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Love, Hate, Justice and Publicity

JR213 Research Essay by
Roderick Eime

"Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the very spur to exertion and the surest of all guards against improbity". So said the famous 18th century Utilitarianist and philosopher, Jeremy Bentham. A quote occasionally revisited in more recent times to remind ourselves of the inextricable binding of these two disciplines.

Even so, the law and journalism have been difficult bed partners for almost as long as history has been recorded. Each cannot exist without the other, the relationship often swinging from deep hatred to all-embracing love.

On one side, the making of laws, their inherent vagaries and the inconsistencies of their policing create constant aggravation with the other. From the reverse perspective, the sometimes brutal and harsh frankness, the incessant inquisitiveness and indiscretion often causes deep hurt and indignation with the authoritative partner. And so goes the constant ebb and flow of the tide.

All over the world, the two exist together in varying degrees of balance. The most common and unfortunate situation being where law stifles comment, often with great brutality. A traditional 'pen versus sword' struggle. In Australia we mightn't suffer from dictatorial oppression, instead there is almost a 'three's a crowd' situation with the competing interests and responsibilities of the courts, the parliament, the government and the press.

This sometimes difficult menage a trois has its own set of pros and cons. Two aggrieved parties are often restrained by a third in an oddly rotational adversarial forum, thereby preventing one sustaining, and the other from inflicting too much damage. The joys of democracy and the Westminster system! A system once said to be "the worst system in the world... except for all the others" (Winston Churchill).

Beware The Two-Headed Beast

Unlike under the overly oppressive regimes of other countries, journalists in this country only have to deal with the double-headed beast of contempt and defamation. Each set of jaws ready to rip into the unwary media for uttering some perceived blasphemy. And this 'blasphemy' may be a simple as just telling the truth.

"If you know somebody is going to be awfully annoyed by something you write, thatís obviously very satisfying, and if they howl with rage or cry, thatís honey."
A. N. Wilson (b. 1950), British author.
Chris MastersThe sort of bravado stylised in Wilson's statement above may be fine for some, but Australian journalists like the ABC's Chris Masters would look on that statement with horror. His Four Corners feature on Queensland corruption, "The Moonlight State", has been in the courts for eleven years.

Masters' situation is one where his news-sense and belief in the public's right to know drove his zeal for the story. In many respects his passion was vindicated by the subsequent Fitzgerald Inquiry, but a painful lesson was nevertheless learnt. Despite having worked scrupulously within the confines of the defamation law, powerful figures were still able to cause him and his producers considerable grief.

As a result of this, Masters now believes in-depth investigative reporting to be a "dying art". During an interview on ABC's 2BL, Masters said that he would never have touched the story if he had known that he would have to "do ten times the amount of work defending it than producing it."

This leaves us, as journalists, in a situation of being "damned if we do, and damned if we don't". The public clearly has a right to be alerted to any scurrilous behaviour amongst their elected members, the bureaucracy, big business or, less commonly, within the judiciary. Yet, because of the so-called "chilling effect" the threat of defamation places on some public discussion, stories are simply filed under "too hard" or perhaps more accurately, "too risky".

What then? The media becomes a flaccid tool of vested interest, mere prostitutes for their moneyed masters? Sure, that mercenary aspect will always exist, but then so will the reverse. There will always be a movement of passionate, brimstone-bellied individuals concerned with revealing that which someone, somewhere doesn't want revealed. Real news, not disguised advertising or PR.

So how then should these motivated souls be heard? How can they protect crucial confidential sources from inquisitors? How can they stay out of jail or prevent themselves being sued out of existence?

The first answer has to be knowledge - knowledge of the law and how far to push it. Editors and Chiefs Of Staff can draw on legal advice where available and a journalist should always defer to higher authority in such matters after having made the full story clear. The second answer should then be research - the straight forward, hard journalistic work. Check and double-check facts, have stories verified by a second witness or insider, be suspicious of "leaks" and anonymous tips and get everything "on-the-record" wherever possible.

Legal hurdles will inevitably appear and one has to make the choice to either confront the challenge head-on, or re-route to less dangerous ground. It's the old story. Sometimes in order to reach your final objective, in this case publication, you may need to concede ground occasionally.

'Colouring' An 'Identity'

Brian TooheyFor the sake of this discussion, let me use the example detailed by Brian Toohey in his article Growing Pressures on Journalism published in Issues in Australian Journalism.

Toohey chronicles the ascent of a mythical politician whose path to power is lubricated by various business and crime figures. This scenario could apply in many places around the world.

