Anas discors…Pato media luna by Sergio Niebla (CC BY-SA 2.0)
The following essay reviews two prominent cases that demonstrate the importance for communications practitioners to consider the legal implications of their professional undertakings. In Australia, the media and communications industry encompasses multiple platforms in its delivery of information to the public. It is experiencing rapid change with the advent of social media and other Internet-based tools, used for the rapid circulation of information. This requires media and communications practitioners to evolve with these technologies, keeping up-to-date with any changes to industry codes of practice and legislative frameworks that influence these media environments. By examining cases that highlight typical pitfalls of day-to-day communications, media practitioners can learn from these experiences, be informed of likely financial and professional consequences and increasingly work towards an ethical mindset in accordance with industry expectation. I refer to two examples specific to the field of journalism: the defamation lawsuit of Zoef v Nationwide News Pty Limited & Ors 2015 [NSWDC 232], where an 86 year-old tailor successfully sued the news agency; and a sub-judice contempt of court case DPP v Johnson & Yahoo!7 2016 [VSC 699], against Yahoo!7 journalist, Krystal Johnson, which has received widespread media exposure.
In a major study cited in Smith (2003, p.76) it was determined that 80% of citizens and journalists would rather news that was held back until the content was verified for accuracy, rather than receive false information. Yet today’s print, broadcast and online journalism is a highly competitive field, with the ‘desire to be first’ viewed as the ideal outcome for journalists (Smith 2003, p.74). A need for journalist integrity and accountability, as described in Richards (2005), is often sabotaged by an environment that may foster sub-standard reporting with articles that lack contextual detail:
…neither knowledge nor theory is of any particular importance to most practitioners, who are preoccupied with the next deadline, the pressures of the newsroom and the expectations of the media organisations that employ them” (Richards 2005, p. 53).
At the exclusion of careful fact-checking, an overarching need for a publication to grab a reader’s attention through sensationalist articles may ultimately lead to court proceedings against the offending publication. This may include making a defamatory imputation, which is a “published statement that damages someone’s reputation or holds them up to ridicule” (Pearson 2014, p351).
Dwyer (2012) describes how defamation laws have existed since a thirteenth century statute recognising a need to protect reputations, balanced with maintaining freedom of expression. In the United Kingdom, defamation laws emphasise reputation, whereas United States law considers freedom of speech as critically important. By comparison, defamation laws in Australia are simplified. Recognising the need for a national consensus in the pursuit of balance between the protection of reputations and the need for freedom in communications, the Defamation Act 2005 was passed. This abolished distinctions between libel and scandal and includes defence mechanisms such as ‘offer of amends’ in a bid to limit unnecessary, costly litigation (Dwyer 2012, p.58). Dwyer claims that there is evidence suggesting that this Act has resulted in a reduction of cases heard in court, yet there is no specific data provided.
Multiple defamatory imputations are evident in the case, Zoef v Nationwide News Pty Limited & Ors. An 86 year-old tailor, Macedonian-born Atanas (Tony) Zoef, successfully sued the publication in the New South Wales District Court on 16th October, 2015, in accordance with the Defamation Act 2005, over the failure of The Sydney Daily Telegraph to consider his name would be mistaken for his son, also of the same name. In an article written by Clementine Cuneo, the headline, ‘Tailer’s alter ego as a gunrunner’, along with the article’s contents directly implied that the perpetrator’s father was involved in criminal activity, following a police raid on the 21st August 2013 at the garage of their family home. The newspaper at the time had an estimated readership of 1.12 million people, with the offending article following directly beneath the bold banners, ‘GLOVES OFF’ and ‘Police model gun crime tactics on New York’s 9/11 response’ [NSWDC 232].
The plaintiff’s son was arrested for a range of serious firearms and weapons offences; however the plaintiff was identified as facing these charges and being the ‘mastermind behind a haul of military grade weapons smuggled into Australia’ (Cuneo, 2013). Since publication, the plaintiff suffered considerable damage to his health, reputation and home tailoring business, under the suspicion of neighbours and customers.
