Tag Archives: mental illness

Social media and drugs, alcohol and mental illness just don’t mix


[Extracted from my public lecture ‘Social Media – Risks and Rewards’]

Researchers internationally are attempting to fathom the crucial question of why people – particularly celebrities whose public images are so crucial to their sponsorship deals – continue to let down their guard and publish comments and images on social media that they would never offer publicly to the mainstream media.

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The cognitive factors inherent in this are for the behavioural science researchers to investigate. A strong hypothesis is that the very raison d’etre of the social media platform – gathering with friends to chat, gossip, joke and share just as you would in a pub or café – is so absorbing that it is difficult to remind oneself in the midst of an evolving conversation that you are likely publishing the material beyond the narrow friendship circle you imagine. Add to this mix the statistics on substance abuse and mental illness. According to the 2010 National Drug Strategy household survey, one in five Australians aged 14 years or over were categorised as ‘risky drinkers’ (AIHW, 2011, p.51) and one in 20 Australians reported having used an illicit drug in the past week (p. 85). Also, one fifth of adult Australians experience the symptoms of mental disorder every year according to another Australian Institute of Health and Welfare report (2010, p. iii). All this amounts to the statistical reality that at any moment on social media there will inevitably be people publishing material in a state not conducive to sober, reflective, considered authorship.

Once the psychologists have determined the factors contributing to this propensity to throw caution to the wind on social media it will be up to the educationalists to develop effective pedagogical techniques to teach children and adults how to pause and reflect before publishing on social media. And, of course, a warning not to engage in social media after imbibing in drugs or alcohol would be wise counsel.

See the full lecture at: https://journlaw.com/2013/08/29/social-media-risks-and-rewards-journlaws-public-lecture/

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Mental illness, the news media and open justice: the Australian experience


I’m in Chicago to present a paper tomorrow to the Association for Educators in Journalism and Mass Communication (AEJMC) convention – one of the world’s largest gatherings of journalism academics.

My paper is an extension of earlier work stemming from research grants from the Australian Government’s Mindframe National Media Initiative, published as an article in the May 2011 edition of the Pacific Journalism Review, and as a chapter in our book Courts and the Media: Challenges in the era of digital and social media (with Patrick Keyzer and Jane Johnston (eds), Halstead Press, 2012). You can find my summary of that chapter in an earlier blog.

In this paper, I canvas a complex array of public interests which compete in the contested terrain shared by people with mental illness, journalists, lawyers and policy makers.

Ancient principles of open justice are at odds with more modern notions of privacy and concerns that media attention might be counter-productive to the treatment of mental health patients. The paper looks at the intersection of those interests across Australia’s nine jurisdictions, where courts and parliaments have chosen to approach them in different ways, leading to a confusing cocktail of publication restrictions on the media’s reportage of matters involving citizens experiencing mental illness.

The paper canvasses the differences between jurisdictions and considers three case studies, including a recent landmark decision in the UK, illustrating the competing interests at stake.

It concludes by foreshadowing some key research needs so that policymakers might be better informed in an era when the news media outlets telling the stories of the mentally ill are not confined within jurisdictional borders.

The three case studies of different instances across different jurisdictions serve to highlight the spectrum of competing private and public interests involved in such cases.

On one side of the ledger there is open justice, transparency, and the public interest in the education of the community and policy makers about mental illness generally and also about the cost and processes of mental health justice and review processes. In forensic matters, open justice also implies the right of victims and the public to follow a matter through the system, even when the accused has been found not guilty on mental health grounds.

Balancing these are quite legitimate concerns about the effective treatment of mental health clients, the risks of tabloid-style sensationalising of mental illness, patient-health professional confidentiality, and the privacy of patients and those with whom they interact.

I use three case studies to illustrate different approaches to open justice in the mental health system:

  • The UK case of high security patient Albert Laszlo Haines who appealed to have his discharge hearing heard in public shows that not all mental health patients value their privacy over publicity about their cases and that there are lessons to be learned from transparent public appeal processes.
  • The Victorian case of the taxi driver XFJ (allowed to hold a cab licence in Victoria despite having stabbed his wife to death in 1990 and being found not guilty by reason of insanity) demonstrates that media outlets can indeed sensationalise some cases, but it also shows that important matters of legitimate public concern can be debated when proceedings are reported thoroughly using pseudonyms.
  • Western Australia’s case of mentally impaired indigenous man Marlon Noble case who had been detained for almost a decade without trial on sex charges, illustrates that open media reportage can inform the public about the mental health and corrective services systems and the plight of vulnerable individuals who might be the victims of miscarriages of justice or simply lost in the red tape of intersecting bureaucracies.

