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Speech in Timor Leste – top ten media regulation lessons from Australia

By MARK PEARSON

I’ve arrived in Dili, Timor Leste, to deliver an address tomorrow (Friday, October 25) to this small nation’s National Congress of Journalists. The congress is working towards introducing a new code of ethics and a press council. Here is a preview of some highlights from my speech…

Dili, Timor Leste. (Credit: Google free use search / Flickr)

Dili, Timor Leste. (Google free use / Flickr)

Firstly I wish to thank the organisers and sponsors for allowing me the privilege of being here for this important congress. I also wish to formally pay my respects to the six journalists who were killed here in 1975 – including three Australians – and the countless Timorese people who have over decades paid a high price for daring to seek and tell the truth.

As journalists and editors you are so often in competition for your stories and for your audiences that it is a rare treat to see you gather as a professional group in a spirit of collaboration to progress the elevation of ethical standards through self-regulation.

…As a developed western democracy Australia drew heavily upon British and US traditions of politics and government, resulting in a relatively high level of free expression by international standards. It usually ranks in the top 30 countries of the world in the various media freedom indices such as those issued by Reporters Without Borders in Paris and Freedom House in New York.

But Australia is certainly not a shining light of media freedom. In at least two important ways Australia actually has lessons to learn from Timor Leste. One is that, unlike most democracies, the Australian Constitution makes no reference to freedom of expression or a free press. This distinguishes it from Timor Leste, where your Constitution goes to some length to spell out the freedom of speech and information at section 40 and the freedom of the press and mass media at section 41. A second important indicator is that Australia still has criminal defamation on the books in most states. This is a law abused by governments internationally throughout history, and Timor Leste should be applauded for removing it in 2009.

… Two major inquiries into the Australian news media in 2011 and 2012, followed by the Australian government’s attempts to introduce legislative reforms in 2013, prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level. Four regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; a federal government proposal for a new Public Interest Media Advocate with control over the self-regulators; and the status quo with a strengthened Australian Press Council policing both print and online media.

… There are several ways journalists in other countries considering regulatory models can learn from this recent experience in Australia.

  1. Comparisons can be dangerous. Even in a democracy with a long history of relatively free expression politicians and governments will seek out and seize any opportunity to regulate the media. International comparisons can be dangerous because we operate within different political and cultural frameworks. When they were arguing for their media reforms, both Communications Minister Stephen Conroy and Prime Minister Julia Gillard cited RSF’s World Press Freedom Index, using the argument that Finland remained in number one position there despite having a statutory mechanism for its press regulation. They failed to mention that Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the Australia’s hundreds of other media laws that impact on free expression, which place it at number 26 on that same Index. Australia languishes there partly because of the very threats to media freedom posed by these recent inquiries.
  2. Beware regulation creep. Existing laws such as defamation and contempt that apply to all citizens go a long way towards controlling media behavior. I have seen few serious ethical breaches that could not be handled by existing laws. Once media laws have been introduced it is hard to claw back eroded freedoms. Australia passed more than 50 new anti-terror laws after the September 2001 attacks on the US – many impacting on the media – and few of those have been wound back (Ewart et. al, 2013).
  3. Don’t trade press freedom. Well meaning journalists and academics are sometimes willing to sacrifice media freedom because of the misbehavior of some media personnel. Several academics and small publishers stepped up to give the Finkelstein model their approval and a leading journalism educator helped draft it (Conversation, 2012). When you offer governments new powers to control the misbehaviour of some elements in the media you need to accept that those same powers might be used against you at some later stage.
  4. Beware de facto licensing. There is the temptation to issue journalists with accreditation and registration in actual or de facto licensing schemes. The narrow defining of journalists and journalism by governments presents a real danger to free expression because it privileges some citizens over others as communicators. This gives those issuing and revoking such licenses influence over the message itself. It is even less appropriate in a new era of blogging and social media because the nature of news and journalism is even harder to define. Citizens might become reporters temporarily because of the scale of an event or issue or on an ongoing basis in a narrow field of interest that might momentarily become of broader public interest. It is inappropriate that they should have to seek registration or licensing as a journalist or that they should be punished for reporting without such official licence. Rather, their words or actions should be subject only to the communication limitations placed on all citizens, and in a working democracy they should be limited to only extreme breaches
  5. Look to the ultimate sanction. The best test when trying to gauge the potential impact of new media regulations is not the assurances of their proponents that they will be used only rarely and only in extreme cases. The real test is to look at the ultimate sanctions available and if these involve the potential jailing or fining of journalists then they are anathema to press freedom in a democracy.
  6. Media freedom is above politics. This was certainly a long overdue debate in Australia, but it was politicised from the outset which undermined the likelihood of the implementation of any of the proposals. Labor and Greens applauded it and pushed for its enactment, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage about them in News Limited publications locally (Kitney et.al, 2012). A basic human right like free expression are above politics, yet most governments will strive to limit it.
  7. Media freedom is above commercial interest. Opponents of media regulation need to be careful they are not being seen as simply protecting their own commercial enterprises. Criticism of the recommendations by the larger Australian media groups on free expression grounds – particularly by Murdoch executives – were dismissed as a defence of their vested interests (Meade and Canning, 2012). Such pigeon-holing of all advocates of media freedom and critics of regulation proposals is misplaced. It helps to recruit other senior intellectuals in defence of media freedom – including academics, business leaders and other public intellectuals.
  8. Look to carrots instead of sticks. The Convergence Review’s suggestion that some existing media exemptions to certain laws (particularly consumer law) might be linked to their membership of a media council is worth exploring because it avoids introducing new sanctions on the media. However, these must be carefully scrutinised to ensure they are not stemming the free flow of information or establishing a de facto licensing system.
  9. Adopt a universal ethics code. A uniform code of practice across all news media is a vital. It is in journalists’ best interests that they have one, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. Australia has far too many self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets.
  10. Training and education in law and ethics is crucial. Media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their understanding of the important role of the media in a democracy.

Nowhere in the world has there ever been unshackled free speech or a free media. Media regulatory systems and ethical frameworks are on the agenda in many countries, and we are challenged to accommodate free expression and its close relative press freedom within new technological and cultural contexts.

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. China, Vietnam, Malaysia, Singapore, Brunei, Fiji and some others have state licensing systems in place for their media.