There are some inherent difficulties in bringing these issues and conflicts-of-interest into the public arena. Even people with the most questionable reputations are still protected under defamation law. Toohey argues that a good reputation is an assumed and often unjustified right not always worthy of protection.

Consequently any reference to our politician's connection to a 'colourful identity' could well be a 'defamatory imputation' unless very carefully worded indeed. This is, by the way, quite apart from any truth of the matter.

Given that the unworthy owners of the impugned reputations would have considerable legal resources at their disposal, not to mention illegal, it might be wise to attempt to highlight their activities in another way. Consider speaking to a member of the opposition who might then lobby for an official inquiry. In that arena you would be much freer to report on matters raised. Queensland's Fitzgerald Inquiry being an obvious real-life example. The downside of this is that your possible exclusive or 'scoop' may have to be surrendered for the greater public good.

Conscience versus Contempt versus Ratings

A conscience is both a tool and a curse to the working media. Very often we do know what the public should know but are prevented from disclosing it for various reasons.

Derryn Hinch (c) The AgeDerryn Hinch was presented with this same quandary when he tackled the issue of a sexually predatory clergyman on his 3AW program in 1985 (Hinch vs. A-G [Vic]).

Hinch clearly made the sexual molestation cause a very personal one and could possibly have allowed those feelings to cloud his professional judgement on this occasion.

I wonder what legal advice, if any, Hinch sought before airing his exposé on Father Michael Glennon, because his timing was simply appalling.

Alarm bells should have been ringing at the station's management, and if they were, perhaps the decision to continue was based on a likely barrage of supportive publicity which would then trigger a rise in ratings. I'm guessing that the station offered to cover Hinch's fine or sanction. Jail was probably a bit of a shock.

His defence centred on the hardy precedent set in the 1937 Bread Manufacturers case; namely that a broad discussion of issues of wide public interest do not constitute contempt if they are incidental to a sub judice matter.

The fact that Hinch had to fall back on this as a defence indicates, to me at least, a degree of desperate 'damage control'. The popular Bread Manufacturers defence ultimately failed because Hinch simply went too far in revealing Glennon's past history at a time when a jury was about to be formed. He went, in effect, "to the heart of the matter".

Hinch's broadcasts also gave Glennon sufficient grounds to mount an appeal that came very close to gaining the former priest acquittals on all charges.

The judge who heard the contempt charges against Hinch (Toohey, J) began his summary by saying,

"In my opinion the broadcasts, and each of them, would have influenced most listeners to conclude that (Glennon) was a despicable man, a dissembling priest, who corrupted young people after using his pseudo-clerical position to gain their trust." Hinch took a gamble. Whether he won or lost, despite his jailing, could be the subject of another debate, but if Glennon had been acquitted as a result of Hinch's pre-trial publicity, then justice and the public interest would certainly have been betrayed.

Note: Hinch and Channel Ten (Television and Telecasters Pty Ltd) were again before the courts in March of 1994, charged under s4 of the Judicial Proceedings Reports Act (Vic) for naming a child in a sexual offence case.

Despite Hinch's judicial hiding and subsequent failed appeals against conviction, rival broadcaster John Laws found himself in court on a very similar matter in late 1997.

John Laws (c) The AgeAdditionally, Laws was held to have used "gross and coarse" terms that were "gratuitously offensive" according to one judge. This fact, no doubt, further inflamed the judges.

Laws and 2UE faced a total bill of well over $300,000, with Laws's component amounting to a $50,000 fine. Another of three judges, Justice Roderick Meagher, dissented and called for a jail term, stating that $50,000 was the sort of money Laws would spend "on a small cocktail party." [see report in The Age]

Personally I find it hard to defend the publishing of this sort of sub judice material. Is the radio ratings battle really so fierce as to run these sort of risks and stoop to this level of 'journalism'? Apparently so.

Ivan MilatStill, the self-serving personalities of talkback radio are not the only media figures to have come under scrutiny for indiscreet, opportunistic publication. The US-owned WHO WEEKLY, possibly misled itself with parallels to hometown laws when it published a photo of the since convicted Ivan Milat just prior to his trial.

WHO WEEKLY's then editor, Thomas Moore, further 'stepped in it', when he made what he thought was an innocuous statement during a press conference by saying that he "hoped to be vindicated". It was an unfortunate, if somewhat oblique, presumption of guilt on his behalf.

Here was a clear case of perceived 'public interest' vs. the right of the accused to a fair trial. The crown said that eyewitnesses, even those not yet known, could have their memories and recollections tainted by the premature revelation of his physical identity.