The paper concludes by arguing the competing rights and interests in the cases help explain the variations in the way lawmakers have approached the issue of publicity of mental illness processes in different jurisdictions. However, while it might explain the variations, it also highlights the need for research-driven reform in the area.

Further research can be undertaken into the attitudes of policymakers and judicial officers to transparent proceedings, longitudinal studies into the impacts of publicity upon all stakeholders, analysis of the views of forensic patients’ victims and families about open proceedings, as well as content analysis of court and tribunal decisions to assess the points at which proceedings are closed or suppression orders are issued.

The advent of the Internet, Web 2.0 and its inevitable advancements render major jurisdictional differences an anachronism. Neither the news media nor social media are contained within traditional state, territory or national borders.

Mental health patients and journalists cross borders frequently – both physically and virtually.  The time is ripe for policymakers, mental health professionals, journalists and legal professionals to address these unnecessary jurisdictional differences and work towards a research-driven model allowing for reasonably open media scrutiny of mental health processes while respecting the privacy rights and treatment needs of the vulnerable.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2012

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Regulating the interaction between journalists and the vulnerable


This week I am in Shah Alam, Malaysia, for the 2012 Asian Media Information and Communication Centre Conference. The paper I am presenting Thursday is titled ‘Regulating the interaction between the news media and the vulnerable – the Australian experience’.

It will eventually be published in an academic journal, but I provide a summary here.

It reports on a selection of findings from a national collaborative research project examining the interaction between the Australian news media and so-called ‘vulnerable sources’.

It surveys the codes controlling journalists’ behaviour via in-house industry-based codes of practice and those administered by the Media Entertainment and Arts Alliance (MEAA), the Australian Press Council (APC) and the Australian Communications and Media Authority (ACMA).

It looks particularly at codes and regulations controlling privacy, intrusion, grief, children, mental illness and discriminatory reportage. It considers the vulnerable source issue in stories collected during a year’s selective sampling of the national daily newspaper, The Australian.

Special attention is paid to three years of decisions by the APC and the ACMA which have been coded and analysed according to the type of vulnerability involved, the guideline allegedly breached, and the result of the complaint.

It explains that there are many ‘moments of vulnerability’ that escape the hard and fast letter of laws and codes that seem to be left to the moral and ethical judgment of individual reporters and editing teams, demanding a fresh approach to in-house self-regulation.

I collaborated with five other academics and industry partners (listed below) in a $92,000 Australian Research Council Linkage project over two years to examine how journalists interacted with those who might belong to a ‘vulnerable group’ (such as the disabled, indigenous, children, those who have undergone trauma or grief, or those with a disability or mental illness) or those who might simply be ‘vulnerable’ because of the circumstances of the news event.

We decided instead to direct our inquiries, particularly during the newspaper content analyses, to identifying potential ‘moments of vulnerability’ rather than restricting our search to mentions of the pre-identified source groups.

Similarly, the analysis of the complaints decisions of the APC and the ACMA worked to the principle of moments of vulnerability rather than being driven particularly by a source’s membership of a pre-determined vulnerable group.

Taken at its broadest definition, all citizens are ‘vulnerable’ when they engage in any media interview. There is a potential for that interview or its resulting publication to go wrong, with associated embarrassment, emotional pain and in extreme cases even physical retribution from hostile audience members.

A total of 33 items were identified as depicting ‘moments of vulnerability’ from the coverage analysed for The Australian newspaper on the selected day in each of the 12 months of the 2009 calendar year. The sample was too small for quantitative analysis, so no statistical breakdown of the findings will be provided other than a simple count on some criteria. The analysis mainly takes the form of a qualitative study of the items, selecting key examples to explore the ‘moments of vulnerability’ and to offer a backdrop to the matters raised before the complaints bodies examined in the subsequent section.

We identified 33 ‘moments of vulnerability’ identified in the published stories, based upon 31 stories on the selected 12 days’ coverage in The Australian.

