Our democracy is based on the public discussion of opposing opinions, including views that may be considered ‘wrong’.
Journalists have a responsibility to protect the public sphere, which is to ensure equality of representation and diversity and that those in positions of power provide accountability. In a democracy, journalism has what is known as a ‘Fourth Estate’ role – this is used to describe journalism’s role in scrutinising and criticising those in government on behalf of the public.
The term refers to the news media – specifically the press that holds government and others to account.
The Fourth Estate’s role is to report the actions of the government and to monitor people in society and report their actions. Governments also listen to the news media to see what policies are working and what changes need to be made.
The role of a journalist is to ensure a diversity of opinion. This is why all opinions are valid. Journalists must be aware of ‘Absolute Privilege’, which allows freedom of speech in court and parliament. However, if a defamatory comment is made outside court or parliament, then it is liable for defamation.
There are ethical and legal dilemmas that will arise when reporting in Australia and all around the world. Before publication, a journalist should ask, ‘is the material I am about to publish defamatory?’ and ‘is there a defence available?’ This is also the same two-step approach taken by the court.
There may be justification for publication, where the journalist may believe that the information is in the public interest. Our main priority is to ‘do no harm’, however if an authority is corrupt then the public has a right to know.
It is important to weigh up the ethical and legal issues when publishing. In particular, social media has no ethical boundaries. While there are legal boundaries, generally the laws surrounding social media law are unclear. It is therefore important to be aware of the following issues:
An area of law to be wary of is contempt of court. Contempt is defined as “words or actions, which interfere with the proper administration of justice or constitute a disregard for the authority of the court.” Any publication that prejudices the course of justice or any interference with jurors or witnesses constitutes contempt, as well as any publication that offends the dignity of the court or refusal of naming ones sources.
Journalists must respect the jury’s right to this. An example of a serial contempt of court offender is Derryn Hinch, who breached a suppression order in relation to the 2013 Jill Meagher case when he revealed details of her killer, Adrian Ernest Bayley’s criminal history.
Although there were only just under 800 views on Hinch’s website, the Crown prosecutor said it did not matter, because “it still had the ability to interfere with the administration of justice”.
Another recent example posted on G+, is Krystal Johnson’s case, the Yahoo 7 journalist who is facing contempt of court charges.
Ms Johnson told the court that she ‘forgot’ while writing an online article that a jury was involved in the case and her actions resulted in a murder trial having to be aborted. Her article corrupted the course of justice and risked an unfair trial and the jury was subsequently discharged. The fact that she was being fed all her information from the Internet also played a vital role in the mishap – she was not physically in the courtroom during the trial and would have known that the jury was not aware of the information she published had she been there. Her situation is highly delicate as she is at risk of contempt of court charges, although due to the judge’s comments, how this was an “honest mistake by a person who was trying to do her job,” it is likely that she will simply be given a warning. From this, it can be seen that it is imperative that journalists are aware of the legal ramifications that are attributed to court reporting and reporting in general.
It is also important to note that if any charges are dropped, you could be looking at a defamation case.
Lamble (2013) defines defamation as “saying something nasty about another person.” You can defame someone by saying, writing or in depicting something that “damages or ruins another’s reputation”. By doing this, you are exposing the person to contempt, ridicule or hatred. In journalism, there is a balance between the right to a free press and the right to an untarnished reputation. Both of these rights are imperative to democracy.
Because Australia is a democracy and free speech is a right, The Australian Press Council has been put into place for establishing Standards of Practise and responding to complaints over print and online publications. For example, in a media release posted onto the JELP G+ community page, The APC recently responded to ‘over 700 complaints’ with regards to Bill Leak’s cartoon published on 4 August 2016, which was created in response to the shocking treatment of minors in the Northern Territory’s Don Dale Correctional Centre. The cartoon depicted an Aboriginal policeman holding a boy by his collar, saying, “You’ll have to sit down and talk to your son about personal responsibility” to an Aboriginal man, who Leak implied did not even know his own son’s name. The general public were livid, labelling it “insulting” and “discriminatory.” According to the media release, because the Council values the notion that ‘freedom of speech and freedom of the press are the essential underpinnings of a liberal democracy’ they felt that the best option would be to ‘promote free speech’ through the publication of two opposing editorial pieces in The Australian, which would have to provide both sides on the issues. This is an example of free speech being of such high value in our democratic society.
Websites like twitter and personal blogs make it difficult for people to realise that anything they post could potentially be defamatory.
The Internet has changed much, including the risk of being in contempt. What makes this area difficult to understand is that contempt laws differ all around the world and distance does not protect you from the law. However, websites such as Twitter and personal blogs can have a positive impact, as they encourage everyone to express their opinion on a public forum. Through engaging on Twitter and G+ on Monday nights this semester, I have come to understand the importance of the public sphere and freedom of speech and now have a more holistic understanding of media law in Australia.
Australian Press Council, 2016, http://www.presscouncil.org.au/media-release-6-sept-2016/
Farrer, G (2016) ‘Lectures 1,2,4’, in Journalism Ethics, Law and Power, Melbourne, RMIT University.
Lamble, S 2013, News As It Happens. 2nd ed. Australia: Oxford University Press
Lee, J 2016, ‘Yahoo 7 journalist Krystal Johnson may face contempt of court charges’, The Age, August 30, viewed August 31, 2016, http://www.theage.com.au/victoria/yahoo-7-journalist-krystal-johnson-faces-contempt-of-court-charges-20160830-gr49i2.html
Russell, M 2013, ‘Derryn Hinch guilty of breaching court order over Jill Meagher case’, The Age, October 2, viewed October 21, 2016, http://www.theage.com.au/victoria/derryn-hinch-guilty-of-breaching-court-order-over-jill-meagher-case-20131001-2urh5.html