The argument by governments in such countries is that the economy and political system are too fragile to allow freedom of the press. The reality is that freedom of the press is too fragile to allow governments to limit it. Censorship can only shackle democracy which is itself dependent upon the free flow of information and opinion to inform the voting citizen.

Too often journalists and academics get so caught up in devising new ethical codes that they start to invite governments into the control of sanctions for their breach. But the moment we let governments get involved we rarely have self-regulation. We then have what are commonly known as ‘laws’ – legislated by governments and enforced by the courts – and that is called regulation. The most important lesson from Australia is that it is all too easy to give away basic liberties in our pursuit of recalcitrant colleagues and in our scramble for public acknowledgment of the status of journalism as a profession.

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

By MARK PEARSON

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

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

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Adam Marcus from Retraction Watch … conflict deserved declaration

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

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

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

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

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

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

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

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

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

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

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© Mark Pearson 2013

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

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The doctor, the Fast Diet and medical journal ethics

By MARK PEARSON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BrownOnHelsinki

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

© Mark Pearson 2013

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

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

By MARK PEARSON

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

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

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

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

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

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

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

 

Application of the Noble Eightfold Path to ethical journalism practice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

Surely this is a useful attribute for the journalist.

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

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

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

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

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

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

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

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

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

Towards a secular ‘mindful journalism’

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

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

© Mark Pearson 2013

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

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My submission to the Tasmania Law Reform Institute on ID of sex crime victims

By MARK PEARSON

Here is my submission responding to the issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes.

For background to the inquiry, see my earlier blog here. It was triggered by this Hobart Mercury story (left).

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September 28, 2012

Submission in response to Issues Paper No 18 ‘Protecting the Anonymity of Victims of Sexual Crimes’

Please accept this personal submission in response to your issues paper, which I have prepared with research assistance from Bond University students enrolled in my media law and ethics subject. They have been required to read and discuss your report as part of an assignment for that subject and their scholarship and insights have informed the views I express here. I must stress, however, that this is a personal submission as an academic who teaches and researches in the field and my opinions do not necessarily reflect those of my employer, Bond University, or the international media freedom agency Reporters Without Borders, for whom I am the Australian representative.

By way of background, my research, teaching and industry consultancy focus on the interpretation of media law for journalists and other writers who might produce reportage as bloggers, ‘citizen journalists’ or social media users. I am co-author with barrister Mark Polden of The Journalist’s Guide to Media Law (4th edition, Allen & Unwin, 2011) and am sole author of Blogging and Tweeting Without Getting Sued – A Global Guide to the Law for Anyone Writing Online (Allen & Unwin, 2012). I have conducted media law training for Fairfax Media journalists at the Launceston Examiner and the Burnie Advocate newspapers. Our Centre for Law, Governance and Public Policy convened the national symposium ‘Courts and the Media in the Digital Era’ in 2011, which resulted in our co-edited book The Courts and the Media – Challenges in the Era of Digital and Social Media (Keyzer, Johnston and Pearson, Halstead Press, 2012). We are now collaborating with colleagues from other universities on a national research project examining the impact of social media upon the courts.

I have chosen to begin with some general observations about the tone and ambit of your issues paper before proposing a mechanism for reform.

Important contextual considerations

Issues Paper 18 is an excellent summary of comparative legislation and case law on the identification of sex crime victims. It canvasses numerous public policy issues at stake when contemplating a reform of s. 194K. However, it seems to demonstrate little understanding of media organisations’ news values and production values and does not acknowledge several important policy developments under way nationally and globally.

Journalists’ training

The paper offers a handful of examples where such laws have been breached by the news media in Australia, including only one in recent times in Tasmania that has proceeded to court. While we all would prefer there were no media breaches of identification laws, I suggest that court reporters are overwhelmingly aware of, and compliant with, both sub judice contempt guidelines and statutory reporting restrictions. This is due mainly to the media law education and training reporters receive in their university journalism degrees and in the workplace. Most media organisations also provide shorthand tuition to their staff and adhere to strict court reporting protocols where cases are followed through the court system and junior reporters ‘shadow’ experienced colleagues before starting on the round. One of the fundamental topics all court reporters learn is that there are restrictions on the identification of children and sexual assault victims involved in proceedings.

News values, open justice and the role of court reporting

Your issues paper devotes a small section to the principle of ‘open justice’ which quite rightly quotes important jurists and international human rights documents and legislation enshrining it (Part 2.1). Yet, it implies news organisations are motivated primarily by commercial interest when reporting upon the courts. At 4.3.3, your paper states: “Media outlets have an obvious interest in publishing material that will attract readers or viewers. A story that identifies the victim of sexual assault is likely to attract greater consumer interest than one that does not. There is a strong incentive for the media to publish such details.” I am aware of no research supporting this assertion and my informed view is that editors, sub-editors and court reporters strive to abide by the legal restrictions and ethical obligations forbidding identification. On rare occasions that determination is tested in the heat of competition for a particularly unusual story or one involving a celebrity – but such occasions have become even less common in the wake of strong national and international scrutiny of such media behaviour. It is, however, a mistake to view this story of this 12-year-old Tasmanian girl prostituted by her mother and the named accused as one of simply the media feeding a public titillation with sordid sexual detail. The story indeed featured the news values of ‘unusualness’ and sheer ‘human interest’ – but it also had the important public news value of what we call ‘consequence’ or ‘impact’ – many of which concern public policy benefits of the reportage of such matters.

Public policy benefits of media reportage of sexual and juvenile cases

There is a principle as ancient and as inherent in a democracy as open justice – and that is the role of the news media as the ‘Fourth Estate’. Key public policy reviews and reforms have ensued in Tasmania after this incident, and I suggest they might not have garnered the political traction to proceed if the public had been kept ignorant of the matters before the courts. These have included your own review of the defence of ‘mistake as to age’ and other important reviews of child protection. In short, court reporting by the news media and the public discussion and scrutiny it generates can fulfil many important functions in society beyond sheer entertainment; including deterrence from crime, education about justice, transparency of process, and as a watchdog on injustice and deficient public policy. Closed proceedings – or complex requirements involving media applications to cover certain matters – pose serious risks to such positive public policy outcomes.

