September 22, 2012

Media Standards and Laws

Independent Media Inquiry

There is considerable evidence that Australians have a low level of trust in the media as an institution and in journalists as a professional group …
[Levels] of trust in different media organisations and different types of media vary.
The most trusted by far is the ABC …
These trends have been consistent over many decades.
The [Australian Press Council], which the newspaper industry established to oversee standards, has been in existence for the best part of four decades. …

[There is evidence that journalism's role as a watchdog of democracy] has become compromised by the media’s own material interests [e.g.] about one-third of working journalists say they feel obliged to take account of their proprietor’s political position when writing stories.
(p 123)

Trust [or lack thereof,] appears to be allied to perceptions about accuracy and bias.
Television — and especially ABC television — is more widely perceived to be accurate than other media.
Newspapers are generally not perceived to be as accurate.
Similarly, with perceptions of bias: the picture is mixed, but generally television and radio are seen to be less biased than newspapers.
(p 124)

Contents


Standards
Laws

INDEPENDENT MEDIA INQUIRY

  • Independent Media Inquiry, Department of Broadband, Communications and the Digital Economy, Commonwealth of Australia, 28 February 2012.
    Ray Finkelstein: former Federal Court judge; former President, Australian Competition Tribunal.
    Matthew Ricketson: Professor of Journalism, University of Canberra.

    MEDIA STANDARDS


    Public opinion, confidence and perceptions of the media


    … Hartigan said [claims of bias] were an insult to readers, who were capable of making up their own minds

    Often, however, readers are not in a position to make an appropriately informed judgment.
    They expect news stories they read to be accurate. …
    (p 104)

    The findings … of 21 surveys [conducted between 1966 and 2011 were] analysed …

    [The usefulness] of public opinion polling is dependent upon
    • the reliability, validity and fairness of the questions;
    • the size and representativeness of the sample, and
    • the soundness of judgment about whether people know enough about the topic to have a genuine opinion on it.
    (p 105)


    Trust


    Respondents to a question on how much trust they had in a range of major organisations and institutions … rated television and the press second-last and last respectively [Australian Elections Study, 2010].
    (p 106)

    [In a survey] carried out by Essential Media in December 2011, 72% of respondents said they trusted ABC television news and current affairs, and 67% said they trusted ABC radio news and current affairs.
    No other media organisational grouping—commercial television, commercial radio, newspapers or online platforms—achieved above 46%. …

    [A] small majority (53%) said they [trusted] newspapers as a source of political news and information, ahead of commercial television (45%) but a long way behind ABC television (76%) and ABC radio (69%).
    (p 107)

    Throughout May 2011, a number of local papers, including the Northern Star, the Blacktown Advocate, the Townsville Bulletin, the Gold Coast Bulletin, the Port Macquarie News, the Toowoomba Chronicle and the Southern Courier [uncritically] reported claims by club interests and other opponents of mandatory pre-commitment that the introduction of such technology would reduce club revenues by 40%.

    [This was] a distortion of a Productivity Commission estimate that problem gambling accounted for 40% of total poker machines revenues. …

    [The] Daily Telegraph on 11 May 2011 [purported] to show the impact on a family’s budget of the federal government’s carbon pricing scheme, before its consideration in parliament and before a carbon price had been set.
    The item contained estimates of the extra annual cost of food ($390), power ($300) and petrol ($150) to the family in question.
    Since the carbon price was at that stage unknown, there was … no basis for assessing the cost impacts …
    [The] story omitted any reference to the widely mooted [household compensation].
    (p 108)


    Performance


    In a 2000 survey by AC Nielsen 57% of respondents said they were satisfied with the quality of journalism in Australia and 37% said they were dissatisfied.
    A majority also said that television, newspapers and radio all ‘provided a thorough analysis of issues’, with television doing best. …

    However, on more specific questions of media performance, the results were less positive.
    (p 109)

