News in brief - August 2006

News by email

Press Council publications are now sent by email to those who ask for delivery in that form. If you want the News sent direct to you (in pdf format) please send an email to info@presscouncil.org.au with subject line 'News by email' and you will be placed on the direct email list.

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Australian Press Council Prize

There will be no Essay Prize in 2006. As in 2005, the Council will be making a series of awards for outstanding scholarship through the various journalism departments and faculties at Australian tertiary institutions. The Council will endow prizes for such courses, particularly in the study of ethics.

More details are available on this website's Prize page.

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On the Council

Roslyn Guy, senior writer at The Age, has been appointed to represent the publishers of that newspaper on the Council, replacing Mark Baker, who resigned in May to take up the role as editor of The Canberra Times.

The Council decided not to replace Helen Elliott on the panel of independent journalist members. The current three-person panel will remain and two of the panel will attend each meeting of the Council.

In June, the Council endorsed the nomination to further terms of David Sommerlad, representing Country Newspapers of Australia and John Dunnet as his alternate. In July, ACP Magazines re-nominated Alan Deans to a further term, with Pam Walkley as his alternate. The Council endorsed the nomination. It also reappointed WA public member Lisa Scaffidi and independent journalist member Bruce Baskett to further three-year terms.

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Margaret Jones

The Council has noted with regret the passing of one of its distinguished former members, Margaret Jones. A former foreign editor and literary editor of The Sydney Morning Herald, Ms Jones was appointed an alternate member of the Council in 1988 and became a full member in 1989. She served three terms as an independent journalist member of the Council before retiring in 1998. During her time on the Council, during which she also served on the ABC's Independent Complaints Review Panel, Margaret Jones strongly voiced her views on the need for strict standards of journalistic responsibility. Ms Jones passed away at age 83 in July this year.

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Uniform Evidence Acts

On 5 June, the Council wrote to the Standing Committee of Attorneys-General (SCAG) on its proposed reforms to create uniform Evidence Acts in the states and territories. These proposals arose from a review of the Acts by the ALRC, assisted by the NSW and Victorian Law Reform Commissions. One aspect was a proposed inclusion of a confidential professional relationship privilege that would deal, in part, with the question of journalists' obligations to their confidential sources. In his letter to SCAG, the Council's Chairman, Professor Ken McKinnon, said:

As you will be aware, recommendation 15-1 of the report deals with the proposal to incorporate into the Uniform Evidence Acts a provision for a confidential professional relationship privilege. The report recommends that the privilege clause be modelled on Part 3.10, Division 1A of the NSW Evidence Act 1995.

The Australian Press Council enthusiastically supports the proposal to extend to jurisdictions other than NSW the benefits of professional confidential relationship privilege. However, the Council is of the view that, while s 126B of the NSW Act offers a certain amount of protection to the confidentiality of journalists' sources, clause 64 of the New Zealand Evidence Bill 2005 is to be preferred (see below).

While both provisions retain a significant degree of judicial discretion to allow evidence where appropriate, the wording of the New Zealand clause clearly indicates that there is a presumption in favour of the protection of the confidentiality of sources.

We would be grateful if the Council's views on the preferability of the New Zealand wording could taken into account by [SCAG] as part of its consideration of reforms to the Uniform Evidence Acts.

Evidence Bill 2005 No. 256-1 (New Zealand)

64 Protection of journalists' sources

(1) If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.

(2) A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs -

(a) any likely adverse effect of the disclosure on the informant or any other person; and

(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3) The Judge may make the order subject to any terms and conditions that the Judge thinks appropriate.

(4) This section does not affect the power or authority of the House of Representatives.

(5) In this section -

informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium

journalist means a person who in the normal course of that person's work may be given information by an informant in the expectation that the information may be published in a news medium

news medium means a medium for the dissemination to the public or a section of the public of news and observations on news

public interest in the disclosure of evidence includes, in a criminal proceeding, the defendant's right to present an effective defence.

