By MARK PEARSON Follow @Journlaw
I appeared at the Independent Media Inquiry on Thursday, December 8, 2011 to address my two submissions – one a personal submission addressing issues of media regulation and the other on behalf of our ARC Vulnerability Linkage Grant group. I have summarised the content of each in earlier blogs, hyperlinked in the last sentence.
For the gratification of those of you wanting an insight into a single witness’s testimony to such an inquiry, I reproduce the transcript of the session below:
Independent Inquiry into
Media and Media Regulation
Public Hearings
Held at the Monash University Law Chambers
Ground Floor Auditorium
Marsh Building, 555 Lonsdale Street, Melbourne
Thursday, 8 December 2011 at 9.35am
(Day 3)
Before: Mr Ray Finkelstein QC and
Dr Matthew Ricketson
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1 PROFESSOR MARK PEARSON
2
3 MR FINKELSTEIN: Thanks, Professor, for coming down.
4
5 PROFESSOR PEARSON: Thank you.
6
7 MR FINKELSTEIN: We did hear you had some problems with
8 your flight.
9
10 PROFESSOR PEARSON: Yes, the Gold Coast airport was closed
11 temporarily, bad weather. It is much better down here
12 today.
13
14 DR RICKETSON: But you got here okay.
15
16 PROFESSOR PEARSON: Yes, in the end.
17
18 MR FINKELSTEIN: Our normal practice is to allow people
19 who have come to give evidence to also speak to their
20 submission and most do, some don’t. It is purely
21 voluntary, Professor. So, we will proceed in whichever way
22 you feel most comfortable with. Would you like to say a
23 few words first?
24
25 PROFESSOR PEARSON: I think I do need to say something
26 because I have in fact made two submissions. One was in my
27 capacity as part of a research group, which I understand
28 was the main reason you asked me here today, and that is
29 our ARC linkage grant looking at vulnerability and the news
30 media. So all I would say by way of introduction is that
31 when I do make comments I would need to distinguish between
32 my role in that capacity where I put together the
33 submission on behalf of the group, but I’m only one of five
34 or six researchers from different institutions. The
35 project is led by Professor Kerry Green from the University
36 of South Australia. As with most linkage grants, we have
37 industry partners. In fact, one of the sponsors of the
38 research is the Australian Press Council, which also needs
39 to be stated by way of disclosure for that submission.
40
41 I did submit a private submission in which in turn
42 I had to distinguish between my various roles because of
43 course with a private submission I do not speak on behalf
44 of my institution, Bond University, and I also happen to be
45 Australian correspondent for the international press
46 freedom organisation, Reporters Without Borders, and I had
47 to make it clear in that submission that I was not speaking
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1 in any way on behalf of Reporters Without Borders. In
2 fact, they insist upon their correspondents not speaking on
3 their behalf, just as any news organisation insists on its
4 own reporters not speaking on its behalf.
5
6 So I just wanted to make those comments by way of
7 clarification. Is my understanding correct that you mainly
8 wanted me because of the submission to do with the
9 vulnerability project?
10
11 MR FINKELSTEIN: Yes, we did. But I do have some
12 questions in any event about your own submission.
13
14 PROFESSOR PEARSON: Sure.
15
16 MR FINKELSTEIN, it might be easiest to get that out of the
17 road first, and I will ask you questions and bearing in
18 mind what you have said I will be asking after your
19 personal views, not the view of any organisation that you
20 might represent in other respects.
21
22 PROFESSOR PEARSON: Indeed.
23
24 MR FINKELSTEIN: It is to do with the topic of standards.
25 I think both standards and access really are the two issues
26 that I wanted to take up with you.
27
28 PROFESSOR PEARSON: With my personal submission?
29
30 MR FINKELSTEIN: Yes, from your personal submission.
31 Could I start with standards first. You make the point,
32 which I think is a point made elsewhere by other people
33 making submissions, that there should be a single code of
34 ethics which applies across the field of journalists and we
35 have had a few submissions, one from the Media Alliance
36 itself, but others as well, saying the plethora of
37 standards and ethics is apt to cause confusion rather than
38 have necessarily beneficial results. But what I’m
39 interested to know, because you don’t say very much about
40 it in your personal submission, is what your views are
41 about the methods by which either the multiple codes that
42 exist or a single uniform code which is to be preferred
43 comes into existence, how either the multiple or the single
44 can or should be enforced.
45
46 PROFESSOR PEARSON: The word “enforced” is one that raises
47 concern, I think, in a context of press as a fourth estate
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1 in a democratic western society. My colleagues at
2 Reporters Without Borders are always alarmed when
3 government inquiries ask about enforcement of such
4 standards. Nevertheless, your first point is to do with
5 the complexity of all of the different codes. As an
6 educator, I make the point in both submissions that in
7 basic education it is very hard to get students or
8 practitioners to understand fundamental concepts and work
9 within them, and with the codes of practice and the code of
10 ethics and all of these various principles. A single
11 journalist may well be working under four, five or six of
12 these codes of practice quite separate from other
13 principles issued by the Press Council on particular topic
14 areas and quite separate from the law of these areas, which
15 are the main regulatory regime.
16
17 So how do I think they would be enforced? I think the
18 thrust of this personal submission is basically that there
19 are already so many laws applying to the news media, actual
20 laws, that almost all serious complaints to the
21 self-regulatory or co-regulatory bodies would actually come
22 within the ambit of one of the existing laws.