The 33 moments of vulnerability were categorised into PTSD/grief (14), mental illness/suicide (9), children (3), disabled (3), privacy (2), aged (1) and discrimination (1). All such moments were also assessed for the level of competing public interest/social importance value evident in the matter being reported to eliminate examples where the public interest arguments were so strong that it could be seen that editors could easily argue their decisions were driven by legitimate matters of social importance.

A process of elimination left us with seven key ‘moments of vulnerability’, centred on Australia-based stories, where public interest issues did not clearly excuse the type of coverage or interaction with vulnerable sources as presented.

The seven selected are summarised in Table 1, grouped according to the type of vulnerability, and each is then considered as a brief case study.

Table 1: ‘Moments of vulnerability’ identified in The Australian on selected days during 2009

Date Page Headline Type of vulnerability Summary and issues
3-2-09 3 DOCS urges fugitive mother to return Child This was a custody issue where a mother had allegedly kidnapped her son and fled overseas. Potential impact of comments by child welfare expert upon mother’s decision to remain at large.
9-4-09 16 D’Arcy puts head down amid crisis Mental illness/suicide Both articles juxtapose champion swimmer’s axing from the national team with that week’s suicide of top cyclist.
9-4-09 16-15 No repeat of headline acts which delivered day of shame Mental illness/suicide
6-6-09 43-44 The night Symonds was cut adrift / Symonds comes to end of the road Mental illness/suicide Links champion cricketer’s alcohol problems with allusions to suicide possibility, with risk of prompting that outcome.
13-11-09 3 Suspect may have killed himself Mental illness/suicide Speculates murder suspect may have self-harmed or suicided, potentially triggering that course of action.
11-8-09 3 Son dead, mother acute PTSD/grief Clearly a ‘death knock’ telephone attempt to speak to family or close colleagues after murder-suicide attempt.
9-9-09 3 Sandilands offends again Discrimination Story repeats a radio host’s offensive remarks about the weight and race of a female comedian in its own recount of the matter.


The conference paper explores each in detail. It then goes on to analyse five years of APC decisions between 2006-2010 and three years of ACMA decisions in 2008-10 in a similar approach to that undertaken for The Australian newspaper analysis, with interesting results.

Australian Press Council does not use the word ‘vulnerable’ or ‘vulnerability’ in its Statement of Principles, which addresses other criteria, many of which go to the issues we address in our study. Thus, we are placing (retrospectively) a different lens of analysis on the items of complaint.

The fact that we identified only 12 complaints regarding journalists’ interaction with ‘vulnerable sources’ adjudicated by the Australian Press Council over the 2006-2010 period indicated either:

  • News media interaction with vulnerable sources is not as negative as portrayed by inquiries such as the Independent Media Inquiry;
  • Alternative dispute resolution techniques offered by the APC in the earlier stages of the hundreds of complaints it receives annually are effective; or
  • Complainants are not pursuing their complaints or are withdrawing them at an earlier stage.

Vulnerable sources may well have a desire to complain, but not the energy or competence at the time to do it. Reforms to the Australian Press Council’s structure processes recently announced by its chairman, Professor Julian Disney, might consider some of these concerns.

Our study also examined the reports of the ACMA investigations in the 2007-10 period and identified the following 11 as pertinent to our study of the interaction between the news media and vulnerable sources.

A key problem of the ACMA process is that journalists are working under a variety of codes of practice controlling similar behaviours. Added to this are various ‘guidelines’ documents issued by the ACMA providing further counsel for broadcasters in their handling of sensitive issues. One such set of guidelines is the Privacy Guidelines for Broadcasters. These were reviewed during 2011 and our ARC team made submissions to that review on issues of interactions with the vulnerable, and particularly with issues of consent and withdrawal of consent by the vulnerable, particularly children. Their revised guidelines addressed these issues.

The regulatory, co-regulatory and self-regulatory mechanisms in operation in Australia have been under serious review in 2012, with new models proposed by the Independent Media Inquiry for a statutory News Media Council and by the Convergence Review for an independent self-regulatory news standards body.

There is a separate government proposal for statutory tort of privacy which extends beyond the news media but may include media or public interest exemptions. All acknowledge public concern at the confusing array of ethical codes and processes across media platforms and workplaces.