Moore argued that the only eyewitnesses for the prosecution had already identified Milat and that his identification was no longer an issue. He went on to say that the court, being open to the public, had already revealed Milat to the wider community. Two leading law firms were consulted and, according to Moore, both believed the publication was defensible. Oops.

In making the decision to publish, Moore and his advisers had weighed 'public interest' against any possible prejudice against Milat. They must have known that in the strictest test of law, it would constitute contempt. Nevertheless I believe they made the right decision. Even so, the law did not look on them favourably. Anything but!

The now famous "Doctor Death", US pathologist Jack Kevorkian, said when in court himself, "When your conscience says law is immoral, donít follow it." Do we believe that aspects of the law of contempt fly in the face of public interest? Moore certainly does. He closed his editorial comment by saying," ...the right of the public to be informed (is a) principle as fundamental to the vitality of any democracy as the right to a fair trial."

In hindsight, the often sensational nature of WHO WEEKLY may have led the court to believe that the magazine's motives were not strictly in the public interest. It would have been an interesting test had another publication tried the courts on.

The Case Of The Quill, The Silicone Chip and The Gavel.

Much of the law surrounding the various aspects of contempt were fashioned well before television emerged in the 1950s. Now that the information revolution has exploded into cable, satellite and the Internet, the law is struggling to keep pace with this technological wildfire.

Certainly the research of law is greatly assisted by electronic publishing, demystifying much of it for the wider public should they care to look.

Publishing material in the public domain is easier than ever for the 'person in the street'. Anyone can say anything about anybody to everybody with great ease through the use of e-mail, newsgroups and the World Wide Web, often with substantial anonymity.

Given that the modern professional media can be said to be responsible publication for profit and public interest, conversely much of the anarchy of the Internet can be written off as soap-boxing and plain rubbish. But still, new trends in publishing and litigation are emerging all the time.

In the US, a young maverick by the name of Matt Drudge publishes his own on-line bulletin predictably titled The Drudge Report at www.drudgereport.com. Drawing on historic gossip icons like Louella Parsons and Walter Winchell, his rise from geek to guru has been meteoric in the new and instant media.

Closely followed by the public and the establishment alike, Drudge often scoops material others wouldn't touch. One such case was that involving a close Clinton advisor, Sidney Blumenthal.

Drudge was supplied information detailing Blumenthal's alleged wife-bashing. Blumenthal sued because Drudge would not, or perhaps could not, reveal the source of his information and thus prove its truth. Hence he could not rely on the 'public figure' defence established in the 1964 case of New York Times vs. Sullivan. By not wishing to authenticate his source, it was argued that Drudge must have acted with malice.

Already Australian cases are beginning to emerge. Two in particular have raised the awareness of this new legal risk. In the first successful litigation for defamation on the Internet [DAVID RINDOS and GILBERT JOHN HARDWICK. No 1994 of 1993 (Unreported Judgement 940164)], David Rindos, a university academic successfully sued a colleague for defamation after imputations, including one of pedophilia, were posted to a newsgroup. He received an award of $40,000 plus interest. [see:"Rindos / UWA Case" Site ]

The defendant, who made no attempt to defend himself, was I'm sure, struck dumb by the writ, let alone the judgement. It demonstrated very clearly that the sanctity of the Internet was now shattered.

In the other, a more worrying circumstance has arisen. The Melbourne PC Users' Group, as an Internet Service Provider (ISP), settled out of court with a UK based person over remarks published by a user in a popular newsgroup. This type of case has become known as an extra-jurisdictional matter, where a plaintiff from outside the defendant's home jurisdiction begins an action. [see The Age ]

Peter Coroneos (c) LabornetPeter Coroneos LLB (Hons.), Executive Directive of The Internet Industry Association (IIA), said, "The defendant chose to settle out of court when the likely cost of defense began to outweigh any benefits in challenging the action. It is not clear that they would have necessarily lost."

The litigant chose to attack the ISP because they were more likely to yield satisfaction than the originator of the material, but it in no way absolves that person from liability.

This area of law is evolving as you read this and is far from clear. It heralds not only a new area of concern for publishers and individuals, but also a new field of opportunity for lawyers and malicious litigants.

In summary I believe I have examined the arguments for and against publishing within the strict guidelines of the law, although I make a particular point of highlighting the largely uncharted territory of cyberspace. Precedents are only now beginning to emerge, with the loudest message being that great caution needs to be exercised when publishing anything over the Internet.

© Roderick Eime 1998. All images remain copyright to their respective owners.