23
24 MR FINKELSTEIN: You mean the laws of the land that apply
25 to all and sundry?
26
27 PROFESSOR PEARSON: Yes, although, as you would well know,
28 there are certain areas of media law – almost all areas
29 apply to all and sundry, but certain areas apply much more
30 to the media because they are coming in contact with them
31 in their daily practice, and I’m talking about defamation,
32 contempt of court, confidentiality, trespass, the
33 developing law of privacy for which there is a separate
34 inquiry at the moment, nuisance, stalking, police powers,
35 move along powers. All of these sorts of laws already
36 exist. The problem is more community or ordinary citizens’
37 access to many of these laws.
38
39 MR FINKELSTEIN: And for the most part access to law is
40 access in theory only but not in practice, so that for most
41 members of the community the fact that there’s the law of
42 the land in a practical sense means nothing to them at all
43
44 PROFESSOR PEARSON: No, but what it does, and it is coming
45 back to your question to do with enforcement. To my mind,
46 to set up a whole new regulatory enforcement mechanism in
47 addition to the existing laws is unnecessary —
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1
2 MR FINKELSTEIN: Because?
3
4 PROFESSOR PEARSON: Because one mechanism would be to give
5 the existing community better access to the existing laws,
6 and this might be idealistic, but via Legal Aid or
7 whatever —
8
9 MR FINKELSTEIN: There is no practical way that will
10 happen in my lifetime.
11
12 PROFESSOR PEARSON: Okay.
13
14 MR FINKELSTEIN: Which means in a practical sense it is
15 easier for me just to put that to one side. I think the
16 last witness said he liked practical outcomes and, unless
17 it has some practical content, it doesn’t really help any
18 member of the community to proceed on the basis that what
19 exists in theory but is not real for them is a panacea for
20 anything.
21
22 PROFESSOR PEARSON: And I take that point. What I think
23 is a practical outcome or would be a practical outcome
24 would be to beef up the alternative dispute resolution
25 functions without enforcement, without a big stick, and
26 also to beef up the community education and awareness about
27 where they can make complaints and really to develop,
28 I suppose, a single reference point for a single code where
29 people can go to file complaints.
30
31 MR FINKELSTEIN: When you speak about a single code
32 applying to journalists and presumably media outlets as
33 well, would you include radio and TV amongst the people,
34 organisations – I mean the journalists who work on radio
35 and TV – and the proprietors of radio and TV outlets?
36 Would you include them in the single code formula?
37
38 PROFESSOR PEARSON: I see nothing wrong with some sort of
39 extension document explaining how a basic common code would
40 apply across all journalism. Certainly radio,
41 photojournalism, web-based media, print, each has their own
42 idiosyncrasies where practitioners would need extension or
43 support material.
44
45 But when you look at any code internationally and, as
46 you were saying in the last session, it comes down to just
47 some basic principles: accuracy, verification, fairness,
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1 equity, right of reply, respect, respect for other people’s
2 rights and underscored by fundamentally truth-telling,
3 responsible truth-telling. You could sum up a code in two
4 words, responsible truth-telling, and that is what
5 journalism is or should be about.
6
7 MR FINKELSTEIN: What happens if the current means or
8 methods of self-regulation will not be beefed-up by the
9 participants? Is that then the point at which some
10 government action is required or, if a government acts
11 responsibly, is it at that point that it should intervene
12 and do something?
13
14 PROFESSOR PEARSON: Like I said earlier, people have
15 recourse through various laws and often this is funded by
16 various groups, anyway; it is not individual funding. So
17 it is not to say that only wealthy people in society can
18 take legal action. That is not the case. It is quite
19 often a union or perhaps a support group of some sort —
20
21 MR FINKELSTEIN: That’s usually true for those who come
22 into contact with the criminal law, but it is barely true
23 for those who come into contact with the civil law. You
24 are right to say that, if a worker is injured, his or her
25 union might come to the aid of the worker because of the
26 collective responsibility that some unions see they should
27 owe to the membership, but that’s not really the kind of
28 situation that a person who is in a dispute with the press
29 finds himself or herself in.
30
31 In other words, I don’t know of any support group or
32 any kind of access for average income earners or less than
33 average income earners if they are in a dispute with the
34 press, and sometimes the dispute isn’t a dispute that can
35 be dealt with through the courts because there might be
36 false statements or something said but not of a defamatory
37 kind, so that the law, even for the rich, is unavailable
38 because the complaint is not about an event which
39 constitutes a transgression of a law, a civil law.
40
41 PROFESSOR PEARSON: So your question is should there be a
42 government mechanism for recourse. I think the system as
43 it has been operating does not have fatal flaws and it is
44 very important in a western democracy, without a bill of
45 rights enshrining freedom of expression, certainly some
46 High Court movements in that direction but nothing
47 constitutionally beyond that implied political
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1 communication defence. It would be sending all of the
2 wrong messages for a government body to have a brief of
3 enforcing a journalism code of ethics.
4
5 MR FINKELSTEIN: Why?
6
7 Lots of people say that, but I’m not
8 sure often why they say that. The code of ethics here
9 would be – we have, say, the Press Council’s code of ethics
10 developed by the Press Council in consultation with the
11 press, so it is not a government code of ethics. As we
12 have discussed very briefly, there are common themes
13 running through all the codes in any event. So you have a
14 code which is obviously acceptable to the press, or at
15 least objectively ought be acceptable, but we know that it
16 is in fact acceptable. What is wrong in a democratic
17 society where the rule is you have to abide by your code?