The plaintiff provided evidence in Sections 12 and 13 of the hearing ([2015] NSWDC 232):
“Well, about 20 customers ring me up and wanted to know what am I doing, isn’t the business good enough so I have to involve guns to make money for it…it’s something that I worked all my life to keep the good reputation…then all of a sudden it’s cut down from under my feet by just an ad through the paper.”
Justice Levy made the following points in his deliberations:
“An ordinary sensible reader would identify the plaintiff as the person the subject of the material complained of because of the specific of his name, profession, and locality as already explained” [NSWDC 232, s.60].
“By referring to an alter ego of the tailor, the publication was referring to a person who was a tailor or who carried out the other activities described, namely gun running. This could reasonably be taken to be a reference to one person acting with two personae”[NSWDC 232, s.64].
He also believed the article’s use of a poor quality photograph of the plaintiff’s son, along with references to the age of the offender potentially caused confusion but ultimately were ‘immaterial’ to the plaintiff’s identification [NSWDC 232, s60].
In accordance with the Defamation Act of 2005, Justice Levy ruled that the conditions for a defamation lawsuit were justified in that the plaintiff was identified and that the imputations were defamatory.
The article does not conform to the ‘Statement of General Principles’ (APC, 2016) of the primary regulator for newsprint and online communicators, The Australian Press Council:
- Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion (Item 1); and
- Avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest (Item 6).
While these guidelines are designed to encourage ethical standards in journalism, they are not obligatory, however overarching legislation ensures that non-compliance has consequences, balanced with the expectation of public accountability.
Given an inability to produce evidence of fair report under Section 29 of the Defamation Act 2005, defence of this issue failed. $150,000 damages were awarded to the plaintiff on the critical point of uncollected goods at his home, leaving no doubt that his business was adversely affected by the defamatory imputations contained within the article. However, the plaintiff was also made to pay costs to the defendant, after the defence successfully utilised Section 18 of the Defamation Act 2005, the ‘offer of amends’ whereby the plaintiff had failed to accept a reasonable offer to make amends by the publisher ”[NSWDC 232, s113]. This outcome is indicative of the risks that a plaintiff should consider when pursuing a defamation lawsuit.
Dwyer (2012, p60) warns media practitioners that ‘care and attention to detail is always necessary when a person’s reputation is at stake’. Hastily produced news stories considered to be in the public interest can result in damaged reputations and businesses, with offending news agencies sued, as this case clearly demonstrates. Dwyer (2012, p. 59) reminds media professionals of the ‘need to recognise risky words and phrases’ and the broader consideration for legal implications in the decision to publish an article.
A second case demonstrates how the failure to adhere to court reporting protocols is likely to result in journalists being charged with sub-judice contempt of court. This refers to publication of material that has ‘a tendency to interfere with the administration of justice’ (VGSO, 2015). Yahoo!7 journalist Krystal Johnson and her employer were found guilty of this offence after publishing prohibited content online in August 2016. Details included reference to a social media post by murder victim, Brittany Harvie, detailing how she feared she would be put “six feet under” by Mataio Aleluia, the person later found guilty of her murder. This information was purposefully withheld from the jury due to concerns it would influence a fair trial for the accused.
During the murder trial, Justice Lex Lasry was told by Aleluia’s defence lawyer that Johnson had written an article entitled, ‘Man paused to take “smoke break” while bashing girlfriend to death’, using material extracted from an accurate report on an earlier hearing, recorded in court by a Herald Sun reporter. Johnson added social media content that was not for publication (ABC Media Watch, 2016). Johnson was not in court during this period, yet wrote the article one day after the jury was empanelled and the trial was underway. In the interests of avoiding the risk of ‘unfair prejudice to the accused’, this information was withheld from jury because it showed the accused as having ‘a violent propensity towards the victim’ [2016, VSC 699, s7]. The article was believed to have been read by at least 4,123 people over a five day period who were ‘not otherwise entitled to know’ (2016, VSC 699, s29 and s46), prior to the article’s removal. Johnson’s actions resulted in both defence and prosecution arguing that it had compromised initial proceedings at a critical time of prosecution evidence, leading to Justice Lex Lasry’s dismissal of the jury on 22nd August, 2016 and the ordering of a retrial.
