'Trust Me, I'm a Journalist': Journalism and Ethics

 Dr Ian Richards

School of Communication, Information and New Media

andAssociate Professor Rick Sarre

School of International Business

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When we enter the area of journalistic ethics, we pass into a swamp of philosophical speculation where eerie mists of judgement hang low over a boggy terrain. (Merrill 1975, p.8)

Journalism is a cut-throat business, the unsavoury practicalities of which do not lend themselves to academic study. (Blackhurst 1997, p.23)

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Why is this so?

• historical inheritance

• uncertain relationship with the notion of professionalism.

• public nature of journalism

• workplace culture - emphasises the immediate and the practical over the reflective and the theoretical.

‘Anyone who’s worked in a newsroom knows that the Code of Ethics is generally put up on the wall. There’s a lack of a culture where it’s actually talked about or discussed.’ (Elgar 1997)

• News values - characteristics which information must possess in order to be regarded by journalists as “news”.

Consequence Proximity Conflict Human interest Prominence Novelty Timeliness

“Our whole journalistic culture has been skewed this way, focusing on people's failures and weaknesses of character without the concomitant drive to understand why they have these faults, what the context is, and how they link up with their strengths and virtues”.

(Midgley, 1998)

• Corporate influences

“In terms of content, there is no doubt that the consumer is more promiscuous than ever before, and that the only way to ensure that your relationship with him or her is more than a one night stand is to make the experience compelling. If all we do is report the news fairly and accurately, we haven’t got a chance.” (O’Reilly 1998)

“The notion of the private delineates a sphere within which we are free to be intimate with others and pursue goals and interests we have without being subject to the public gaze.” (Kieran 1997, p.76)

Journalistic justifications for invasion:• freedom of speech• public interest• “open slather”• hypocrisy argument

MEAA Code of Ethics:

Clause 11. Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude.

The law and privacy

No ‘right’ to privacy is recognised under Australian common law, nor is it protected generally in Australian legislation. The Australian Constitution concedes only a very limited range of privacy ‘rights’; namely an implied right to freedom of political expression (Lange case, 1997).

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The law and privacy

Common law protection may be available through other torts (e.g. trespass, defamation, nuisance)

There is power for the Commonwealth to enact legislation: First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), article 17.

The law and privacy

But nothing has been recommended by the ALRC, and so nothing (more than protection of information privacy in 1988 – public; 2002 – private) has been enacted by federal or State parliaments. Privacy law is a grey area …

Officer Smith runs into one of those “grey” areas of the law.

Is the common law moving anywhere?

ABC v Lenah Games Meats (2002 HC)

“Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons.” (Gummow and Hayne JJ)

Callinan J in dissent

“The success of the [ABC] in this appeal would send a clear signal that, so long as a publisher does not itself personally soil its hands by committing a crime, or by otherwise acting illegally to obtain what it considers newsworthy, the publisher will be free to publish the matter as it sees fit. Why send a reporter to put a foot in the front door when the publisher can be confident that a trespasser with an axe to grind or a profit to be made will be only too willing to break and enter through a back window?”

A new tort of invasion of privacy?Grosse v Purvis (Queensland District Court) A remedy is available if there is a willed act by the defendant, which intrudes upon the privacy or seclusion of the plaintiff, in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities, and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

Video surveillance

Legislation in Victoria and WA limits the use of video cameras, but the one test case (where permission was sought in WA) the court granted permission (favoured the journalist).

Conclusion

Appears to be a presumption that intrusions can occur unless there are public policy reasons to limit the intrusion. The case law is consistent too…injunctions are usually only granted where there has been unconscionable or egregious behaviour by journalists.

The law and privacy: summary

One might safely assume that investigative journalists cannot complain that the law in Australia is tending to dampen their zeal, although the law does appear to be asking that investigative journalists act reasonably, responsibly, and ethically in relation to the legitimate interests of those whose activities have been drawn to their attention.

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