18
19 PROFESSOR PEARSON: Because basically if you are saying
20 the existing legal mechanisms are inaccessible, you would
21 be introducing yet another legal mechanism through such a
22 formal system of regulation.
23
24 MR FINKELSTEIN: Correct. One would be effective in the
25 circumstances where the others are ineffective. In other
26 words, introducing something that works in a situation
27 where the existing methods don’t work. Why is that
28 anti-democratic?
29
30 PROFESSOR PEARSON: We already have mechanisms like that
31 and, as I explain in the submission, we have a media that
32 is moving more and more towards a consumer model. The
33 existing media are under threat. We already have the ACCC
34 and consumer law that applies there.
35
36 MR FINKELSTEIN: By and large the kinds of laws that the
37 ACCC administer, at least the anti-trust provisions of the
38 relevant legislation, don’t touch any issue that we are
39 concerned with, and the false and misleading conduct
40 provisions, the press being the press, have got express
41 exemption from them.
42
43 PROFESSOR PEARSON: That’s what my submission addresses.
44 It talks about the fact that that exemption when introduced
45 was a blanket exemption for prescribed news providers. In
46 the new environment prescribed news providers are
47 effectively your traditional media and my suggestion in the
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1 submission is that responsible journalism basically be a
2 rebuttal presumption for anyone practising journalism, fourth
3 estate style of journalism, and that that be modified so
4 that you then have a misleading and deceptive conduct
5 provision applying, which is already being applied in some
6 circumstances. In a commercial situation it is being
7 applied —
8
9 MR FINKELSTEIN: Part of the problem with that is, from my
10 perspective, that the first is that if you lift the
11 exemption or have circumstances where it doesn’t apply, it
12 only affects statements made in trade or commerce because
13 that’s the constitutional reach of section 52 or whatever
14 new number it has got in the redrafted legislation, so it
15 is of limited application; and the second problem is it
16 says “Go to the court,” and you walk into a solicitor’s
17 office and you will say to your solicitor, “I would like to
18 sue this news outlet for false and misleading conduct,” and
19 the solicitor will say, “Fine, we’ll take a $50,000 deposit
20 and then we’ll see how we go as the case progresses.”
21
22 In other words, what worries me is that’s another
23 exercise in unreality in a practical sense, not in a legal
24 sense. You can make it work in a legal sense and look
25 fantastic, but it’s not going to actually help people.
26
27 PROFESSOR PEARSON: My concern about an alternative model,
28 where you are giving tough powers to enforce an ethical
29 code through an existing body or a modified body, is that
30 you would have exactly the same problem.
31
32 MR FINKELSTEIN: You make assumptions, though. You use
33 the words “tough powers”. You might have a particular
34 meaning for those words which may differ from mine. What
35 happens if the “tough powers” were print a retraction,
36 print a correction?
37
38 PROFESSOR PEARSON: I think we come back to the debate
39 your previous – remember I’m still speaking personally, not
40 on behalf of the research group.
41
42 MR FINKELSTEIN: Yes
43
44 PROFESSOR PEARSON: I was listening to your earlier
45 discussion with Mark Hollands. I think one of the points
46 that informs that attitude amongst editors is this notion
47 of fourth estate which is still a residual ideal and it is
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1 much more than just a commercial ethic on the part of
2 editors. It is a fierce independence from government, from
3 government funded regulatory bodies —
4
5 MR FINKELSTEIN: Perfectly happy to make it a levy and
6 make the media organisations pay it.
7
8 PROFESSOR PEARSON: It is still a government —
9
10 MR FINKELSTEIN: It is not government funded.
11
12 PROFESSOR PEARSON: It is still a government initiative.
13
14 MR FINKELSTEIN: Correct.
15
16 PROFESSOR PEARSON: It would be an initiative of the
17 Australian government on an independent inquiry’s advice to
18 force, with newspapers, a publication of certain material
19 into a certain page of a newspaper.
20
21 MR FINKELSTEIN: To force them to do what they say they
22 should do. Do you see the dilemma? It is not creating a
23 new rule. It is not creating a new standard. It is just
24 saying, “This is what you say should happen. Good. Make
25 it happen.”
26
27 PROFESSOR PEARSON: All I’m saying is that without free
28 expression entrenched in any constitution or bill of rights
29 in this country, unlike most other western democracies, it
30 would certainly send the message to the international
31 community that the Australian government wants to force a
32 will, whether it is its will in the circumstance, upon
33 mainstream media organisations.
34
35 MR FINKELSTEIN: It would be doing no more than at least
36 the law of the land applies to broadcasters because it is
37 very difficult even for those with an entrenched
38 constitutional right, at least at the moment, to say you
39 can’t have a rule like that in the case of broadcasters.
40 In the United States the Supreme Court has said this kind
41 of regulation about which I’m speaking or more stringent
42 regulation, right of reply, is perfectly constitutional,
43 consistent with the first amendment. So that if you had a
44 public outcry saying it is an imposition on free speech, it
45 would be a relatively uninformed outcry. I’m not sure that
46 governments or people like me should worry about uninformed
47 outcries.
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1
2 PROFESSOR PEARSON: The other thing that would happen with
3 this would be you would be establishing basically a
4 two-speed regulatory process in a period of rapid media
5 change. We already have that, without entering into it and
6 not knowing a lot about it, but with the purchase of
7 consumer goods on-line you already have that sort of
8 two-speed double standard applying. Now, I might be an
9 exception as an academic, but I now get all of my material,
10 my news material, on-line and I’m just as likely to be
11 reading the New York Times or Slate or Arstechnica as I am
12 the Sydney Morning Herald or The Australian.
