Tag Archives: media

February 27, 2012 · 9:05 am

Media regulation: my interview with @RichardAedy on @RNmediareport

I was interviewed for the ABC Radio National Media Report program last week on the upcoming Independent Media Inquiry report.

You can hear the full program here, where you can also view the complete transcript.

I’ve just copied below the segment of the transcript featuring my own comments:

———–

ABC Radio National Media Report

Finkelstein Inquiry into Newspapers

Broadcast:Friday 24 February 2012 5:30PM

…

…Richard Aedy: …There are other perspectives beyond those of the Press Council and the publishers. Mark Pearson’s Professor of Journalism at Bond University on the Gold Coast. He’s particularly interested in that intersection between journalism and the law and he’s come up with one of the most novel submissions to the inquiry.

Mark Pearson: There are already so many laws controlling the behaviour of news organisations and journalists, we don’t really need any more. We need to make those that exist more effective. But if there had to be something more, the consumer law that exists at the moment, and already applies to the media in many ways, could be extended to cover heinous ethical breaches.

Richard Aedy: Didn’t the media used to be subject to those laws?

Mark Pearson: Yes they were the old Trade Practices Act. It’s now changed its name to the Competition and Consumer Act. It was introduced in 1974 and it has a provision, basically banning misleading and deceptive conduct, which is normally applying to advertising. But for the first few years, some court decisions held that it might also apply to misleading claims made in news stories; the editorial columns of newspapers and their equivalent in broadcast. So because they didn’t want this impingement on free expression and because of lobbying by the major media groups, they had an exemption to that introduced for prescribed news providers which basically, unless it was in advertising or promoting their own products and so on, they would be exempted from these misleading and deceptive conduct provisions.

Richard Aedy: Right. So to clarify. You don’t think we need additional laws. You don’t even think we need tougher existing laws. What you think we need is a much better understanding of what the laws are and perhaps getting rid of this exemption the media has had to what is effectively, I think, corporations law?

Mark Pearson: Well I certainly wouldn’t propose getting rid of that exemption because otherwise we’d be back to that 1970s position where the media were being prosecuted for their news columns. But I don’t think some tinkering with that would do any great harm which would cover the most drastic ethical breaches, clearly contrary to the public interest, where there’s been real misleading and deceptive conduct involved, of the order of your cash for comment kind of situation.

Richard Aedy: Right. I was going to say give me an example. Well all right that’s a good one. And who would be the regulator? Would it be what, the ACCC?

Mark Pearson: Well it would be the ACCC. The more the media is moving towards breaking down that firewall between editorial and advertising the more they need to be treated like just another business except where they’re doing genuine public interest journalism.

Richard Aedy: So what about the Press Council and Julian Disney asking for greater powers and saying, well look we could do with some government money for this?

Mark Pearson: I think it’s always dangerous to start introducing government funding for media self-regulatory bodies. The instant the government starts funding such things, the instant you have genuine government regulation.

Richard Aedy: But what’s wrong with that? I know editors and journalists always say this would be terrible, real government regulations. But lots of industries are regulated by the government. Why shouldn’t the media be?

Mark Pearson: Well one of our biggest problems in Australia is that we don’t have a Bill of Rights. We don’t have a Constitution with any formal protection of free expression. So it means that these other laws as they’re applied, the courts don’t have something else to look to. The High Court’s made a few decisions introducing freedom to communicate on political matters but all of that’s a little vague. And so there’s really no underpinning of free expression in this country other than a tradition that we’ve had which has been intruded upon time and time again through these hundreds of laws.

Richard Aedy: Mark Pearson from Bond University. He too opposes any move by the Press Council to accept money from the government. But the big worry for the industry isn’t really that the Press Council will get some of its funding from Canberra. It’s that Mr. Finkelstein will recommend that Canberra becomes altogether more involved.

—————

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

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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February 23, 2012 · 4:11 pm

The Privacy Mandala: A tool for ethical newsroom decision-making

By MARK PEARSON Follow @Journlaw

Amidst the international fallout from the News of the World scandal, and as the Australian media braces for the release of new proposals for regulation, I thought I would showcase a newsroom ethical decision making tool I developed some years ago which seems to have even more relevance today.

True self-regulation must happen at the moment a journalist, editor, news director or producer is confronted with an ethical dilemma. Whether to intrude into the privacy of an individual, perhaps at a moment of extreme vulnerability, is a decision journalists should make on an informed basis, having weighed legitimate public interest concerns against the potential harm they might cause the person involved.

While the courts have been active in considering privacy actions against the media in recent years, many more privacy cases have been dealt with by self-regulatory bodies, particularly the Australian Press Council. As well as the Press Council, a further five Australian media bodies feature privacy guidelines as part of their ethical codes.

Whether or not a court or a self-regulatory body ultimately reviews a journalist’s decisions in privacy matters, reporters and news directors are frequently called to account for such decisions by other media or by their own audiences.

Journalists would be better equipped to engage in such debate, answer such challenges and defend their decisions if they had more effective and transparent processes in place when handling an ethical decision in the newsroom. There is no doubt the daily editorial conferences in major news organizations sometimes feature ethical discussion over whether a particular photograph should be used and whether certain facts about a person should be revealed. A full anthropological study of such meetings might give an insight into the processes and language used when discussing such decisions. This author’s experience of such meetings is that they would benefit from some basic tools to help guide discussion and ensure all bases are covered when reaching a privacy-related news decision.

The different legal approaches to privacy throughout the world reflect different cultural approaches to the notion of personal privacy and the different weightings accorded to free expression as a competing value. The topic is a complex one, as evidenced by the closeness of decisions of the highest courts and regulatory bodies of Europe, the UK, Australia and New Zealand when trying to adjudicate cases where the media have infringed upon individuals’ privacy.

Those very courts have looked to the internal mechanisms of news organizations and the codes of their self-regulatory bodies in trying to determine whether credible and professional decision-making processes have been followed in deciding whether to publish ethically dubious material. In fact, in the UK the courts are required to look to “any relevant privacy code” for guidance in balancing public interest vs. privacy disputes in their determinations under s.12 of the Human Rights Act 1998.

It is difficult in the cut and thrust of pressing deadlines for editors and journalist to adopt comprehensive and detailed checking processes. Sometimes there are just minutes available for key ethical decisions about whether to use a photograph, to crop it in a certain way, or to include a particular paragraph in a story. That said, there are codes of practice we can look to for general guidance in such matters. In Australia they include the MEAA (AJA) Code of Ethics, the Australian Press Council’s Statement of Principles and its accompanying Privacy Standards, the codes of the various broadcasting co-regulatory bodies, and various in-house codes adopted by major news organizations.

While all these are useful documents, they are either sparse in their directions or are not worded in a form which would be readily accessible for working journalists and therefore unlikely to be a reference point for editorial conferences or regulatory hearings where such matters are under debate. Further, many media organizations work under several sets of guidelines simultaneously. All operate with reference to their journalists’ ethical code and at least their own industry’s code of practice.

I have taken several self-regulatory codes and developed from them a more useful schema of situations, actions, and individuals which might in turn lead into a workable device for journalists (reporters, editors, news directors, and photographers) and regulatory bodies and perhaps even courts seeking to weigh up the competing privacy-public interest elements of a story. It aims to help journalists cover the main avenues of consideration when reaching their own decisions and, in turn, offer them a tool for explaining their decisions logically and systematically. I have called it the “Privacy Mandala”.

The ethical and industry codes typically flag potential danger zones for privacy material, including journalistic use of rumour, confidential information, offensive material particularly photographs and file footage.