Free expression and freedom of the press

A close relative of the principle of ‘open justice’ in a democracy is the human right of free expression and its derivative – freedom of the press. Your paper does not mention this principle, but it is crucial to note when comparing reporting restrictions across jurisdictions that Australia is unusual among western democracies in that it has no written constitutional guarantee of free expression or a free media. Each of the foreign jurisdictions your paper uses for comparison on sexual reporting restrictions – the United Kingdom, Canada and New Zealand – features such a guarantee in a charter of rights. Australia and Tasmania have no such statutory or constitutional mechanisms in place, which is an important point of difference because proposed restrictions trigger no formalised process of review on free expression grounds and courts here are not obliged to weigh free expression against other rights in their determinations. (There is, however, an argument that court reporting restrictions might breach the High Court’s implied constitutional freedom to communicate on matters of politics and government; see Nationwide News v. Wills [1992] HCA 46; (1992) 177 CLR 1).

Media ethics and regulation

I realise the your document focuses on the narrow question of whether S. 194K should be reformed, but highly relevant is the likelihood of media organisations being motivated to use a perceived legal ‘loophole’ to identify a vulnerable individual such as a child who has been subjected to sexual abuse. Such a motivation would represent a serious breach of the privacy provisions of the MEAA Journalists’ Code of Ethics and all self-regulatory and co-regulatory codes of practice in place throughout print, broadcast, television and online news media industries – including in-house codes, those of the Australian Press Council and the numerous broadcast sector codes ultimately policed by the Australian Communications and Media Authority (ACMA). The question of media adherence to such codes has been the subject of two major inquiries in the form of the Convergence Review and its subsidiary Independent Media Inquiry chaired by former Federal Court justice Ray Finkelstein – the recommendations of which are currently under consideration by the Federal Government. Regardless of whether they are adopted, an impact has been significant attempts by the news media to get their own ‘houses in order’ to avoid the prospect of strict government regulation of their ethical practices and complaints systems. The Australian Press Council has implemented significant improvements to its processes. All of this has been against the international backdrop of the UK inquiries into serious ethical and legal breaches by the Murdoch-owned News of the World newspaper.

Privacy regulation and factors impacting media privacy intrusion

Related to this inquiry have been important developments in the area of privacy law and regulation. You would be aware that the Commonwealth Government has already implemented privacy law reforms recommended by the Australian Law Reform Commission Report 108: For Your Information: Australian Privacy Law and Practice (http://www.alrc.gov.au/publications/report-108). The Gillard Government is reported to be seriously considering a recommendation for a statutory tort of invasion of privacy. Whether or not that is implemented, your own issues paper at p. 14 cites the case of Doe v. ABC (2007) VCC 282, where a journalist’s identification of a sexual assault victim led to both criminal charges and a civil suit where damages were awarded for the privacy invasion of the victim. Although this was an intermediate court decision, it stands as a precedent in a developing body of judge-made privacy law. Significant too is the ACMA’s 2011 review of its privacy guidelines (http://www.acma.gov.au/WEB/STANDARD/pc=PC_410273) for broadcasters which included important changes in the way broadcast media should deal with vulnerable interviewees, particularly children. The submission from an ARC Vulnerability Linkage Grant project on which I was a chief investigator seems to have been influential in helping frame these new provisions. (See our submission to that ACMA inquiry at http://www.acma.gov.au/webwr/_assets/main/lib410086/ifc28-2011_arc_linkage_grant.pdf ).  In short, my view is that media outlets are working to a higher level of internal, industry and public accountability when dealing with the vulnerable (particularly children) than they were two years ago when this court proceeding was reported.

The Internet, social media and the Tasmanian jurisdiction

Your issues paper makes some mention of the Internet, primarily with regard to the terminology and scope of s 194K at 5.4.2, but it mentions social media only as a footnote on page 32. My informed opinion, drawing upon research for my most recent book and for our courts and social media project at Bond University’s Centre for Law, Governance and Public Policy, is that it would be a grave error to proceed to legislative reform without due consideration of the extraordinary ways in which social media has changed the capacity for ordinary citizens to become publishers about court proceedings. Importantly, this allows for the exact reverse situation to occur in a trial to what happened in this case. Instead of the traditional media revealing, albeit indirectly, the identity of a child sexual crime victim to people who might otherwise not know her, social media allows for those who know the victim to reveal her identity to the wider world via their networks of Facebook ‘friends’ and Twitter ‘followers’. Here you are dealing with ordinary citizens who may be completely ignorant of legal restrictions on identifying such victims and may even be relying on second hand information from court proceedings they have not even attended. The reality is that the advent of social media means that  no tightening of restrictions such as those found in s.194K will be totally effective in protecting the identity of anyone involved in court proceedings – no matter how compliant journalists from traditional media might be. Web 2.0 means that secrets – particularly interesting ones – will not often be revealed, and those revealing them might not be identifiable or answerable. It has led to what I describe as a “two-speed” suppression regime in our justice systems – effectively one rule for traditional media and a different rule for citizens using social media who sometimes have an even larger audience than news outlets for their gossip and innuendo. For a recent example of this, see the remarkable situation where the mainstream media was prevented from reporting that the acting police minister faced serious sexual charges under the Evidence Act 1929, s 71A – but his name was all over the Internet and social media (See http://www.adelaidenow.com.au/news/south-australia/bernard-finnigans-name-was-all-over-the-internet-despite-suppression-order/story-e6frea83-1226480605607 and https://journlaw.com/2011/05/04/south-australias-antiquated-sex-id-law/ ).

A feature of Internet searches is that Google searches for certain terms group the results, leading to possible identification via a combination of factors across different results, whereas any single publication would not identify a victim. Similarly, an individual’s Facebook page or Twitter profile will list their ‘friends’ or associates, allowing social media to link an unnamed victim with a named accused if they have a close relationship. These factors present a challenge for reform of such legislation. A bizarre aspect of your inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter. Further, it draws attention by headline to the actual article that has triggered the inquiry, thus facilitating readers to access the very material that identifies the victim. It is sad and ironic that someone who knew the family and those basic facts might well discover the victim’s identity via the Institute’s very own document.

The paper also seems to take a pre-Internet approach to jurisdictional sovereignty, suggesting that Tasmania’s reach might extend beyond its island borders to ‘the entire world’ (4.3.9). While the state might well achieve such reach in the most serious offences via extradition agreements, I suggest it is counter-productive and unrealistic to entertain the notion that a Tasmanian identification prohibition is going to have any real effect on individuals publishing material on the Internet from beyond the State’s borders.