    [A] survey in 2006 by Roy Morgan Research [revealed that]
    • 53% [of journalists] felt they were unable to be critical of the media organisation for which they worked
    • 38% said they had been instructed to comply with the commercial position of their company
    • about one-third felt obliged to take account of the political position of their proprietor when writing stories. …

    A 2010 study by Crikey and the Australian Centre for Independent Journalism … found that in a one-week period in 2009, 55% of the news reports carried by major metropolitan newspapers had been driven by some form of public relations …
    Of 2203 news articles that were examined, 24% were found to have been largely republished press releases with little or no additional journalistic work.
    Political stories were found to be influenced least by public relations.
    (p 110)


    Bias


    [On] a scale presenting bias as a polar opposite to ‘balance’. …
    • bias is much more commonly perceived to exist in the conduct of newspapers than in television or radio …
    • there is perception of persistent bias against the Labor Party particularly in polls conducted in the earlier years of the period covered by this analysis. …

    A 2000 survey by AC Nielsen rated radio … best at providing ‘a balanced presentation of views’.
    Newspapers did least well with a rating of 57%.
    ABC television was rated much higher than commercial television. …

    A 2011 survey by Essential Media found that only 21% of respondents agreed with the statement that the media usually report all sides of a story, and 69% disagreed.
    [In 1992] three-quarters [of journalists said] the level of objectivity in their organisations was about right. …
    (p 111)

    In A Sceptical Climate, the [Australian Centre for Independent Journalism] analysed 10 Australian newspapers in the period from February to July 2011.
    It analysed 3,971 articles, including comment pieces, editorials, features and news stories. …
    The two biggest News Ltd tabloids — the Herald Sun and the Daily Telegraph — have been so biased in their coverage that it is fair to say they ‘campaigned’ against the policy rather than covered it. …
    … Australians did not receive fair, accurate and impartial reporting in the public interest in relation to the carbon policy in 2011.
    [Rather] than an open and competitive market … we may have a case of market failure. …
    (p 112)
    Chris Mitchell [Editor-in-Chief, The Australian]:
    The carbon tax is one of the biggest concerns for business in this country and it is only proper that a newspaper such as ours reports those concerns.

    Editor [Herald Sun]:
    Newspapers [must] campaign against those things the public don't want.

    [To] have an opinion and campaign for it is one thing; reporting is another …
    [News] reporting it is expected by the public [to] be fair and accurate.

    [There] is a widely-held public view that, despite industry-developed codes of practice that state this, the reporting of news is not fair, accurate and balanced.
    (p 111)

    Professor [Robert] Manne’s research found that articles [in The Australian] unfavourable to action on climate change outnumbered favourable articles by a ratio of four to one. …
    Paul Kelly [Editor-at-Large, The Australian]:
    While pretending to be rational [Manne's] rejection of debate was really faith-based dogmatism and the Australian public [don't] like being told what to think by patronising experts.

    Influence/Power


    Surveys in 1971, 1974 and 1980 by Saulwick all showed the media to be perceived as among the four biggest centres of power in Australia, alongside trade unions, big business and the federal government.
    (p 114)

    A 2000 survey by AC Nielsen asked voters whether the media exercised its power responsibly or irresponsibly.
    A small majority (52%) said they exercised it responsibly and 43% said they exercised it irresponsibly. …

    The [Office of Police Integrity] identified 10 newspaper articles … five of which were published in the Herald Sun.
    It found that Mr Weston, along with Police Association secretary Greg Davies, ran a concerted campaign to destabilise [former Victorian Chief Commissioner of Police] Mr Overland, by planting items with selected journalists.
    Of the 10 stories … five were found to contain inaccuracies.