13
14 MR FINKELSTEIN: True, but you will get news about quite
15 different things.
16
17 PROFESSOR PEARSON: Not necessarily.
18
19 MR FINKELSTEIN: Overwhelmingly.
20
21 PROFESSOR PEARSON: Perhaps overwhelmingly, but
22 international news in Australia would have a double
23 standard applying. If you were applying Australian ethical
24 code through a regulator in this country for a major event
25 happening in Australia, you would be getting or you may
26 well get quite different standards applying, one where
27 there would be the reach of your proposed new regulator and
28 one where there would not be the reach.
29
30 While it may not happen all that often, it will happen
31 on the really big stories. It will happen on the miners
32 trapped or the collapse of government or the major protests
33 in the streets, because you are not going to be able to
34 enforce your new rules upon these international providers,
35 just as you can’t enforce them at the moment and the states
36 are having all sorts of trouble enforcing their various
37 publication restrictions on suppression orders and contempt
38 of court and all the rest of it on Facebook or Twitter. So
39 traditional media groups —
40
41 MR FINKELSTEIN: I understand that. That’s pointing out a
42 consequence, but it is not really pointing to a reason.
43 What you say is true of almost every current restriction
44 which is imposed on not just media but on speech. In other
45 words, we have rules about obscenity, we have rules about
46 pornography, we have rules about paedophilia, we have rules
47 about what you can and what you can’t publish about court
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1 proceedings and so on and so on and so on, and if the
2 answer was if somebody in the United States could broadcast
3 the material here with impunity and if that was relevant,
4 then you would just get rid of all of those rules. That is
5 not a rational approach, in my mind.
6
7 PROFESSOR PEARSON: My view is that why would you have a
8 whole new regulatory regime and a whole new mechanism when
9 you don’t need that. I think the existing ones work
10 reasonably well, but people don’t know about them, people
11 are illiterate about the media, people, as the main
12 submission I’m talking about today talks about, they have
13 various levels of vulnerability to the media and aren’t
14 able to – don’t want to go through the process and the
15 grueling complaints system.
16
17 So, I think if you wanted to introduce such a system
18 I would suggest you only did that after at least a trial of
19 a better reference or a referral agency where something
20 like the existing Press Council or the ACMA is actually
21 funded to properly educate the community about the referral
22 and complaint systems, where they can be proactive in
23 launching complaints on matters that they have noticed
24 themselves that have been identified to them, rather than
25 this business where the person themselves have to issue a
26 complaint, and effectively a one-stop complaints shop.
27
28 MR FINKELSTEIN: What happens if that funding is not
29 forthcoming voluntarily?
30
31 PROFESSOR PEARSON: I think it would be very much in the
32 interests, just as it was in the interests of the
33 mainstream media organisations to establish the Press
34 Council in the first place, because of these sorts of
35 concerns about regulation. I think if the major media
36 groups were to recognise that what distinguishes them from
37 new and amateur players is the fact that they can practice
38 responsible journalism, then we wouldn’t have any problem
39 with such a complaints body being funded.
40
41 MR FINKELSTEIN: Correct, and two of the three major news
42 agencies have said in the last fortnight to me that the
43 Press Council is adequately funded. So my starting off
44 premise has to be – and they are two of the three that
45 provide almost all of the money and, according to Professor
46 Disney, if one major sponsor – I don’t want to put it that
47 way. Two of the three who provide the bulk of the funds
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1 have indicated that they will not provide more funds, no
2 matter what the logic of your position is. So I proceed on
3 the basis that more money is not forthcoming, because
4 that’s what I’m told.
5
6 So my world, the world with which I have to deal, if
7 I decide that the Press Council is inadequately funded to
8 perform its functions, including the additional functions
9 which you say they ought to be able to carry out, then
10 I know that’s not going to happen. So the question is, for
11 me, do I just leave it as is, and even you agree that
12 that’s deficient, or do I do something about it, or do
13 I suggest that something be done about it?
14
15 PROFESSOR PEARSON: I don’t know what this inquiry is
16 costing, but it would be something in excess of a million
17 dollars.
18
19 MR FINKELSTEIN: So what?
20
21 PROFESSOR PEARSON: My point is that such funding would
22 fund a very effective one-stop shop for complaints for at
23 least the near future.
24
25 MR FINKELSTEIN: A couple of years, but it is government
26 money. My funding comes from the government. So do I take
27 it that you do not object to government funding?
28
29 PROFESSOR PEARSON: I don’t object to government funding
30 of better education of the community in such a referral
31 service. There are tourism boards, there are all sorts of
32 funding like that. What I do object to, personally, what
33 I do object to is a new regulatory regime —
34
35 MR FINKELSTEIN: Forget about a new one. Just giving the
36 money to the Press Council. That’s not new. That’s old.
37 It has been there for 40 years. Do you have an objection
38 to that?
39
40 PROFESSOR PEARSON: I don’t have any objection to money
41 being given to the Press Council.
42
43 MR FINKELSTEIN: From the government.
44
45 PROFESSOR PEARSON: I wouldn’t have an objection to that,
46 as long as it wasn’t accompanied by new powers of
47 enforcement. So a government funded referral service or
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1 beefing-up what the Press Council already does I would see
2 as perfectly acceptable.