The codes also identify several methods of privacy intrusion. They deal with individuals’ status as public figures or, alternatively, with their naivety of media practice in dealing with whether intrusion of their privacy might be more or less justifiable. These also deal with the kinds of individuals involved, with special concern over the intrusion into the lives of children. Some suggest public figures should be prepared to sacrifice their right to privacy “where public scrutiny is in the public interest”, while others say intrusion may be justified when it relates to a person’s “public duties”. Some warn journalists not to exploit those who may be “vulnerable or unaware of media practice”. Some counsel journalists against intruding into the lives of innocent third parties. Some make special mention of the vulnerability of children and recommend protocols for getting consent.

All this concern over the category of individual whose privacy might be intruded upon links with Chadwick’s (Chadwick 2004) notion of a “taxonomy of fame”. Former Victorian Privacy Commissioner (now ABC Director of Editorial Policies) Paul Chadwick devised a useful starting point for weighing up whether someone is deserving of a certain level of privacy. He called it the ‘five categories of fame’, each justifying different levels of protection. He argued that public figures who had courted fame or sought a public position deserved less privacy than those who found themselves in the public spotlight by the hand of fate or because they have been born into a famous family. His five distinct categories include: fame by election or appointment, fame by achievement, fame by chance, fame by association and royal fame. He suggested the tension over media exposure of private details of an individual can be “eased” by the use of such categories. Nevertheless, even the codes seem to go further than Chadwick’s list which does not account for the special circumstances of children in the news.

Clearly the potential damage to an individual resulting from a privacy invasion is an important consideration, however it gains scant attention in the codes themselves. This may be because much of the damage of a gross invasion of privacy might be incalculable, such as emotional scarring and other traumas.

The “public interest” exception to many of these requirements almost always features in media codes, with varying degrees of explanation. Public interest is the trump card in many of our decisions, but we need to explain why a photo of Nicole Kidman collecting her children from school is of such social importance if we are to justify our intrusion into her privacy. Perhaps it is of social importance because she has publicly criticized formal schooling, or perhaps because she has publicly claimed to be home-schooling them, or perhaps it is not of social importance but just mere curiosity and we have no right publishing this photo at all.

The Australian Press Council suggests an important further step publications should take when relying on public interest exemption: they should explain the basis of that decision to their readers.

How do we combine these multifarious considerations into a useful device for journalists and editors to use in a newsroom when confronted with a privacy dilemma? We can start by identifying the main spheres of concern with privacy issues, including a version of Chadwick’s categories of fame. As a final consideration we feed in the public interest / social importance of the material.

This means we can feature the following key factors for a journalist or editor to consider when weighing up a privacy intrusion:

The nature of private material.
The means of intrusion:
The fame of individual (adaptation of Chadwick’s categories of fame): Red flag items here include children and the “media vulnerable”.
The damage caused. That is, the level of directly predictable monetary loss, shock or embarrassment (variable according to individual’s circumstances and cultural factors) and potential for future loss or harm.

We then need to factor into the consideration the crucial “public interest” value, presented as a counterpoint to the above. This would operate on a scale from the prevention of death or injury and exposure of crime or corruption through the exposure of hypocrisy, setting the record straight, exposure of waste or inefficiency, preventing death or injury, or something merely of curiosity or gossip value. Part of the social importance decision-making process requires a decision on the level of centrality of the private material to the story.

The web of relationships and considerations is illustrated here as the Privacy Mandala.

A “mandala” metaphor has been borrowed from Buddhist terminology to aid with the analysis of the media-privacy issue here, but also ultimately with analysis of a matter in the newsroom. It would have been simpler, perhaps, to choose a more straightforward metaphor like a compass. However, there are aspects of the mandala which add value to our discussion. Like the Western concepts of privacy and reputation, it relates to an individual’s value of the self, often a deeply spiritual phenomenon. Mandala, which can take a range of forms, are also meant to be vehicles for meditation, and here ours provides a mechanism to do just that as we meditate in the professional workplace upon the values of privacy and press freedom. The intercultural nature of the metaphor is also no accident. In an increasingly globalised and multicultural society, media organizations occasionally need reminders that there are numerous interpretations of “privacy” among their audiences and news sources which might require special respect or consideration. Further, mandala are inherently complex. The Tibetan mandala are laden with meaning at a multitude of levels. So too is the privacy debate, with each of the four axes listed here representing a series of subsidiary factors needing to be considered in any decision to intrude. While there may be occasional clear-cut cases where privacy or the public interest are overwhelming “winners”, the majority of news situations fall into a negotiable zone where the most we can ask of a media organization is that it has considered the relative values carefully before deciding to, first intrude on a citizen’s privacy, and, secondly, publish the result of such an intrusion. The mandala can be used effectively to help with decision-making at both of those key moments in the news process.

When presented in this graphical form, some of the first four realms of privacy could further be displayed in shades of pink, with some listed as “code red” items. From the above discussion, it is clear that it would take a matter of overwhelming public interest to successfully counter a “code red” matter like the invasion of privacy of a child or a grieving relative of someone killed in tragic circumstances. These would need to have their social importance factors clearly articulated by an editor choosing to go ahead and publish the item.

Quite separate from the mandala graphic is an independent area of consideration which is rarely mentioned in the ethics textbooks: the commercial impact of a story. It is rarely addressed because theorists seem to work on the assumption that media organizations should be motivated primarily by a public or social good which is forever being compromised by a commercial imperative. However, the reality is that editors and news directors are motivated at least as much by circulation, ratings and page views as by a public duty to deliver the news. Their own tenure depends on their success in this regard, and it has been demonstrated that celebrity news and gossip sells newspapers and magazines and that hidden cameras and consumer advocacy doorstops boost current affairs television ratings. That said, the commercial impact of privacy decisions might be positive, negative or neutral, as illustrated by the following graphic.

The table takes account of the fact that there may be a range of potential profits or costs resulting from a story involving a privacy intrusion, including gained or lost circulation or ratings, advertising, syndication rights, corporate reputations, legal damages, and court or regulator costs. The courts would frown upon news organizations formally weighing up the potential monetary outcomes against the intangible human damage which could be caused by a privacy invasion. That said, there is little doubt journalists go through such a process, either formally or informally, when deciding whether to run with a story which pushes the privacy margins.

While there is little doubt many media organizations go through considerable angst in deciding whether or not to run a story which features some level of privacy intrusion, they have been inclined to keep the reasons for those decisions to themselves unless there is an ensuing disciplinary hearing or court case. News organizations should be encouraged to explain their ethical decision-making to their readers, viewers and listeners. It would take only a few paragraphs in a newspaper to accompany an intrusive photograph with an account of why there is an overwhelming public interest in readers seeing the material in question. Similarly, a news or current affairs anchor could devote a couple of sentences to say: “We realize this story involves a compromise of Miss X’s privacy, but we feel there is a greater public interest served by audiences viewing first-hand the emotional impact of a tragic event.” Such transparency would demonstrate to regulators and courts that a decision had been considered carefully and might well minimize the groundswell of protest from readers and audiences which often follows a privacy intrusion.

Here we have covered considerable terrain on the topic of privacy and journalism. We have distilled from Australian media regulations the key elements of privacy as they apply to the practice of journalism. We have grouped them into five key categories, covering the nature of the private material, the means of intrusion, the relative fame of those intruded upon, the level of damage caused, and the level of public interest or social importance of the story at hand. We have pointed to the importance of commercial considerations through increased ratings, circulation, or advertising sales as an additional consideration editors and news directors might taken into account before finalizing their privacy decisions. Finally, we have demonstrated that transparency in ethical decisions can provide some benefits to news organizations.