Court closure and judicial censorship are a threat to open justice

Completely closing the court in such proceedings would be a draconian and retrograde step, counter to the principle of open justice and damaging to the important public policy outcomes I mentioned earlier in this submission. I understand the detailed mention in the Mercury article of the sexually transmitted diseases the girl had contracted was a special concern of those who wanted the DPP to press charges in this matter. Yet there is strong argument that there could be important public policy outcomes from the publication of such graphic details; such as deterring prostitution clients from engaging in unprotected intercourse and the incentive for the numerous clients in this case to seek treatment to prevent their spread through the broader community. A closed court would prevent such public messages being conveyed.

Just as concerning is the censorship regime proposed in Option 3, requiring at 5.2.4 “that the media outlet provide details of what they intend to publish to assist the court in determining whether to grant the order”. The following sentence reads like a dictum from a despotic regime on the Reporters Without Borders watch list: “The court could then decide whether to allow publication of the whole piece, some parts of the piece or to deny publication altogether”. Such an approach is anathema in a state of a progressive western democracy like Australia. It would breach the ancient rule against ‘prior restraint’ – defended so eloquently by the first Chief Justice of NSW, Sir Francis Forbes against Governor Darling in 1826 (See Spigelman, J., 2002 at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_201103).

My suggested mechanism for reform of s. 194K

Rather than debating the pros and cons of the various options foreshadowed in your paper, I will instead propose a workable solution that will minimise the likelihood of the recurrence of the circumstances that occurred in this case. As I suggested above, there is now no watertight legislative or procedural way to be absolutely certain of protecting the anonymity of victims of sexual crimes.

Your paper offered an excellent summary of sexual case reporting restrictions in Australia and in comparable foreign jurisdictions, but seemed to ignore the similar identification laws that apply to the identification of children in proceedings. The case prompting this inquiry involved both a juvenile and a sexual matter, which of course prompts the highest level of caution with identification. Our text, The Journalist’s Guide to Media Law (with Mark Polden, Allen & Unwin, 2011) features comparative tables of both juvenile and sexual proceedings reporting restrictions (at pp. 160-162 and pp.156-158 respectively). I feel S 104C of the NSW Children and Young Persons (Care and Protection) Act 1998 offers a promising solution in the form of a news media privilege to attend proceedings for reporting purposes:

104C   Entitlement of media to hear proceedings

At any time while the Children’s Court is hearing proceedings with respect to a child or young person, any person who is engaged in preparing a report of the proceedings for dissemination through a public news medium is, unless the Children’s Court otherwise directs, entitled to enter and remain in the place where the proceedings are being heard.

The news media have traditionally been extended certain privileges in courts as the ‘eyes and the ears’ of the broader citizenry – reserved seating at a press bench, access to court papers, and sometimes even standing to make a submission on a court order (Evidence Act (SA) s. 69A(5).) In NSW they are allowed to attend and report upon children’s court proceedings – but are of course expected to comply with identification restrictions. This is sensible, given journalists’ training in media law and court reporting matters and their understanding that it is only a privilege that a judicial officer might choose to withdraw. All this also prompts questions about the role and entitlements of reporters from non-traditional media – bloggers and ‘citizen journalists’ – who might choose to cover certain trials and report upon them on social media or upon specially constructed crime websites devoted to high profile proceedings. I suggest procedures could be applied to require ‘citizen journalists’ to satisfy the court that they deserve such a media privilege on a case-by-case basis.

In summary, and without extended further explanation, my proposal is:

  • Close the courts in matters involving children and sexual assault victims to the broader citizenry to limit social media ‘leakage’ of matters such as identification;
  • Allow authorised news media representatives to attend and report with the following identification restrictions;
  • Tighten the identification wording so that indirect identification is less likely. Prohibit the naming of the victim, of course. Require the court to rule upon the other identifying factors allowable in the particular case, with the working principle that a combination of factors does not identify the victim. (For example, allow her suburb and her age to be published if the suburb is populous enough, but not the sporting organisation of which she is a member.) Also prohibit visual identification of the accused in sexual assault cases where the accused has had an ongoing relationship with the victim (not necessary where the assault has been an attack by a stranger) so that those who have seen the accused with the victim do not identify her by this means.
  • Prohibit all photographs or footage of the victim being published or broadcast – even those pixelated or obscured in any way. (This practice is flawed.)

My final comments address two important points related to journalists. Firstly, I suggest there are excellent public policy reasons why victims should be permitted to self-identify as sexual assault victims at a reasonable time after proceedings have ended. I am not a psychologist, but I float the suggestion that a period of two years after the completion of proceedings might be a time when some victims might feel able to give ‘informed consent’ to a media outlet to tell their story – and that such a story could itself have major public policy benefits. Given that abuses of such a privilege are rare in jurisdictions that allow it, I suggest it be worded so that it is enough that the victim gives the journalist his or her permission in writing for publication, and that the onus of proof be on the prosecutor to demonstrate that the journalist “knew, or should have known” that the consent was not “informed” by the condition of the victim at the time and that financial inducements be prohibited.

Secondly, I offer my strong view that any penalties for breach of the reformed statute be dealt with as an offence against the statute itself, and with a fine and not a jail term. Breaches have been so rare in the past and are usually accidental, and it is an affront to democracy when states jail journalists for publishing offences. Contempt powers, particularly those wielded by superior court judges, are far too broad to justify their application to this type of publishing error.

I wish you well with your deliberations on this important matter and would be pleased to offer any further assistance if you should require it.

Yours sincerely,

Professor Mark Pearson

© 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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Tasmanian sex case ID proposals under scrutiny

By MARK PEARSON

An issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes – raises so many issues of relevance to my media law and ethics class that I have built a problem-based learning assignment around it.

The inquiry was triggered by coverage in the Hobart Mercury (see picture) in 2010 of prostitution of a 12-year-old girl by her mother and her mother’s male friend.

While the Mercury anonymised the identity of the girl and her mother, it named the accused male and listed several details that might have led readers with some knowledge of the accused or the family to identify the victim.

The barrister appointed as the girl’s representative in her care and protection proceedings, Mr Craig Mackie, wanted the newspaper charged for breach of the legislation prohibiting the identification of a sex crime victim (s194K of the Evidence Act 2001).