3
4 MR FINKELSTEIN: Okay. Can I shift on to the other paper.
5
6 PROFESSOR PEARSON: Sure.
7
8 MR FINKELSTEIN: I’m very conscious of the fact that you
9 have to get back to the airport, otherwise you will be
10 stranded here.
11
12 PROFESSOR PEARSON: There are worse places to be stranded
13 in.
14
15 MR FINKELSTEIN: I agree with that. We nearly got
16 stranded in Perth. I did want to ask you a preliminary
17 question, which is how far down the track is the project?
18 The reason why I want to ask that is how far away are we
19 from getting the data?
20
21 PROFESSOR PEARSON: Given the end of academic years at
22 most of the institutions and so on, I would suggest that
23 April to mid-year we would be getting the findings. We
24 already have the data. We already have the data, all the
25 data is collected and most of us have – you see, obviously
26 with these things you carve up the tasks and so certain
27 people have done the focus groups and all of the focus
28 groups have been transcribed and they have been put into
29 the appropriate software and research assistants have been
30 working with that. Then we have the various newspaper
31 content analyses. I have done the one for The Australian
32 newspaper for 2009 with the help of research assistants.
33 The other newspapers, the Sydney Morning Herald, the Quest
34 Community Newspapers, two or three others that have been
35 done, have been done by other researchers.
36
37 All of that has been completed. The coding has been
38 completed on that. Now is the stage of the actual analysis
39 and write-up into the various sections. The main output
40 that will be coming from it, beyond the report that needs
41 to go to the ARC at the end of all such projects, which is
42 not necessarily a large document, but the main thing is a
43 book with chapters by us and various collaborators taking
44 up the various aspects of vulnerability in all of the
45 different sorts of interactions with the media, including
46 the regulatory aspect.
47
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1 MR FINKELSTEIN: Does that mean that, if I was to ask for
2 it, they are not in existence yet, preliminary work by way
3 of analysis that show, at least at an early stage, what the
4 final result might look like?
5
6 PROFESSOR PEARSON: We have talked about this as a group
7 and we couldn’t really release the material that we have to
8 date. It would be a matter of, if your own brief was
9 extended, if it started to get into that period, but our
10 intensive period of analysis is going to be over the next
11 two to three months.
12
13 DR RICKETSON: What did you present at the journalism
14 educators conference?
15
16 PROFESSOR PEARSON: I didn’t present anything. I was still
17 teaching then.
18
19 DR RICKETSON: I mean in the group.
20
21 PROFESSOR PEARSON: Two or three of the colleagues
22 presented basically papers explaining the project and just
23 a few of the focus group findings and things. Angela
24 Romano presented a paper on the focus group findings to a
25 diversity conference in North Queensland earlier in the
26 year, mid-year. I presented a paper in Athens last year
27 just on the methodology and the background to the whole
28 thing. So, there have been bits and pieces so far. I’m
29 sorry, but we can’t – the media inquiry wasn’t envisaged
30 when we were starting it and you can’t sort of rush these
31 things when you want to do them properly.
32
33 MR FINKELSTEIN: When the organisation’s paper speaks
34 about vulnerable people, I understand it to include people
35 with disabilities, maybe people at a young age, people who
36 have suffered some bereavement in the family, something
37 like that, but do you have sort of a definition or a proper
38 list of the people who fall within the class that you are
39 looking at?
40
41 PROFESSOR PEARSON: One of the things, I suppose it was an
42 early eureka moment or a finding, was that our original
43 submission seeking the funding did do that. We talked
44 about indigenous sources, people with a disability, people
45 experiencing mental illness, people who had been affected
46 by or their families had been affected by suicide in some
47 way, children, the elderly and so on. Then, as we were
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1 looking at examples and basically doing what you would call
2 a trial content analysis, we started to see, “Hold on,
3 there are others who are vulnerable in certain
4 circumstances.” One of our partners for the project is the
5 DART Centre for Trauma and some of the complaints to the
6 co-regulatory and self-regulatory bodies are about people
7 who have been in trauma of some sort or are in such a
8 traumatised condition after a news event that they are
9 unable to speak to the media or perhaps after an injury or
10 something like that, or under the influence of alcohol.
11
12 So we decided that vulnerability would have a broader
13 definition, firstly because we didn’t want to stereotype
14 particular groups and basically enhance, I suppose, the
15 stereotyping of such groups by saying that these are
16 vulnerable sources, because clearly it is unfair to say
17 that about any of those groups that we just mentioned.
18 Individuals within them are highly competent and able to
19 deal with the media and quite resilient and able and quite
20 media literate quite often. So we thought we would look
21 instead at the moments of vulnerability. In other words,
22 the situation, the news situation where such people, where
23 all people might find themselves basically vulnerable to
24 journalistic unethical behaviour.
25
26 MR FINKELSTEIN: So that is not really putting anybody
27 into a particular group to start off with; it’s just
28 looking at the particular circumstances at times. So it
29 could be anybody from any background.
30
31 PROFESSOR PEARSON: Yes. But, that said, in our analysis
32 we certainly issued the amber light for a closer
33 examination of the article if the individual or the source
34 was from one of these so-called potentially vulnerable
35 groups. So, a story involving a child, for instance, a
36 child in difficult circumstances and perhaps a teenager
37 talking about her sex life and that being published or
38 something like that, where perhaps there was a Press
39 Council complaint emanating from it, then they became the
40 subject of closer scrutiny.
