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Press freedom, social media and the citizen: My 2013 UNESCO World Press Freedom Day Lecture

By MARK PEARSON (@journlaw)

[This is the full text of my 2013 UNESCO World Press Freedom Day Lecture, delivered at the Pacific Media Centre, AUT University, Auckland on May 3, 2013. Further details, interviews about the material, and vision of the address can be accessed at the PMC’s website.]

Press freedom, social media and the citizen

Mark Pearson*

UNESCO World Press Freedom Day 2013 lecture

Pacific Media Centre, Sir Paul Reeves Building, AUT University, Auckland, New Zealand

May 3, 2013

Firstly I wish to acknowledge the tangata whenua of Tamaki Makaurau and to thank UNESCO, my hosts here at AUT’s Pacific Media Centre and the School of Communication Studies for your hospitality this week.

 

The Pacific region can lay claim to several ‘press freedom warriors’ over recent decades. It would be a mistake to try to name such individuals in a forum like this because you inevitably leave someone off the list – and they are usually sitting in the very room where you are giving your address!

A ‘press freedom warrior’ is someone who has made a substantial sacrifice in the name of free expression and a free media.

For some, that sacrifice has taken the form of physical injury or danger – perhaps even death. According to the Committee to Protect Journalists, more than 100 journalists died in the course of their work internationally last year, and more than 20 have been killed already in 2013 (CPJ, 2013). Some were relatively close to home in the Asia-Pacific region, with at least 72 Philippine journalists killed over the past decade.

Throughout the Pacific islands, many others have suffered physical violence or have been imprisoned in recent years because of what they have reported.

I also include in my definition of a ‘press freedom warrior’ those who have suffered in other ways because of their commitment to truth-seeking and truth-telling. Some have been the victims of lawsuits and have had to pay damages to those who have set out to gag them. Others have forsaken lucrative positions in government or public relations so they can continue as Fourth Estate watchdogs in preference to becoming political or corporate lapdogs.

We are honored to be in the company of press freedom warriors in this room today or watching via webcast and I ask you to join with me in a round of applause to salute them. [APPLAUSE].

I am not a press freedom warrior. I have made none of these sacrifices. I prefer to describe myself as a “press freedom worrier” – because much of my work has centred upon my public expressions of worry about a continuing array of regulatory, technological, economic, corporate and ethical threats to free expression and a free media.

I shall try to address some of these here tonight and I look forward to some robust discussion afterwards.

Before we proceed too far, however, we need to position the concept of free expression – and its offspring, ‘press freedom’ – in the modern world.

The free expression of certain facts and views has always been a dangerous practice in most societies.

There have been countless millions put to death for their attempted expression of their so-called ‘dissident’ religious or political views throughout history. Many more have been imprisoned, tortured or punished in other ways for such expression.

A classical free expression martyr was Socrates, who in 399 BC was forced to drink hemlock poison by the government of the day because he refused to recant his philosophical questioning of the official deities of the time (Brasch and Ulloth, 1986, p. 9).

It was the invention of the printing press and the burgeon­ing of the publishing industry over the 16th and 17th centuries in the form of newsbooks and the ‘pamphleteers’ that first prompted repressive laws and then the movement for press freedom (Feather, 1988: 46). It is interesting that these individuals were the forerunners of the citizen journalists and bloggers we know today – often highly opinionated and quick to publish speculation and rumour.

But the pamphleteers took umbrage at government attempts at imposing a licensing system for printers from the mid-16th century (Overbeck, 2001: 34) Political philosopher and poet John Milton very publicly took aim at this in 1644 with his missive Areopagitica, a speech to the parliament appeal­ing for freedom of the presses. He went on to utter the famous free speech quote (Patrides 1985: 241):  “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. “

Milton was an early free press warrior because he boldly inscribed his name on the title page of his unlicensed work, in defiance of the very law he was criticising. So with this series of events the notion of free expression spawned its offspring – press freedom – which we celebrate today.

Of course, the definitive example of that development was the enactment of the First Amendment to the US Constitution as part of the Bill of Rights in 1791. The relevant 14 words would fit comfortably within a modern day 140 character tweet: “Congress shall make no law … abridging the freedom of speech, or of the press.” The US Supreme Court has applied a broad interpretation of those words to an array of writing and publishing scenarios. It has been held to cover the gamut of traditional and online expression, by ordinary citizens, journalists and bloggers – particularly if they are addressing a matter of genuine public concern. But even in the US the First Amendment cannot guard against government erosion of media freedoms, and that nation languishes at number 32 behind Ghana and Suriname on the Reporters Without Borders World Press Freedom Index (RSF, 2013).

In fact, nowhere in the world has there ever been unshackled free speech or a free media. We operate on an international and historical continuum of press freedom or censorship, from whichever perspective you wish to view it.

It is only over the past half century that the notion of free expression and a free media has gained traction on a broader scale internationally.

The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”

At face value, this statement seems to give all the world’s citizens a right to free expression. But it was only ever meant to be a declaration of a lofty goal and has many limitations.

Stronger protections came internationally in 1966 when the UN adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduces a right to free expression for the world’s citizens, again at Article 19: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

It sounds like it was almost written for bloggers and citizen journalists. However, the right is limited because the covenant imposes special duties for the respect of the rights and reputations of others and for the protection of national security, public order, public health or morals. Add to this the fact that many countries have not ratified the covenant and you are left without much real protection at this level. Complaints about individual countries’ breaches can be brought to the Office for the High Commissioner for Human Rights, but the processes can take several years and are often not resolved, as their annual reports demonstrate.

A positive of the UN right was that it fed through into regional conventions and in turn into the laws of their nations. Rights charters exist in Africa, the Americas and Europe and free expression or a free press is guaranteed by the constitutions of many countries internationally.

In the Pacific region we have no such rights charter, although many nations including Papua New Guinea and New Zealand have either constitutional or legislative rights protections for free expression. Pacific Media Centre director David Robie (2004) has critiqued the ease with which governments in Fiji and Tonga have changed such provisions when this has suited their political ends.

Theorists have attempted to group different functions of the press within government systems. Most notable was Frederick Siebert’s Four Theories of the Press (Siebert et al. 1963), which categorised press systems into ‘Authoritarian’, ‘Libertarian’, ‘Soviet-Communist’ or ‘Social Responsibility’. Others have criti­cised the Siebert approach for its simplicity and outdatedness, with Denis McQuail (1987) adding two further categories: the development model and the democratic-participant model.

Some countries justify their stricter regulation of the press, and limitations of media freedom, on religious, cultural or economic grounds. There has been an ongoing debate about the lack of press freedom in the Asia-Pacific region. Malaysia, Singapore, Brunei and Fiji have state licensing systems in place for their newspapers. Malaysia also has its Internal Security Act 1960, restricting publications on such topics as the position of rulers, the position of Malays and natives, the status of Malay as the national language and citizenship (Syed, 1998: 124).

As Rejinal Dutt noted in 2010, ‘Singaporeans have been led to believe that their model of news media suits the interests of their wider society and that the media’s role is to support the government in its quest to promote harmony, solidarity, tolerance and prosperity, rather than to question the existing social, political and economic structures’ (Dutt, 2010, p. 90). He showed how the Fijian regime had modelled its own approach to media regulation on the Singapore structure in its Media Industry Development Decree (Dutt, 2010).

As a ‘press freedom worrier’ my concerns are not limited to Singapore and Fiji.

My major worry is the ever-increasing government regulation of media and social media everywhere. My observation has been that governments are quick to enact laws to control emerging social and technological situations but are loathe to wind them back when they prove unjust or the reasons for their existence have long gone. Examples of such laws that are an anachronism in the modern era – and still exist in many Pacific nations – are laws of sedition, criminal libel and blasphemy.

Add to these the spate of anti-terror laws introduced since 9/11 and you start to get a potential armory of tools available to governments and their security agencies for surveillance or intimidation of the media.

Even laws endowing journalists with special privileges are worrying because they require a definition of who or what constitutes a ‘journalist’. Shield laws are a good example. At their best they offer journalists sanctuary when being pressed to reveal their confidential sources in court. However, the downside is that a shield law for journalists requires a court to deem who is, or is not, a ‘journalist’ – a process which, when taken to its extreme, can constitute a licensing system.

It is even more problematic now that citizen journalists and bloggers are covering stories of public importance when they might not meet a government’s definition of ‘journalist’.

As a press freedom worrier I am also concerned by the technological intrusions into free expression and a free media. As an avid blogger and social media user I can attest to the utility and reach of these media and we have seen via the Twitter revolutions in North Africa how social media can be a useful tool for dissident mobilization in autocratic regimes.