But the prosecutor’s office refused to act, arguing the identification was too indirect to breach the provision. Mr Mackie also sits on the Tasmanian Law Reform Institute board, and he referred the matter to that body for its review.

The issues paper covers some of the key topic areas covered in our media law and ethics subject –free expression, open justice, contempt of court, court reporting restrictions and privacy.

As part of our problem-based learning task, some students might file their own submissions before the September 28 deadline, while others will use their research to inform a reflective paper they submit as a class assignment a week later.

I might draw upon some of their research and insights in my personal submission to the inquiry – with due recognition to their efforts.

Media law tragics will find the Institute’s issues paper compelling reading.

On the one hand, it offers in a relatively brief 52 pages an excellent comparison of reporting restrictions in sexual crimes across several jurisdictions including most Australian states and the UK, New Zealand and Canada.

It also summarises the key cases in the field and quotes some of the leading judgments on the principle of open justice.

Yet my own submission will call into question several assumptions and gaps in the Issues Paper, including:

–       Evidence of anti-media language and stance, betraying a fundamental assumption that journalists are out to expose sexual assault victims despite there being relatively few cases where they have done so (often accidentally).

–       An old world ignorance of the advent of social media, citizen journalism and blogging, which have complicated the 20th century approach to regulating news media coverage of sex crime cases.

–       A similar pre-Internet approach to jurisdiction, seemingly working from the premise that publications about such matters are contained within Tasmanian borders.

–       Disregard of the fact that the Commonwealth Government is considering major reform proposals on privacy law and media regulation, all of which are relevant to the media’s exploitation and exposure of vulnerable victims of sex crimes.

–       Floating an extraordinarily proposition for prior restraint in such matters – that the media be totally banned from covering sexual cases and that a court should review and censor any proposed story about such a case pre-publication.

–       Ignoring the fact that free expression has no constitutional guarantee in this country – unlike in all of the foreign jurisdictions used as a yardstick for comparison, each of which features either a constitutional guarantee or one contained in a bill or charter of rights.

A bizarre aspect of the inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter.

It is ironic that someone who knew the family and those basic facts might well discover her identity via the Institute’s very own document.

I’ll publish my submission in a future blog.

© 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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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,

 

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

         2       rights and underscored by fundamentally truth-telling,

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

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

         5       journalism is or should be about.

         6

         7       MR FINKELSTEIN:   What happens if the current means or

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

         9       participants?  Is that then the point at which some

        10       government action is required or, if a government acts

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

        12       and do something?

        13

        14       PROFESSOR PEARSON:   Like I said earlier, people have

        15       recourse through various laws and often this is funded by

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

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

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

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

        20

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

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

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

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

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

        26       collective responsibility that some unions see they should

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

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

        29       finds himself or herself in.

        30

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

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

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

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

        35       be dealt with through the courts because there might be

        36       false statements or something said but not of a defamatory

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

        38       because the complaint is not about an event which

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

        40

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

        42       government mechanism for recourse.  I think the system as

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

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

        45       rights enshrining freedom of expression, certainly some

        46       High Court movements in that direction but nothing

        47       constitutionally beyond that implied political

 

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         1       communication defence.  It would be sending all of the

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

         3       enforcing a journalism code of ethics.

         4

         5       MR FINKELSTEIN:   Why?

         6

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

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

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

        10       developed by the Press Council in consultation with the

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

        12       have discussed very briefly, there are common themes

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

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

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

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

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

        18

        19       PROFESSOR PEARSON:   Because basically if you are saying

        20       the existing legal mechanisms are inaccessible, you would

        21       be introducing yet another legal mechanism through such a

        22       formal system of regulation.

        23

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

        25       circumstances where the others are ineffective.  In other

        26       words, introducing something that works in a situation

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

        28       anti-democratic?

        29

        30       PROFESSOR PEARSON:   We already have mechanisms like that

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

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

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

        34       and consumer law that applies there.

        35

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

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

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

        39       concerned with, and the false and misleading conduct

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

        41       exemption from them.

        42

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

        44       It talks about the fact that that exemption when introduced

        45       was a blanket exemption for prescribed news providers.  In

        46       the new environment prescribed news providers are

        47       effectively your traditional media and my suggestion in the

 

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         1       submission is that responsible journalism basically be a

         2       rebuttal presumption for anyone practising journalism, fourth

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

         4       that you then have a misleading and deceptive conduct

         5       provision applying, which is already being applied in some

         6       circumstances.  In a commercial situation it is being

         7       applied —

         8

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

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

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

        12       only affects statements made in trade or commerce because

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

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

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

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

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

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

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

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

        21

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

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

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

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

        26

        27       PROFESSOR PEARSON:   My concern about an alternative model,

        28       where you are giving tough powers to enforce an ethical

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

        30       you would have exactly the same problem.

        31

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

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

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

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

        36       print a correction?

        37

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

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

        40       on behalf of the research group.

        41

        42       MR FINKELSTEIN:   Yes

        43

        44       PROFESSOR PEARSON:   I was listening to your earlier

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

        46       that informs that attitude amongst editors is this notion

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

 

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

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

         3       government funded regulatory bodies —

         4

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

         6       make the media organisations pay it.

         7

         8       PROFESSOR PEARSON:   It is still a government —

         9

        10       MR FINKELSTEIN:   It is not government funded.

        11

        12       PROFESSOR PEARSON:   It is still a government initiative.

        13

        14       MR FINKELSTEIN:   Correct.

        15

        16       PROFESSOR PEARSON:   It would be an initiative of the

        17       Australian government on an independent inquiry’s advice to

        18       force, with newspapers, a publication of certain material

        19       into a certain page of a newspaper.

        20

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

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

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

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

        25       it happen.”

        26

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

        28       expression entrenched in any constitution or bill of rights

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

        30       would certainly send the message to the international

        31       community that the Australian government wants to force a

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

        33       mainstream media organisations.

        34

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

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

        37       very difficult even for those with an entrenched

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

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

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

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

        42       regulation, right of reply, is perfectly constitutional,

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

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

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

        46       governments or people like me should worry about uninformed

        47       outcries.

 

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         1

         2       PROFESSOR PEARSON:   The other thing that would happen with

         3       this would be you would be establishing basically a

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

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

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

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

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

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

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

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

        12       the Sydney Morning Herald or The Australian.

        13

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

        15       different things.