41
42 MR FINKELSTEIN: Was the focus of the inquiry things like
43 did the person give consent to the story and could that
44 consent be regarded as proper consent, one instance, and
45 things like were photographs taken of people in distress or
46 were stories written about people who were in difficult
47 circumstances that might find themselves in either
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1 embarrassing or hurtful positions, that kind of thing?
2
3 PROFESSOR PEARSON: All of those things. It was both
4 photographic material, it was – but being a content
5 analysis we were working from the material as presented in
6 the newspaper. There may be many more moments of
7 vulnerability, perhaps, that did not result in a
8 publication. It doesn’t mean that there wasn’t harm caused
9 back then at the point of inquiry or interview or whatever.
10 It just might not have made it. A person could still be
11 traumatised by the experience of interaction with the media
12 or something. But all of that was underscored also by the
13 fact that we recognise as researchers that sometimes there
14 is a price that has to be paid in an interaction with
15 someone who may be vulnerable for a matter of legitimate
16 public concern which may well take precedence over what
17 might be some level of harm happening to an individual for
18 that truth to be told.
19
20 MR FINKELSTEIN: Did you confine what you were doing to
21 looking at what was published in the media or did you
22 relate that also to the effect it may have had on the
23 individual concerned?
24
25 PROFESSOR PEARSON: We were unable to project what that
26 effect might have been. The project, in the scheme of ARC
27 projects, had relatively low funding. It was of the order
28 of $90,000 over a couple of years, and there were six of us
29 working on it. So it didn’t really go all that far. Much
30 of that was taken up with the focus groups. It was at that
31 level where we spoke to people who had representation from
32 some of these vulnerable groups and also other citizens
33 within the community. Some of them were selected
34 specifically because they represented people from those
35 sorts of groups, and others were more of a broader
36 community representation.
37
38 MR FINKELSTEIN: I see.
39
40 PROFESSOR PEARSON: Those people volunteered through a
41 focus group situation their experiences with the media in
42 stories concerning them. So that was one way of getting
43 beyond the content itself. In the content itself, we could
44 only work with what was there on the page. But I have
45 several examples from the Australian here today, just the
46 coding sheets. I have reviewed them again quite recently
47 because I’m doing the analysis at the moment. So I could
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1 easily give you some examples of those sorts of situations.
2
3 MR FINKELSTEIN: That would be very helpful. Can I just
4 go back to the focus groups, though. Were the focus groups
5 comprised exclusively of people who had had some
6 unfortunate or what they thought was an unfortunate
7 experience with the press or were the focus groups people
8 who had and had not had contact with the press?
9
10 PROFESSOR PEARSON: Yes, it was that mixture. To be
11 frank, I was not involved myself with the focus groups.
12 There were experts within our collaborative group who were
13 experts in focus group management. But, from memory, there
14 was one that had people who had experienced mental illness.
15 There was one with a mixture of Indigenous and people who
16 were at least second generation from other countries,
17 migrant groups, and others were a mixture of ordinary
18 citizens.
19
20 MR FINKELSTEIN: I’m going to ask an impertinent question.
21 I will ask you to let us have a look at the data that you
22 have. Is it permissible for you to do that?
23
24 PROFESSOR PEARSON: I would need to just check with my
25 group. I wouldn’t have any objections myself. At this
26 stage it’s conditional upon the inquiry itself using the
27 material and not launching it to any website or anything
28 like that. Is everything that we make available to you
29 publicly available?
30
31 MR FINKELSTEIN: No, the only things we have made publicly
32 available are the submissions that parties or individuals
33 have filed, provided we thought that they were appropriate
34 to be published.
35
36 PROFESSOR PEARSON: I would just check with the other
37 members of the group first. The researchers get precious
38 about their data, of course. What I will say about the
39 items from The Australian – and remember it is only a
40 qualitative content analysis, because we had randomly
41 selected days throughout 2009 that we were collecting from,
42 so it is not like we have done a comprehensive count of
43 every story in The Australian over that period; it was a
44 story that appeared in the news sections of the selected
45 days, which happened to be 12 days per year, over the year,
46 one day per month for each of the newspapers we were
47 looking at. So it was not a huge dataset and it was
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1 certainly not counted in that way.
2
3 But what I would say is that we were also on the
4 alert, particularly when the amber light had gone on for
5 the vulnerable groups, for positive handling of such
6 situations and not just the negative handling. Of the ones
7 we looked at for The Australian newspaper there would have
8 only been half a dozen or so out of it would have been
9 several hundred articles where we could see a very, very
10 clear moment of vulnerability which seemed not to have been
11 handled that well and did not seem to have counterbalancing
12 broader public interest concerns. There were several that
13 were handled quite well.
14
15 MR FINKELSTEIN: Have you got similar data to hand where
16 you could make observations of the kind you have just made
17 but concerning other news outlets?
18
19 PROFESSOR PEARSON: No, because my colleagues have that,
20 our research assistant based out of Wollongong and the
21 other colleagues that have been leading the project for the
22 different publications.
23
24 MR FINKELSTEIN: Are you able to say from the discussions
25 you have had to date amongst your group whether you think
26 that there are areas of concern where the press have in a
27 sufficiently large number of cases, bearing in mind the
28 limitations on the data collection process, that you would
29 think that something like a body like a Press Council ought
30 be having a look at it to see whether or not standards are
31 being complied with or ought be firmed up?