Web 2.0 communication has further empowered ordinary citizens who can now publish at their whim in the form of blogs, tweets, podcasts, Facebook postings and Instagram and Flickr images. Citizen journalists can crowdsource funding for important stories and not-for-profits can operate their own news platforms to compete with the legacy media.

Yet at the same time the Internet has given audiences and advertisers so many new choices that the financial model of those traditional media is under chronic stress. The important Fourth Estate journalism once funded by the ‘rivers of gold’ in the form of classified advertising to newspapers has all but lost its funding base.

Investigative reporting calling governments to account does not come cheaply. It involves weeks of groundwork by senior journalists, photojournalists and videojournalists and funding of their salaries, travel expenses and equipment. It typically requires further investment in the time of expert editors and production staff.

But the former multinational newspaper companies that once funded this investigative enterprise have been shedding staff, rationalizing operations and slashing budgets. There is a ripple effect throughout the Pacific of the impact of such measures in major Australian, New Zealand and North American newsrooms.

It is not just their domestic investigative reportage that suffers – but also their international reportage and foreign correspondence. This means the policies of governments in Pacific island nations are exposed to less international scrutiny and that breaking news is more likely to be covered ‘on the cheap’ by so-called ‘parachute journalists’ who fly in and out to report in a superficial way.

An unfortunate byproduct of the financial demise of big media is that they no longer have the deep pockets to fund the lobbying for media freedom they have conducted over recent decades. Tighter budgets mean less funding for submissions to government opposing media threats, appeals to higher courts on points of law and free press principle, and a greater tendency to settle out of court to reduce court costs and potential exposure to higher damages. Bloggers and citizen journalists are left stranded without the resources to defend legal threats unless they can garner the support of a union or an international NGO.

Another downside to the technological revolution is the level of surveillance of the journalistic enterprise available to governments and their agencies. Anti-terror laws introduced internationally – modeled on the US PATRIOT Act – typically give intelligence agencies unprecedented powers to monitor the communications of all citizens.

There is also an inordinate level of surveillance, logging and tracking technologies in use in the private sector – often held in computer clouds or multinational corporate servers in jurisdictions subject to search and seizure powers of foreign governments.

This has disturbing implications for journalists’ protection of their confidential sources – typically government or corporate ‘whistleblowers’ who risk their reputations, jobs and even lives if they reveal information to reporters. I blogged recently asking whether the Watergate investigation could even happen in this modern surveillance era because it was premised upon the absolute confidentiality of the White House source known as ‘Deep Throat’ (recently revealed as FBI executive Mark Felt) (Pearson, 2013). Today the Washington Post reporters Carl Bernstein and Bob Woodward and their secret source would have to contend with geo-locational tracking of their phones and vehicles, tollpoint capture of their motorway entry and exit, easily accessible phone, email and social media records, CCTV in private and public places, and facial recognition in other people’s images, perhaps posted to Facebook. The use of new technologies like drones and Google Glass will equip journalists with significant newsgathering capabilities but will at the same time risk further compromising the identities of their confidential sources.

All this might sound terribly pessimistic, but despite my ‘press freedom worrier’ status I am actually an inherent optimist, although probably not quite as hopeful as the stated theme for today’s UNESCO World Press Freedom Day – “Safe to speak: Securing freedom of expression in all media”. While we might aim to secure the ideal of freedom of expression in all media it can only ever be an aspiration – there is always a looming threat of censorship in even the most liberal societies.

Perhaps it is time for a new approach to media ethics and regulation. While I do not approve of the Malaysian, Singaporean and Fijian application of the ‘development model’, I am not sure the libertarian model strongly identified with British and US media in the 20th century is the only workable approach.

Winston Churchill once described democracy as the ‘least worst’ option? (House of Commons, 11 November 1947). Is the libertarian model of press freedom also the ‘least worst option’? Or can we have press freedom within some other system of regulation, implying a different ethical framework for truth seeking and truth telling?

There is no doubt that press freedom is entrenched in the libertarian traditions of western democracies and it is sometimes seen as another feature of colonialism that has been imposed upon societies – including those here in the Pacific – as a compulsory add-on to democracy.

But that implies that truth-seeking and truth-telling can only be part of Western culture, and that is clearly not the case.

My very first academic article in 1987 took up the issue of information sharing in indigenous Australian societies and questioned whether the techniques of modern journalism were well suited to interviewing and reporting upon indigenous issues. Information exchange in indigenous societies had cultural implications related to the status of the parties involved and the period of time allowed for the communication process (Pearson, 1987).

Veteran New Zealand journalism educator Murray Masterton had already noted codes of practice within Samoan society, where in some situations it was even a taboo to ask a question of an individual with a higher social status (Masterton, 1985, p. 114). Countering that, Samoa also had the tradition of the revered ‘tusitala’ or ‘story teller’ – the name conferred on the great author Robert Louis Stevenson when he lived there for the four years before his death in 1894 (Spencer, 1994, p. 7-A).

Papuan tribal societies also valued communication highly and can in some ways be seen as the consummate news reporters through their use of the garamut and the smaller kundu drum to send clear and simple messages across hilltops and through dense jungle. However, journalists in Papua New Guinea face challenges through their own cultural practices of wantok and payback which imply both an obligation to members of their own social network and retribution against others for wrongs done to their kin (Trompf, p. 392). It renders the roles of whistleblower and investigative reporter even more isolating and socially reprehensible despite a clear constitutional guarantee of a free media in that nation’s constitution.

When used to describe approaches of governments to media regulation, the libertarian model has been most commonly associated with the private ownership of newspapers and their active watchdog role as the Fourth Estate in a Western democratic society. Even liberal democratic societies have adopted a ‘social responsibility’ approach to the regulation of broadcast media, given the public or collective interest in control of a scarce resource, given the traditionally limited number of radio and television frequencies available for allocation (Feintuck & Varney, 2006, p. 57).

Recent inquiries into media regulation in the UK (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have proposed extending that social responsibility model to print and new media regulation, despite the fact that the scarcity of resource argument is diminishing. Rather than taking a libertarian approach and reducing the government regulation of the broadcasters because the frequency scarcity and media concentration arguments are diminishing, the reform bodies have recommended mechanisms to bring newspaper companies within the ambit of stronger government control.

Their motivation for doing so stems from public angst – and subsequent political pressure – over a litany of unethical breaches of citizens’ privacy over several years culminating in the News of the World scandal in the UK with an undoubted ripple effect in the former colonies. I am at grave risk of over-simplifying this important issue because many other factors are at play, including some less serious ethical breaches by the media in both Australia and New Zealand, evidence of mainstream media owners using their powerful interests for political and commercial expediency, and the important public policy challenge facing regulators in an era of multi-platform convergence and citizen-generated content.

So press systems and ethical frameworks are on the agenda in all societies, and we are challenged to accommodate free expression and its close relative press freedom within new technological and cultural contexts.

If we are to stick with the libertarian model and continue with ‘light touch’ media regulation by governments, we clearly need more meaningful ethical guidelines than the ones that do not always seem to work in mainstream journalism.

Pacific Media Centre director Professor David Robie (2011, p. 237) has been among those exploring how a ‘peace journalism’ model could be applied to the reporting of conflict in the South Pacific and to the education of journalists in this region. It requires a deeper understanding of the context and causes of a conflict, a commitment to ensuring the views of all sides are reported, comments from those condemning any violence, reducing emphasis on blame or ethnicity, and offering suggestions for solutions.

This kind of approach has great merit – and I am currently examining ways it might be extended to a new framework for reporting more generally by implementing some of the key principles of the world’s great religions in a secular context. When you look closely at Christianity, Islam, Hinduism, Confucianism and Buddhism you find common moral and ethical principles that we might reasonably expect journalists to follow in their work, including all of those attributes of peace journalism identified by Robie.  The Dalai Lama’s recent book – Beyond Religion – explores how core ethical values can offer a sound moral framework for modern society while accommodating diverse religious views and cultural traditions.

I believe this sits well with a modern trend to apply basic principles of mindfulness and compassion to a range of human endeavors and I will be exploring and applying this to journalism in a conference paper I will be presenting in Dublin next month where I call it ‘Mindful Journalism’. It suggests we should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary which requires a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process.

They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.

The recent inquiries into poor journalism ethics have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to recapture this.