    The Inquiry has itself considered the stories [and concluded that]
    • [in seven] the sourcing of information and assertions was poor [and]
    • [in five the] assertions were poorly or inadequately verified.
    (p 115, emphasis added)
    Tony Fitzgerald [Fitzgerald Inquiry (1987–1989)]
    The media is able to be used by politicians, police officers and other public officials who wish to put out propaganda to advance their own interests and harm their enemies.
    A hunger for “leaks” and “scoops” (which sometimes precipitates the events which they predict) and some journalists’ relationship with the sources who provide them with information, can make it difficult for the media to maintain its independence and a critical stance.
    Searches for motivation, and even checks for accuracy, may suffer as a result …
    If the independence and the ["watchdog"] role are lost, so is the claim to special consideration. …

    Victoria Police [Media Release, 30 May 2010:
    Police are investigating the suspicious deaths of two boys in Mooroopna this evening …
    A 29-year-old Mooroopna woman is currently assisting police with their enquiries.
    Homicide Squad detectives are en route to the scene. …

    Susie O'Brien [Columnist, Herald Sun, 1 June, 2010]:
    The deaths of the two brothers … is believed to have come after a bitter separation. …
    Sometimes mums kill their kids before killing themselves, leaving notes saying that they didn’t want their babies to live without them. …
    (p 115, emphasis added)

    Within a few days it had become clear that the two boys’ death was a tragic accident. …
    Susie O'Brien [4 June 2010]:
    We should all acknowledge that our initial collective suspicion may be adding to her unimaginable grief …
    [Many] people quickly reached a conclusion about what had happened …
    Maybe we need to be a little less quick to judge others.
    In the space of three days the columnist had switched from quickly drawn conclusions to suggesting society as a whole had been hasty in its judgment.
    (p 117)


    Ethics and intrusions on privacy

    Australian Law Reform Commssion [Review of Australian Privacy Law, 2007]:
    Based on the relatively low rate of privacy-related complaints, investigations and findings of breach, as well as the small number of submissions calling for a change in regulatory model, the ALRC does not consider that the appointment of a government body, such as a Media Complaints Commission, is warranted.

    ALRC [For Your Information: Australian Privacy Law and Practice, 2008]:
    The ALRC has ongoing concerns about the capacity of a self-regulatory system to preserve the tenuous balance between the public interest in freedom of expression and the public interest in adequately safeguarding the handling of personal information.
    (p 119, emphasis added)

    [A] three-year Australian Research Council (ARC)-funded research project examining ‘Vulnerability and the News Media’ [has] identified two main types of vulnerability stemming from a person’s identity or from a person’s circumstances.
    • The first concerned particular groups in society (such as Indigenous Australians, those from diverse ethnic or religious backgrounds, physically or intellectually disabled people or those suffering from a mental illness) who have most often been misrepresented or stereotyped in media coverage.
    • The second comprised people who are in a vulnerable state because of an event in their life, such as the death of a family member, their involvement in a natural or man-made disaster, or their suffering physical or sexual assault.
    (p 120)

    [While] many news media practitioners treated the survivors [of the 2009 Victorian bushfires] with respect … there were some serious lapses [including an isolated] instance of a reporter disguised as a volunteer obtaining access to a relief centre and after lights-out attempting to obtain interviews with survivors surreptitiously. …

    [Crime victims’ grievances] about the news media [included:]
    • Photographs or footage of crime scenes, including dead bodies.
    • Interviews at inappropriate times, such as when the victim is in shock and unaware of the consequences of his or her replies.
    • Unwillingness to respect victims’ requests, especially filming funeral corteges.
    • Approaching people for interviews before they have been informed of the death of a relative.
    • Publishing gruesome details, such as the precise nature of injuries sustained by a murder victim.
    • Inappropriate or aggressive questioning.
    • Intrusion into a victim’s privacy, including, for example, publishing an image of the victim’s home even though the crime took place elsewhere.
    • Relying on speculation to challenge a victim’s credibility.
    • Blaming the victim for the crime, especially victims of sexual assault.
    (p 121)

    [On the other hand] some crime victims [said] they found telling their story to the media to be cathartic and others … praised the work of individual journalists and photographers.
    (p 122)