For more information on protection of sources
go to the overview page.

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Sedition

On 22 June the Australian Press Council responded in detail to the Australian Law Reform Commission (ALRC) on its Discussion Paper 71 dealing with a review of sedition laws.

The Council acknowledged that the ALRC has produced a sophisticated and insightful paper. The Council indicated that it remained of the view that sedition laws are unnecessary and have a significant potential to act as an impediment to freedom of speech and of expression. The Council expressed its preference that sedition and related offences were removed entirely from the Anti-Terrorism Act, the Crimes Act and the Criminal Code. It added as an alternative that, if offences in the nature of sedition and treason are to be retained, it would be important that they are drafted narrowly so as to address any genuine threat of political violence without significantly interfering with freedom of expression.

The Council suggested that the proposals set out in the ALRC's discussion paper, if implemented, would mitigate those aspects of the sedition laws which have the greatest potential to act as threat to free speech. It thought that the proposals largely addressed the concerns that the Council held regarding the laws. For this reason the Council largely supported the ALRC's proposed amendments.

The detailed response from the Council to the specific proposals made by the ALRC has been posted to the Council's website.

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Security Laws

On 28 June, the Council made a submission to the Parliamentary Joint Committee on Intelligence and Security on its review of the Sheller Inquiry into Australia's security laws. In that submission it noted that the legislation that is the subject of the Sheller committee's inquiry affects the media only indirectly. However, legislation that aims to make Australia secure from the threat of terrorism may have consequences which were unintended or unanticipated by the drafters. To the extent that the legislation does affect the media, the Australian Press Council is concerned to ensure that freedom of expression is not threatened.

The Council's submission then argued:

Certain aspects of the legislation may have some negative impacts upon press freedom. Two of the Sheller committee's recommendations, if adopted, would help to minimise such negative effects. For that reason the Australian Press Council supported those two recommendations:

Recommendation 14: section 02.7 - providing support to a terrorist organisation; and

Recommendation 9: Abolition of s 102.1(1A)(c)

The complete submission, giving the Council's reasons for support of those recommendations, has been posted to its website.

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Access to court records

On 6 July the Council forwarded submissions to the NSW Attorney-General and to the Victorian County Court on their respective reviews of procedures governing the access of journalists and others to court records and documents. The Council made a general submission to both parties addressing issues arising from the question of access, and its potential impact on the full and fair reporting of open courts. Additionally it made specific and detailed responses to the issues raised in the respective discussion papers issued by the Attorney and by the Court. The Executive Summary of the general submission read:

Access to court documents is necessary to facilitate the media's role of disseminating court information. The Australian Press Council believes that court documents should be classified as open access unless there are exceptional circumstances that warrant their restriction. Wherever documents are classified as open access they should be available online. No decision should be made to withhold a document from media access except according to clearly defined criteria.

An article setting out some of the arguments made in the general submission starts on page one of this issue of the News. The full submissions, including the general arguments and the detailed responses to the issues raised by the Attorney and by the Court in their respective discussion papers, has been posted to the Press Council's website.

see also
The submissions to the Attorney and the Court
Website index of courts and contempt material.

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Privacy

In January 2006, the federal Attorney-General commissioned the ALRC to review the Privacy Act 1988, with a reporting date of March 2008. The ALRC inquiry is the third such inquiry in recent times. In 2005 both the Privacy Commissioner and a Senate Committee conducted inquiries into the Act. The Council's submissions to those inquiries were reported in the February 2005 APC News. The outcomes of those reviews and the Council's subsequent submission to the Attorney-General, especially related to the media exemption in the Act, were reported in Annual Report No 29. The commission is currently conducting preliminary community consultations, including a "national phone-in" in early June.

The phone-in demonstrated that telemarketing and information privacy are the top community concerns. Three out of four callers nominated unsolicited telemarketing as their number one privacy complaint. About 1,300 people took part over the two days. In addition to their concerns with intrusive calls from telemarketers, a large number of callers also raised concerns about how private sector organisations and government agencies stored and shared their personal information. Other major privacy concerns included the security of personal information provided over the Internet, access to electronic health records and surveillance in public places and at work.