Even today, young people choose journalism as a career with a view to ‘make a difference’ in society. Like teaching and nursing, the choice of the occupation of truth-seeking and truth-telling in our societies has an element of a ‘mission’ or a ‘calling’ about it. I this in a secular rather than a religious way – a deep sense of social responsibility to expose wrongdoing and injustice and to facilitate the exchange of ideas on important social issues.

All societies need their ‘tusitalas’ – their storytellers – in whatever form they might take.

With the advent of citizen journalism and the widespread use of social media we can no longer claim this as the exclusive preserve of journalism and journalists.

Social media and blogging seems to have spawned an era of the new super-pamphleteer – the ordinary citizen with the power to disseminate news and commentary internationally in an instant.

We are quickly losing the distinction between journalists and other communicators, accelerated by the fact that their traditional employers forcing journalists into the blogosphere as the old model suffers under the strain. Journalists’ codes of ethics have long been associated with the traditional mainstream media and have usually been documented and administered by unions or professional associations. But we now have many ordinary citizens producing the reportage and commentary that was once the preserve of those who called themselves ‘journalists’. We need new ethical codes of practice that are inclusive of these new serious bloggers and citizen journalists.

The printing press spawned free expression’s offspring – the right of ‘press freedom’ – as pamphleteers fought censorship by governments in the ensuing centuries.

Events are unfolding much more quickly now. It would be an historic irony and a monumental shame if press freedom met its demise through the sheer pace of irresponsible truth-seeking and truth-telling today.

Our challenge is to educate our fellow citizens on the mindful use of this fragile freedom before their elected representatives take further steps to erode it.

—-

* Professor of Journalism and Social Media, Griffith University, Australia and Australian correspondent for Reporters Without Borders

REFERENCES

Brasch, W.M. & Ulloth, D.R. (1986). The Press and the State: Sociohistorical and Contemporary Interpretations. Lanham: University Press of America.

CPJ (2013). Committee to Protect Journalists – Defending Journalists Worldwide. Retrieved from http://www.cpj.org/killed/2012/.

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

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

Feather, John (1988). A History of British Publishing. London: Routledge.

Feintuck, M. and Varney, M. (2006). Media Regulation, Public Interest and the Law, second edition. Edinburgh: Edinburgh University Press.

Finkelstein, R. (2012). Report of the independent inquiry into the media and me­dia regulation. Canberra: Department of Broadband, Communications and the Digital Economy.

Law Commission (NZ) (2013). The news media meets ‘new media’: rights, responsibilities and
 regulation in the digital age. 
(Law Commission report 128). Law Commission: Wellington.

Leveson, B. (2012). Report of An Inquiry into the Culture, Practice and Ethics of the Press (The Stationery Office, 2012) [Leveson Report].

Masterton, M. (1985). Samoa, where questioning is taboo. Australian Journalism Review 7 (1&2): 114-115.

Pearson, M. (2013, April 26). Surveillance and investigative reporting: How would Deep Throat stay anonymous today? Journlaw.com blog. Retrieved from: jourlaw.com/2013/04/26/surveillance-and-investigative-reporting-how-would-deep-throat-stay-anonymous-today/

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

Pearson, M. (1987). Interviewing Aborigines: a cross-cultural dilemma. Australian Journalism Review, 9 (1&2): 113-117.

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

Robie, D. (2004). The sword of Damocles in the South Pacific: Two media regulatory case studies. Pacific Journalism Review, 10(1): 103-122. Retrieved from http://www.pjreview.info/articles/sword-damocles-south-pacific-two-media-regulatory-case-studies-617

RSF. (2013). Reporters Without Borders World Press Freedom Index. Retrieved from http://en.rsf.org/press-freedom-index-2013,1054.html

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

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

Spencer, G. (1994). Samoa rediscovers ‘Tusitala’ Stevenson. Daily News (Bowling Green, Kentucky). July 19, p. 7A.

Syed, Arabi Idid (1998) Malaysia. In Asad Latif (ed.) Walking the Tightrope: Press Freedom and Professional Standards in Asia. Singapore: Asian Media Information and Communication Centre, pp. 119–27.

Overbeck, Wayne (2001) Major Principles of Media Law, Fort Worth, TX: Harcourt College Publishers.

Patrides, C.A. (ed.) (1985) John Milton: Selected Prose, New and Revised Edition. Columbia: University of Missouri Press.

Trompf, G.W (1994). Payback: The Logic of Retribution in Melanesian Regions. Cambridge University Press: Cambridge.

© 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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Filed under free expression, Media freedom, media law, Media regulation, Press freedom, Uncategorized

Narrow escape for a fragile freedom #medialaws

By MARK PEARSON (@journlaw)

[Here is a taste of my commentary in The Conversation today.]

It is just a week since the Gillard government withdrew the four media reform bills for which it could not garner the necessary support from the crossbench MPs.

The proposal that concerned me most as a media law scholar and free expression advocate was the News Media (Self-regulation) Bill. This would have given an individual the power to deregister bodies, like the Australian Press Council, if they failed to police effectively the ethical standards of their newspaper and online members.

The big stick the so-called Public Interest Media Advocate would have wielded was the withdrawal of media companies’ journalism exemption from the Privacy Act – a penalty that stood to send newspapers broke through its demands of bureaucratic compliance. I detailed this problem in a blog republished on The Conversation last week, describing it as a defacto form of licensing. Many vested political and commercial interests were at stake in this debate.

There are lessons for all to learn from the events of the past fortnight and from the broader media regulation debate of the preceding year. Free expression is often described as a “fragile freedom”, perpetually at risk in a democracy like Australia where it lacks any explicit constitutional protection.

It is a mistake to view free expression through the lens of your own political allegiances. My observation after more than two decades researching in the area and several years as Australia’s correspondent for Reporters Without Borders, is that governments of all political persuasions can present major threats to media freedom.

This week’s blog was commissioned by The Conversation. Read more at http://theconversation.com/media-reforms-lessons-from-a-narrow-escape-to-a-fragile-freedom-13123

© 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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Filed under media law, Media regulation, Uncategorized

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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My Media Inquiry appearance: the transcript

By MARK PEARSON

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

         2

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

         4

         5       PROFESSOR PEARSON:   Thank you.

         6

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

         8       your flight.

         9

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

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

        12       today.

        13

        14       DR RICKETSON:   But you got here okay.

        15

        16       PROFESSOR PEARSON:   Yes, in the end.

        17

        18       MR FINKELSTEIN:   Our normal practice is to allow people

        19       who have come to give evidence to also speak to their

        20       submission and most do, some don’t.  It is purely

        21       voluntary, Professor.  So, we will proceed in whichever way

        22       you feel most comfortable with.  Would you like to say a

        23       few words first?

        24

        25       PROFESSOR PEARSON:   I think I do need to say something

        26       because I have in fact made two submissions.  One was in my

        27       capacity as part of a research group, which I understand

        28       was the main reason you asked me here today, and that is

        29       our ARC linkage grant looking at vulnerability and the news

        30       media.  So all I would say by way of introduction is that

        31       when I do make comments I would need to distinguish between

        32       my role in that capacity where I put together the

        33       submission on behalf of the group, but I’m only one of five

        34       or six researchers from different institutions.  The

        35       project is led by Professor Kerry Green from the University

        36       of South Australia.  As with most linkage grants, we have

        37       industry partners.  In fact, one of the sponsors of the

        38       research is the Australian Press Council, which also needs

        39       to be stated by way of disclosure for that submission.

        40

        41            I did submit a private submission in which in turn

        42       I had to distinguish between my various roles because of

        43       course with a private submission I do not speak on behalf

        44       of my institution, Bond University, and I also happen to be

        45       Australian correspondent for the international press

        46       freedom organisation, Reporters Without Borders, and I had

        47       to make it clear in that submission that I was not speaking

 

            .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.

         5

         6            So I just wanted to make those comments by way of

         7       clarification.  Is my understanding correct that you mainly

         8       wanted me because of the submission to do with the

         9       vulnerability project?

        10

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

        12       questions in any event about your own submission.

        13

        14       PROFESSOR PEARSON:   Sure.

        15

        16       MR FINKELSTEIN, it might be easiest to get that out of the

        17       road first, and I will ask you questions and bearing in

        18       mind what you have said I will be asking after your

        19       personal views, not the view of any organisation that you

        20       might represent in other respects.

        21

        22       PROFESSOR PEARSON:   Indeed.

        23

        24       MR FINKELSTEIN:   It is to do with the topic of standards.

        25       I think both standards and access really are the two issues

        26       that I wanted to take up with you.