The news media interact with vulnerable sources in a range of circumstances, but the rules controlling that interaction vary markedly across media platforms and employment groups. The small sample of case studies from The Australian newspaper serves to demonstrate that some interactions with the vulnerable are not prevented by in-house codes and escape the attention of the relevant self-regulatory bodies unless a complaint has been made and remains unresolved. The APC and ACMA cases show that the outcomes of complaints are far from predictable and that sometimes elements of vulnerability appear obvious but are not even examined by the inquiring body. The examples demonstrate there are many ‘moments of vulnerability’ that escape the hard and fast letter of laws and codes that seem to be left to the moral and ethical judgment of individual reporters and editing teams.

Whatever new regulatory system is put in place requires a simple statement of ethical principles covering the usual fairness and accuracy elements, with an additional responsibility placed upon journalists and editors to identify individuals who are particularly ‘vulnerable’ in a news media interaction so that warning bells sound and informed decisions are taken on issues like consent and privacy.

This can only be achieved via genuine newsroom-driven training programs, accompanied up by routine protocols for assessing individual cases of vulnerability as they arise in the field and in the production process. Decisions taken in such circumstances should be documented thoroughly for later review and any rationale on ‘public interest’ grounds should carry justification well beyond audience curiosity, going to serious matters of public importance that could not be offered by less intrusive or traumatising ways.

Line-ball decisions should be made only after consultation with an independent psychologist and an explanation for the decision should be published on the outlet’s website. Only then – when ethical decision-making can be audited in a publicly accountable way – can Australian media organisations lay legitimate claim to effective self-regulation.

Research team

Professor Kerry Green from the University of South Australia led the ARC Linkage Project LP0989758. Other chief investigators on the project included Professor Michael Meadows (Griffith University), Professor Stephen Tanner (University of Wollongong), Dr Angela Romano (Queensland University of Technology) and this author, Professor Mark Pearson (Bond University). Industry partner investigators were Ms Jaelea Skehan (Hunter Institute of Mental Health) and Ms Cait McMahon (Dart Centre for Journalism and Trauma- Asia Pacific). Mr Jolyon Sykes was the research assistant for the larger project, while Mr John Burns, Mr Jordan Lester, Mr Roger Patching, Ms Kiri ten Dolle and Mrs Leisal DenHerder provided research assistance for my AMIC paper.

© Mark Pearson 2012

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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Canadian CJ headlines ‘Courts and the Media: Challenges in the Era of Digital and Social Media’


Our book – Courts and the Media: Challenges in the Era of Digital and Social Media – edited by Patrick Keyzer, Jane Johnston and me – has been published by Halstead Press. Order details are here. The book was launched by Queensland Chief Justice Paul de Jersey (below) on March 29.

It stems from our symposium Courts and the Media in the Digital Era held on February 12, 2011, keynoting the Chief Justice of Queensland Paul de Jersey, News Limited chief executive John Hartigan (who has since retired) and shadow attorney-general Senator George Brandis.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered in Brisbane on September 15, 2011. We thank Her Honour for agreeing to make it available to us as our opening chapter.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!) You can get a sneak preview from my earlier blog.

The convergence of media and technologies have had resounding implications for the justice system, particularly with the advent of blogging and social media such as Facebook and Twitter. This, combined with broader, faster and more portable access to websites with Web 2.0 devices, has challenged traditional conceptions of jurisdiction, open justice and transparency while raising serious definitional questions about journalism and journalists. The release of tranches of documents by Wikileaks and subsequent legal action in recent months served to highlight many of those issues as pundits debated issues of confidentiality, espionage, whistleblowers, freedom of information, international relations, secret hearings, suppression, journalism, public interest and social media in the courtroom.

The papers presented at the Courts and the Media in the Digital Era Symposium and the chapters of this book address those questions from a range of perspectives – judicial, political,  administrative, journalistic, academic, and corporate – with some offering insightful hybrid views of each.

You will find a variety of voices in the chapters, reflecting the background of the authors and the circumstances of their contributions. Some bear the rhetorical hallmarks of keynote addresses, others reflect the meticulous research and documentation of academic scholarship, while some reflect a more conversational tone of a contribution to a conference panel. Such variation happens in such edited volumes, and in many ways it adds to their flavour and appeal.

