Media vs. the Law - case studies

It's little look at the case study which was mentioned in the reading for this week. I thought it was a really good example of how journalists need to understand the fine line between their commentaries and then the impact which this may have on the judicial process. So for those of you who aren’t familiar with the case, back in 1987, Derryn Hinch (who was a radio journalist at the time) was running a campaign against the abuse of power by people in positions of trust, particularly sex offenders. It came to Hinch’s attention that former Catholic Priest, Father Michael Glennon, was facing charges relating to the molestation of children at his youth care foundation. So Hinch basically went on air and revealed all this to his audience, and he also outlined the priest’s prior convictions. So the broadcasts basically implied that Glennon was guilty. Hinch was subsequently charged with subjudice contempt – because his broadcasts were made during the period after Glennon had been charged but before the matter had gone to court. Hinch tried to justify his actions by stating that the public interest in protecting children in Glennon’s care outweighed Glennon’s right to a fair trial. Despite, this the court still maintained that Hinch overstepped the mark and so he had to pay a fine and spend 28 days in jail. As further result of Hinch’s actions, Glennon later appealed against his conviction on the grounds that the radio report had tainted the juror’s judgment on his trial. Only by a 4-3 majority did the court uphold the conviction – so the guilty almost escaped his sentence because of a journalist’s commentary.

I’ve also just got a quote here from Lex Lasry (who is a judge in the Supreme Court of Victoria) and he was commenting on the Mohamed Haneef trial: "I think the real disadvantage in this case, or at least the real potential disadvantage and unfairness in this case, has been that Dr Haneef has had two weeks of solid publicity, including commentaries from the Attorney-General and Prime Minister at one stage, so if he does have to face a trial, then inevitably the fairness of that trial is going to be affected by publicity". So this just sort of reinforces how careful journalists need to be when commenting on criminal matters, because in cases such as this one, it could muddy the trial of an innocent person.

Media and the Law

The Chief Justice of South Australia, John Doyle, once said that: “the judiciary and the media are locked in an embrace from which neither can escape”. So those caught in the embrace are from completely different cultures, with a history of very public antagonism between them. This opposition has seen members of the media imprisoned and fined thousands of dollars for being in contempt of court. The Australian judiciary, on the other hand, needs to ensure that justice is able to be served fairly, without the media tainting a case, and turning public opinion. RD Nicholson of the Federal Court of Australia believes that the tensions that exist between the media and the judiciary exist because of the different methodologies employed by each sector. So, he stated that judicial methodology is balanced, objective dispassionate, detached, impartial, neutral and informative. Journalism, on the other hand, gets quite a bad wrap from him, as he states it is characterised by: incompleteness, inaccuracy, quoting out of context, personalising, politicising, trivialising, entertaining rather than instructing or analysing. However, journalists state that they have the hardest job of all – ABC radio presenter, John Faine states “the pressure is more or less on the journalist to deliver, even if it means cutting a corner or taking a risk over a fact or detail of the case”.

So when journalists are reporting, whose interests exactly should they act in? The interests of their boss and publication, the interests of the individual on whom they are interviewing or reporting, the interests of the government in power or the interests of the reading public? Journalist, Ellen Fanning, believes that journalists should always act in the public interest. Though it might be a good idea for them to consider the other interests mentioned if they want to keep their jobs. Oh and another journalistic ideal which favours the idea of ‘public interest’ is that of editorial independence – which Lumby states, is belief that journalists and allied media producers should be free to report without interference.

Now we cross to the problematic issue of ethics. David Conley and Stephen Lamble believe that journalists make ethical judgments in three roles: as an employee, a professional and an individual – so in this sense, what is ethical can be very much in the eye of the beholder and for this reason, it is important that journalists learn to assess the various shades of grey that come with criminal proceedings. Perhaps the guiding principle should be ‘the public interest’; however academics Hurst and White express concern that this could easily be confused with the idea of being ‘interesting to the public’. Journalists should also consider what harm might be caused to individuals and groups as a result of reporting and publication. Can harm be justified? If it can’t, can damage be lessened while still serving the informative function? These are all issues which journalists need to consider when reporting or publishing on a criminal proceeding. And so, the legal system prefers to weigh up the social benefits of a situation – asking whether the public interest is served in allowing the media to report on certain matters – but even if journalists are able to report on an individual, it is important that they adhere to the legalities of the situation, such as the time zones which Louise discussed earlier.