        27

        28       PROFESSOR PEARSON:   With my personal submission?

        29

        30       MR FINKELSTEIN:   Yes, from your personal submission.

        31       Could I start with standards first.  You make the point,

        32       which I think is a point made elsewhere by other people

        33       making submissions, that there should be a single code of

        34       ethics which applies across the field of journalists and we

        35       have had a few submissions, one from the Media Alliance

        36       itself, but others as well, saying the plethora of

        37       standards and ethics is apt to cause confusion rather than

        38       have necessarily beneficial results.  But what I’m

        39       interested to know, because you don’t say very much about

        40       it in your personal submission, is what your views are

        41       about the methods by which either the multiple codes that

        42       exist or a single uniform code which is to be preferred

        43       comes into existence, how either the multiple or the single

        44       can or should be enforced.

        45

        46       PROFESSOR PEARSON:   The word “enforced” is one that raises

        47       concern, I think, in a context of press as a fourth estate

 

            .08/12/11  (3)              363         M PEARSON

                             Transcript produced by Merrill Corporation

 

         1       in a democratic western society.  My colleagues at

         2       Reporters Without Borders are always alarmed when

         3       government inquiries ask about enforcement of such

         4       standards.  Nevertheless, your first point is to do with

         5       the complexity of all of the different codes.  As an

         6       educator, I make the point in both submissions that in

         7       basic education it is very hard to get students or

         8       practitioners to understand fundamental concepts and work

         9       within them, and with the codes of practice and the code of

        10       ethics and all of these various principles.  A single

        11       journalist may well be working under four, five or six of

        12       these codes of practice quite separate from other

        13       principles issued by the Press Council on particular topic

        14       areas and quite separate from the law of these areas, which

        15       are the main regulatory regime.

        16

        17            So how do I think they would be enforced?  I think the

        18       thrust of this personal submission is basically that there

        19       are already so many laws applying to the news media, actual

        20       laws, that almost all serious complaints to the

        21       self-regulatory or co-regulatory bodies would actually come

        22       within the ambit of one of the existing laws.

        23

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

        25       to all and sundry?

        26

        27       PROFESSOR PEARSON:   Yes, although, as you would well know,

        28       there are certain areas of media law – almost all areas

        29       apply to all and sundry, but certain areas apply much more

        30       to the media because they are coming in contact with them

        31       in their daily practice, and I’m talking about defamation,

        32       contempt of court, confidentiality, trespass, the

        33       developing law of privacy for which there is a separate

        34       inquiry at the moment, nuisance, stalking, police powers,

        35       move along powers.  All of these sorts of laws already

        36       exist.  The problem is more community or ordinary citizens’

        37       access to many of these laws.

        38

        39       MR FINKELSTEIN:   And for the most part access to law is

        40       access in theory only but not in practice, so that for most

        41       members of the community the fact that there’s the law of

        42       the land in a practical sense means nothing to them at all

        43

        44       PROFESSOR PEARSON:   No, but what it does, and it is coming

        45       back to your question to do with enforcement.  To my mind,

        46       to set up a whole new regulatory enforcement mechanism in

        47       addition to the existing laws is unnecessary —

 

            .08/12/11  (3)              364         M PEARSON

                             Transcript produced by Merrill Corporation

 

         1

         2       MR FINKELSTEIN:   Because?

         3

         4       PROFESSOR PEARSON:   Because one mechanism would be to give

         5       the existing community better access to the existing laws,

         6       and this might be idealistic, but via Legal Aid or

         7       whatever —

         8

         9       MR FINKELSTEIN:   There is no practical way that will

        10       happen in my lifetime.

        11

        12       PROFESSOR PEARSON:   Okay.

        13

        14       MR FINKELSTEIN:   Which means in a practical sense it is

        15       easier for me just to put that to one side.  I think the

        16       last witness said he liked practical outcomes and, unless

        17       it has some practical content, it doesn’t really help any

        18       member of the community to proceed on the basis that what

        19       exists in theory but is not real for them is a panacea for

        20       anything.

        21

        22       PROFESSOR PEARSON:   And I take that point.  What I think

        23       is a practical outcome or would be a practical outcome

        24       would be to beef up the alternative dispute resolution

        25       functions without enforcement, without a big stick, and

        26       also to beef up the community education and awareness about

        27       where they can make complaints and really to develop,

        28       I suppose, a single reference point for a single code where

        29       people can go to file complaints.

        30

        31       MR FINKELSTEIN:   When you speak about a single code

        32       applying to journalists and presumably media outlets as

        33       well, would you include radio and TV amongst the people,

        34       organisations – I mean the journalists who work on radio

        35       and TV – and the proprietors of radio and TV outlets?

        36       Would you include them in the single code formula?

        37

        38       PROFESSOR PEARSON:   I see nothing wrong with some sort of

        39       extension document explaining how a basic common code would

        40       apply across all journalism.  Certainly radio,

        41       photojournalism, web-based media, print, each has their own

        42       idiosyncrasies where practitioners would need extension or

        43       support material.

        44

        45            But when you look at any code internationally and, as

        46       you were saying in the last session, it comes down to just

        47       some basic principles: accuracy, verification, fairness,

 

            .08/12/11  (3)              365         M PEARSON

                             Transcript produced by Merrill Corporation

 

 

         1       equity, right of reply, respect, respect for other people’s

         2       rights and underscored by fundamentally truth-telling,

         3       responsible truth-telling.  You could sum up a code in two

         4       words, responsible truth-telling, and that is what

         5       journalism is or should be about.

         6

         7       MR FINKELSTEIN:   What happens if the current means or

         8       methods of self-regulation will not be beefed-up by the

         9       participants?  Is that then the point at which some

        10       government action is required or, if a government acts

        11       responsibly, is it at that point that it should intervene

        12       and do something?

        13

        14       PROFESSOR PEARSON:   Like I said earlier, people have

        15       recourse through various laws and often this is funded by

        16       various groups, anyway; it is not individual funding.  So

        17       it is not to say that only wealthy people in society can

        18       take legal action.  That is not the case.  It is quite

        19       often a union or perhaps a support group of some sort —

        20

        21       MR FINKELSTEIN:   That’s usually true for those who come

        22       into contact with the criminal law, but it is barely true

        23       for those who come into contact with the civil law.  You

        24       are right to say that, if a worker is injured, his or her

        25       union might come to the aid of the worker because of the

        26       collective responsibility that some unions see they should

        27       owe to the membership, but that’s not really the kind of

        28       situation that a person who is in a dispute with the press

        29       finds himself or herself in.

        30

        31            In other words, I don’t know of any support group or

        32       any kind of access for average income earners or less than

        33       average income earners if they are in a dispute with the

        34       press, and sometimes the dispute isn’t a dispute that can

        35       be dealt with through the courts because there might be

        36       false statements or something said but not of a defamatory

        37       kind, so that the law, even for the rich, is unavailable

        38       because the complaint is not about an event which

        39       constitutes a transgression of a law, a civil law.

        40

        41       PROFESSOR PEARSON:   So your question is should there be a

        42       government mechanism for recourse.  I think the system as

        43       it has been operating does not have fatal flaws and it is

        44       very important in a western democracy, without a bill of

        45       rights enshrining freedom of expression, certainly some

        46       High Court movements in that direction but nothing

        47       constitutionally beyond that implied political

 

            .08/12/11  (3)              366         M PEARSON

                             Transcript produced by Merrill Corporation

 

 

         1       communication defence.  It would be sending all of the

         2       wrong messages for a government body to have a brief of

         3       enforcing a journalism code of ethics.

         4

         5       MR FINKELSTEIN:   Why?

         6

         7       Lots of people say that, but I’m not

         8       sure often why they say that.  The code of ethics here

         9       would be – we have, say, the Press Council’s code of ethics

        10       developed by the Press Council in consultation with the

        11       press, so it is not a government code of ethics.  As we

        12       have discussed very briefly, there are common themes

        13       running through all the codes in any event.  So you have a

        14       code which is obviously acceptable to the press, or at

        15       least objectively ought be acceptable, but we know that it

        16       is in fact acceptable.  What is wrong in a democratic

        17       society where the rule is you have to abide by your code?

        18

        19       PROFESSOR PEARSON:   Because basically if you are saying

        20       the existing legal mechanisms are inaccessible, you would

        21       be introducing yet another legal mechanism through such a

        22       formal system of regulation.

        23

        24       MR FINKELSTEIN:   Correct.  One would be effective in the

        25       circumstances where the others are ineffective.  In other

        26       words, introducing something that works in a situation

        27       where the existing methods don’t work.  Why is that

        28       anti-democratic?