It is not claimed that the Privacy Mandala holds all the answers for a journalist faced with a privacy decision. Other factors might deserve inclusion.

This research should serve to demonstrate that there are workable models for ethical decision-making in the newsroom which can elevate discussion in editorial conferences above the gut feelings of news executives and force the articulated justification of decisions to intrude. Further, such a model might even help journalists proceed through an ethical minefield like privacy confident they have at least considered carefully the implications of their actions. That, surely, is in the public interest.

* Note: An earlier fully referenced version of this blog was presented as a conference paper at the Journalism Education Association conference on the Gold Coast, Australia in 2005. The research was undertaken with funding from the Australian Press Council. For a full-text version of the original article please visit the Proceedings of the 2005 Journalism Education Association Conference, Editors: Associate Professor Stephen Stockwell and Mr Ben Isakhan, ISBN: 1920952551.

© Mark Pearson 2012

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February 15, 2012 · 8:45 am

Order form for @journlaw book ‘Blogging and Tweeting Without Getting Sued’ and contacts for review copies.

By MARK PEARSON Follow @Journlaw

Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online (RRP A$22.99) is now available.

Australian purchasers can buy direct from the author at a 10% discount with free postage by emailing journlaw@gmail.com. (Note, no credit cards, just direct bank account transfers, cheques, money orders or corporate/government purchase orders.)

Here is the order form from Allen & Unwin:

Blogging & Tweeting Without Getting Sued A5 Flyer

Online orders can be placed with Booktopia.

The A&U catalogue entry is here.

The book is not aimed at lawyers or academics. It’s meant to be an accessible read for the lay blogger or social media user who wants an introduction to the main pitfalls in the law of online writing and publishing.

While there was considerable research involved, I prefer to see it as a work of journalism than of legal or media scholarship – explaining and interpreting the law for the ordinary global citizen.

Here is the cover and blurb:

“What you post on a blog or tweet to your followers can get you arrested or cost you a lot of money in legal battles. This practical guide shows you how to stay out of trouble when you write online.

“Every time you post a blog or tweet you may be subject to the laws of more than 200 jurisdictions throughout cyberspace. As more than a few bloggers or tweeters have discovered, you can be sued in your own country, or arrested at the airport heading off to a holiday in another country. Just for writing something that wouldn’t raise an eyebrow at a bar.
“In this handy guide, media law expert Mark Pearson explains how you can get your message across online without landing yourself in legal trouble. In straightforward language, he explains what everyone writing online needs to know about reputation, privacy, secrets, bigotry, national security, copyright and false advertising.
“Whether you host a celebrity Facebook page, tweet about a hobby, or like to try your hand at citizen journalism, you need this guide to keep on the right side of cyberlaw.”

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

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February 10, 2012 · 3:21 pm

My Online Opinion piece explains Australia’s fall to #30 in RSF World Press Freedom Index

By MARK PEARSON Follow @Journlaw

The international media freedom group Reporters Sans Frontières (RSF – Reporters Without Borders) has released its 2011-12 World Press Freedom Index and Australia has slipped 12 places from 18^th to 30^th among the 179 countries ranked.

That result and the organisation’s methodology deserve explanation and debate, which I offer in my article in Online Opinion today.

As RSF’s Australian correspondent for the past six years, I offer some insights on both fronts.

First I assess the factors contributing to Australia’s decline in its media freedom status since 2010.

Then I explain why the RSF ranking process is indicative rather than scientifically precise.

Interested? Read my piece in Online Opinion today.

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January 23, 2012 · 9:59 am

My piece in The Drum: Media regulation made simple by ‘responsible truth-telling’

By MARK PEARSON Follow @Journlaw

Some of you might have missed my opinion piece at ABC’s The Drum Opinion published on December 22.

I reproduce it here for your interest and you might like to add your comments to the other 100+ featured on The Drum .

—————————

Media regulation made simple

MARK PEARSON

The solution to the news media regulation problem lies in two or three simple words, depending on whether you choose to hyphenate: ‘responsible truth-telling’.

Those words should replace the myriad of codes of ethics, codes of practice, and statements of principles that Australian journalists are expected to follow in their daily reportage.

It might sound idealistic and over-simplified but that’s what it comes down to. It is a phrase that can be read to incorporate truth-seeking, across all platforms of new, social and legacy media, by those practising the pursuit many of us still call ‘journalism’ and by those blogging, tweeting or standing on soap boxes in public parks claiming to be speaking in the public interest.

As the Supreme Court of Canada recently decided, ‘responsible communication on a matter of public interest’ is worth protecting and irresponsible communication should be discouraged.

Regulation in the form of laws has worked reasonably well to deal with irresponsible investigations and publications and harmful falsities and continues to do so.

Just because ‘co-regulation’ via the Australian Communication and Media Authority and ‘self-regulation’ via industry groups, the Australian Press Council and the journalists’ union have floundered, does not make straight-out government control of the media any more acceptable in a Western democracy.

There is already an oversupply of regulation of the media and free expression generally in this country – across all levels of government and via quasi-governmental and self-regulatory and co-regulatory bodies. Added to this there is considerable censorship of free expression in government and the corporate sector in the form of ‘spin’.

Australia’s free expression is particularly fragile because it lacks any formal expression in our Constitution, especially when this is combined with at least five inquiries into the news media this year (2011) and proposals for a press regulator with government teeth, against a backdrop of Senator Conroy’s attempts at imposing an internet filtering scheme.

The Convergence Review quite rightly takes a 21st century broad-brush view of media regulation, but the Media Inquiry chair Ray Finkelstein QC appears focussed on a mechanism to prop up the very 20th century complaints system of the Press Council, proposing some government sanctions on the publication of findings and some taxpayer funding to supplement the reluctant sponsorship of the major newspaper groups.

My own submission to the Media Inquiry proposed there should be no more laws controlling the media in this country – just better access for media consumers to the laws that already exist and a one-stop shop for the handling of complaints. It also suggested a reworking of consumer laws so that ‘prescribed news providers’ do not get an automatic exemption from the ‘misleading and deceptive conduct’ actions over their news material.

No journalists can be expected to operate effectively within deadline paying heed to all the five or six codes that might apply to them.

A single code of ethics applying to journalists and their employers across all news media, under the banner of ‘responsible truth-telling’ would address fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern.

It would be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty.

Any government funding could establish and maintain a one-stop media complaints shop for referring consumers’ concerns to the appropriate self-regulatory or co-regulatory body and an accompanying media literacy campaign for the broader community. The several million dollars spent on these inquiries would have been better spent on this.

Broader citizen access to broadband and the sands of time will solve most of the media regulation problems we have today, but applying existing consumer law to the news media would help. That’s the way it was for a few years after the Trade Practices Act was introduced in 1975 until intensive lobbying by media groups won them a news provider exemption from its operations.

Why revisit consumer law? Because these days most news provision is ‘just another business’ and the only news media candidates for any regulation with teeth are usually operating across state borders in ‘trade or commerce’ and are therefore subject to the provisions of what has been rebadged the Competition and Consumer Act.

The Web 2.0 environment has motivated the traditional media to focus more strongly on commercial interests than it has ever had to do previously, breaking down the traditional ‘firewall’ between advertising and editorial material. Traditional revenue streams have reduced to a trickle. That’s why they have staff freezes and can’t increase their funding of the Press Council.

