I took on the law and the law won

Australian law is a booby-trapped minefield for journalists. Almost every published word has the potential to explode in their faces. In their day-to-day work, journalists must tread carefully through a field of issues related to privacy, contempt, defamation and copyright. This essay will examine three aspects of journalists’ dealings with the law. It will firstly discuss issues relating to the handling of confidential information, secondly the matter of privacy and will finally look at the impact of anti-terrorism legislation.

The Australian Press Council’s first statement of principle states “the freedom of the press to publish is the freedom of the people to be informed”. However, this freedom comes at a price. Journalists sometimes expose issues that others may have a vested interest in suppressing. As a result journalists may use whistleblowers or confidential sources who may be putting their own livelihoods at risk by coming forward. So there is a strong imperative to respect their anonymity. Item 3 of the MEAA code of ethics states “where confidences are accepted, respect them in all circumstances”. This commitment, if accepted, puts the journalist on a possible collision course with the law. Since 1989 three journalists have been jailed for obeying that section of the ethical code in defiance of a court order to reveal their sources. Their crime is a disobedience contempt of court because item 3 of the code allows no escape clause. An Australian 1994 Senate inquiry recommended that the relevant clause in the code be changed to “remove the absolute character of the obligation”. That recommendation has yet to be acted upon. While some judges have exercised discretion not to insist on naming sources, journalists should exercise particular care before agreeing to anything “off the record”.

The laws of privacy are also a hazard for journalists. Item 11 of the code of ethics says respect private grief and personal privacy. However many newsworthy events involve tragedy and disaster and it is often the role of journalists to tell the story of the protagonists of these event. Jennifer Mullaly has defended media intrusions on privacy arguing that they play a unique role in facilitating the free flow of information. But she also acknowledges that the entertainment function of the media can undermine their public interest function. Employer pressures to submit stories in tight deadlines are likely to infringe the edges of journalists’ ethical commitments. In Australia there is no common law privacy right. Enforcement of standards is the province of regulatory bodies such as the Australian Press Council rather than the law. While significant public interest is a legitimate defence, Mullaly recommends media staff education to prevent privacy breaches.

The anti-terror laws are another bane for journalists. In the wake of the September 11 and Bali attacks, Australia has instituted a number of laws designed to combat terrorism. While these laws have broad support in the community, the Kafkaesque logic of some aspects of the law presents difficulties when reporting their consequences. Of most concern is the Anti-Terrorism (No.2) Act 2005 enacted in December 2005. The MEAA described this law as containing “the largest legislative impediments to press freedom ever seen in Australia”. Journalists are prohibited from publishing any details of a preventative detention order. There is no defence of public interest available and the punishment is five years imprisonment. The sedition provisions of the Act may also block close scrutiny of government actions. Section 80.2 (5) of the Act imposes seven year sentences for “urging violence within the community". It remains legally untested whether this provision applies to a journalist who is merely quoting the words of someone who may be urging violence. The draconian nature of the Act will have a serious chilling effect. This particular legal minefield is likely to remain off-limits to journalists until repealed or amended.