        29

        30       PROFESSOR PEARSON:   We already have mechanisms like that

        31       and, as I explain in the submission, we have a media that

        32       is moving more and more towards a consumer model.  The

        33       existing media are under threat.  We already have the ACCC

        34       and consumer law that applies there.

        35

        36       MR FINKELSTEIN:   By and large the kinds of laws that the

        37       ACCC administer, at least the anti-trust provisions of the

        38       relevant legislation, don’t touch any issue that we are

        39       concerned with, and the false and misleading conduct

        40       provisions, the press being the press, have got express

        41       exemption from them.

        42

        43       PROFESSOR PEARSON:   That’s what my submission addresses.

        44       It talks about the fact that that exemption when introduced

        45       was a blanket exemption for prescribed news providers.  In

        46       the new environment prescribed news providers are

        47       effectively your traditional media and my suggestion in the

 

            .08/12/11  (3)              367         M PEARSON

                             Transcript produced by Merrill Corporation

 

 

 

 

 

 

         1       submission is that responsible journalism basically be a

         2       rebuttal presumption for anyone practising journalism, fourth

         3       estate style of journalism, and that that be modified so

         4       that you then have a misleading and deceptive conduct

         5       provision applying, which is already being applied in some

         6       circumstances.  In a commercial situation it is being

         7       applied —

         8

         9       MR FINKELSTEIN:   Part of the problem with that is, from my

        10       perspective, that the first is that if you lift the

        11       exemption or have circumstances where it doesn’t apply, it

        12       only affects statements made in trade or commerce because

        13       that’s the constitutional reach of section 52 or whatever

        14       new number it has got in the redrafted legislation, so it

        15       is of limited application; and the second problem is it

        16       says “Go to the court,” and you walk into a solicitor’s

        17       office and you will say to your solicitor, “I would like to

        18       sue this news outlet for false and misleading conduct,” and

        19       the solicitor will say, “Fine, we’ll take a $50,000 deposit

        20       and then we’ll see how we go as the case progresses.”

        21

        22            In other words, what worries me is that’s another

        23       exercise in unreality in a practical sense, not in a legal

        24       sense.  You can make it work in a legal sense and look

        25       fantastic, but it’s not going to actually help people.

        26

        27       PROFESSOR PEARSON:   My concern about an alternative model,

        28       where you are giving tough powers to enforce an ethical

        29       code through an existing body or a modified body, is that

        30       you would have exactly the same problem.

        31

        32       MR FINKELSTEIN:   You make assumptions, though.  You use

        33       the words “tough powers”.  You might have a particular

        34       meaning for those words which may differ from mine.  What

        35       happens if the “tough powers” were print a retraction,

        36       print a correction?

        37

        38       PROFESSOR PEARSON:   I think we come back to the debate

        39       your previous – remember I’m still speaking personally, not

        40       on behalf of the research group.

        41

        42       MR FINKELSTEIN:   Yes

        43

        44       PROFESSOR PEARSON:   I was listening to your earlier

        45       discussion with Mark Hollands.  I think one of the points

        46       that informs that attitude amongst editors is this notion

        47       of fourth estate which is still a residual ideal and it is

 

            .08/12/11  (3)              368         M PEARSON

                             Transcript produced by Merrill Corporation

 

 

 

 

 

 

         1       much more than just a commercial ethic on the part of

         2       editors.  It is a fierce independence from government, from

         3       government funded regulatory bodies —

         4

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

         6       make the media organisations pay it.

         7

         8       PROFESSOR PEARSON:   It is still a government —

         9

        10       MR FINKELSTEIN:   It is not government funded.

        11

        12       PROFESSOR PEARSON:   It is still a government initiative.

        13

        14       MR FINKELSTEIN:   Correct.

        15

        16       PROFESSOR PEARSON:   It would be an initiative of the

        17       Australian government on an independent inquiry’s advice to

        18       force, with newspapers, a publication of certain material

        19       into a certain page of a newspaper.

        20

        21       MR FINKELSTEIN:   To force them to do what they say they

        22       should do.  Do you see the dilemma?  It is not creating a

        23       new rule.  It is not creating a new standard.  It is just

        24       saying, “This is what you say should happen.  Good.  Make

        25       it happen.”

        26

        27       PROFESSOR PEARSON:   All I’m saying is that without free

        28       expression entrenched in any constitution or bill of rights

        29       in this country, unlike most other western democracies, it

        30       would certainly send the message to the international

        31       community that the Australian government wants to force a

        32       will, whether it is its will in the circumstance, upon

        33       mainstream media organisations.

        34

        35       MR FINKELSTEIN:   It would be doing no more than at least

        36       the law of the land applies to broadcasters because it is

        37       very difficult even for those with an entrenched

        38       constitutional right, at least at the moment, to say you

        39       can’t have a rule like that in the case of broadcasters.

        40       In the United States the Supreme Court has said this kind

        41       of regulation about which I’m speaking or more stringent

        42       regulation, right of reply, is perfectly constitutional,

        43       consistent with the first amendment.  So that if you had a

        44       public outcry saying it is an imposition on free speech, it

        45       would be a relatively uninformed outcry.  I’m not sure that

        46       governments or people like me should worry about uninformed

        47       outcries.

 

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         1

         2       PROFESSOR PEARSON:   The other thing that would happen with

         3       this would be you would be establishing basically a

         4       two-speed regulatory process in a period of rapid media

         5       change.  We already have that, without entering into it and

         6       not knowing a lot about it, but with the purchase of

         7       consumer goods on-line you already have that sort of

         8       two-speed double standard applying.  Now, I might be an

         9       exception as an academic, but I now get all of my material,

        10       my news material, on-line and I’m just as likely to be

        11       reading the New York Times or Slate or Arstechnica as I am

        12       the Sydney Morning Herald or The Australian.

        13

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

        15       different things.

        16

        17       PROFESSOR PEARSON:   Not necessarily.

        18

        19       MR FINKELSTEIN:   Overwhelmingly.

        20

        21       PROFESSOR PEARSON:   Perhaps overwhelmingly, but

        22       international news in Australia would have a double

        23       standard applying.  If you were applying Australian ethical

        24       code through a regulator in this country for a major event

        25       happening in Australia, you would be getting or you may

        26       well get quite different standards applying, one where

        27       there would be the reach of your proposed new regulator and

        28       one where there would not be the reach.

        29

        30            While it may not happen all that often, it will happen

        31       on the really big stories.  It will happen on the miners

        32       trapped or the collapse of government or the major protests

        33       in the streets, because you are not going to be able to

        34       enforce your new rules upon these international providers,

        35       just as you can’t enforce them at the moment and the states

        36       are having all sorts of trouble enforcing their various

        37       publication restrictions on suppression orders and contempt

        38       of court and all the rest of it on Facebook or Twitter.  So

        39       traditional media groups —

        40

        41       MR FINKELSTEIN:   I understand that.  That’s pointing out a

        42       consequence, but it is not really pointing to a reason.

        43       What you say is true of almost every current restriction

        44       which is imposed on not just media but on speech.  In other

        45       words, we have rules about obscenity, we have rules about

        46       pornography, we have rules about paedophilia, we have rules

        47       about what you can and what you can’t publish about court

 

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         1       proceedings and so on and so on and so on, and if the

         2       answer was if somebody in the United States could broadcast

         3       the material here with impunity and if that was relevant,

         4       then you would just get rid of all of those rules.  That is

         5       not a rational approach, in my mind.

         6

         7       PROFESSOR PEARSON:   My view is that why would you have a

         8       whole new regulatory regime and a whole new mechanism when

         9       you don’t need that.  I think the existing ones work

        10       reasonably well, but people don’t know about them, people

        11       are illiterate about the media, people, as the main

        12       submission I’m talking about today talks about, they have

        13       various levels of vulnerability to the media and aren’t

        14       able to – don’t want to go through the process and the

        15       grueling complaints system.

        16

        17            So, I think if you wanted to introduce such a system

        18       I would suggest you only did that after at least a trial of

        19       a better reference or a referral agency where something

        20       like the existing Press Council or the ACMA is actually

        21       funded to properly educate the community about the referral

        22       and complaint systems, where they can be proactive in

        23       launching complaints on matters that they have noticed

        24       themselves that have been identified to them, rather than

        25       this business where the person themselves have to issue a

        26       complaint, and effectively a one-stop complaints shop.

        27

        28       MR FINKELSTEIN:   What happens if that funding is not

        29       forthcoming voluntarily?

