Moral Minefields

The readings this week demonstrated the difficulties of defining a balance between law and public interest and establishing appropriate boundaries for reporting. As Pearson stated- “the legalistic approach is preoccupied with advice on what behaviours a journalist may not carry out, rather than presenting legal avenues for safe and sound reporting.”

I think there can be no doubt that journalists should be granted special privileges in order to bring information to the public, but as Pearson stated, journalists still need to act responsibly in order to afford such rights. It is also essential that courts be there to try to balance competing rights and responsibilities of journalists and the public. Indeed, public interest needs to be a matter of serious concern to the audience as citizens- not just as curious consumers. So courts must decide whether the public interest served by a story is greater than other interests affected by that action.

There are several main aspects of the law that directly relate to journalists.

1. Sub-judice
   Which is a publication interfering with a persons right to a fair trial (I think the Lindy Chamberlain media coverage is a good example of the failure of this law)
   


2. Freedom of information
   Which balances the right of access to government information with the protection of areas where disclosure would have a substantial adverse effect on public- such as national security. However access to information is expensive and as Pearson states, poorly under-utilised by journalists.
   


3. Defamation
   Where a person can sue for unjustified damage to their reputation. Journalists often use the defences of fair report/fair comment to defend themselves against defamation, but these areas are hard to define. What is perhaps most disturbing about defamation is that the government provides no legal aid for those suing for defamation, so while the law appears to serve a valid purpose, it is really only employed by those with money or power who can defend themselves. In turn, this can create a chilling effect in the media, with journalists not pursuing stories to their limits for fear of being sued. Therefore the rich and powerful can be seen to use defamation as a weapon.

There is no doubt that in an era of competitive news the hunger of audiences for information and the pressure of editors for the story makes it easy to see how a reporter may misjudge. But again it comes down to ethics- and there is no easy answer.

Ultimately the formation and enforcement of media law becomes a point of negotiation amongst key players. The politicians make the laws, so they have the potential to crack down on the media for their own interests. Similarly, powerful media can avoid reforms by pressuring politicians.

Have a look at this story which was published in my local paper. It focuses on a politician running for our local council, and exposes the fact that gay porn was found on his council issued laptop. http://portstephens.yourguide.com.au/news/local/news/general/adult-gay-porn-images-found-on-port-councillors-laptop/1250581.aspx

Would you publish this? Why/why not? Is it really in the public interest? Also have a look at the comment at the bottom of the story. Do you think the guy has a valid point?

Case Study

Here is another interesting case study published by Mirror Newspapers on the 18th of December 1971.

Can anyone see why it might be defamatory? Or who it might defame?

50,000 TONS OF WHEAT STOLEN

FIFTY thousand tons of wheat valued at $5 million is believed to have been stolen from temporary storage sites in New South Wales country areas. The wheat disappeared from silos at Armatree, Merriwa, Nevertire, Geuri and Narromine.Police believe the wheat is being sold to chicken and pig farmers in the outer Sydney Metropolitan area. Detectives from the Sydney-based special crime squad have interviewed hundreds of farmers and workers throughout the wheat belt in the far west of the State. At least 20 people are expected to be charged with theft. Police are concentrating their enquiries in the Newcastle and Quirindi areas where the Grain Elevators Board has large storage silos. So far they have established that large bulk road carriers are being used to transport the wheat from the remote country silos to the pig and chicken producing areas. It is thought that most of the wheat stolen has been low quality off-grade wheat which easily escapes the notice of farmers more interested in the prospects of their premium and second grade wheat. Police will interview more than 1,000 people from farmers right through to the buyers of the wheat. Although police will not comment on their findings so far, investigations are expected to last for more than a year.”

_____________

As you would see, no person was named or described as the offender of the theft. But the newspaper was sued by a Mrs. Steele for defamation. At this time, Mrs. Steele was the largest single operator carting wheat in the area where the thefts took place, she used all the same equipment referred to in the article and had a prior criminal record. So she claimed it could reasonably be assumed that the article was referring to her.

According to Peason (2007) it's well established in law that defamatory matter, which doesn’t name anyone, is still actionable if there are ‘special facts’ known to readers which leads them to link the defamatory matter with a person, even if the writer didn’t intend to refer to them. In this case, the special facts included knowledge of Mrs. Steele’s wheat business, the fact she transported wheat in many of the areas where the thefts took place and she owned trucks big enough to steal large quantities.

In this case the law needed to consider how ‘ordinary sensible men’ would understand the words. The definition of this hypothetical reader is subject to controversy and can be presented as someone between the two extremes of ‘unusually suspicious’ and ‘unusually naive.’ However the law must be careful about what constitutes a reasonable reader; otherwise even the barest details of a crime couldn’t be reported. As Pearson states in the reading this week, many aspects of the law are hazy and journalists will only find comfort in new areas of the law as these finer details are determined by court decisions.

It appears to have been difficult in this case to get a sound answer on many legal issues, particularly as to who constitutes an ordinary reader and when to conclude their assumptions are reasonable. Mrs Steele was awarded damages, but these were withdrawn after an appeal from the newspaper.

Either way I think this case study contains some useful lessons for journalists.

• Pearson (2007) reminds us that a journalist cannot rely on ignorance as a defense .The intention of the journalist is irrelevant as is the fact that care was taken to avoid defamatory content. All that matters is the publisher intended to publish the article.


• “Several meanings may emanate from a single publication” so journalists must critically examine the ways in which their words can be interpreted.


• Material can become defamatory in a way they mightn’t have foreseen.


• It’s possible to report a crime in such as way that can identify an individual. In this case, it can be argued that the descriptions used in the article reasonably identified anyone who ran such a wheat collecting business in the area.


• Watterson (1995) argues we shouldn’t write in general terms. “either make the ID so general no individual could claim it referred to them, or make it so specific that no other person is identified mistakenly.” Perhaps in this case the Mirror Newspaper should have waited until the police had named a suspect, or included less detail about the methods used to steal the wheat, which were closely linked to Mrs Steele’s business operations.


• Journalist’s best defense- make proper inquiries before publication and ensure fairness, truth, accuracy and thorough research.


• Watterson (1995) recommends journalists should pause at the name of any person or organisation and consider who might be defamed by the context in which it is written.


• Be aware of the risks and seek legal advice if in doubt.

References

• Pearson, M, 2007, ‘Identifying Defamation’, in M, Pearson, The Journalists Guide to Media Law, 3rd edn, Allen & Unwin, Crows Nest, NSW, pp. 175-205


• Steele v Mirror Newspapers [1974] 2 NSWR 348, retrieved August 19, 2007 from Lexis Nexis database


• Watterson, R, 1995, ‘Defamation’, in M Armstrong, D Lindsay & R, Watterson, Media Law in Australia, 2nd edn, Oxford University Press, Melbourne, pp. 9-31