        16

        17       PROFESSOR PEARSON:   Not necessarily.

        18

        19       MR FINKELSTEIN:   Overwhelmingly.

        20

        21       PROFESSOR PEARSON:   Perhaps overwhelmingly, but

        22       international news in Australia would have a double

        23       standard applying.  If you were applying Australian ethical

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

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

        26       well get quite different standards applying, one where

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

        28       one where there would not be the reach.

        29

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

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

        32       trapped or the collapse of government or the major protests

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

        34       enforce your new rules upon these international providers,

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

        36       are having all sorts of trouble enforcing their various

        37       publication restrictions on suppression orders and contempt

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

        39       traditional media groups —

        40

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

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

        43       What you say is true of almost every current restriction

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

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

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

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

 

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

         2       answer was if somebody in the United States could broadcast

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

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

         5       not a rational approach, in my mind.

         6

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

         8       whole new regulatory regime and a whole new mechanism when

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

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

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

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

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

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

        15       grueling complaints system.

        16

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

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

        19       a better reference or a referral agency where something

        20       like the existing Press Council or the ACMA is actually

        21       funded to properly educate the community about the referral

        22       and complaint systems, where they can be proactive in

        23       launching complaints on matters that they have noticed

        24       themselves that have been identified to them, rather than

        25       this business where the person themselves have to issue a

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

        27

        28       MR FINKELSTEIN:   What happens if that funding is not

        29       forthcoming voluntarily?

        30

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

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

        33       mainstream media organisations to establish the Press

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

        35       concerns about regulation.  I think if the major media

        36       groups were to recognise that what distinguishes them from

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

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

        39       with such a complaints body being funded.

        40

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

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

        43       Press Council is adequately funded.  So my starting off

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

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

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

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

 

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

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

         3       the basis that more money is not forthcoming, because

         4       that’s what I’m told.

         5

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

         7       I decide that the Press Council is inadequately funded to

         8       perform its functions, including the additional functions

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

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

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

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

        13       I suggest that something be done about it?

        14

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

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

        17       dollars.

        18

        19       MR FINKELSTEIN:   So what?

        20

        21       PROFESSOR PEARSON:   My point is that such funding would

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

        23       least the near future.

        24

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

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

        27       it that you do not object to government funding?

        28

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

        30       of better education of the community in such a referral

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

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

        33       I do object to is a new regulatory regime —

        34

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

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

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

        38       to that?

        39

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

        41       being given to the Press Council.

        42

        43       MR FINKELSTEIN:   From the government.

        44

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

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

        47       enforcement.  So a government funded referral service or

 

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

         2       as perfectly acceptable.

         3

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

         5

         6       PROFESSOR PEARSON:   Sure.

         7

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

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

        10       stranded here.

        11

        12       PROFESSOR PEARSON:   There are worse places to be stranded

        13       in.

        14

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

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

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

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

        19       from getting the data?

        20

        21       PROFESSOR PEARSON:   Given the end of academic years at

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

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

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

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

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

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

        28       groups have been transcribed and they have been put into

        29       the appropriate software and research assistants have been

        30       working with that.  Then we have the various newspaper

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

        32       newspaper for 2009 with the help of research assistants.

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

        34       Community Newspapers, two or three others that have been

        35       done, have been done by other researchers.

        36

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

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

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

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

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

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

        43       book with chapters by us and various collaborators taking

        44       up the various aspects of vulnerability in all of the

        45       different sorts of interactions with the media, including

        46       the regulatory aspect.

        47

 

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

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

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

         4       final result might look like?

         5

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

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

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

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

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

        11       two to three months.

        12

        13       DR RICKETSON:   What did you present at the journalism

        14       educators conference?

        15

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

        17       teaching then.

        18

        19       DR RICKETSON:   I mean in the group.

        20

        21       PROFESSOR PEARSON:  Two or three of the colleagues

        22       presented basically papers explaining the project and just

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

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

        25       diversity conference in North Queensland earlier in the

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

        27       just on the methodology and the background to the whole

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

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

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

        31       things when you want to do them properly.

        32

        33       MR FINKELSTEIN:   When the organisation’s paper speaks

        34       about vulnerable people, I understand it to include people

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

        36       have suffered some bereavement in the family, something

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

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

        39       looking at?

        40

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

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

        43       submission seeking the funding did do that.  We talked

        44       about indigenous sources, people with a disability, people

        45       experiencing mental illness, people who had been affected

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

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

 

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         1       looking at examples and basically doing what you would call

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

         3       there are others who are vulnerable in certain

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

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

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

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

         8       traumatised condition after a news event that they are

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

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

        11

        12            So we decided that vulnerability would have a broader

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

        14       particular groups and basically enhance, I suppose, the

        15       stereotyping of such groups by saying that these are

        16       vulnerable sources, because clearly it is unfair to say

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

        18       Individuals within them are highly competent and able to

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

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

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

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

        23       all people might find themselves basically vulnerable to

        24       journalistic unethical behaviour.

        25

        26       MR FINKELSTEIN:   So that is not really putting anybody

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

        28       looking at the particular circumstances at times.  So it

        29       could be anybody from any background.

        30

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

        32       we certainly issued the amber light for a closer

        33       examination of the article if the individual or the source

        34       was from one of these so-called potentially vulnerable

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

        36       child in difficult circumstances and perhaps a teenager

        37       talking about her sex life and that being published or

        38       something like that, where perhaps there was a Press

        39       Council complaint emanating from it, then they became the

        40       subject of closer scrutiny.

        41

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

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

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

        45       things like were photographs taken of people in distress or

        46       were stories written about people who were in difficult

        47       circumstances that might find themselves in either

 

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         1       embarrassing or hurtful positions, that kind of thing?

         2

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

         4       photographic material, it was – but being a content

         5       analysis we were working from the material as presented in

         6       the newspaper.  There may be many more moments of

         7       vulnerability, perhaps, that did not result in a

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

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

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

        11       traumatised by the experience of interaction with the media

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

        13       fact that we recognise as researchers that sometimes there

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

        15       someone who may be vulnerable for a matter of legitimate

        16       public concern which may well take precedence over what

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

        18       that truth to be told.

        19

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

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

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

        23       individual concerned?

        24

        25       PROFESSOR PEARSON:   We were unable to project what that

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

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

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

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

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

        31       level where we spoke to people who had representation from

        32       some of these vulnerable groups and also other citizens

        33       within the community.  Some of them were selected

        34       specifically because they represented people from those

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

        36       community representation.