        30

        31       PROFESSOR PEARSON:   I think it would be very much in the

        32       interests, just as it was in the interests of the

        33       mainstream media organisations to establish the Press

        34       Council in the first place, because of these sorts of

        35       concerns about regulation.  I think if the major media

        36       groups were to recognise that what distinguishes them from

        37       new and amateur players is the fact that they can practice

        38       responsible journalism, then we wouldn’t have any problem

        39       with such a complaints body being funded.

        40

        41       MR FINKELSTEIN:   Correct, and two of the three major news

        42       agencies have said in the last fortnight to me that the

        43       Press Council is adequately funded.  So my starting off

        44       premise has to be – and they are two of the three that

        45       provide almost all of the money and, according to Professor

        46       Disney, if one major sponsor – I don’t want to put it that

        47       way.  Two of the three who provide the bulk of the funds

 

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         1       have indicated that they will not provide more funds, no

         2       matter what the logic of your position is.  So I proceed on

         3       the basis that more money is not forthcoming, because

         4       that’s what I’m told.

         5

         6            So my world, the world with which I have to deal, if

         7       I decide that the Press Council is inadequately funded to

         8       perform its functions, including the additional functions

         9       which you say they ought to be able to carry out, then

        10       I know that’s not going to happen.  So the question is, for

        11       me, do I just leave it as is, and even you agree that

        12       that’s deficient, or do I do something about it, or do

        13       I suggest that something be done about it?

        14

        15       PROFESSOR PEARSON:   I don’t know what this inquiry is

        16       costing, but it would be something in excess of a million

        17       dollars.

        18

        19       MR FINKELSTEIN:   So what?

        20

        21       PROFESSOR PEARSON:   My point is that such funding would

        22       fund a very effective one-stop shop for complaints for at

        23       least the near future.

        24

        25       MR FINKELSTEIN:   A couple of years, but it is government

        26       money.  My funding comes from the government.  So do I take

        27       it that you do not object to government funding?

        28

        29       PROFESSOR PEARSON:   I don’t object to government funding

        30       of better education of the community in such a referral

        31       service.  There are tourism boards, there are all sorts of

        32       funding like that.  What I do object to, personally, what

        33       I do object to is a new regulatory regime —

        34

        35       MR FINKELSTEIN:   Forget about a new one.  Just giving the

        36       money to the Press Council.  That’s not new.  That’s old.

        37       It has been there for 40 years.  Do you have an objection

        38       to that?

        39

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

        41       being given to the Press Council.

        42

        43       MR FINKELSTEIN:   From the government.

        44

        45       PROFESSOR PEARSON:   I wouldn’t have an objection to that,

        46       as long as it wasn’t accompanied by new powers of

        47       enforcement.  So a government funded referral service or

 

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         1       beefing-up what the Press Council already does I would see

         2       as perfectly acceptable.

         3

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

         5

         6       PROFESSOR PEARSON:   Sure.

         7

         8       MR FINKELSTEIN:   I’m very conscious of the fact that you

         9       have to get back to the airport, otherwise you will be

        10       stranded here.

        11

        12       PROFESSOR PEARSON:   There are worse places to be stranded

        13       in.

        14

        15       MR FINKELSTEIN:   I agree with that.  We nearly got

        16       stranded in Perth.  I did want to ask you a preliminary

        17       question, which is how far down the track is the project?

        18       The reason why I want to ask that is how far away are we

        19       from getting the data?

        20

        21       PROFESSOR PEARSON:   Given the end of academic years at

        22       most of the institutions and so on, I would suggest that

        23       April to mid-year we would be getting the findings.  We

        24       already have the data.  We already have the data, all the

        25       data is collected and most of us have – you see, obviously

        26       with these things you carve up the tasks and so certain

        27       people have done the focus groups and all of the focus

        28       groups have been transcribed and they have been put into

        29       the appropriate software and research assistants have been

        30       working with that.  Then we have the various newspaper

        31       content analyses.  I have done the one for The Australian

        32       newspaper for 2009 with the help of research assistants.

        33       The other newspapers, the Sydney Morning Herald, the Quest

        34       Community Newspapers, two or three others that have been

        35       done, have been done by other researchers.

        36

        37            All of that has been completed.  The coding has been

        38       completed on that.  Now is the stage of the actual analysis

        39       and write-up into the various sections.  The main output

        40       that will be coming from it, beyond the report that needs

        41       to go to the ARC at the end of all such projects, which is

        42       not necessarily a large document, but the main thing is a

        43       book with chapters by us and various collaborators taking

        44       up the various aspects of vulnerability in all of the

        45       different sorts of interactions with the media, including

        46       the regulatory aspect.

        47

 

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         1       MR FINKELSTEIN:   Does that mean that, if I was to ask for

         2       it, they are not in existence yet, preliminary work by way

         3       of analysis that show, at least at an early stage, what the

         4       final result might look like?

         5

         6       PROFESSOR PEARSON:   We have talked about this as a group

         7       and we couldn’t really release the material that we have to

         8       date.  It would be a matter of, if your own brief was

         9       extended, if it started to get into that period, but our

        10       intensive period of analysis is going to be over the next

        11       two to three months.

        12

        13       DR RICKETSON:   What did you present at the journalism

        14       educators conference?

        15

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

        17       teaching then.

        18

        19       DR RICKETSON:   I mean in the group.

        20

        21       PROFESSOR PEARSON:  Two or three of the colleagues

        22       presented basically papers explaining the project and just

        23       a few of the focus group findings and things.  Angela

        24       Romano presented a paper on the focus group findings to a

        25       diversity conference in North Queensland earlier in the

        26       year, mid-year.  I presented a paper in Athens last year

        27       just on the methodology and the background to the whole

        28       thing.  So, there have been bits and pieces so far.  I’m

        29       sorry, but we can’t – the media inquiry wasn’t envisaged

        30       when we were starting it and you can’t sort of rush these

        31       things when you want to do them properly.

        32

        33       MR FINKELSTEIN:   When the organisation’s paper speaks

        34       about vulnerable people, I understand it to include people

        35       with disabilities, maybe people at a young age, people who

        36       have suffered some bereavement in the family, something

        37       like that, but do you have sort of a definition or a proper

        38       list of the people who fall within the class that you are

        39       looking at?

        40

        41       PROFESSOR PEARSON:   One of the things, I suppose it was an

        42       early eureka moment or a finding, was that our original

        43       submission seeking the funding did do that.  We talked

        44       about indigenous sources, people with a disability, people

        45       experiencing mental illness, people who had been affected

        46       by or their families had been affected by suicide in some

        47       way, children, the elderly and so on.  Then, as we were

 

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         1       looking at examples and basically doing what you would call

         2       a trial content analysis, we started to see, “Hold on,

         3       there are others who are vulnerable in certain

         4       circumstances.”  One of our partners for the project is the

         5       DART Centre for Trauma and some of the complaints to the

         6       co-regulatory and self-regulatory bodies are about people

         7       who have been in trauma of some sort or are in such a

         8       traumatised condition after a news event that they are

         9       unable to speak to the media or perhaps after an injury or

        10       something like that, or under the influence of alcohol.

        11

        12            So we decided that vulnerability would have a broader

        13       definition, firstly because we didn’t want to stereotype

        14       particular groups and basically enhance, I suppose, the

        15       stereotyping of such groups by saying that these are

        16       vulnerable sources, because clearly it is unfair to say

        17       that about any of those groups that we just mentioned.

        18       Individuals within them are highly competent and able to

        19       deal with the media and quite resilient and able and quite

        20       media literate quite often.  So we thought we would look

        21       instead at the moments of vulnerability.  In other words,

        22       the situation, the news situation where such people, where

        23       all people might find themselves basically vulnerable to

        24       journalistic unethical behaviour.

        25

        26       MR FINKELSTEIN:   So that is not really putting anybody

        27       into a particular group to start off with; it’s just

        28       looking at the particular circumstances at times.  So it

        29       could be anybody from any background.

        30

        31       PROFESSOR PEARSON:   Yes.  But, that said, in our analysis

        32       we certainly issued the amber light for a closer

        33       examination of the article if the individual or the source

        34       was from one of these so-called potentially vulnerable

        35       groups.  So, a story involving a child, for instance, a

        36       child in difficult circumstances and perhaps a teenager

        37       talking about her sex life and that being published or

        38       something like that, where perhaps there was a Press

        39       Council complaint emanating from it, then they became the

        40       subject of closer scrutiny.