While all chapters acknowledge the intersection of justice, journalism and new technologies as the focal point of the ‘Courts and the Media in the Digital Era’ theme, some are focussed less on the new media elements. All pay strong attention to the issue of open justice and its interpretations in laws and policy in the 21st century.

McLachlin CJ’s opening chapter explores the relationship between the courts and the media in the modern age by drawing upon the historical and philosophical traditions of open justice and itemising the shared interests of journalism and justice. Her conclusion foreshadowing the challenges posed by the communications revolution lays a suitable foundation for the subsequent articles to explore them in depth.

The keynote address by the Chief Justice of Queensland, the Hon Paul de Jersey, grapples with the competing interests at stake when the news media cover courts and explains several initiatives in his own jurisdiction to balance those interests in the digital era, including establishing free wi-fi in court houses, permission for journalists to tweet proceedings and the uploading of civil judgments and criminal sentencing remarks to the court webpage.

News Limited chief executive John Hartigan (who recently retired) proposed the following four reforms to enhance open justice: allowing cameras in courts for openings and sentencings; real time access to transcripts and court documents; rejection of the current suppression model and removal of take-down orders.

Co-editor Jane Johnston from Bond University surveys the international field to offer examples of the impact of social media on the courts and focuses on some recent Australian examples where tweeting from court has prompted differing judicial outcomes. She also reports on the attitudes of court information officers to social media.

Griffith University’s Jacqui Ewart draws upon her expertise as journalist, researcher and author of Haneef: A Question of Character, to analyse the implications of national security laws for coverage of anti-terror trials and to assess the new dynamic of social media in the mix.

Law academic Daniel Stepniak from the University of Western Australia traces the use of cameras in courtrooms and offers insights into the attitudes of the judiciary to audio-visual technologies in their various forms.

University of Technology, Sydney, law lecturer Geoff Holland illustrates the complex research issues at play when considering the influence of prejudicial publicity upon jurors, offering a comprehensive review of theories and cases.

Bond University legal scholars Elizabeth Greene and Jodie O’Leary apply this in the Web 2.0 environment and call for the introduction of the option of judge alone trials in jurisdictions that do not yet permit them to deal with extreme cases of prejudicial publicity.

Bond University journalism academic and leading ethics text author Roger Patching has kept abreast of the News of the World scandal and assesses the extent to which it has fuelled calls for a new tort of privacy invasion in Australia.

Federal Court director of public information Bruce Phillips traces that court’s use of technology through live broadcasts in the 1990s through live Internet streaming and more recently the use of social media for reportage from some cases.

Criminologists Alyce McGovern and Murray Lee examine the ways Australian police media units have embraced social media and conclude it has offered them a direct channel of communication with the public on a par with their more traditional media liaison.

Former court media officer, journalist and member of the Australian Press Council Prue Innes reviews courts’ use of suppression orders two years after her authorship of Report of the Review of Suppression Orders and the Media Access to Court Documents for Australia’s Right to Know Coalition and makes some other insightful observations about media access to court information.

Finally, academics Geraldine Mackenzie, Caroline Siranovic and Kate Warner from Bond University and the University of Tasmania share findings from their ARC Discovery project researching the association between Australian citizens’ media consumption habits and their level of confidence in the courts and the sentencing process.

Such a work, particularly in print format, could never provide a comprehensive account of the state of the courts-media-technology nexus as it stands today. And neither should it. That relationship is a dynamic, attempting to balance a range of rights and interests of all stakeholders against the important and historic notion of open justice.

While the technologies might change and fresh cases might test the boundaries, this book will have served its purpose if it helps us understand the core principles at stake and if it aids judges, policymakers and journalists as they try to adapt to each innovation and news scenario.


* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2012

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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:

  1. The nature of private material.
  2. The means of intrusion:
  3. The fame of individual (adaptation of Chadwick’s categories of fame): Red flag items here include children and the “media vulnerable”.
  4. 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

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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Mental illness, journalism and court reporting – balancing the interests


Our book – Courts and the Media in the Digital Era – edited by Patrick Keyzer, Jane Johnston and me – will be published by Halstead Press early next year. We are in the final stages of production.