32
33 I know, for example, that the Press Council have
34 specific guidelines on suicide and are working on other
35 areas as well; whether you know enough yet to say that
36 there are some areas where the Press Council ought publish
37 specific guidelines about how these kinds of situations
38 should be dealt with, and then I will ask you what those
39 situations are.
40
41 PROFESSOR PEARSON: The answer is, yes, there are areas
42 that journalists could improve their application of the
43 various codes of practice that they operate under which has
44 become apparent through a few of the cases that we have
45 looked at. One of them is the issue of dealing with
46 children and whether children should be mentioned or —
47
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1 MR FINKELSTEIN: You mean by name mentioned?
2
3 PROFESSOR PEARSON: Perhaps by name, but also perhaps not
4 named but their circumstances may well accentuate their
5 emotional harm or whatever because they are part of a
6 story, even though not identified.
7
8 A second is clearly to do with suicide. Even in The
9 Australian newspaper there were two or three examples where
10 the actual method of suicide was detailed. In a couple of
11 those cases it was to do with celebrities. In other cases
12 it was to do not so much with the method being detailed but
13 basically speculating that the individual involved might
14 well or it could be expected that they would be having
15 suicidal feelings in those circumstances which were part of
16 the story. So, in other words, they were comment pieces
17 going to the soul of the individual. These were sporting
18 individuals who were seen to be at their lowest career and
19 life points, and it was raising suicide as a prospect.
20 That was of concern.
21
22 One was a particular moment of vulnerability with
23 children. It was quite a high-profile case. I think I can
24 actually mention it. You might recall it was the mother
25 who had fled overseas with her child. It was a custody
26 issue and the father was back here.
27
28 DR RICKETSON: In Victoria
29
30 PROFESSOR PEARSON: I think it was in Victoria, yes.
31 I could dig it up here if you wanted me to. But,
32 basically, the point was that there were all sorts of
33 comments made in the article quoting an expert about what
34 the consequences, and the very negative consequences, would
35 be for the mother and child if she gave up and surrendered
36 herself. We thought that was an unnecessary extension to
37 take with the story because it was seen to be
38 counterproductive to the outcome, which was clearly that
39 the woman did surrender herself and the child. So they are
40 just some little skerricks of some insights of the sorts of
41 things we were looking at.
42
43 Others were clearly outweighed by the public interest
44 involved, but are interesting because of both the cultural
45 and I suppose the globalised nature of news communication
46 today; for example, an injured civilian in the Gaza Strip
47 during a military conflict, clearly a bomb victim covered
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1 in blood in terrible distress. It just raises the question
2 – and obviously from our earlier discussion it is something
3 you need to consider in the reverse, I suppose, for
4 international coverage of Australian stories, for
5 Australian coverage of international stories – if this
6 material is also posted to the website, what’s the
7 implication back home for this citizen of another country
8 who clearly has the same scope for embarrassment,
9 humiliation with their depiction in a traumatic news event.
10
11 MR FINKELSTEIN: Have you got any comments you could make
12 about Indigenous people that you have personally looked at
13 or that your group has discussed?
14
15 PROFESSOR PEARSON: As an extension to the study I was
16 funded through my allocation, being a media law researcher,
17 to look for examples where both the ACMA and the Australian
18 Press Council had dealt with complaints that we could
19 identify as coming within our domain of these moments of
20 vulnerability. Surprisingly – and I explain in the
21 submission – there were relatively few, it was only really
22 20 or so between the two bodies, where we could see these
23 moments of vulnerability finding their way all the way
24 through to a complaint and a finding in various ways.
25 Obviously the co-regulator deals with it differently from
26 the Press Council.
27
28 In answer to your Indigenous question, amongst those
29 there were three or four examples where the regulators had
30 dealt in different ways with people who were clearly
31 vulnerable individuals but their race seemed to be
32 mentioned in either an unnecessary sense or in a derogatory
33 sense. So the fact that they were Indigenous may not have
34 even needed to have been mentioned. It didn’t seem to be
35 relevant to it in one case I can think of. In another it
36 was the showing of footage to do with – it was basically a
37 file footage issue where it was to do with an Indigenous
38 story but it was showing very negative file footage
39 attached to that.
40
41 MR FINKELSTEIN: One of the points you do make in the
42 organisation’s paper is it is a bit hard to draw a lot of
43 conclusions from that from the numbers that you see, either
44 the Press Council or through ACMA, because these kinds of
45 people, the vulnerable, are less likely to make complaints.
46
47 PROFESSOR PEARSON: Yes.
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1
2 MR FINKELSTEIN: That doesn’t tell you where there isn’t
3 much.
4
5 PROFESSOR PEARSON: We don’t know that they are less
6 likely. We can’t draw that conclusion. But we have focus
7 group participants saying that they were becoming
8 frustrated with the processes; they didn’t have the energy;
9 they were already traumatised; they didn’t want to have to
10 deal with the media; all of those kinds of comments. You
11 must remember with focus groups – and we feel ours were
12 managed particularly well – once you start homing in on the
13 topic area people start sort of getting on their high horse
14 and saying all sorts of things. It is all grist to the
15 mill, but it is only one element of the methodology.
16
17 MR FINKELSTEIN: I think we are pretty much finished, but
18 what I was going to ask was if in a month’s time —
19
20 PROFESSOR PEARSON: Unfortunately a month cuts straight
21 across that Christmas break. I will put it to my
22 colleagues, but I don’t expect them to be working
23 diligently on this over their family holiday period. I’m
24 sure if the inquiry was to offer an extension grant or
25 something for the linkage project – no, that was all in
26 jest.