In its preliminary phase the inquiry will develop an Issues Paper for circulation in September. After further consultations it will write a Discussion Paper for release in May 2007, inviting final submissions. It will then prepare a report for the Attorney by the 2008 deadline.

On 8 August the Australian Press Council sent a preliminary submission to the ALRC for consideration in developing the Issues Paper. The Executive Summary of the submission read:

The Australian Press Council argues that questions of privacy require acknowledgement of the balance between private rights and the public's right to know and that any developments must stress the public interest as an appropriate criterion. As the body which administers the Privacy Standards for the Print Media under the media exemption in the Privacy Act 1988, the Council submits that the media exemption inserted into the Act is working well, that the Council's experience indicates that an appropriate balance between the flow of information on matters of public concern and individuals' rights to privacy in their private affairs has been struck. The Council also appends a brief summary of the privacy matters with which it has dealt since the introduction of the media exemption.

The Council's submission, while mainly dealing with its experience in administering the Privacy Standards for the Print Media, included some general arguments on questions of privacy, largely based on the debates it has been conducting towards the development of a more coherent position on privacy matters. In its submission, the Council said:

Questions of privacy

A number of issues with potential to impact on the ability of the press freely to report matters are related to conflicts between private rights and the right of the public to information on matters of public concern. One of the most important is the question of where the line is drawn between the public interest and an individual's right to privacy in their private life. As in all such ethical conundrums, there is here a question of balance, and any movement to an extreme position is likely adversely to affect either private rights or public rights.

The Press Council, in dealing with questions of privacy, says that the following need to be taken into account in determining the balance between privacy and the right of the public to be informed:

• Consent and harm (whether there is consent, implied or direct, on the part of individual/s concerned; whether the parties directly involved have complained; and whether harm has been done).
   
• The public interest (whether there is a level of public interest sufficient to justify invasion of privacy).
   
• The extent to which the individual is a public figure and to what level of privacy the individual is entitled as such.
   
• Whether the individual is a child and warrants a greater level of privacy protection.
   
• Whether the personal information being disclosed concerns sensitive matters as defined in the Privacy Act, such as health information, and whether disclosure can be justified.

Privacy developments are already having a major impact on the ability of the press to report freely on matters of public concern and are likely to have a further adverse effect over the next few years. The proliferation of CCTV cameras throughout our cities, the constant mini-cam surveillance of work places and monitoring of the things we do on our office computers have left people with the view that little they do is private any more. This has combined with the constant abuse of people at home by telemarketers and the cross-matching of information on ever more extensive databases to exacerbate the feeling.

While potential intrusion onto the privacy of private individuals by the media is not as pervasive as other forms of privacy invasion, the rare examples of it fuel a perception that the media are contributing to this sense of a loss of privacy.

Current trends

The Council notes a perception that there already an over-emphasis on privacy rights at the expense of the public interest, reflected in irrational reporting restrictions imposed by governments in relation to their own dealings, in the closing of courts, in the denial of information regarding people charged with crimes, and in restrictions on photographers. A new acronym, BOPA, has come into common parlance as agencies restrict the availability of information "because of the Privacy Act". Examples of this are rife. For example, access to files in the Administrative Appeals Tribunals and other similar tribunal hearings are being refused prior to the hearing on grounds of privacy. Access to police mug shots on court files, even of convicted persons, is regularly denied on privacy grounds until after sentencing. (In one particularly egregious case, a newspaper has been refused access by the police to the record of a deceased criminal on the grounds that he had not given his consent to the release.) These trends seem to contradict the recognition of the need for a free flow of information on matters of public interest that formed the basis for the media exemption to the Privacy Act.