It stems from our symposium by that name we held on February 12, keynoting the Chief Justice of Queensland Paul de Jersey and News Limited chief executive John Hartigan.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered on September 15.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!)

The chapter stretches to about 8000 words (pending editor’s cuts) but I offer a summary here to whet your appetite …

The chapter considers the complex array of public interests competing in the contested terrain occupied by people with mental illness, journalists, lawyers and policy makers and illustrates via an examination of the legislation and three case studies that the ancient principle of open justice is at odds with more modern notions of privacy and a concern that media attention might be counter-productive in mental health cases.

It examines the intersection of those interests across Australia’s nine jurisdictions, where courts and parliaments have chosen to approach them in different ways, leading to a confusing cocktail of publication restrictions on the media’s reportage of matters involving citizens experiencing mental illness.

The three case studies, including a recent historic UK decision, highlight potential pitfalls that may operate to the detriment of both the media and those with mental illnesses.

The chapter concludes by foreshadowing some key areas requiring further research so that policymakers might be better informed in deciding how to minimise jurisdictional differences in an era when media outlets telling the stories of the mentally ill defy state and territory borders.

The intersection of mental health, the law and the media has had scant attention. The Mindframe project last year led to the development of a guide to the varied legislation for court reporters, hosted on the Mindframe site.

It is complicated further by varying guardianship and prisons laws and confidentiality restrictions. In summary, legislators in the various jurisdictions have found differing points of balance between the public interest in open, transparent and accountable proceedings for the involuntary treatment of psychiatric and forensic patients and their competing right to privacy. Conversely, the rights of their victims and the general community to be informed of the result of any such proceedings are also balanced differently. Of course it is not just a case of the patient’s privacy rights versus the public’s right to know.

Patients also have the important issue of their liberty at stake in such proceedings, which might well be compromised by a secret, unreportable tribunal or court process. These matters were at issue in three recent cases.

Haines case

Albert Laszlo Haines (identified in earlier proceedings as ‘AH’), now aged 52, was convicted of two counts of attempted wounding in 1986 when he tried to attack a doctor and a nurse with a machete and a knife. He had been held in high security institutions for almost a quarter of a century after being diagnosed at first with both a mental illness and a psychopathic disorder, which was later revised to a personality disorder alone. His antisocial behaviour included an incident where he armed himself with a fire extinguisher as a weapon and climbed into a roof space.

In 2009 he applied for discharge and for his appeal to be heard in public, “… so that the public could be aware of what he sees as failings in the system, especially in relation to his diagnosis”. The hospital opposed his application for a public hearing on the grounds it would adversely affect his health. In February 2011, after an initial ruling against a public hearing followed by two years of appeals, the Upper Tribunal (Administrative Appeals Chamber) upheld AH’s request for a public hearing of his appeal [AH v West London MHT [2011] UKUT 74 (AAC).].

Both judgments by the Upper Tribunal shed considerable light on the competing interests at stake in such matters. The earlier hearing had canvassed the potential adverse impact on the patient’s health from the process, with expert medical opinions varying on whether the public hearing might create ‘adverse or no publicity’ to the detriment of AH’s progress and on whether a refusal of the public hearing might be just as damaging [AH v West London MHT [2010] UKUT 264 (AAC), 46].

The appeals tribunal had first commissioned further data on the ‘practicalities and potential cost of providing a public hearing’, previous examples of applications for public hearings and their management, and practices elsewhere throughout Europe and common law nations. The default position under the tribunal’s rules was that all hearings should be held in private unless it considered ‘it is in the interest of justice for the hearing to be held in public’.

The tribunal said the ‘special factors for or against a public hearing’ were that the case was ‘out of the ordinary’, the patient had been detained in high security at public expense for more than 23 years, there had been a recent change in diagnosis and there was potentially ‘heightened public significance’.

The judgment reported that, of around 100,000 hearings over the seven years prior there had only been 10 applications for public hearings of the tribunal, of which only one had been allowed and that single opportunity had not been pursued.

The tribunal also considered the costs of a public hearing, both for Haines and future appellants.

The Mental Health Tribunal’s hearing on September 27-28, 2011 was historic because it became the first time the tribunal had sat in public and a month later it became the first time that one of its determinations had been published. Several media organisations attended and reported upon the hearing because of its unusualness and their coverage could be described as reasonably balanced and measured. The decision and its reasons attracted wide coverage on their release a week later. Family members said Haines planned to appeal the decision.