So perhaps further enhancing the case for the public interest or public’s right to know is the fundamental right of freedom of speech. This quote comes from Breit and she states: The importance of freedom of speech has been restated in all human rights documents including the Universal Declaration of Human Rights, The European Convention on Human Rights and Fundamental Freedoms, and the United Nations International Covenant on Civil and Political Rights. It sits within a triumvirate of fundamental human rights – freedom of thought and consciousness, freedom of expression and freedom of association and assembly – all of which are seen as essential to human development.

Though, that is not to say that there should not be limits on what a journalist should be allowed to say and publish to the public. Yes, freedom of speech is an important democratic ideal, however, also important is the respect owed to private individuals, and this includes individuals standing to trial. Freedom of speech is not an absolute right and needs to be balanced against other people’s and organisations rights and interests. Therefore the public’s right to know should also not be an absolute right.

Ok, so now we can move onto looking at the reasons why journalists need to be careful when reporting on criminal matters and how the judiciary feels that journalists can impede upon a person’s right for a fair trial. So we have issues such as trial by media, which is basically where the media pick up on a story and run with it, sometimes falsely condemning the person standing, and don’t really consider the implications which this may have for the individual or the trial. So out of this, the ideal of a fair trial can be compromised, with the opinion jurors and the general public being tainted by what journalists have reported and written. The public might also feel less confident in the justice system if they believe that a trial has been tainted by things that the media have printed – it is pretty important in democratic that the legal system has the confidence of the general public. And then there is also cases where trials are delayed and appealed because the accused believes that they did not get a fair trial because of media reports – and as you can imagine, this can be quite disastrous for the justice system if someone is convicted of a serious crime but manages to get off on the basis of blaming journalists for unfair reporting, as we will find out in one of the case studies.

public vs. private pt 2

Lord Wakeham, Chairman of the UK Press Complaints Commission, suggested seven questions editors should ask themselves when questions of a possible invasion of privacy arise. I think we could all do to have a read through these and keep them in mind when (if in the future) we are ever faced with this moral and ethical dilemma:

1. Is there a genuine public interest involved in invading someone's privacy as defined by Clause 18 of the Code - detecting or exposing crime, protecting public health, preventing the public from being misled - or is this simply a story which interests the public?
   
   
2. If there is indeed a genuine public interest, have you considered whether there are ways to disclose it which minimise the invasion into the private life of the individual concerned?
   
   
3. If you are using photographs as part of the story, which will have to be, or have already been, obtained by clandestine means and therefore compound the invasion of privacy, does the public interest require their automatic publication or are they simply illustrative?
   
   
4. If there is a genuine public interest which cannot be exposed in any other way than intrusion - and possibly the obtaining and publication of photographs - have you considered whether there is any way to minimise the impact on the innocent and vulnerable relatives of the individual concerned, and in particular the children?
   
   
5. If you are intending to run a story about someone connected or related to a person in the public eye in order to illustrate a story about that public figure, are you satisfied that the connection is not too remote and that there is a genuine public interest in mentioning that connection?
   
   
6. Where you are preparing to publish a story seeking to contrast what a public figure has said or done in the past with his or her current statements or behaviour, have you satisfied yourself that it is fair to make such a comparison and that the original behaviour or statement was recent enough to justify publication in the public interest?
   
   
7. If you are intending to run a story about the private life of an individual where there used to be a public interest, have you applied each of these guidelines afresh in case such a defence no longer exists?

public vs. private

Where do we draw the proverbial line in the sand when it comes the matter of public interest (NOT interesting to the public – journalists need to be really careful there) verse an individuals right to privacy? Journalists need to tread carefully when writing about matters that may be very private to certain individuals.

But how can we define privacy? David Archard reckons that there is a distinct line between loss of control of personal information and then an out and out loss of privacy – he believes that privacy is only invaded when the information is made available to a larger third, party. So I guess this where journalists would need to use their moral compasses in order to determine whether or not they should release private information to the general public. The justification of the ‘public interest’ is often used here, although a lot of the time, the information seems to be more interesting to the public – and for that matter, who decides what is in the public interest?

Was it in the public interest for the Daily Telegraph to publish photographs of Senator Robert Woods and his wife having a strained conversation in their backyard (the photo was taken with a long lens camera after Senator Woods’ affair had been revealed)? I don’t think this could possibly be justified. Invasions into politician’s private lives can only be justified if their private activities impede upon their ability in public office.