Governments and the courts, acting separately, are developing further privacy law, via legislation, a putative tort of privacy and a judicial system that is either unaware of, or uncaring for, the importance of press freedom and transparent justice. The possibility exists that such expansion of privacy rights will not take into account the balance question noted above. The difficulty of leaning heavily towards more privacy protection is that it seems impossible to avoid reinforcement of trends towards more secrecy on matters where public debate is essential for the proper functioning of a liberal democracy.

The High Court (in Lenah Game Meats) has already hinted at the possibility of a tort of "breach of privacy", although it recognised the existence of public interest defences in such cases. A lower court in Queensland has established a de facto tort of privacy in a recent judgement (Grosse v. Purvis) where there was no public interest justification for the defendant's acts. These cases follow similar trends in comparative jurisdictions: an expansion of breach of confidence as an action in the United Kingdom to become a virtual privacy tort, and the development of an actual privacy tort by the New Zealand High Court in the case of Hosking v. Runting in 2004.

State governments have enacted, or are discussing, legislation to govern the use of 'surveillance devices'. Western Australia has the strongest law but the courts have interpreted the definitions of 'public' and 'private' places quite strictly. In other states, proposed definitions are so badly constructed that hearing aids and contact lenses would be classed as 'covert surveillance devices'. NSW and Victoria have developed workplace surveillance laws containing definitions that may be applied in legislation on more general surveillance issues.

The Standing Committee of Attorneys-General, in a recent discussion paper arising from a desire to limit the publication of exploitative images on the Internet, has made proposals that might result in repressive restrictions on taking photos in public places. The ability of photojournalists to record the culture and history of Australia is under threat from such proposals. This follows a British court inventing the crime of "image theft" by a photographer and attempts by sporting and entertainment personalities to 'protect their image' by using the law to restrict the ability of the media to publish photographs, even when taken in public places.

Finding the balance

In the development of any proposals in the area of privacy rights, the Commission needs to place a stress on the public interest as an appropriate criterion to be used to determine the balance between privacy rights for individuals and the public's right to the free flow of information on matters of public concern.

The full submission has been posted to the Council's website.

For more information on privacy matters
go to the overview page.

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Research

The Council has initiated a number of research projects that it hopes will inform the debates on issues of press freedom and press responsibility. The first has been developed in conjunction with a number of researchers from universities and arose from the 2005 meeting with tertiary teachers and researchers. The State of the Print Media report will bring together some original research in areas like content analysis and the use of publication of online material with reports, based on extant sources, on training, newsroom economics and press freedom issues. Due for publication in September, the first report of its type in Australia will present a snapshot of the print media in mid 2006 and serve as a baseline for future reports that will note developing trends and feature further original research.

Following the decision of the Council of Chief Justices not to proceed to towards an uniform national reporting of suppression orders, the Council has decided that further research should be conducted on suppression orders - including the number issued by different courts in different jurisdictions, the basis for the orders, the length of time for which orders are in force and so on. It will initially use the database of orders kept by News Ltd that has more than 900 orders listed, as well as some original research in the various jurisdictions. The Council will engage an academic expert in the field to analyse the data.

The question of alleged bias of newspapers during election campaigns is one that has bedevilled the Council for many years. Among its most controversial adjudications were Numbers 74 and 75 in November 1979, which discussed allegations of bias in the reporting an election by The News, Adelaide. Since then there have been a number of such complaints, most of which have not supplied sufficient information to establish a convincing case for the allegations. Indeed, the Council's experience has been that many such allegations shine more light on the biases of the complainants than they do on those of the cited publications. In one recent federal election the Council received separate complaints, within a fortnight, about the same metropolitan daily, alleging that it was respectively anti-ALP, anti-Liberal and anti-Democrat. The Council has now decided to take some initiative in this area and commission studies of newspaper coverage of the next three state elections, starting with the current Queensland election. It will select one newspaper in each state and have the election coverage analysed by academic researchers both for the amount of coverage in news and in commentary for each of the political parties, and for independents, and for the general slant (pro, anti, neutral) of those pieces. It has already sought the cooperation of journalism departments in a number of universities and will look to publish the results towards the middle of 2007.