    THE LEGAL POSITION OF THE MEDIA: PRIVILEGES OF THE MEDIA, AND RESTRICTIONS ON SPEECH


    Privileges of the media


    [The Australian Press Council] suggested that making the press subject to a credible system for setting, monitoring and applying good standards of media practice … would be likely to enhance the willingness of governments to grant rights and privileges to the media.
    (p 127)


    Nature of the privileges


    Protection against disclosing sources


    Exemption from misleading and deceptive conduct prohibition

    Journalists and media organisations are exempt from [liability for] loss or damage [caused] by a misleading or deceptive statement. …

    [This includes] misleading or deceptive conduct about news, information, opinion and comment.
    (p 129)

    The exemption came into existence [following a 1983 article in] The Weekend Australian [entitled] ‘Mutinous elements threaten to destroy Australian cricket’.
    The cartoon showed Kim Hughes, then the captain of the Australian cricket team, with a knife in his back next to a photo of Jeff Thomson, a fast bowler in the team.
    Mr Thomson [sued] The Weekend Australian alleging the article was misleading and caused Mr Thomson to suffer loss. …
    The Full Federal Court held the article was capable of contravening the law.

    [This] result was thought to be undesirable.
    [When introducing the legislation] the minister said the exemption was to ensure that if a newspaper article contained ‘inaccurate information’ the publisher should not be [left] liable for defamation.
    (p 130)


    Exemption from Privacy Act
    National Privacy Principles [10.1]:
    [Subject to certain limited exceptions], an organisation must not collect sensitive information about an individual.
    ‘Sensitive information’ includes information about an individual’s
    • racial or ethnic origin,
    • political opinions,
    • religious beliefs,
    • [medical history,]
    • sexual preferences or
    • criminal record.
    (p 131)


    Defences to criminal offences

    In Victoria, stalking is an offence.
    The media, however, are not liable if they act
    • without malice and
    • in the normal course of the business of publishing news and current affairs.
    (p 133)


    Exemptions for reporting of financial products


    Court reporting


    Privileged access to information and events

    Media organisations may reproduce literary works without infringing copyright if the reproduction is a ‘fair dealing’ with the work for the purpose of reporting news. …

    [Representatives] of news media outlets have access to people and places that are beyond the reach of their readers.
    (p 136)


    Freedom of speech: protections and restrictions


    Protections of speech


    [There] is indirect constitutional protection for what is usually referred to as ‘political speech’. …

    In Coleman v Power [the] High Court held that the criminal law could regulate political statements that used insulting words … where the words used were intended, or likely, to provoke a violent response.
    (p 137)


    Restrictions on speech


    Most restrictions in this category protect against violence, disorder and external aggression.
    (p 139)


    Official secrets

    These are [506 secrecy provisions] in Commonwealth regulation.
    [The Australian Law Reform Commission] recommended that many should be replaced with provisions that criminalise disclosure only if it harms essential public interests.
    (p 140, emphasis added)


    Treason and sedition offences


    Restrictions to protect community standards

    Thus, s 18C of the [Racial Discrimination Act 1975 (Cth)] makes it unlawful for a person to act in a way that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people because of the other person’s race, colour or national or ethnic origin.

    [The] ‘media defence’ [applies if] publication is done reasonably and in good faith and is
    • ‘a fair and accurate report of any event or matter of public interest’ or
    • ‘a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment’. …

    The Federal Court found that an article by … Andrew Bolt published in the Herald Sun contained statements that were offensive to a group of Aboriginal people.
    The Court held the media defence was not available because the article
    • contained factual errors,
    • distortions of the truth and
    • used inflammatory and provocative language.