        41

        42       MR FINKELSTEIN:   Was the focus of the inquiry things like

        43       did the person give consent to the story and could that

        44       consent be regarded as proper consent, one instance, and

        45       things like were photographs taken of people in distress or

        46       were stories written about people who were in difficult

        47       circumstances that might find themselves in either

 

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         1       embarrassing or hurtful positions, that kind of thing?

         2

         3       PROFESSOR PEARSON:   All of those things.  It was both

         4       photographic material, it was – but being a content

         5       analysis we were working from the material as presented in

         6       the newspaper.  There may be many more moments of

         7       vulnerability, perhaps, that did not result in a

         8       publication.  It doesn’t mean that there wasn’t harm caused

         9       back then at the point of inquiry or interview or whatever.

        10       It just might not have made it.  A person could still be

        11       traumatised by the experience of interaction with the media

        12       or something.  But all of that was underscored also by the

        13       fact that we recognise as researchers that sometimes there

        14       is a price that has to be paid in an interaction with

        15       someone who may be vulnerable for a matter of legitimate

        16       public concern which may well take precedence over what

        17       might be some level of harm happening to an individual for

        18       that truth to be told.

        19

        20       MR FINKELSTEIN:   Did you confine what you were doing to

        21       looking at what was published in the media or did you

        22       relate that also to the effect it may have had on the

        23       individual concerned?

        24

        25       PROFESSOR PEARSON:   We were unable to project what that

        26       effect might have been.  The project, in the scheme of ARC

        27       projects, had relatively low funding.  It was of the order

        28       of $90,000 over a couple of years, and there were six of us

        29       working on it.  So it didn’t really go all that far.  Much

        30       of that was taken up with the focus groups.  It was at that

        31       level where we spoke to people who had representation from

        32       some of these vulnerable groups and also other citizens

        33       within the community.  Some of them were selected

        34       specifically because they represented people from those

        35       sorts of groups, and others were more of a broader

        36       community representation.

        37

        38       MR FINKELSTEIN:   I see.

        39

        40       PROFESSOR PEARSON:   Those people volunteered through a

        41       focus group situation their experiences with the media in

        42       stories concerning them.  So that was one way of getting

        43       beyond the content itself.  In the content itself, we could

        44       only work with what was there on the page.  But I have

        45       several examples from the Australian here today, just the

        46       coding sheets.  I have reviewed them again quite recently

        47       because I’m doing the analysis at the moment.  So I could

 

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         1       easily give you some examples of those sorts of situations.

         2

         3       MR FINKELSTEIN:   That would be very helpful.  Can I just

         4       go back to the focus groups, though.  Were the focus groups

         5       comprised exclusively of people who had had some

         6       unfortunate or what they thought was an unfortunate

         7       experience with the press or were the focus groups people

         8       who had and had not had contact with the press?

         9

        10       PROFESSOR PEARSON:   Yes, it was that mixture.  To be

        11       frank, I was not involved myself with the focus groups.

        12       There were experts within our collaborative group who were

        13       experts in focus group management.  But, from memory, there

        14       was one that had people who had experienced mental illness.

        15       There was one with a mixture of Indigenous and people who

        16       were at least second generation from other countries,

        17       migrant groups, and others were a mixture of ordinary

        18       citizens.

        19

        20       MR FINKELSTEIN:   I’m going to ask an impertinent question.

        21       I will ask you to let us have a look at the data that you

        22       have.  Is it permissible for you to do that?

        23

        24       PROFESSOR PEARSON:   I would need to just check with my

        25       group.  I wouldn’t have any objections myself.  At this

        26       stage it’s conditional upon the inquiry itself using the

        27       material and not launching it to any website or anything

        28       like that.  Is everything that we make available to you

        29       publicly available?

        30

        31       MR FINKELSTEIN:   No, the only things we have made publicly

        32       available are the submissions that parties or individuals

        33       have filed, provided we thought that they were appropriate

        34       to be published.

        35

        36       PROFESSOR PEARSON:   I would just check with the other

        37       members of the group first.  The researchers get precious

        38       about their data, of course.  What I will say about the

        39       items from The Australian – and remember it is only a

        40       qualitative content analysis, because we had randomly

        41       selected days throughout 2009 that we were collecting from,

        42       so it is not like we have done a comprehensive count of

        43       every story in The Australian over that period; it was a

        44       story that appeared in the news sections of the selected

        45       days, which happened to be 12 days per year, over the year,

        46       one day per month for each of the newspapers we were

        47       looking at.  So it was not a huge dataset and it was

 

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         1       certainly not counted in that way.

         2

         3            But what I would say is that we were also on the

         4       alert, particularly when the amber light had gone on for

         5       the vulnerable groups, for positive handling of such

         6       situations and not just the negative handling.  Of the ones

         7       we looked at for The Australian newspaper there would have

         8       only been half a dozen or so out of it would have been

         9       several hundred articles where we could see a very, very

        10       clear moment of vulnerability which seemed not to have been

        11       handled that well and did not seem to have counterbalancing

        12       broader public interest concerns.  There were several that

        13       were handled quite well.

        14

        15       MR FINKELSTEIN:   Have you got similar data to hand where

        16       you could make observations of the kind you have just made

        17       but concerning other news outlets?

        18

        19       PROFESSOR PEARSON:   No, because my colleagues have that,

        20       our research assistant based out of Wollongong and the

        21       other colleagues that have been leading the project for the

        22       different publications.

        23

        24       MR FINKELSTEIN:   Are you able to say from the discussions

        25       you have had to date amongst your group whether you think

        26       that there are areas of concern where the press have in a

        27       sufficiently large number of cases, bearing in mind the

        28       limitations on the data collection process, that you would

        29       think that something like a body like a Press Council ought

        30       be having a look at it to see whether or not standards are

        31       being complied with or ought be firmed up?

        32

        33            I know, for example, that the Press Council have

        34       specific guidelines on suicide and are working on other

        35       areas as well; whether you know enough yet to say that

        36       there are some areas where the Press Council ought publish

        37       specific guidelines about how these kinds of situations

        38       should be dealt with, and then I will ask you what those

        39       situations are.

        40

        41       PROFESSOR PEARSON:   The answer is, yes, there are areas

        42       that journalists could improve their application of the

        43       various codes of practice that they operate under which has

        44       become apparent through a few of the cases that we have

        45       looked at.  One of them is the issue of dealing with

        46       children and whether children should be mentioned or —

        47

 

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         1       MR FINKELSTEIN:   You mean by name mentioned?

         2

         3       PROFESSOR PEARSON:   Perhaps by name, but also perhaps not

         4       named but their circumstances may well accentuate their

         5       emotional harm or whatever because they are part of a

         6       story, even though not identified.

         7

         8            A second is clearly to do with suicide.  Even in The

         9       Australian newspaper there were two or three examples where

        10       the actual method of suicide was detailed.  In a couple of

        11       those cases it was to do with celebrities.  In other cases

        12       it was to do not so much with the method being detailed but

        13       basically speculating that the individual involved might

        14       well or it could be expected that they would be having

        15       suicidal feelings in those circumstances which were part of

        16       the story.  So, in other words, they were comment pieces

        17       going to the soul of the individual.  These were sporting

        18       individuals who were seen to be at their lowest career and

        19       life points, and it was raising suicide as a prospect.

        20       That was of concern.

        21

        22            One was a particular moment of vulnerability with

        23       children.  It was quite a high-profile case.  I think I can

        24       actually mention it.  You might recall it was the mother

        25       who had fled overseas with her child.  It was a custody

        26       issue and the father was back here.

        27

        28       DR RICKETSON:   In Victoria

        29

        30       PROFESSOR PEARSON:   I think it was in Victoria, yes.

        31       I could dig it up here if you wanted me to.  But,

        32       basically, the point was that there were all sorts of

        33       comments made in the article quoting an expert about what

        34       the consequences, and the very negative consequences, would

        35       be for the mother and child if she gave up and surrendered

        36       herself.  We thought that was an unnecessary extension to

        37       take with the story because it was seen to be

        38       counterproductive to the outcome, which was clearly that

        39       the woman did surrender herself and the child.  So they are

        40       just some little skerricks of some insights of the sorts of

        41       things we were looking at.

        42

        43            Others were clearly outweighed by the public interest

        44       involved, but are interesting because of both the cultural

        45       and I suppose the globalised nature of news communication

        46       today; for example, an injured civilian in the Gaza Strip

        47       during a military conflict, clearly a bomb victim covered

 

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         1       in blood in terrible distress.  It just raises the question

         2       – and obviously from our earlier discussion it is something

         3       you need to consider in the reverse, I suppose, for

         4       international coverage of Australian stories, for

         5       Australian coverage of international stories – if this

         6       material is also posted to the website, what’s the

         7       implication back home for this citizen of another country

         8       who clearly has the same scope for embarrassment,

         9       humiliation with their depiction in a traumatic news event.