The Supreme Court of Victoria explicitly provides journalists working across all media platforms of its requirements detailed in its Media Policies and Practices (SCV 2015, p8), specifically:
‘In proceedings involving a jury, journalists need to take care not to publish material which has been dealt with in the absence of the jury.’
Media practitioners should ensure they are aware of court reporting protocols that are readily available by the courts they attend.
Johnson’s own reputation is now under public scrutiny, exacerbated by her relative inexperience as a young journalist. Several journalists reporting on the case have been particularly scathing of Johnson. Journalist Wayne Flower claims that Johnson initially ‘butchered’ the original report ‘she was stealing’ from the Herald-Sun (Flower, 2017). His article for the Herald Sun continues by stating that the defendants face ‘substantial fines’, which are yet to be determined. Criticism of Johnson has been appalling, according to Macleay College Head of Journalism, Stephen Davis (ABC Media Watch, 2016), who claims she simply “made a bad mistake”. He questions the influence of staff cutbacks on editing copy, combined with strict deadlines and journalists of limited experience, in anticipation that more cases like this will arise. As previously stated, the working environment may contribute to sub-standard reporting, yet Johnson claimed that she forgot the rule and went on to publish the submissions without the perusal of sub-editors, considering them ‘too busy’ (Lee and Cooper, 2016). This suggests a need for greater supervision of inexperienced staff (ABC Media Watch, 2016), particularly when they can publish content online themselves on behalf of their employer.
Irrespective of causal factors, the distress to jurors and families involved in the murder trial was noted in the judgement. According to Flower (2017), the Supreme Court of Victoria heard on 30th January, 2017 that the murder victim’s mother had to present her evidence twice, causing unnecessary distress. As with Zoef v Nationwide News Pty Limited & Ors, the journalist has also published material that does not adhere to Item 6 of the Australian Press Council’s Statement of General Principles.
Justice John Dixon, in his ruling on the 28th November, 2016, stated:
“…the accused was standing trial for murder, the most serious offence known to the law. As a matter of fact, the content of the article clearly had a real and definite tendency to prejudice the accused’s trial.”
Justice Dixon believed that Johnson and her employer knowingly took a risk of exposing the jury to an article in favour of its ‘commercial objectives’ [2016, VSC 699, s46]. The working environment permitted Johnson to work in their ‘Content Management System’ where uploading is usually activated by the editor, yet this system allowed Johnson to upload the material directly [2016, VSC699, s18]. A report on the state of press freedom by the Media Entertainment and Arts Alliance (MEAA 2015, p15) reminds journalists to be diligent in court reporting protocols and that defence counsel readily look for ‘take-down’ and suppression orders.
The case offers an important lesson for professional communicators who wilfully publish material without following standard procedures such as the seeking of editorial approval. Karp (2013) argues that the online news reporting and social media environment presents challenges for our laws to keep up with communication trends, and that the Internet increases opportunity for sub-judice contempt due to largely ineffective take-down orders of content. This case demonstrates how easily material is discovered on Internet search engines by people with a vested interest, in this case defence counsel, leading to a retrial, where the consequences can be costly to finances and financial reputation.
In contrast to the Zoef v Nationwide News Pty Limited & Ors case, Justice Dixon has pointed to the Johnson’s willingness to risk following explicit court-reporting procedures, whereas Cuneo failed to properly research and write her story, leading to a case of mistaken identity. Both cases have elements of unprofessional behaviour where the stories should have been held back for careful checking by an editor, yet the Johnson case was disturbingly ruled as a deliberate act by Justice Dixon. These cases may indicate a lack of journalistic ‘personalised awareness’ fostered by observation of codes outlined in MEAA’s Statement of General Principles, or an absence of ‘regulative ideal’ – a deeper understanding of the importance of ethics described in Little (2013).
It can be argued that the institutions that journalists work for are ultimately responsible for the activities of their employees. Couldry (2013, p.54) recommends that media practitioners continually reflect on the importance of ethics and how the media operates, stating:
“[But] why accept media institutions that are systematically reckless about their employees’ chances of achieving, or even aiming at, truth? What sort of human collectivity is served by entertainment that regularly misleads people as to their conditions of existence?”