Such an adjustment to consumer law would mean a scandal on a scale of ‘Cash for Comment’ or the News of the World episode could be handled for what it is: irresponsible deception of media consumers by powerful, cynical, corporate players.

It’s not a radical suggestion. The ACCC entered the Cash for Comment fray early on, but backed off when the then Australian Broadcasting Authority started investigating. Perhaps it should have persisted. Just two years ago the High Court found against Seven under the former Trade Practices Act in a case false claims about goods and services. The reform would extend this to other ethical breaches.

‘Responsible truth-telling’ would remain protected, as it should be in a Western democracy. The onus would be on the ACCC to prove the irresponsibility or falsity of the misleading material or actions and that it was contrary to the public interest.

Media Inquiry chair Ray Finkelstein dismissed my suggestions as ‘impractical’ when I appeared in the Melbourne hearings last Thursday. He seemed intent on his Bandaid-like solution for the Australian Press Council.

He might be willing to take another look at it now that the Convergence Review has flagged its own big-picture approach and its intention to return to the drawing board of media regulation.

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January 17, 2012 · 3:16 pm

April release for @journlaw book ‘Blogging and Tweeting Without Getting Sued’

By MARK PEARSON Follow @Journlaw

Allen & Unwin has now listed my forthcoming book in its 2012 catalogue and it will be available in both print and ebook formats from April.

It’s called Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online.

The A&U catalogue entry is here.

And here’s the cover:

It’s not aimed at lawyers or academics. It’s meant to be an accessible read for the lay blogger or social media user who wants an introduction to the main pitfalls in the law of online writing and publishing.

While there was considerable research involved, I prefer to see it as a work of journalism than of legal or media scholarship – explaining and interpreting the law for the ordinary global citizen.

Here’s the blurb:

Stay tuned for more as the April release date approaches.

[Media: Please contact the publisher direct for any requests for advance copies for review.]

© Mark Pearson 2011

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December 17, 2011 · 12:55 pm

My Media Inquiry appearance: the transcript

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

.08/12/11 (3) 254

Transcript produced by Merrill Corporation

1 PROFESSOR MARK PEARSON

3 MR FINKELSTEIN: Thanks, Professor, for coming down.

5 PROFESSOR PEARSON: Thank you.

7 MR FINKELSTEIN: We did hear you had some problems with

8 your flight.

10 PROFESSOR PEARSON: Yes, the Gold Coast airport was closed

11 temporarily, bad weather. It is much better down here

12 today.

14 DR RICKETSON: But you got here okay.

16 PROFESSOR PEARSON: Yes, in the end.

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?

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.

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

.08/12/11 (3) 362 M PEARSON

Transcript produced by Merrill Corporation

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.

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?

11 MR FINKELSTEIN: Yes, we did. But I do have some

12 questions in any event about your own submission.

14 PROFESSOR PEARSON: Sure.

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.

22 PROFESSOR PEARSON: Indeed.

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.

28 PROFESSOR PEARSON: With my personal submission?

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.

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.

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.

24 MR FINKELSTEIN: You mean the laws of the land that apply

25 to all and sundry?

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.

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

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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2 MR FINKELSTEIN: Because?

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 —

9 MR FINKELSTEIN: There is no practical way that will

10 happen in my lifetime.

12 PROFESSOR PEARSON: Okay.

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.

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.

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?

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.

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.

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?

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 —

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.

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.

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.

5 MR FINKELSTEIN: Why?

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?

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.

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?

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.

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.

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 —

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.”

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.

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.

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?

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.

42 MR FINKELSTEIN: Yes

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 —

5 MR FINKELSTEIN: Perfectly happy to make it a levy and

6 make the media organisations pay it.

8 PROFESSOR PEARSON: It is still a government —

10 MR FINKELSTEIN: It is not government funded.

12 PROFESSOR PEARSON: It is still a government initiative.

14 MR FINKELSTEIN: Correct.

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.

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.”

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.

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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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.

14 MR FINKELSTEIN: True, but you will get news about quite

15 different things.

17 PROFESSOR PEARSON: Not necessarily.

19 MR FINKELSTEIN: Overwhelmingly.

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.

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 —

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.

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.

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.

28 MR FINKELSTEIN: What happens if that funding is not

29 forthcoming voluntarily?

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.

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.

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?

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.

19 MR FINKELSTEIN: So what?

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.

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?

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 —

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?

40 PROFESSOR PEARSON: I don’t have any objection to money

41 being given to the Press Council.

43 MR FINKELSTEIN: From the government.

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.

4 MR FINKELSTEIN: Okay. Can I shift on to the other paper.

6 PROFESSOR PEARSON: Sure.

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.

12 PROFESSOR PEARSON: There are worse places to be stranded

13 in.

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?

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.

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.

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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?

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.

13 DR RICKETSON: What did you present at the journalism

14 educators conference?

16 PROFESSOR PEARSON: I didn’t present anything. I was still

17 teaching then.

19 DR RICKETSON: I mean in the group.

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.

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?

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.

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.

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.

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.

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?

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.

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?

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.

38 MR FINKELSTEIN: I see.

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.

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?

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.

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?

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?

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.

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.

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.

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?

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.

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?

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.

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 —

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1 MR FINKELSTEIN: You mean by name mentioned?

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.

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.

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.

28 DR RICKETSON: In Victoria

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.

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.

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?

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.

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.

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.

47 PROFESSOR PEARSON: Yes.

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2 MR FINKELSTEIN: That doesn’t tell you where there isn’t

3 much.

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.

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 —

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.

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.

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.

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.

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.

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.

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” —

36 PROFESSOR PEARSON: That was the Sunday Sport case

37 involving the actor Gordon Kaye.

39 MR FINKELSTEIN: No, a footballer. I think it must have

40 been in the 1970s.

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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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.

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.

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.

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.

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.

46 DR RICKETSON: It is also the oldest in its original

47 incarnation.

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2 MR FINKELSTEIN: That is it from us.

4 PROFESSOR PEARSON: Thank you for the opportunity.

6 DR RICKETSON: Thank you very much, Professor Pearson.

8 MR FINKELSTEIN: Very good. But if you do do some

9 research between now and mid-January —

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.

15 AT 4.48PM THE INQUIRY WAS ADJOURNED TO FRIDAY, 9 DECEMBER

16 2011 AT 2.30PM

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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.

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November 26, 2011 · 12:55 pm

Pressures on the media in a Western democracy #RSF #pressfreedom #censorship

By MARK PEARSON Follow @Journlaw

Each year I file a report on key incidents and developments in the areas of media law and censorship as Australia’s correspondent for Reporters Without Borders.

This data, when combined with submissions from several journalism and academic colleagues in Australia and throughout the world, feeds into RSF’s annual World Press Freedom Index where most nations’ levels of media censorship are compared in a league table format.

I have just filed my 2011 report with the assistance of research assistant Kiri ten Dolle and share some of the highlights with you here, in reverse chronological order.

November 2011:

By far the most important threat to media freedoms in Australia came in the form of at least five government inquiries into media regulation conducted throughout the year, which I have blogged on previously. Between them they raised the prospects of tougher regulation regimes for print, broadcast and online media; a new tort of privacy; tough new classification systems across media; and the conversion of some self-regulatory bodies to regulatory status. RSF was particularly concerned by suggestions at the hearings of the Independent Media Inquiry that journalists should be licensed or that the Australian Press Council should be given powers to fine media organizations for ethical breaches. See their release on the matter.

