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.