However, Andrew Belsey argues that a public person’s claim to privacy is no more than a presumption, that their privacy can never truly be violated because they gave it up when they entered public life. I don’t agree with Belsey at all. Privacy should be a universal right afforded to everybody, regardless of public status. Journalists need to recognise this and perhaps become more ethical in the way they report upon private matters. Yes, putting a photo of a dead body on the front page may sell more papers, but we need to think about the implications which this has for other factors involved (such as families and reputations). It just seems a bit shady and dirty to me, like a trick that further cheapens the already tarnished image of journalism.

Oh and you can have a look at the Australian Press Council's Privacy standards here: http://www.presscouncil.org.au/pcsite/complaints/priv_stand.html

truth and objectivity

So, I have decided to hand in the following news story. It was based on Kerryn's presentation which was very good and interesting and gave me a lot to write about (and think about). Here it is!

University students get a valuable lesson in truth.

By Victoria Tayler

Kerryn Christie, an aspiring lawyer from the University for Newcastle, yesterday treated her peers with a discussion on truth and objectivity in journalism.

Ms Christie’s presentation was focused on the commercial pressures which affect journalists in their pursuit of the truth.

The first issue raised surrounded the problems with the creation of truth, where students discovered that the reality of the profession of journalism does not always match the ideal of journalistic truth which comes with the notion of ‘the fourth estate’.

Ms Christie stated that: “Journalists are left to do the best they can in the everyday life of their profession.

“This might lead to different representations of truth, such as half truths or misappropriation”.

Students further discovered the commercial pressures which journalists must deal with each day; these include such factors as advertising agendas, shrinking budgets and the notion of spin.

Because of these pressures, journalists are finding it increasingly difficult to access the truth due to the layers of media management and the influence imposed by public relations.

These pressures are leading to an increase in ‘churnalism’, a concept coined by journalistic commentator and author, Nick Davies.

Mr Davies comments: “They just churn this stuff over without having the time to check it, without having the time to decide whether or not this is what they should even be covering today.

“And it flows into the news and a lot of it is garbage.”

Ms Christie believes that there has been a considerable shift in what is considered news worthy, with media proprietors attempting to retain audiences by increasing the amount of celebrity and lifestyle stories.

University student, Ms Casey Stanwell gave her opinion on the matter, stating: “Journalists just need to be aware of the pressures and work within them to produce the best, most objective story”.

who will pay for journalism?

As we all know, since the mass media and printing press emerged around the turn of the century, advertising has financed the practice of journalism – however, everything and everyone seems to be turning on their computers and getting their info off the internet. Newspaper sales are dropping as people sit in their little rooms, reading the computer screen (and probably eating cereal – don’t we all read news in that sleepy pocket between waking up and getting ready for the day?). Anyway, the point is advertising is moving with the rest of the world and taking journalism finances, salaries etc away from the professionals. Now, Jay Rosen would have told us to embrace this fact, get on our little journalism boats and sale on over to the new world of the internet.

An article in The Economist magazine said that newspapers are an endangered species, and that to remain un-extinct (yes I know that’s not a word), they should become more commercial – yes, that’s what the world needs, more stories on Tom Cruise and his whack religion. Yuk. I think I would rather see newspapers and journalism go under before I have to read (or write) about scientology. If newspapers want to regain some credibility (and readership) they need to “respond properly to doomsday thinking by relying on their traditional strengths and reject research that tells editors the future lies in infotainment."

Oh and an article from The Australian also brings up a really good point!:

Governments can regulate electronic media through licensing. They do not regulate newspapers. If newspaper advertising and journalism are unbundled, newspapers will not only lose financial independence but society will lose an important institution that has autonomy in the political field. Whatever newspaper critics may say, this move is likely to degrade the information available in a liberal democratic society.

Here it is in full: http://www.theaustralian.news.com.au/story/0,25197,24283745-25192,00.html

So, I don’t really know who is going to pay for journalism. Journalists may do it for the love of the job, but this isn’t exactly going to feed their families or pay their mortgages. I don’t think newspapers will die out either, but they will probably have to look to sources other than advertising – and at the moment I’m not really sure what these could be.

citizen journalism

Here is a video which pretty much gives a nice, neat overview of citizen journalism.