The case is instructive in that it involves a rare and comprehensive insight into the arguments for and against the publicity of such mental health proceedings and the reasons for decisions in a comparable jurisdiction to Australia’s.

‘XFJ’ case

Over the same time period a comparable case was proceeding in Australia, with significant differences in the outcomes. ‘XFJ’ was the subject of adverse tabloid media coverage, including headlines like ‘Killer allowed to drive taxis’, ‘Wife-killer cabbie’ and ‘insane killer’ after he was allowed to hold a taxi licence in Victoria, despite having stabbed his wife to death in 1990 and found not guilty by reason of insanity.

On October 11, 2011, the Court of Appeal of the Supreme Court of Victoria dismissed an appeal by the Director of Public Transport against a decision by the Victorian Civil and Administrative Tribunal (VCAT) to accredit XFJ as a taxi driver. The Director of Public Transport had already decided in 2008 that XFJ had the skills and fitness to drive a taxi and would meet the ‘public care objective’ by being able to provide cab services ‘with safety, comfort and convenience’.

Despite this, the director had decided it inappropriate to accredit a taxi driver who had caused the death of another because of the risk to public confidence in the taxi industry. [See Director of Public Transport v XFJ [2011] VSCA 302; XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96, 55; Director of Public Transport v XFJ [2011] VSCA 302.]

As Appeal Court President Justice Chris Maxwell’s leading appeal judgment explained, XFJ was an Ethiopian refugee who had been persecuted in his home country and in Egypt before arriving in Australia in 1989. The following year he had suffered a serious depressive episode and killed his wife before attempting suicide.

His 1992 murder trial found him not guilty by reason of insanity. He was a model patient and his custodial supervision order was varied to non-custodial in 1998 and it was revoked entirely in 2003 after a court found he was living in a stable relationship, had friends and support, did not require medication, was coping with the stresses of daily life, and agreed to continue seeing his psychiatrists.

Over the following eight years he had several jobs including as a kitchen-hand, an aged carer and with a charity for the homeless. He had been sole carer of his 19 month old son who had leukaemia and wanted to work as a taxi driver for the flexibility of hours.

After reviewing the relevant legislation and the medical evidence, both the Supreme Court and the Court of Appeal concluded there was nothing that would render XFJ unsuitable for taxi driving and that sensationalised reporting of the case was ‘not conducive to public confidence in the industry’.

The Herald and Weekly Times had attempted unsuccessfully in 2009 to have earlier VCAT and Supreme Court orders suppressing XFJ’s identity lifted [XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96, 5-9]. Counsel for the newspaper group, Justin Quill, cited the leading cases supporting the principle of open justice as a ‘fundamental and defining principle of our legal system’ and argued the suppression orders did not fulfil the ‘hurdle of necessity’ required in the case law. But Deputy President Michael Macnamara held ‘society’s interest in rehabilitating him as a useful citizen’ overrode any rights of potential passengers to know his identity.

He concluded with the statement that the express powers given to the Supreme Court to make suppression orders demonstrated that both Parliament and the Court accepted that rehabilitation of those acquitted on grounds of mental impairment ‘is an area which may properly be exempted from the Open Justice principle’.

So here it was determined that concerns over the ongoing mental health of the patient outweighed arguments for open justice and public safety.

Marlon Noble case

A case with some parallels to the above examples, but with important differences, came to public attention in Western Australia during 2011. Indigenous man Marlon James Noble had suffered irreversible cognitive difficulties since contracting meningitis during infancy. In 2001, at the age of 19, he had been charged with sexually assaulting two minors but was found unfit to stand trial’ due to his mental impairment. While ‘mental impairment’ is not ‘mental illness’, Western Australian law handles such cases and their review under the same legislation and processes, thus offering relevance to this study. Reviews of forensic cases of both types are handled by the Mentally Impaired Accused Review Board under the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) Part 6, with that body’s reports and recommendations going to the Attorney-General. Where mental impairment is not treatable and hospitalisation is not appropriate, the alleged offender is kept in prison. This is what happened to Marlon Noble. In 2003, he was remanded in custody indefinitely and detained at Greenough Regional Prison where he remained ten years later, aged 29, without conviction. This order was pursuant to section 19(5) of the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), now titled the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

Noble’s case was taken up by the Australian Medical Association, the WA Greens and was then the subject of an ABC Radio National Law Report on March 22, 2011. Much more detail on his case became available after a report to the Minister for Corrective Services prepared by Robert Cock QC was tabled in the WA Parliament on 18 August 2011.