27
28 The other big thing of course was the issue of consent
29 in particularly traumatic situations. Particularly my
30 colleague Angela Romano from QUT has had a much closer look
31 at this. But, nevertheless, the issue seems to be in some
32 of the codes of practice they talk about consent having
33 been given and that being acceptable. Consent was a
34 recurring issue in the Press Council and ACMA
35 deliberations, particularly with things like children or
36 relatives giving consent for a vulnerable person’s medical
37 details and then being identified in association with that,
38 and the media accepting that level of consent when clearly
39 the individual hadn’t agreed to it.
40
41 Dr Romano also raises the issue of the ability to
42 withdraw consent and whether or not an editor might sort of
43 give only one chance to give consent and not allow the
44 opportunity for that to be withdrawn if the person is
45 having second thoughts and the story is particularly
46 newsworthy. So we think consent needs to take into account
47 the situation of trauma or vulnerability that the
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1 individual is involved in, and that’s not necessarily
2 written that well into the various codes of practice.
3
4 What we would like to see is the very issue of
5 vulnerability being expanded so that, if there was a new
6 code, it would make allowance for the fact that individuals
7 in serious news events might be traumatised and may be
8 unwilling to give consent at all, but should have the right
9 to withdraw that consent at some stage.
10
11 MR FINKELSTEIN: That is an interesting concept. It is
12 also interesting, the consent issue, because the kind of
13 consent that was extracted from I think it was a footballer
14 in London who had suffered quite serious injuries gave his
15 consent to two reporters who had dressed up as doctors to
16 get into his hospital room led – I can’t remember whether
17 it was the third royal commission or the second royal
18 commission, I think the third royal commission into the
19 press. It got everybody pretty excited, and quite
20 legitimately.
21
22 PROFESSOR PEARSON: Two of the examples we look at to do
23 with the Press Council actually have situations where that
24 allegation was made in Australia on two of the complaints.
25 The Press Council decided not to inquire further into the
26 veracity because it was denied by the newspaper
27 organisation but put by those who were the supposed
28 victims. It decided on other grounds rather than pursuing
29 the inquiry into the circumstances in which the journalists
30 got access to them in the first place.
31
32 MR FINKELSTEIN: I think in the English case there wasn’t
33 a dispute about it. They said, “Sure, we got dressed up
34 like doctors to get into” —
35
36 PROFESSOR PEARSON: That was the Sunday Sport case
37 involving the actor Gordon Kaye.
38
39 MR FINKELSTEIN: No, a footballer. I think it must have
40 been in the 1970s.
41
42 PROFESSOR PEARSON: That may well have been the case. But
43 the one that I mention is what prompted the Calcutt Inquiry
44 originally, which was basically the first real exploration
45 of these things. It was the actor Gordon Kaye, who was in
46 his hospital bed and semiconscious after head injuries in a
47 storm in a motor vehicle.
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1
2 DR RICKETSON: Also the code of ethics currently here, in
3 the review of it in the mid-1990s, from memory, there were
4 explicit clauses recommended for both dealing with children
5 and dealing with people in if not vulnerability then grief.
6 They were more expansive than the 12 clause code that was
7 eventually voted in in 1999 or whenever. In a sense,
8 either you could go back and have a look at that or that
9 ground has been at least explored in the past.
10
11 PROFESSOR PEARSON: Or if a new single code was pared back
12 to those very basic principles we spoke about early in this
13 session, then an extension document on dealing with the
14 vulnerable, in other words the educational side of it,
15 could take up that issue as part of the basic respect
16 element when dealing with sources.
17
18 MR FINKELSTEIN: If you had a pared back single code it
19 wouldn’t be a bad idea to have a sort of explanatory
20 memorandum going with it giving examples or an expansion by
21 way of example or of common facts that a journalist might
22 encounter in a professional life.
23
24 PROFESSOR PEARSON: We make the point in our submission
25 that something the Press Council has done very well has
26 been the whole educational side of things and the funding
27 of research and so on. Part of that I think has been
28 looking at case studies with journalism students at the
29 various institutions where a Press Council member visits
30 the institution and they do exactly what you are saying.
31 They look at the actual principle that is involved and then
32 they look at how that has been applied. They get the
33 students to engage with a particular news scenario which
34 really did happen and then they look at the outcome and why
35 the Press Council reached that decision. So accompanying
36 materials like that would certainly be of benefit.
37
38 But the problem at the moment is just the basic
39 wording of all of the different codes of practice and code
40 of ethics. The standard one is the journalist code of
41 ethics, the MEAA. But, as you are fully aware, it has been
42 very badly enforced. That’s the issue. But the document
43 itself is probably the best working document, I would
44 think.
45
46 DR RICKETSON: It is also the oldest in its original
47 incarnation.
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1
2 MR FINKELSTEIN: That is it from us.
3
4 PROFESSOR PEARSON: Thank you for the opportunity.
5
6 DR RICKETSON: Thank you very much, Professor Pearson.
7
8 MR FINKELSTEIN: Very good. But if you do do some
9 research between now and mid-January —
10
11 PROFESSOR PEARSON: I will certainly put that to my
12 colleagues. We will link-up for a teleconference in the
13 next week and I will correspond with your officers.
14
15 AT 4.48PM THE INQUIRY WAS ADJOURNED TO FRIDAY, 9 DECEMBER
16 2011 AT 2.30PM
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© 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.
——–
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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