        37

        38       MR FINKELSTEIN:   I see.

        39

        40       PROFESSOR PEARSON:   Those people volunteered through a

        41       focus group situation their experiences with the media in

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

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

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

        45       several examples from the Australian here today, just the

        46       coding sheets.  I have reviewed them again quite recently

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

 

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

         2

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

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

         5       comprised exclusively of people who had had some

         6       unfortunate or what they thought was an unfortunate

         7       experience with the press or were the focus groups people

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

         9

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

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

        12       There were experts within our collaborative group who were

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

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

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

        16       were at least second generation from other countries,

        17       migrant groups, and others were a mixture of ordinary

        18       citizens.

        19

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

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

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

        23

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

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

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

        27       material and not launching it to any website or anything

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

        29       publicly available?

        30

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

        32       available are the submissions that parties or individuals

        33       have filed, provided we thought that they were appropriate

        34       to be published.

        35

        36       PROFESSOR PEARSON:   I would just check with the other

        37       members of the group first.  The researchers get precious

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

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

        40       qualitative content analysis, because we had randomly

        41       selected days throughout 2009 that we were collecting from,

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

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

        44       story that appeared in the news sections of the selected

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

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

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

 

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         1       certainly not counted in that way.

         2

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

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

         5       the vulnerable groups, for positive handling of such

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

         7       we looked at for The Australian newspaper there would have

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

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

        10       clear moment of vulnerability which seemed not to have been

        11       handled that well and did not seem to have counterbalancing

        12       broader public interest concerns.  There were several that

        13       were handled quite well.

        14

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

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

        17       but concerning other news outlets?

        18

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

        20       our research assistant based out of Wollongong and the

        21       other colleagues that have been leading the project for the

        22       different publications.

        23

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

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

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

        27       sufficiently large number of cases, bearing in mind the

        28       limitations on the data collection process, that you would

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

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

        31       being complied with or ought be firmed up?

        32

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

        34       specific guidelines on suicide and are working on other

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

        36       there are some areas where the Press Council ought publish

        37       specific guidelines about how these kinds of situations

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

        39       situations are.

        40

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

        42       that journalists could improve their application of the

        43       various codes of practice that they operate under which has

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

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

        46       children and whether children should be mentioned or —

        47

 

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         1       MR FINKELSTEIN:   You mean by name mentioned?

         2

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

         4       named but their circumstances may well accentuate their

         5       emotional harm or whatever because they are part of a

         6       story, even though not identified.

         7

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

         9       Australian newspaper there were two or three examples where

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

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

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

        13       basically speculating that the individual involved might

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

        15       suicidal feelings in those circumstances which were part of

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

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

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

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

        20       That was of concern.

        21

        22            One was a particular moment of vulnerability with

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

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

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

        26       issue and the father was back here.

        27

        28       DR RICKETSON:   In Victoria

        29

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

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

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

        33       comments made in the article quoting an expert about what

        34       the consequences, and the very negative consequences, would

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

        36       herself.  We thought that was an unnecessary extension to

        37       take with the story because it was seen to be

        38       counterproductive to the outcome, which was clearly that

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

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

        41       things we were looking at.

        42

        43            Others were clearly outweighed by the public interest

        44       involved, but are interesting because of both the cultural

        45       and I suppose the globalised nature of news communication

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

        47       during a military conflict, clearly a bomb victim covered

 

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

         2       – and obviously from our earlier discussion it is something

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

         4       international coverage of Australian stories, for

         5       Australian coverage of international stories – if this

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

         7       implication back home for this citizen of another country

         8       who clearly has the same scope for embarrassment,

         9       humiliation with their depiction in a traumatic news event.

        10

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

        12       about Indigenous people that you have personally looked at

        13       or that your group has discussed?

        14

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

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

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

        18       Press Council had dealt with complaints that we could

        19       identify as coming within our domain of these moments of

        20       vulnerability.  Surprisingly – and I explain in the

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

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

        23       moments of vulnerability finding their way all the way

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

        25       Obviously the co-regulator deals with it differently from

        26       the Press Council.

        27

        28            In answer to your Indigenous question, amongst those

        29       there were three or four examples where the regulators had

        30       dealt in different ways with people who were clearly

        31       vulnerable individuals but their race seemed to be

        32       mentioned in either an unnecessary sense or in a derogatory

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

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

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

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

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

        38       story but it was showing very negative file footage

        39       attached to that.

        40

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

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

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

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

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

        46

        47       PROFESSOR PEARSON:   Yes.

 

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         1

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

         3       much.

         4

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

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

         7       group participants saying that they were becoming

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

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

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

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

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

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

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

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

        16

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

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

        19

        20       PROFESSOR PEARSON:   Unfortunately a month cuts straight

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

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

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

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

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

        26       jest.

        27

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

        29       in particularly traumatic situations.  Particularly my

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

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

        32       of the codes of practice they talk about consent having

        33       been given and that being acceptable.  Consent was a

        34       recurring issue in the Press Council and ACMA

        35       deliberations, particularly with things like children or

        36       relatives giving consent for a vulnerable person’s medical

        37       details and then being identified in association with that,

        38       and the media accepting that level of consent when clearly

        39       the individual hadn’t agreed to it.

        40

        41            Dr Romano also raises the issue of the ability to

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

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

        44       opportunity for that to be withdrawn if the person is

        45       having second thoughts and the story is particularly

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

        47       the situation of trauma or vulnerability that the

 

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

         2       written that well into the various codes of practice.

         3

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

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

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

         7       in serious news events might be traumatised and may be

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

         9       to withdraw that consent at some stage.

        10

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

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

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

        14       in London who had suffered quite serious injuries gave his

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

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

        17       it was the third royal commission or the second royal

        18       commission, I think the third royal commission into the

        19       press.  It got everybody pretty excited, and quite

        20       legitimately.

        21

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

        23       with the Press Council actually have situations where that

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

        25       The Press Council decided not to inquire further into the

        26       veracity because it was denied by the newspaper

        27       organisation but put by those who were the supposed

        28       victims.  It decided on other grounds rather than pursuing

        29       the inquiry into the circumstances in which the journalists

        30       got access to them in the first place.

        31

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

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

        34       like doctors to get into” —

        35

        36       PROFESSOR PEARSON:   That was the Sunday Sport case

        37       involving the actor Gordon Kaye.

