the press in 1971. Despite government efforts to stop the publication of the material, the Supreme Court allowed the New York Times and the Washington Post to go ahead with its release. Ellsberg and a co-accused later faced charges of conspiracy, theft of government property and espionage which were dismissed among allegations of FBI wiretapping.

Bernstein and Woodward operated using document drops at park benches and secluded places, coded phone messages and convoluted taxi rides to face-to-face meetings with Felt. In the modern era it is even harder to protect communications against detection by the authorities so you need to take extraordinary steps if you hope to keep your sources truly confidential. The international whistleblowing organisation Wikileaks became famous for revealing the 21st century equivalent of the Pentagon Papers when it released thousands of secret US government files on the Middle East conflicts and broader diplomatic relations throughout 2010 and 2011.

It reassured sources that its high security encrypted submission system using an electronic drop box protected their identity. US soldier Bradley Manning was arrested in 2010 and held in solitary confinement pending trial over the release of the classified material. CNN interviewed several experts about the spate of similar sites to Wikileaks who warned whistleblowers to examine their protocols very carefully if they wanted their identities to remain secret after the authorities discovered the leaks. Some reserved the right to disclose leakers’ identities if subpoenaed to do so.

Reporters, bloggers and citizen journalists should pay heed to the fact that their colleagues have served jail time throughout the world for either leaking secrets or refusing to name their off-the-record sources in court. Equally important are the measures you take to protect their identities in the first place.

Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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.

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Call for uniform shield laws is worth supporting, but not an easy fix

By MARK PEARSON

Five Australian journalists face possible contempt charges for refusing to reveal the identity of their sources in court.

The journalists’ union – the Media, Entertainment and Arts Alliance – has quite rightly called for the introduction of uniform shield laws for journalists throughout Australia.

Australia’s attorneys-general managed to reach agreement on uniform defamation laws in 2005, and it is within their power to bring some sanity to the differing shield laws at federal level and in NSW, Victoria and Western Australia.

The laws in the various jurisdiction were well summarised last year by the Queensland Parliamentary Library and Research Service, and WA has passed its shield law since then.

However, as noted in the ABC’s Media Report in March, even a unified system would not necessarily protect reporters because even the most generous shield laws give a discretion to a judge to compel a journalist to answer a question in court if an answer is seen as crucial to the interests of justice.

Three Australian journalists have been jailed and others fined and convicted for refusing to reveal their sources since the early 1990s.

Only one of those cases – that involving Courier-Mail journalist Joe Budd in the midst of a defamation case – might have had a different outcome if such a shield law was in place. The others involved criminal allegations or charges and it is doubtful the presiding judicial officer would have excused a journalist from answering a ‘relevant question’.

Courts throughout the world have long insisted on witnesses answering relevant questions, whether or not they are bound by some professional or ethical obligation of silence.

Lawyers are an exception. Throughout the UK, North America and the Commonwealth a legal professional (attorney-client) privilege protects lawyers from having to reveal to the court prejudicial statements a client might have confided in them. In some places the privilege has been extended to doctor-patient relationships and sometimes to priests whose parishioners who might confess criminal sins to them. Witnesses are excused from answering incriminating questions in court. Sometimes, as in the Australian state of NSW, judges are given a discretion to weigh up all professional confidences against the interests of justice in deciding whether a question must be answered.

Canada allows a promise of confidence to be protected in court if:

–   It originates with a non-disclosure agreement

–   It is essential to the relationship involved

–   The relationship is one that should be fostered ‘in the public good’; and

–   The public interest in protecting the identity of the informant outweighs the public interest at getting at the truth.

It was put to the test in Ontario in 2010, where a National Post newspaper was ordered to produce documents upon which it had based corruption allegations against the prime minister. Despite the newspaper’s claim of a journalist-source confidential relationship, the Supreme Court decided there was no such constitutional right and that a greater public interest lay in pursuing an investigation that the source had actually forged the documents in question.

Several western democratic nations have also introduced so-called ‘shield laws’ to specifically excuse journalists from having to identify their confidential sources in court and sometimes allowing them to refuse to hand up their interview records or other documents. According to the Reporters Committee for Freedom of the Press, 31 US states and the District of Columbia have shield laws protecting journalists’ confidential relationships with their sources, although several have quite serious limitations.

Britain offered a limited protection for journalists in its Contempt of Court Act 1981. New Zealand’s Evidence Act protects journalists’ sources, but gives the discretion to a judge to override this on public interest grounds.

France amended its 1881 press law in early 2010 to protect the confidentiality of journalists’ sources after pressure from Reporters Without Borders over several violations. This was enough for a Bordeaux appeal court to rule in 2011 that a prosecutor had wrongly allowed two Le Monde newspaper reporters’ phone records to be seized when they were covering a high-profile case involving L’Oréal heiress Liliane Bettencourt.

Yet a tough shield law in another European country was not enough to protect one reporter and blogger. Young Ukrainian journalist Olena Bilozerska had her cameras, computers, phone and other gear seized by police in Kiev despite article 17 of the press law stating ‘journalists may not be arrested or detained in connection with their professional activities and their equipment may not be confiscated’. She was interrogated after posting footage of someone throwing a Molotov cocktail at a building during a protest.

Journalists have been jailed in several countries for refusing to reveal their sources in courts or hand over documents that might break confidences. Between 1984 and 2011, 21 US journalists were jailed under such laws, including video blogger Josh Wolf who was released in 2007 after serving 226 days for refusing to hand over tape of protesters damaging a police car. New York Times journalist Judith Miller served 86 days in prison in 2005 for refusing to tell a grand jury who leaked the identity of CIA operative Valerie Plame to the media. The First Amendment Center features a useful timeline on jailed journalists.

The Committee to Protect Journalists records numerous other cases, including arrests in Ghana, Ethiopia and Kenya.

It is ridiculous that Australia should have so many variations on journalists’ shield laws in an era of cross-border reporting and publishing via a range of media, including the Internet and social media.

As the Media Alliance points out, it is an area of the law in dire need of reform.

The MEAA also supports the petition for reporter Adele Ferguson, who has been subpoenaed by Australia’s richest woman, miner Gina Rinehart, seeking information about Ferguson’s confidential sources. You can add your name here, but read the terms and conditions closely before volunteering a donation, which seems to be directed to change.org to generate further support for the cause online.

Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

© Mark Pearson 2013

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.

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