The broader public have an expectation of ethical reporting as outlined in Smith (2003), which has been disregarded in both cases presented here. In Australia, legislation relevant to professional media operations is designed to uphold a level of industry respectability and public accountability. It is the legal component to a broader array of codes and standards that help ensure that people are not adversely harmed in a competitive, primarily commercial media environment. Timely news reporting must not outweigh the rights of the individual that any publication refers to. Laws such as those contained under the Defamation Act 2005 remind the practitioner that there are financial and reputational consequences for careless reporting in the absence of ethical practice.
References:
ABC Media Watch, 2016, ‘Rip, Reproduce and Regret’: Episode 31, ABC Media Watch, 29 August 2016, https://www.abc.net.au/mediawatch/transcripts/s4528869.htm
Australian Press Council [APC] 2016. Statement of General Principles, available at: https://www.presscouncil.org.au/uploads/52321/ufiles/GENERAL_PRINCIPLES_-_July_14.pdf
Couldry, 2013 Chapter 3: Living Well with and through Media, In: Couldry, N et al. 2013 (eds.), Ethics of Media, McMillan Publishers Limited
Cuneo, C 2013, ‘Tailor’s alter ego as a gunrunner’, The Sydney Daily Telegraph, 22 August, 2013, Retrieved at: https://www.caselaw.nsw.gov.au/asset/5625cf26e4b01392a2cd1e29.pdf
Defamation Act 2005, available at: https://www.austlii.edu.au/au/legis/nsw/consol_act/da200599/
DPP v Johnson & Yahoo!7 2016 [VSC 699] Available at: https://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VSC/2016/699.html?stem=0&synonyms=0&query=krystal%20johnson
Dwyer, T 2012, Chapter 3: Defamation and the protection of reputations, In: Legal and ethical issues in the media, Palgrave Macmillan, London; New York.
Flower, W 2017, ‘Sydney journalist Krystal Johnson admits breaking ‘golden rule’ of court reporting, Herald Sun, 30 January 2017, retrieved at: https://www.heraldsun.com.au/news/law-order/sydney-journalist-krystal-johnson-admits-breaking-golden-rule-of-court-reporting/news-story/f30820947272c0e01236ae4895f75dd1
Karp, P 2013 (March 4), Take Down Orders In The Internet Age, Gazette of Law and Journalism, https://glj.com.au/1967-article
Lee, J, Cooper, A 2016, ‘Journalist and website guilty of contempt of court after aborted murder trial’, The Age (online), 15 December 2016, retrieved at: https://www.theage.com.au/victoria/journalist-and-website-guilty-of-contempt-of-court-after-aborted-murder-trial- 20161215-gtbzru.html
Little, J 2013, Chapter 2: An ethical ideal worth aiming for: journalism and best practice, In: Journalism ethics and law; stories of media practice, Oxford University Press
Media Entertainment Arts Alliance [MEAA] 2015, Going after whistleblowers, going after journalism – The report into the state of press freedom in Australia in 2015, MEAA NSW.
Media Entertainment Arts Alliance [MEAA] 2017 https://www.meaa.org/
Pearson, M 2014, ‘Law for public relations professionals’ in J. Johnston & M. Sheehan (eds.) Public relations: theory and practice, Allen & Unwin, Sydney, pp.345-368.
Richards, 2005, Chapter 4: Codes of ethics, codes of practice, In: Richards 2005, Quagmires and quandaries; exploring journalism ethics, University of New South Wales Press
Smith, R 2003, Chapter 4: Truth and Objectivity, In: Groping for ethics in journalism, 5th Ed, Iowa State Press
Supreme Court of Victoria, 2015, Media Policies and Practices, retrieved at: www.supremecourt.vic.gov.au
Victorian Government Solicitor’s Office [VGSO] (2015) Refresher – Sub Judice Contempt – To Publish or not to Publish? Available at: https://www.vgso.vic.gov.au/content/refresher-sub-judice-contempt-publish-or-not-publish
Zoef v Nationwide News Pty Limited & Ors 2015 [NSWDC 232]