The trial of Victorian police officer Simon Artz for alleged leaks to The Australian newspaper about a counter-terrorism operation raised several media freedom issues, with Crikey senior journalist Andrew Crook allegedly breaching a suppression order by revealing the name of a former member of Victoria’s Special Intelligence Group involved in the hearing; warnings over Crikey journalist Margaret Simons live tweeting from the hearing; and The Australian’s Cameron Stewart being ordered to reveal his sources to the hearing.

In a separate matter Victorian Police were investigating an alleged hacking of an ALP electoral database by four journalists at The Age, including editor-in-chief Paul Ramage. The Age claims they received access to the private information of high-profile individuals through ‘appropriate journalistic methods’ and authorisation by a whistleblower.

October 2011

Leaks to the media were also central to a report by the Office of Police Integrity (OPI) found advisers to the Victorian police minister conspired to bring down the former police commissioner Simon Overland. Weston had allegedly leaked information to the media about Overland’s fallout with his former deputy, Ken Jones.

Government control over media access to detention centres prompted condemnation from the journalists’ union. Department of Immigration and Citizenship (DIAC) announced editorial control would be handed over to representatives of the immigration department under new guidelines introduced by DIAC that restrict reporting of and access to detention centres. Journalists and media organisations are required to sign a Deed of Agreement in accordance with the new policy which ultimately prohibits photography, film or interviews with individual detainees and rules that all footage must be submitted to department officials for approval before publication.

Defamation actions, even spurious ones, were alive and well despite uniform defamation laws introduced throughout Australia in 2005. Convicted killer Michael McGrane sought $30 million in damages from the Seven Network claiming he was defamed in a television show called “The Suspects: True Australian Thrillers”. A Queensland Supreme Court justice struck out the claim but gave McGrane leave to replead under a technical provision of the reformed laws.

The extent to which free expression should be trumped by hate speech laws was the subject of wide debate after a Federal Court judge ruled Herald Sun columnist Andrew Bolt breached the Racial Discrimination Act when he wrote that some fair-skinned people used their indigenous identity to further their careers.

September 2011

Fairfax Media group general counsel Gail Hambly and the editor-in-chief and publisher of The Sydney Morning Herald Peter Fray were summonsed by the Police Integrity Commission to produce documents on September 23 in relation to articles by the Herald journalists Linton Besser and Dylan Welch about the NSW Crime Commission. The inspector sought information about sources of information.

Fairfax Radio broadcaster Michael Smith’s contract was suspended in September when he tried to air an interview a former union official who claimed alleged fraudulent conduct by a former boyfriend of Prime Minister Julia Gillard. Smith took Fairfax Radio to court, contesting his ‘planned dismissal’ under the Fair Work Act and alleging he was victimised over his political beliefs.

August 2011

Two Brisbane journalists and a producer were dismissed by the Nine Network for faking live crosses to the Daniel Morcombe search site and ‘unfair dismissal’ litigation was foreshadowed.

July 2011

Cancer-stricken Hinch was sentenced to home detention in July after being found guilty of breaching four suppression orders by naming two sex offenders on his website and at a crime rally in 2008.

June 2011

Fairfax Media announced it would outsource the sub-editing of news, sport and business content to Pagemasters, a subsidiary of the Australian Associate Press (AAP), with a loss 44 jobs at The Sydney Morning Herald and 38 at The Age, despite calls from the NSW Upper Tribunal to abandon the decision.

May 2011

The Australian Broadcasting Corporation used a programming exemption to FOI laws to deny The Weekend Australian and Herald Sun access to its audience data and employee salaries.

Fairfax’s deputy technology editor Ben Grubb, 20, was arrested after reporting on a conference presenter’s alleged hacking at the AUSCert IT security conference. During the week, Grubb had published a story explaining a demonstration shown at the conference of acquiring private photos from a Facebook user without being a ‘friend’. Police seized his iPad but released Grubb after questioning him.

Sixty Minutes reporter Liam Bartlett and his crew’s attempt to enter the main detention centre at Christmas Island led to a police investigation. Bartlett and refugee advocate Kate Gauthier were denied access to the centre after it was alleged Gauthier’s baby, who was with them, was fitted with a recording device.

March-April 2011

Fairfax Media, publisher of the Sydney Morning Herald, and two of its senior journalists Linton Besser and Dylan Welch were issued with subpoenas by the NSW Crime Commission demanding them to surrender mobile phone records, sim cards and other communication related to an investigation of organised crime and corruption in NSW. The Crime Commission dropped the subpoenas in April.

February 2011

The NSW Supreme Court considered forcing three journalists from The Age to reveal their sources in a defamation trial centred around a story about former businesswoman Helen Liu and former defence minister Joel Fitzgibbon.

The Australian Communications and Media Authority found there had been no breach of privacy when Channel Seven’s coverage of NSW Transport Minister David Campbell’s resignation included footage of him leaving a gay club. While the ACMA acknowledged the privacy rights of Campbell, they ruled public interest outweighed his personal privacy because he was a public figure.

———–

Have we missed some? Please email me at journlaw@gmail.com if you think there are other important threats to free expression in Australia during 2011 and I’ll add them to our brief for RSF.

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November 7, 2011 · 9:44 am

Consumer law holds solution to grossly irresponsible journalism

By MARK PEARSON Follow @Journlaw

Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.

It already has one – in the form of the Australian Competition and Consumer Commission.

My personal submission to the Independent Media Inquiry filed last week suggests that in the era of increasingly commercialised and converged media, the best protection for responsible journalism is to punish unethical, misleading and deceptive conduct by any corporation against media consumers.

A legislative solution already exists – and just requires an amendment to the existing news organisation immunity from prosecution under the ‘misleading and deceptive conduct’ provisions at Section 18 of the Competition and Consumer Act 2010.

My submission argues that the Federal Government could give teeth to the existing protections under Section 19 of that Act by recognising that the news media in the new era is ‘just another business’ while offering strong protection for responsible, ethical journalism inquiring into serious matters of legitimate public concern.

The most serious cases of ‘misleading and deceptive conduct’ under Section 18 of Schedule 2 of the Competition and Consumer Act 2010 – in blatant disregard of the a new ethical code detailed below and with inadequate public interest grounds – should be actionable by both the ACCC and private citizens like any other consumer complaint, with the force of the regulatory powers it already holds.

The key to this would be an amendment of the ‘prescribed information provider’ exception (Section 19) so that news organisations would no longer have the blanket, almost unchallengeable protection for misleading and deceptive conduct which was introduced after their lobbying in the late 1970s and early 1980s. (I traced the background to the provision’s predecessor under the Trade Practices Act 1974 in the Australian Journalism Review in 2001.)

Instead, it would be a rebuttable presumption that such corporations publish responsible news and current affairs material of legitimate public interest in accordance with a journalism code of practice.

In other words, they would not have to defend trivial complaints on these grounds – only those where a court has ruled there had been a clear breach of their ethical code in circumstances clearly contrary to the public interest – blatantly irresponsible ‘journalism’ committed in their content creation or publication which is clearly their stock in trade.

The reform would expose media organisations from all platforms to ACCC prosecution for heinous ethical breaches along the lines of the News of the World scandal in the UK.

Anything less than the most extreme and offensive ethical transgressions impacting detrimentally on the rights of other citizens would be handled via existing laws or self-regulatory processes because they would not meet the still high threshold to overcome the s.19 exception. In fact, frivolous proceedings on lesser transgressions could result in an award of costs against the complainant in finding that they should have followed the alternative dispute resolution avenues of the existing self-regulatory or co-regulatory bodies. (Interestingly, the ACCC already has powers to pursue corporations for ‘unconscionable conduct’ under section 20, to which the media exemption does not apply.)