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Principles and procedures

The Council met with its Constituent Bodies, the publishers and associations of publishers, as well as the Media Entertainment and Arts Alliance, to discuss streamlining the complaints process so that complaints are handled in a much more timely manner. These recommendations were then discussed by the Council, which agreed to a number of changes in the procedures. These changes include alterations to the time limit on lodging complaints, the time limits within which parties can respond, the length of submissions and the length of adjudications

The Council and the Constituent Bodies have also agreed to changes in the way the Executive Secretary will handle complaints when first received. These changes will give a greater discretion to the Executive Secretary to seek more actively the prompt redress of complaints and to advise publications on the placement of such material the better to achieve a settlement of a complaint.

These changes, which have now taken effect, are discussed in more detail in a separate article in this issue of the News. The new complaints procedure has been posted to the Council's website and a revised information booklet, available on request from the Council's office, printed.

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Two adjudications on privacy

The Council's Chairman, Professor Ken McKinnon, has addressed a letter to editors on two complaints relevant to issues of public interest and privacy adjudicated at the Council's June meeting. The full adjudications are published elsewhere in this issue of the News. Professor McKinnon, noting that issues of privacy and the public interest are often faced by editors, said:

The Council's website under the category Freedom of the Press - Positions, in the section headed Privacy - the basic position, outlines the Council's current stance on how to reconcile the public interest and the privacy aspects of Principle 3 of its Statement of Principles.

Basically the position is that where a matter is undoubtedly in the public interest, especially in relation to a public figure, the Council will always defend the right and responsibility of the publication to publish. But the intersection of public interest and the right to privacy is not always readily discerned, especially if a proposed article is not unquestionably a news item, that is, where the families of public figures or others might be harmed by involuntary association, especially on non-public occasions. In any case, claims of the fame of person alone being of sufficient public interest for an article to be justifiable are entirely negated if errors, egregious mistakes, or unfair sensationalism undermine those claims.

Consequently, editors should take care that the public interest is tested carefully. Terms like 'beat-up', 'slow day, poor story', and 'basically gossip' are often bandied around where the publication has exaggerated, made a spurious claim of relevance for a piece of gossip, been sensationalist, or simply failed to check the factual accuracy of the piece. Similarly a claim of not being able to contact the person(s) reported upon before publication, for an unbalanced piece that could have waited a day or two for proper checking and correction, is not really tenable either.

The Council's guidance cannot be black and white as each complaint has sufficient difference of detail to require that it be decided on its own merits. As the two recent adjudications involving privacy and the public interest illustrate it is the detail that count.

General Cosgrove, former chief of the Defence Force, on the last working day before Christmas complained that an article, purporting to link the departure from the army of two of his sons with difficulties of army recruiting, while reporting unconfirmed gossip about their army careers, was both inaccurate and unfair. The newspaper responded that the army careers of family members of such a famous public figure were legitimately a matter of public interest. The Council upheld the complaint, finding the article was egregiously inaccurate, was laid out in such a way that it unfairly impugned the reputation of one of the sons, and that a follow-up article did not correct all the errors or remedy the unfairness. In the circumstances it felt that it did not need to make any definitive ruling on whether, in this case, the family's privacy was invaded.

The second concerned 'schoolies' week on the Gold Coast, in particular a report headlined 'Playing with fire', accompanied by a photograph of two bikini clad girls, with faces partially blacked out, walking along the street. The report was subheaded 'How two teenage girls ran the gauntlet at Schoolies', directly implying that the girls were in danger. Emotional complaints submitted by the parents on behalf of their girls said that they had not been in danger, were innocently on their way back to their respectable lodgings and were, in effect, improperly 'duped' by the publication with unfulfilled offers of a photo on the social pages. As is often the case, the Council, lacking irrefutable evidence, was unable to rule on some claims and counter claims about the facts. It upheld the complaint, however, on the basis that the publication decided that the girls were entitled to the privacy of a facial blackout, because of their juxtaposition with the accompanying report, but failed to do this in a way that resulted in the girls being unrecognisable.