        38

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

        40       been in the 1970s.

        41

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

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

        44       originally, which was basically the first real exploration

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

        46       his hospital bed and semiconscious after head injuries in a

        47       storm in a motor vehicle.

 

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         1

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

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

         4       explicit clauses recommended for both dealing with children

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

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

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

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

         9       ground has been at least explored in the past.

        10

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

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

        13       session, then an extension document on dealing with the

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

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

        16       element when dealing with sources.

        17

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

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

        20       memorandum going with it giving examples or an expansion by

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

        22       encounter in a professional life.

        23

        24       PROFESSOR PEARSON:   We make the point in our submission

        25       that something the Press Council has done very well has

        26       been the whole educational side of things and the funding

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

        28       looking at case studies with journalism students at the

        29       various institutions where a Press Council member visits

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

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

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

        33       students to engage with a particular news scenario which

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

        35       the Press Council reached that decision.  So accompanying

        36       materials like that would certainly be of benefit.

        37

        38            But the problem at the moment is just the basic

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

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

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

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

        43       itself is probably the best working document, I would

        44       think.

        45

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

        47       incarnation.

 

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         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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Why the Australian Government’s media inquiry is fraught

By MARK PEARSON

The Federal Government’s announcement of an ‘independent inquiry into the Australian media’ yesterday might well be a positive development if it were not politically driven, confused in its objectives and artificially narrow in its focus on the print media alone.

A ripple effect from the UK News of the World scandal combined with the machinations of a minority Australian Labor government to trigger this new inquiry, billed as a subsidiary of the existing Convergence Review of telecommunications and broadcast media regulation.

While it is described as ‘independent’ – chaired by retired judge Ray Finkelstein QC ‘assisted’ by University of Canberra journalism professor Matthew Ricketson – it has set off my press freedom alarm bells for other reasons.

Those individuals are excellent choices, but sadly the politician who announced it – the Minister for Broadband, Communications and the Digital Economy Stephen Conroy – has ‘form’.

He has long been the vocal advocate of an Internet filtering scheme for Australia and has only been prevented from introducing such an unworkable vehicle of web censorship by his lack of numbers in the existing Parliament.

Further, he has been at war with Rupert Murdoch’s News Limited over its coverage of his government and has accused it of pressing for ‘regime change’.

Yes, Prime Minister’s Sir Humphrey Appleby advised: ‘Never hold an inquiry unless you know what its outcomes will be’. If the minister’s advisers are working to that script, then media freedom advocates might well be worried.

While Senator Conroy announced the inquiry will focus on newspapers and their online operations, the terms of reference promise much broader objectives.

Focussing on the print media seems at odds with the overarching Convergence Review, particularly if other media and their codes of practice are not going to get the same level of attention as their newspaper cousins.

The terms of reference of this new media inquiry require it to report upon:

a) The effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms;

b) The impact of this technological change on the business model that has supported the investment by traditional media organisations in quality journalism and the production of news, and how such activities can be supported, and diversity enhanced, in the changed media environment;

c) Ways of substantially strengthening the independence and effectiveness of the Australian Press Council, including in relation to on-line publications, and with particular reference to the handling of complaints;

d) Any related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest.

These are important issues and worthy of considered investigation, but it is hard to see how an examination of the print media in isolation can resolve them. If there is a News of the World style of tabloid journalism in operation in Australia, you will find it in the two main commercial television networks’ evening ‘current affairs’ programs – Today Tonight and A Current Affair – not in genuine journalism and not in the print media.

There is a mishmash of in-house and industry codes of practice in operation as well as the Press Council’s Statement of Principles and the iconic but rarely enforced Media Alliance Journalists’ Code of Ethics.

Their review and a move to uniformity would be relatively easy. Most cover common values and ethical principles.

But the problem is not in their wording but in their dissemination and enforcement.

Most journalists operate under three such codes simultaneously – their own corporation’s code, an industry code, and the broader journalists’ code. Test any reporter on all three and my guess is they would fail dismally.

Your average citizen knows even less and does not really know where to file a complaint if they have one.

An important Press Council function has been the referral of complaints to other relevant bodies because they relate to different media or the behaviour of individual reporters rather than the outlets themselves.

The Press Council has done some great work over many years, particularly in its sponsorship of research and in its representations to parliamentary inquiries. But despite ramping up its complaints mechanisms it still cops cynical clichéd animal metaphors to describe its efforts, labels like ‘toothless tiger’ and ‘publisher’s poodle’.

Like much humour they are based on some truth, with the Council’s maximum penalty as a self-regulatory body being a request to the publication to publish its adverse finding, and its publisher-based funding raising questions about its independence. Funds have been slashed in recent years, as I have reported in The Australian.

The Council’s fundamental problem is that it has tried to be both an advocate of press freedom and an adjudicator of complaints against newspapers. While it has performed both tasks remarkably well with scant resources, it will be forever open to criticism until that dichotomy is addressed.

Its new chairman Professor Julian Disney is well aware of the problem and has been actively pressing for more funding and a cross-media regulatory role.

However, his expressed hope this week that the inquiry might lead to government funding should sound shrill alarm bells.

At what point does a government-funded body lose its ‘self-regulatory’ status? Would government funding of the Press Council trigger new animal metaphors as critics question the link between the government of the day and its self-regulatory decisions?

Perhaps ‘Labor’s lapdog’, the ‘Coalition’s fat cat’ or the ‘Greens’ gerbil’?

Seriously, though, there are some effective models for government funding of truly independent enterprises without government interference. The ABC is one that has worked relatively well for almost 80 years, although its board nominations and programming decisions have sometimes been questioned.

There are already hundreds of laws controlling the media in this country. I have built my research and publishing career around teaching and writing about them. We already have a government-funded regulator in the ACMA.

And we already have a government-funded self-regulator in the ABC’s Media Watch program. For mine, it is the most effective and best known of them all.

Instead of more regulation of the media, we need better public access to the complaints and legal mechanisms that already exist.

A better public ‘spend’ than greater regulation would be on more in-service training of journalists in sound legal and ethical practice, school and public education campaigns about media responsibility, and the establishment of media complaints referral services.

Government funding of self-regulatory bodies is a slippery slope and, despite its eminent leadership, this inquiry carries way too much baggage to inspire confidence.

© 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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