Media, Law and Ethics in Journalism

According to Mark Pearson, "the journalist's relationship with the law is occasionally precarious, sometimes liberating, usually comfortable, and almost always negotiable."  This ranges across the different forms of media, including the internet.  In addition, the interpretation of media law makes journalism a precarious profession.  This is because a law enforcement agency may decide to crack down on a particular outlet for the publication of a story.  Furthermore, there are many other perils that journalists face in reporting news, including the fact that "laws vary between jurisdictions."  As Stephen Quinn and Stephen Lamble state, "crimes committed by juveniles are often treated differently from similar crimes committed by adults."  "In some jurisdictions it is illegal to identify juvenile offenders (Australia for example) but they can be named in others."  There are also many other issues like this one, including the fact that juvenile ages range from 16-18 in most nations, but can range up to 24 in some US states in relation to some crimes.

In addition, there are hazardous danger areas that journalists must stay clear of.  The first of these is defamation.  Defamation is defined as being “a civil or criminal wrong committed by publication.”  It falls under common law in Australia, which means that judges interpret the decisions of previous cases when handing down their decision.  Rhonda Breit acknowledges that as a result of it developing from English common law, “a number of English cases are still recognised as authorities in relation to defamation law in Australia, particularly in relation to tests for determining whether a publication is defamatory.”  Before 2006, each state had different legislation in terms of defamation.  For example, as Patrick George points out, “Queensland and Tasmania codified the civil law of defamation, whilst New South Wales relied upon the common law as modified by legislation.” For years, the Commonwealth government attempted to bring uniformity to defamation.  However, it was not until threatened intervention by the Commonwealth Attorney-General, Phillip Ruddock in 2005 that the states agreed.  This agreement saw the Defamation Act, 2005 (Cth) enacted, and as Patrick George states, “in nearly all of the Australian jurisdictions has brought about some uniformity.” Despite this, the state courts still interpret the reforms, which means that they are subject to state-based precedent.  As Breit points out, “therefore, there are still opportunities for inconsistencies in approach to occur.”  While there is now some uniformity, decisions are still based of state precedents, meaning there is room for inconsistencies, which has happened on numerous occasions, including in 2UE Sydney PTY LTD Vs Ray Chesterton (2009) 254 ALR 606 in which 2UE appealed the decision of the New South Wales Supreme Court in 2007 which had ruled in favour of Mr Chesterton after John Laws called him “a bombastic beer bellied buffoon” on his morning radio show on 8^th August, 2005.  2UE argued that the comments related to Chesterton’s business, or professional reputation.  The appeal was thrown out in 2009.   In this instance, as Gibson’s Media News states, “The High Court ruled that there is no such thing as “business defamation.”  Business defamation is defined “as being an imputation that is likely to injure a plaintiff in their business, trade or profession.”  However, there is an inconsistency in this finding of the High Court on this matter as the New South Wales Court of Appeal, and later the High Court of Australia ruled that in the case, John Fairfax Vs Gacic, ([2007] HCA 28) business defamation did occur.  In this instance, the High Court of Australia, in throwing out 2UE’s appeal, stated that they had “got the decision wrong” in Fairfax Vs Gacic.  As Gibson’s Media News states, the decision in Gacic Vs Fairfax “blurred the distinction between defamation and injurious falsehood.”  This was as a result of changes to the defamation law.

Also of importance in defamation is that two conditions must be met.  These conditions are, there must be a publication and that publication must be capable of defaming an identifiable person or persons.  As a result of this, there are five steps, which people must check in order to identify the potential risk of defamation.  Breit states that these five steps are "has the material been published?, has an individual been identified?, what is the meaning/s of the publication?, are those meanings defamatory according to the tests for what is a defamatory statement?, can the publication of defamatory material be justified, that is, is there a defence?" Breit also acknowledges that “publication determines whether or not a person can institute civil proceedings.” For instance, in the case Amalgamated Television Services PTY LTD Vs Marsden BC200208153, Channel 7’s “Today Tonight,” and “Witness: The Dark Side,” fourteen months after the original report, reported on allegations of paedophilia in New South Wales. The report, which implied that John Marsden, a lawyer who died in 2006, knowingly engaged in sexual activities with boys under the age of 18.  Marsden immediately brought about defamation action against Channel 7.  In the case report, Beazley, Giles and Santow JJA, noted that the “Today Tonight” programme contained interviews with two persons, whose names were suppressed and their images obscured, making allegations of under age sex against Marsden.  The programme contained allegations rather than facts, which makes it defamatory.  The jury agreed.   In this regard, they cannot publish information relating to trials while they are occurring, or that have occurred in the past. 

Furthermore, journalists need to be careful when reporting criminal matters, as they are subject to the same laws as ordinary citizens.

All in all, defamation has the ability to cost a journalist a fortune in legal costs, and can even culminate in them losing their job.

The second hazardous issue is that of sub judice contempt.  Sub judice contempt, as the Hon Justice Whealy states is,  “A publication, broadcast or any other conduct having a real and practical tendency to interfere with the administration of justice in a current or pending trial.”  It's major role, according to Quinn and Lamble is to "achieve a fair trial for an accused person and to avoid trial by media."  It essentially means that journalists are only allowed to print the bare facts of the case from the moment the accused is charged.  An example is DPP VS Wran (1987) 7 NSWLR 616 case.  As a result of comments made about his friend, Justice Lionel Murphy, Neville Wran and Nationwide News Ltd, the publisher of the Daily Telegraph at the time, were charged under points three and four of Proposal three of DP 43.  Point three states, “A statement that suggests, or from which it could reasonably be inferred, that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused.”  Point four states, "A statement that could reasonably be regarded to incite sympathy or antipathy for the accused and/or to disparage the prosecution, or to make favourable or unfavourable references to the character or credibility of the accused or of a witness."  This came from a number of questions Wran answered, and culminated in Nationwide News Ltd being fined $200,000 plus legal costs, while Wran was fined $25,000 plus legal costs.


These sorts of cases are fairly common, as a result of tension between the media and the courts as to what can be published.  Thus, journalists need to be very careful when commenting on trials. 

Freedom of information also plays a role.  According to Pearson, "it is a law designed to allow greater public access to information held by government departments."  It is something that has been used effectively on numerous occasions by investigative journalists.  However, there are downsides to seeking out information under the Freedom of Information Act 1982 (Cth).  The major one is that it can be costly.  According to Pearson, "an initial application normally costs $30 and processing charges for locating documents are $15 an hour.  Agencies charge a further $20 per hour for their decision-making and consultation time and 10 cents per photocopy.  A fee of $6.25 per half hour applies to supervised inspection of documents in a departmental office."  Finally, "an internal review of a decision will cost another $40."  This, along with lengthy delays in receiving the information is why it is hardly ever used.

Fourthly and finally is copyright, which is a form of intellectual property.  As Quinn and Lamble state, "the idea of intellectual property relates to the ownership and expression of ideas."  It does not protect ideas, but rather the expression of those ideas in a tangible form, whatever that may be.  This becomes a problem in journalism, as there are times when journalists reproduce information form a media release.  However, it can be argued in this instance that in sending the media release to a news organisation, the creator is giving their permission to reproduce the information.  It is still something that journalists should be aware of though, as it can result in civil proceedings.

All in all, despite journalists having the "public interest" angle on their side, they are still faced with a number of issues in reporting the news.  Thus, they are not entirely free, and as a result, must be careful with the information they produce.