The Council is very much aware that it exists in part to adjudicate these shades of grey in complaints where there are rights and responsibilities on both sides. It is however concerned that a fair balance between reporting in the public interest and maintaining fair privacy depends a great deal on care with details and seeks that publications take care to ensure that, where privacy is invaded for justifiable public interest reasons, the facts back up the story.

For more information on privacy matters
go to the overview page.

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Classification

The Press Council has expressed concern with the Commonwealth government proposals to seek state support for extending restrictions on the publication and distribution of books allegedly associated with terrorism. Prior to the most recent meeting of SCAG, the Council sent email messages to the state and territory Attorneys-General objecting to the widening of the classification restrictions. The email read:

The Australian Press Council is concerned with the proposals by the federal Attorney-General to change classification laws to further restrict publications. No reasonable case has been made for additional restrictions, nor would additional censorship prevent access to those who want such material.

In the Council's view there is already enough restrictions on publications and the existing laws are sufficient to deal with material inciting violence in the community. You must not, in the interest of retaining a free society, cut off our historic freedoms. Retention of an open society is essential.

The Council urges the Attorneys to reject these proposals.

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Cross-media rules

Cross-media ownership rules In the May 2006 News, the Council reported on its submission to the Minister for Communications on her proposals for changes to the cross-media ownership rules. The Council has since noted the recent announcement by the minister that the government intends to proceed with alterations to the rules. Pending finalisation of the drafting of the proposed legislation, the Council retains concerns that the government may attempt to use the electronic regulator, the Australian Communications and Media Authority, to regulate newspapers. The Council has asked its Chairman to meet with the Minister to discuss these issues.

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Conciliated complaints

The Council office tries to solve matters by direct contact with the publication concerned. This often leads to a settlement of the matter satisfactory to both parties. On occasion, a Public Member of the Council (or a member of the secretariat) will convene a face-to-face conciliation, by agreement with the parties. Below are some examples of the matters recently settled in these ways.

• A complainant was concerned that a metropolitan newspaper had not published a report on a major Climate Change conference held in the city in which the newspaper was published. The editor's response was sent to complainant, who then requested a mediation. At the mediation the paper advised that such a report had been published and that the newspaper would continue to report similar important conferences when they occurred. The complainant was satisfied by the paper's actions.
   
• A community group submitted a letter to the editor in response to an article in a regional daily about a development proposal currently before the local council. The newspaper declined to publish the complainant's letter, which was critical of the proposal, and of the newspaper's coverage of the issue. The parties to the complaint exchanged correspondence through the Press Council's secretariat. The secretariat's involvement led to mediation of the complaint by publication of a detailed response from the community group prior to the local council's decision on the proposal.
   
• A regional daily published an article about a protest meeting, accompanied by a photograph that contained the complainant's private unlisted telephone number. The number had been displayed at the meeting, by the organising committee, on an empty chair, to show the non-appearance of an invited official. Unfortunately, the number shown was that of the official's daughter. The paper personally apologised to the complainant for the role it had unwittingly played in publishing the wrong number, and immediately had the article and photograph removed from its website. The complainant was satisfied by this action.
   
• A metropolitan newspaper published a bylined opinion piece on the opening of the duck-hunting season that contained a throw-away line that was seen as a racist comment. The complainant (an organisation representing shooters, but not the ethnic group allegedly vilified) and the newspaper met at formal mediation. The paper acknowledged the concern raised by the complainant and agreed to ensure that such material was not again published. Both parties agree that the matter was resolved at that point.
   
• A national newspaper published a list of "key events" in the latest Middle East crisis. The complainant submitted a letter for publication, pointing out what he saw as an omission from the list. The paper did not originally publish the letter. The secretariat spoke with the paper. It subsequently published the complainant's letter and, at the same time, a letter from another reader with a different view. The publication of the letter provided the complainant with balance.

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