The High Court recently found against a media organisation under the former Trade Practices Act in ACCC v. Channel Seven Brisbane Pty Ltd [2009] HCA 19. That decision related to false claims on ‘Today Tonight’ about goods and services. The reform would extend this to other ethical breaches.

It is essential that media outlets and journalists conform to ethical codes. It is in their interests that they do so, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. However, my last blog demonstrated the confusing array of self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets in this country.

No single journalist could possibly be expected to understand and operate effectively within deadline, paying heed to all that might apply to him or her, including the MEAA Code of Ethics, an in-house code, an industry code and the related laws and formal regulations that might apply. This moots strongly for a single code of ethics applying to journalists and their employers across all media, similar to the existing MEAA Code of Ethics, addressing fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern.

Of course, this could be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty, along the lines of the Australian Press Council’s guidance releases.

Added to this there is considerable censorship of free expression in government and the corporate sector in the form of ‘spin’ or media relations policies that carefully control the flow of information to the public via the media. It would be counter-productive at a number of levels to apply new gags on the traditional media in the Web 2.0 environment. Firstly, it would send the wrong message to the international community about Australia’s level of free expression. Secondly, it would place Australian traditional media at a competitive disadvantage to new media providers who might be based overseas but reporting on Australian news and current affairs.

That said, the regulatory systems should recognise that the Web 2.0 environment has motivated the traditional media to focus more strongly on commercial interests than it has ever had to do previously. Historic sources of revenue such as classified advertising (the ‘rivers of gold’) have migrated to online providers, new media platforms have earned a share of the display advertising budgets and smart phone, tablet and web-based advertising and marketing have morphed with news content, breaking down the traditional ‘firewall’ between advertising and editorial material. News corporations should now be seen for what they really are – ‘just another business’ – seeking the eyeballs, hits and downloads of consumers in the competitive new media environment.

Thus, the regulatory oversight of those selling news content should come under the auspices of the Australian Competition and Consumer Commission, with strong protections in place for those pursuing legitimate responsible journalism on matters of public importance. A division within the ACCC could be established to act as a ‘one-stop shop’ for the referral of citizens’ complaints about media outlets to the self-regulatory and co-regulatory bodies which would continue their complaints procedures and research functions.

The purpose of this submission is not to go into the mechanics of such legislation or its drafting. There have been legislative precedents on the use of regulatory codes as a backdrop to such a provision. For example, in the UK s12(4)(b) of the Human Rights Act directs a court to take into account ‘any relevant privacy code’ when considering whether free expression rights should outweigh privacy rights in a given situation. The ‘Journalism’ exemption to the Privacy Act 1988 at s. 7B(4) references privacy standards issued by the Australian Press Council as news organisations’ ticket to a waiver. However, the proposed reform would require more of them than simply being ‘publicly committed to observe standards’ and to have published them.

We do not need a Press Council with powers to fine or some new over-arching media tribunal you might find in small repressive regimes. If such a reform is managed properly, Australia can preserve its reputation as a nation with a relatively free media, while demonstrating it will not tolerate heinously irresponsible actions like those used by News of the World.

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November 1, 2011 · 9:15 am

Journalists and vulnerable sources: our submission to the Media Inquiry

Last month I blogged about the fact there were several concurrent inquiries into the Australian news media. I am a member of a collaborative research team with colleagues from five other universities and two mental health organisations working on ARC Linkage Grant LP0989758 ‘Vulnerability and the News Media’ Research Project. We have made submissions to three of these inquiries to date. The latest is to the Independent Inquiry into Media and Media Regulation. We sent it yesterday and it should appear shortly on their website at http://www.dbcde.gov.au/digital_economy/independent_media_inquiry/consultation .

Meanwhile, I reproduce it here for those of you interested in the interaction between the news media and vulnerable people in society…

———————————–

October 31, 2011

Submission on behalf of collaborative research team – ARC Linkage Grant LP0989758 “Vulnerability and the news media: Investigating print media coverage of groups deemed to be vulnerable in Australian society and the media’s understanding of their status”

Please accept this submission to the Independent Media Inquiry on behalf of our collaborative research team undertaking ARC Linkage Project LP0989758 “Vulnerability and the news media: Investigating print media coverage of groups deemed to be vulnerable in Australian society and the media’s understanding of their status”. Our three year investigation ends this year and we plan to publish our findings throughout 2012.

This submission addresses aspects of your Issues Paper and Terms of Reference (http://www.dbcde.gov.au/__data/assets/pdf_file/0004/139837/Independent_Media_Inquiry_Issues_Paper.pdf)

Vulnerability research project

Our project explores the interface between journalists and sources at moments of vulnerability. It also studies journalists’ interaction with sources who, by definition, might be classed as ‘vulnerable’ in the situation of a journalistic interview or news event. These may include, for example, people who have been affected by suicide, people who are experiencing symptoms associated with mental illness, indigenous people and children.

Professor Kerry Green from the University of South Australia is project leader. Other Chief Investigators on the project include Professor Michael Meadows (Griffith University), Professor Stephen Tanner (University of Wollongong), Dr Angela Romano (Queensland University of Technology) and Professor Mark Pearson (Bond University). Industry Partner Investigators are Ms Jaelea Skehan (Hunter Institute of Mental Health) and Ms Cait McMahon (Dart Centre for Journalism and Trauma- Asia Pacific). Mr Jolyon Sykes is the research assistant for the larger project, while Associate Professor Roger Patching, Annabelle Cottee and Jasmine Griffiths from Bond University have assisted with the preparation of this submission.

As well as the HIMH and DART, other industry contributors to the project have been the Australian Press Council (importantly as a disclosure, the subject of your inquiry), the Australian Multicultural Foundation, the Journalism Education Association Australia (JEAA), Special Olympics Australia and the Media Entertainment and Arts Alliance (MEAA).

We are confident our findings will help inform your inquiry of the effectiveness of current media codes of practice for the following reasons:

* We have undertaken an extensive content analysis of newspaper reportage of situations involving vulnerable sources, and our focus group participants have commented on the issues of intrusion, vulnerability and privacy in relation to print media; and

* We have undertaken a small extension study looking at the co-regulatory and self-regulatory decisions involving media interaction with vulnerable sources.

We can provide a detailed methodology of our project if you require it, but here is a brief summary of our research steps for the purposes of this submission:

* A content analysis of newspaper articles published in selected national, metropolitan, regional and suburban newspapers on a randomly generated publication day during each month of 2009.

* A series of focus groups across four states held during 2010 and 2011, made up of social groups documented as being more ‘vulnerable’ during interactions with the news media (for example, people with mental illness, people who have experienced trauma, Indigenous people, people from a CALD/non-English speaking background, people with a disability) as well as mixed focus groups with participants from a range of groups that may be deemed vulnerable.

* Analysis of decisions of the Australian Press Council relating to complaints about media interaction with sources during ‘moments of vulnerability’.

Please note: Our submission to the Convergence Review filed on Friday, October 28, 2011, contains some of the material presented here, but this document also contains other material directly addressing questions raised in your Issues Paper. Some of the Chief Investigators from the project identified above may also be taking up the opportunity to make individual submissions to your inquiry. This submission is restricted to agreed information and insights from the Vulnerability Project team we believe is relevant to your work.