    Classification laws


    Restrictions on reporting judicial proceedings


    Contempt of court

    To be contemptuous the publication [of material] must have, as a matter of practical reality, a tendency to interfere with the administration of justice [eg] prior convictions, confessions, identifying photographs, evidence, and criticisms of an accused …

    [The] absence of juries in most civil matters means the rule mainly affects the media coverage of criminal trials.
    [The] media may only publish the ‘bare facts’ of a matter and not any facts that will be in issue in the trial. …

    [It] is a defence to show that the publication was a matter of public concern and any prejudice to the administration of justice was only [an incidental and] unintended by-product of the publication.
    (p 143)

    [In] Dupas v R which concerned an application to stay a criminal trial because of extensive, prejudicial, pre-trial publicity about the accused [the High Court’s decision] placed substantial weight on the [capacity of juries] to perform their task conscientiously and, when properly directed, [to] decide cases unaffected by news reports.
    (p 144)


    Suppression orders

    Typically, orders are made in cases involving
    • blackmail,
    • trade secrets,
    • secret documents [or] communications,
    • national security,
    • children in the care of the state or mentally ill patients and
    • cases involving children or sexual assault. …

    It has been suggested that … a national register of suppression orders [in be established in order to provide a means …]
    • for the media to check whether a suppression order is in place.
    • of scrutinising trends in the making of those orders.
    • of testing whether suppression orders are made too often.
    (p 145)


    ‘Super injunctions’


    Restrictions on commercial speech

    [Misleading or deceptive] comments about legislative changes to taxation or tariff laws or to a proposed land resumption [are exempt from the prohibition against such statements under Australian Consumer Law.]


    Restrictions on speech to protect private rights


    Defamation

    Defamation protects a person against injury to [her] reputation arising through the publication of adverse or disparaging comments.
    Whether a statement is disparaging is judged by reference to community standards.
    (p 147)

    [Damages] for injury to reputation and feelings [have been capped] at $324,000.
    (p 150)


    Defamation law as a check on media excess: an assessment

    [In order to circumvent the cap on damages for non-economic loss plaintiffs may issue] multiple proceedings — one in each jurisdiction in which the publication was made …

    Defamation claims are usually brought in a State Supreme Court [and are] very costly [pieces] of litigation. …

    [There are three main reasons that suggest defamation may not be] an effective check on journalistic excesses [— time, cost, and complexity]. …

    There is little point in receiving an apology, correction or opportunity to reply months or years after the event.
    (p 151)

    [Most] cases take between six and 12 months to resolve. …

    A successful plaintiff … will often incur costs of $500 000 or more [of which] around 50% can be recovered from the defendant.

    … Mark French, a professional cyclist sued the publisher of the Herald Sun over an article published six years earlier [alleging that he] was a drug cheat.
    The trial lasted six days.
    [The plaintiff was successful and] was awarded $175 000 in damages …
    [The] publishers were ordered to pay his legal costs [which amounted to $893 000]. …
    If he recovers two-thirds of those costs [he] will be out-of-pocket by more than $100 000. …

    In Li v Herald and Weekly Times, the plaintiff lost after an 18-day trial and was ordered to pay more than $350 000 for the defendant’s costs.

    In its accounts for the period ended 26 June 2011, Fairfax Media made a provision of more than $6 million for defamation costs. …

    [Defamation is a particularly complex area of law.]
    [This alone is sufficient to] deter many people from bringing an action.
    (p 152, emphasis added)


    Copyright


    Confidential information

    Confidential information is … information that has some quality of confidence, secrecy or privacy about it …
    An action will lie against a person who makes unauthorised use of such information.
    In some cases, the court will intervene if the confidential information was ‘improperly or surreptitiously obtained’. …
    [However,] where the information would disclose iniquity (a crime, civil wrong or serious misdeed of public importance), it is unlikely the court will intervene to restrain the publication.
    (p 152)


    Privacy and other restrictions

    Australian law does not yet recognise a tort of privacy.
    It was partly for this reason … that the [Australian Law Reform Commission] recommended the enactment of a statutory right of action for serious invasions of privacy.
    (p 154)

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