        10

        11       MR FINKELSTEIN:  Have you got any comments you could make

        12       about Indigenous people that you have personally looked at

        13       or that your group has discussed?

        14

        15       PROFESSOR PEARSON:   As an extension to the study I was

        16       funded through my allocation, being a media law researcher,

        17       to look for examples where both the ACMA and the Australian

        18       Press Council had dealt with complaints that we could

        19       identify as coming within our domain of these moments of

        20       vulnerability.  Surprisingly – and I explain in the

        21       submission – there were relatively few, it was only really

        22       20 or so between the two bodies, where we could see these

        23       moments of vulnerability finding their way all the way

        24       through to a complaint and a finding in various ways.

        25       Obviously the co-regulator deals with it differently from

        26       the Press Council.

        27

        28            In answer to your Indigenous question, amongst those

        29       there were three or four examples where the regulators had

        30       dealt in different ways with people who were clearly

        31       vulnerable individuals but their race seemed to be

        32       mentioned in either an unnecessary sense or in a derogatory

        33       sense.  So the fact that they were Indigenous may not have

        34       even needed to have been mentioned.  It didn’t seem to be

        35       relevant to it in one case I can think of.  In another it

        36       was the showing of footage to do with – it was basically a

        37       file footage issue where it was to do with an Indigenous

        38       story but it was showing very negative file footage

        39       attached to that.

        40

        41       MR FINKELSTEIN:   One of the points you do make in the

        42       organisation’s paper is it is a bit hard to draw a lot of

        43       conclusions from that from the numbers that you see, either

        44       the Press Council or through ACMA, because these kinds of

        45       people, the vulnerable, are less likely to make complaints.

        46

        47       PROFESSOR PEARSON:   Yes.

 

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         1

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

         3       much.

         4

         5       PROFESSOR PEARSON:   We don’t know that they are less

         6       likely.  We can’t draw that conclusion.  But we have focus

         7       group participants saying that they were becoming

         8       frustrated with the processes; they didn’t have the energy;

         9       they were already traumatised; they didn’t want to have to

        10       deal with the media; all of those kinds of comments.  You

        11       must remember with focus groups – and we feel ours were

        12       managed particularly well – once you start homing in on the

        13       topic area people start sort of getting on their high horse

        14       and saying all sorts of things.  It is all grist to the

        15       mill, but it is only one element of the methodology.

        16

        17       MR FINKELSTEIN:   I think we are pretty much finished, but

        18       what I was going to ask was if in a month’s time —

        19

        20       PROFESSOR PEARSON:   Unfortunately a month cuts straight

        21       across that Christmas break.  I will put it to my

        22       colleagues, but I don’t expect them to be working

        23       diligently on this over their family holiday period.  I’m

        24       sure if the inquiry was to offer an extension grant or

        25       something for the linkage project – no, that was all in

        26       jest.

        27

        28            The other big thing of course was the issue of consent

        29       in particularly traumatic situations.  Particularly my

        30       colleague Angela Romano from QUT has had a much closer look

        31       at this.  But, nevertheless, the issue seems to be in some

        32       of the codes of practice they talk about consent having

        33       been given and that being acceptable.  Consent was a

        34       recurring issue in the Press Council and ACMA

        35       deliberations, particularly with things like children or

        36       relatives giving consent for a vulnerable person’s medical

        37       details and then being identified in association with that,

        38       and the media accepting that level of consent when clearly

        39       the individual hadn’t agreed to it.

        40

        41            Dr Romano also raises the issue of the ability to

        42       withdraw consent and whether or not an editor might sort of

        43       give only one chance to give consent and not allow the

        44       opportunity for that to be withdrawn if the person is

        45       having second thoughts and the story is particularly

        46       newsworthy.  So we think consent needs to take into account

        47       the situation of trauma or vulnerability that the

 

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         1       individual is involved in, and that’s not necessarily

         2       written that well into the various codes of practice.

         3

         4            What we would like to see is the very issue of

         5       vulnerability being expanded so that, if there was a new

         6       code, it would make allowance for the fact that individuals

         7       in serious news events might be traumatised and may be

         8       unwilling to give consent at all, but should have the right

         9       to withdraw that consent at some stage.

        10

        11       MR FINKELSTEIN:   That is an interesting concept.  It is

        12       also interesting, the consent issue, because the kind of

        13       consent that was extracted from I think it was a footballer

        14       in London who had suffered quite serious injuries gave his

        15       consent to two reporters who had dressed up as doctors to

        16       get into his hospital room led – I can’t remember whether

        17       it was the third royal commission or the second royal

        18       commission, I think the third royal commission into the

        19       press.  It got everybody pretty excited, and quite

        20       legitimately.

        21

        22       PROFESSOR PEARSON:   Two of the examples we look at to do

        23       with the Press Council actually have situations where that

        24       allegation was made in Australia on two of the complaints.

        25       The Press Council decided not to inquire further into the

        26       veracity because it was denied by the newspaper

        27       organisation but put by those who were the supposed

        28       victims.  It decided on other grounds rather than pursuing

        29       the inquiry into the circumstances in which the journalists

        30       got access to them in the first place.

        31

        32       MR FINKELSTEIN:   I think in the English case there wasn’t

        33       a dispute about it.  They said, “Sure, we got dressed up

        34       like doctors to get into” —

        35

        36       PROFESSOR PEARSON:   That was the Sunday Sport case

        37       involving the actor Gordon Kaye.

        38

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

        40       been in the 1970s.

        41

        42       PROFESSOR PEARSON:   That may well have been the case.  But

        43       the one that I mention is what prompted the Calcutt Inquiry

        44       originally, which was basically the first real exploration

        45       of these things.  It was the actor Gordon Kaye, who was in

        46       his hospital bed and semiconscious after head injuries in a

        47       storm in a motor vehicle.

 

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         1

         2       DR RICKETSON:   Also the code of ethics currently here, in

         3       the review of it in the mid-1990s, from memory, there were

         4       explicit clauses recommended for both dealing with children

         5       and dealing with people in if not vulnerability then grief.

         6       They were more expansive than the 12 clause code that was

         7       eventually voted in in 1999 or whenever.  In a sense,

         8       either you could go back and have a look at that or that

         9       ground has been at least explored in the past.

        10

        11       PROFESSOR PEARSON:   Or if a new single code was pared back

        12       to those very basic principles we spoke about early in this

        13       session, then an extension document on dealing with the

        14       vulnerable, in other words the educational side of it,

        15       could take up that issue as part of the basic respect

        16       element when dealing with sources.

        17

        18       MR FINKELSTEIN:   If you had a pared back single code it

        19       wouldn’t be a bad idea to have a sort of explanatory

        20       memorandum going with it giving examples or an expansion by

        21       way of example or of common facts that a journalist might

        22       encounter in a professional life.

        23

        24       PROFESSOR PEARSON:   We make the point in our submission

        25       that something the Press Council has done very well has

        26       been the whole educational side of things and the funding

        27       of research and so on.  Part of that I think has been

        28       looking at case studies with journalism students at the

        29       various institutions where a Press Council member visits

        30       the institution and they do exactly what you are saying.

        31       They look at the actual principle that is involved and then

        32       they look at how that has been applied.  They get the

        33       students to engage with a particular news scenario which

        34       really did happen and then they look at the outcome and why

        35       the Press Council reached that decision.  So accompanying

        36       materials like that would certainly be of benefit.

        37

        38            But the problem at the moment is just the basic

        39       wording of all of the different codes of practice and code

        40       of ethics.  The standard one is the journalist code of

        41       ethics, the MEAA.  But, as you are fully aware, it has been

        42       very badly enforced.  That’s the issue.  But the document

        43       itself is probably the best working document, I would

        44       think.

        45

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

        47       incarnation.

 

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         2       MR FINKELSTEIN:   That is it from us.

         3

         4       PROFESSOR PEARSON:   Thank you for the opportunity.

         5

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

         7

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

         9       research between now and mid-January —

        10

        11       PROFESSOR PEARSON:   I will certainly put that to my

        12       colleagues.  We will link-up for a teleconference in the

        13       next week and I will correspond with your officers.

        14

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

        16       2011 AT 2.30PM

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© Mark Pearson 2011

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

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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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