Insights and recommendations

We will still be undertaking our analysis and writing up our findings in the remaining months of our project, so we cannot provide you with conclusive findings at this stage. However, we can offer the following insights you might find relevant to your deliberations in your review of the effectiveness of current media codes of practice and the Australian Press Council, from the dynamic of the interaction between vulnerable sources and the news media. To that end, we have structured it to accord with the questions and issues as numbered in your Issues Paper, but have only addressed selected items.

1.2 Does this ‘marketplace of ideas’ theory assume that the market is open and readily accessible? Our research team was not established to consider broader policy and political aspects of its research into the interaction between the news media and vulnerable groups and individual sources. However, we offer the observation that the essence of sources’ vulnerability is often directly related to their relative powerlessness (real or perceived) when compared with the positions of power occupied by traditional media. Their interaction with individual journalists as representatives of these larger corporations is informed to some extent by that power imbalance, combined with other factors such as their ignorance of media practice and complaints procedures that might be open to them. Citizens’ vulnerability to journalism practices is not confined to their portrayal in the media or to their consumption of media products, but can also be impacted by the experiences of their interactions with journalists and researchers during the reporting and interview processes. Media intervention at crucial moments in the midst of a tragedy or even later when calling upon someone to recount a major event in their lives can be traumatic and can have long-term impacts on their emotional well being and mental health. It can also exacerbate existing psychological conditions.

2.1 If a substantial attack is made on the honesty, character, integrity or personal qualities of a person or group, is it appropriate for the person or group to have an opportunity to respond? The research group is of the view that an opportunity to respond to such attacks is only the starting point when considering this issue – and it is the common expectation of most laws related to serious attacks on individuals’ reputations as enshrined in defamation defences. But the technical adherence to such requirements by journalists and news organisations does not necessarily take account of the vulnerability of an individual source. While such citizens might be ‘offered’ a chance to respond they might not be in an appropriate state of mind or emotional position to either comprehend such an offer or to take advantage of it. Further, this relates to fundamental elements of ‘consent’ and to the common situation where such individuals are ignorant of media practice and incapable of understanding the consequences of their interaction with the media or feel powerless or overwhelmed when trying to amend their responses or to seek the complete withdrawal of their participation. In some ways it is not unlike the routine and formulaic ‘Miranda warning’ issued by police officers on the arrest of a suspect – the words might be stated but the implications might not be fully appreciated by the accused. Being able to “reply” or “complain” also implies a level of literacy or capacity on behalf of the person, which may be impaired in some sources who may be vulnerable (such as those from a non-English speaking background, some Indigenous persons and also some with an intellectual disability or mental illness and some highly traumatised persons). Currently, there is no other way to complain or to “reply” without a level of literacy, capacity and understanding of the processes that would make that happen. These considerations present a challenge to any ethical journalist or editor and to the regulators reviewing their behaviour: how can it be determined that the media organisation’s offer of an opportunity to respond was ‘reasonable in the circumstances’?

2.2 What factors should be considered in determining (a) whether there should be an opportunity to respond? (b) how that opportunity should be exercised? Would those factors differ depending on whether the attack is published in the print or the online media? Early in our own research project our group reached the important insight that, while there are certain groups in society whose members appear more likely to be ‘vulnerable’ in their interactions with the media (including the aged, people with a disability, people experiencing symptoms of mental illness, those impacted by the suicide of someone they know, people of non-English speaking background and Indigenous people) – other citizens who are not members of these groups can find themselves in situations of vulnerability through the circumstances of a news event. For example, the parents of an injured child will undoubtedly be traumatised by the event and might not be in a position to properly understand the offer of an opportunity to respond to a media inquiry, or the consequences of their decision to respond or not. This relates to other issues of consent discussed later. The group does not believe there is any difference between print or online media in such situations or in protocols that should be followed.

3. Is it appropriate that media outlets conform to standards of conduct or codes of practice? For example, should standards such as those in the Australian Press Council’s Statements of Principles apply to the proprietors of print and online media?

Please see response to Q4 immediately below, which covers both Q3 and Q4.

4. Is it appropriate that journalists conform to standards of conduct or codes of practice?
If it is, are the standards in the Media Entertainment and Arts Alliance’s Code of Ethics (1999) an appropriate model? It is important that both individual journalists and their news organisations follow standards of conduct guiding their interaction with vulnerable sources. However, it seems inappropriate to have different sets of standards for the employers and their staff, when the staff are performing their journalistic roles as agents of the employers. Any separate standards for employers should relate only to that overarching administrative function – such as providing adequate resources for journalists to meet the conduct standards or obliging them to provide suitable space for corrections and apologies. As for the individual reporting behaviour, the employer organisation should simply be endorsing the expectations placed upon its journalistic staff by an agreed code of conduct/ethics.

5. Do existing standards of conduct or codes of practice such as those mentioned in 3 and 4, as well as those established by individual print and/or online media organisations, fulfil their goals? We have come to the view after examining the variety of codes impacting upon journalists’ interaction with vulnerable sources that the era of converged media where journalists frequently work across platforms moots for either a single code of practice or at least uniform wording across the various codes. A reporter working for a single media outlet is often operating under the media outlet’s in-house code, the industry code, the MEAA Code of Ethics plus supplementary guidelines and the statutory and case laws that might apply to the particular interaction. As educators we know this is far too much for any single individual to absorb. Our submission to the Convergence Review identified at least six codes of practice and related documents that print journalists and editors need to navigate when dealing with ethical issues. This does not include the actual laws applicable or subsidiary documents such as the Australian Press Council’s Advisory Guidelines and Specific Standards, which may also be relevant to the circumstances. We are sure you will agree that a grasp on all these codes and their individual clauses is beyond the command of a single practitioner, particularly one facing a tough ethical decision under pressure from newsroom supervisors within a tight deadline. To illustrate the variation in wording, Table 1 groups the various codes of practice (excluding special guidelines developed by the Australian Press Council on many issues). [Blog readers: please email me at mpearson@bond.edu.au if you would like a copy of the comparative table.]

Our project’s focus on vulnerability and our work with psychologists specialising in the field prompts the following comments on the current codes of practice as they apply to sources in a situation of vulnerability:

o We suggest the term ‘consent’ requires further clarification by means of an explanation that some vulnerable interviewees might appear to be giving consent but in reality might be traumatised or in shock, might simply be responding to the authority of the reporter or might have a mental illness or intellectual disability which is not immediately apparent to the journalist.

o The various guidelines related to ‘Children and vulnerable people’ only address this in part. Our group agrees children are indeed worthy of special consideration but that other potentially vulnerable groups should be identified, including the aged, people with a disability, people experiencing symptoms of mental illness, those impacted by the suicide of someone they know, people of non-English speaking background and Indigenous people. Further, it should be noted that the circumstances of the news event itself can render an individual ‘vulnerable’ in its immediate (and longer term) aftermath, so journalists should be alert to signs that an individual might not be in any state to be giving an interview or revealing information. (Journalists could be provided with some additional information to help them decide how to proceed where it is possible that vulnerability has impacted their source’s ability to provide informed consent.)

o Dr Romano points out that additional care must be taken when the media deal with a vulnerable person, to recognise that children, and indeed many other categories of vulnerable people, may not have the confidence or social skills to decline a request by a media person for an interview. Children and other vulnerable people may not necessarily be able to anticipate the types of questions that they may face, thus not fully understand the consequences of consent. Once sensitive questions arise, they may not always feel as if they can control what they disclose and may feel pressured to answer questions that are disturbing to them.