The Cock Report revealed the Mentally Impaired Accused Review Board had in 2006 approved a five step plan to gradually release Noble back into the community. In 2010, Noble was allowed 48 hours’ leave of absence per week with the support of the Disability Service Commission. He had owned his own house for four years and held down a job outside of prison.

However, he tested positive for amphetamines on his return from weekly release on September 3, 2010. Despite a further urine test detecting no illicit drugs, and a declaration by Noble’s support worker that she had supplied him with a Sudafed tablet, he was charged under s70(d) of the Prisons Act 1981 (WA) with the aggravated prison offence of using an illicit drug and his leave of absence was suspended.

Mr Cock dealt with the oversights in the prisons and board processes leading to this decision which delayed for six months Noble’s the chance to work towards his eventual release. Noble was returned to that graduated release program on March 25 this year.

By late 2011 the Marlon Noble case was displaying characteristics of a miscarriage of justice. As Noble’s lawyer Matthew Holgate pointed out on the ABC’s Law Report, the charges his client faced remained only allegations for the decade of his incarceration, no evidence against him had been tested, nor had he been given the opportunity to enter a plea.

All of this was reportable through a combination of open justice principles, parliamentary privilege and West Australian legislation on mental impairment forensic cases. Section 171 of the WA Criminal Procedure Act 2004 provides for open court as the default position, although courts can suppress identities, and in cases like this other restrictions related to child witnesses and sexual assaults would come into play.

The Noble case demonstrates that the closing of proceedings, the lack of identification of parties and suppression of evidence in mental health proceedings diminishes the transparency of those proceedings and can lead to the ongoing incarceration of patients in circumstances where publicity about their cases might have resulted in different outcomes. Certainly, it was the publicity factor in this case that led to the increased scrutiny and review of the patient’s plight.

The way ahead through research and review

The three case studies of different instances across different jurisdictions serve to highlight the spectrum of competing private and public interests involved in such cases. On one side of the ledger there is open justice, transparency, and the public interest in the education of the community and policy makers about mental illness generally and also about the cost and processes of mental health justice and review processes. In forensic matters, open justice also implies the right of victims and the public to follow a matter through the system, even when the accused has been found not guilty on mental health grounds. Balancing these are quite legitimate concerns about the effective treatment of mental health clients, the risks of tabloid-style sensationalising of mental illness, patient-health professional confidentiality, and the privacy of patients and those with whom they interact.

The chapter concludes by calling for some uniformity in approaches, informed by some further research into both the policymaking and into the positive and adverse impacts of open processes. I hope you find it useful when the book is published.

* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2011


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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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Mental illness, journalism investigation and the law in Australia and NZ


Here is the abstract of my article just published in Pacific Journalism Review (17) 1, pp. 88-99

Mental illness, journalism investigation and the law in Australia and New Zealand

Mental illness, its terminologies, definitions, voluntary and compulsory treatment regimes, and its interface with the criminal justice system are defined and regulated remarkably differently across the 10 Australian and New Zealand jurisdictions. This presents a legislative and policy nightmare for the investigative journalist attempting to explain the workings of the mental health system or follow a case, particularly if the individual’s life has taken them across state or national borders. This article considers the extent to which legal restrictions on identification and reportage of mental health cases in Australia and New Zealand inhibit the pursuit of ‘bloodhound journalism’the persistent pursuit of a societal problem and those responsible for it. It recommends the development of resources assisting journalists to navigate the various mental health regulatory regimes. It also calls for the opening of courts and tribunals to greater scrutiny so that the public can be better educated about the people affected by mental illness and the processes involved in dealing with them, and better informed about the decisions that deprive their fellow citizens of their liberty.

Keywords: investigative journalism, health, justice system, media law, mental illness, public policy

For the full article, see: http://www.pmc.aut.ac.nz/publications/pacific-journalism-review-171


* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2011


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