o Consent must be considered ‘qualified’ rather than ‘absolute’. Dr Romano suggests the guidelines do not acknowledge the right to withdraw consent. Thus the guidelines may suggest inadvertently that consent is something that is only relevant at the beginning of a person’s interaction with the media. If a person has initially agreed to speak with the media, then it is also reasonable that they should be able to withdraw agreement at any time during an interview or other discussion intended for publication. Similarly, if a person agrees to have her/his personal details revealed, then s/he may rescind that agreement prior to the time that the information is published. This right should be respected unless a higher public interest is served by transmitting the material – such as exposure of a major crime or revelation of other matters of considerable public importance. Given the nature of news selection and production processes, it may not always be possible to withdraw content relating to a given individual if a request is made shortly before a newspaper is about to go to press. However, such requests should be accommodated unless time restrictions make it impossible to do so.

o Dr Romano also makes the observation that children and other vulnerable people may be less conscious of their rights to withdraw consent once they find their participation has caused discomfort. Even if children do have a sense of their right to withdraw, they may not have reached a stage in their development where they have sufficient confidence or social skills to express such preferences. As was discussed above, other vulnerable people may face a number of circumstances that similarly leave them less able to articulate a withdrawal of consent.

The codes could also recognise the fact that journalists themselves can be affected by trauma and in certain situations might unwittingly reveal private information about themselves or convey private emotions they would not want covered by other media. An example might be a reporter overcome by emotion while covering a tragic event, with other media publishing their very public breakdown, which happened this year in coverage of the Christchurch earthquake. The codes might accommodate guidelines to inform editorial decisions in this kind of scenario.

Media use of social media material: The Australian Communications and Media Authority (ACMA) recently published its ‘Review of Privacy Guidelines for Broadcasters’ (http://www.acma.gov.au/webwr/_assets/main/lib410086/ifc28-2011_privacy_guidelines.pdf). While the guidelines are aimed at broadcast media, their views on the use of material obtained from online social media are also relevant to print media. ACMA proposed that the publication of material obtained from online social media sites would not be an invasion of privacy ‘unless access restrictions have been breached’. This might be technically correct, however we suggest that the mainstream media’s use of social media material can deeply affect vulnerable and traumatised individuals and they should exercise caution in any use of such material.

6. To what extent, if any, does the increased use of online platforms affect the applicability or usefulness of existing standards of conduct or codes of practice? The group believes the technology or platform being used is irrelevant to the expected standards of interaction with vulnerable sources. Of course, technology raises new issues such as that immediately above regarding the use of social media material, but fundamental ethical principles of truth, fairness, accuracy, transparency and equity should apply to content across all platforms. The research team particularly notes the challenges associated with allowing the ‘public’ to comment on stories that affect people who may be vulnerable. Editorial processes should be in place so that such comments sections – whether on the news media outlet’s website or social media presence – are moderated and comply with the media codes and other standards applying to situations where vulnerable sources are involved.

7. Can and should the standards of conduct or codes of practice that apply to the traditional print media also apply to the online media? If this question relates to journalists working for news organisations operating in the online media environment, the response to question 6 applies. If, however, you are suggesting all online media content providers should follow journalistic codes of practice, serious issues arise regarding the definition of journalism and whether or not some new media providers identify with, and ascribe to, journalistic ethics and values. Our own study and views are restricted to those ascribing to such values.

9.1 Is there effective self-regulation of (a) print media and (b) online media by the Australian Press Council? Our research sheds some light on the Australian Press Council’s adjudication of complaints relating to newspapers’ dealings with sources in situations of vulnerability. ‘Effectiveness’ is a qualitative measure beyond the scope of our project and a thorough study would be needed. We have, however, identified only seven complaints regarding journalists’ interaction with ‘vulnerable sources’ adjudicated by the Australian Press Council over the 2008-2010 period. This indicates that either:

News media interaction with vulnerable sources is not as negative as our focus group members seemed to perceive;
Alternative dispute resolution techniques are effective; or
Complainants are not pursuing their complaints or are withdrawing them at an earlier stage.

On the latter point, it could well be that making a complaint to the Press Council requires knowledge that the complaints mechanism exists and a relatively high level of literacy about the steps involved in that process. Vulnerable sources may well have a desire to complain, but not the energy or competence at the time to do it. This relies on third-party support to make the complaint – which is not always available. Dr Romano has noted that in training sessions with multicultural communities in South-East Queensland this year for another project that people often do not have much grasp of the processes, and when they get the documents that tell them how to reply or complain, people often do not have much sense of what to do with them. It is not just a question of literacy in terms of understanding English, but a real inability to grasp the complexity of the documents, the concepts that underlie them, and the resulting processes.

As noted in our disclosure of interests above, the Australian Press Council is an industry partner in this ARC Linkage Grant project.

We point out that ‘effective self-regulation’ might also include measures to increase the community’s understanding of media practices, including journalists’ interactions with vulnerable sources. This is not the only research the Australian Press Council has sponsored in recent decades. Many of its funded projects have explored issues of media ethics which have added to public and industry knowledge of practices, procedures, and problems. In addition, the APC has been a regular visitor to tertiary journalism programs, with its representatives running case studies in media ethics dilemmas, drawing upon its actual adjudications. As educators, we are confident this has impacted upon the workplace understandings and behaviours of our graduates. This is surely another element of self-regulation – helping train future practitioners in best ethical practice. A further aspect of self-regulation is the Press Council’s ongoing re-evaluation of its own role and guidelines in the form of the many submissions to parliamentary and other inquiries and the ongoing overhaul of its many principles and guidelines. Our point is that effective self-regulation can be defined more broadly than the simple adjudication of breaches.

9.3 Is it necessary to adopt new, and if so what, measures to strengthen the effectiveness of the Australian Press Council, including in the handling of complaints from members of the public (for example, additional resourcing, statutory powers)? Some of our focus group participants expressed the views that they were either ignorant of, unhappy with, or frustrated by the co-regulatory and self-regulatory systems in place when they made complaints or sought information about how they could complain. This indicates the current systems are either not working or that there is a perception within the community that they are not working. This supports an argument for the complaints procedures to be included in the codes of practice documents and advertised more broadly. This in turn relates to resourcing issues, but that is beyond the scope of our study.

11. Would it be appropriate for such a model to include rules that would:

(a) prohibit the publication of deliberately inaccurate statements

(b) require a publisher to distinguish between comment and fact

(c) prevent the unreasonable intrusion into an individual’s private life

(d) prohibit the gathering of information by unfair means (for example, by subterfuge or harassment)

(e) require disclosure of payment or offers of payment for stories

(f) deal with other topics such as those currently covered in the Australian Press Council advisory guidelines?

Any new model of regulation or self-regulation would surely need to strike a balance between media freedom/public interest and important rights, interests and vulnerabilities of other citizens. Our project is concerned more with items c and d in your list above. Our project has been informed by an agreed understanding that public interest considerations will sometimes excuse some intrusion into the lives of vulnerable sources, but that these occasions are rare and would need substantial justification. Our brief does not include extending this principle to firm recommendations on whether such models should be regulatory or self-regulatory. We ask only that the interests of the vulnerable be duly considered in the process, taking into account the issues we have raised above.

We are happy to provide further insights into our project and are available for further inquiries or assistance. Please feel free to email me at mpearson@bond.edu.au, project leader Professor Green at kerry.green@unisa.edu.au or Dr Romano at a.romano@qut.edu.au and we will refer you to our academic or industry colleagues who might best be able to help.

Yours sincerely,

Professor Mark Pearson

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