Journalism plays an important role as the ‘Fourth Estate’ in protecting the public sphere and providing scrutiny on authorities. The ‘Fourth Estate’ provides a constant check on the other three estates; the legislative, executive and judiciary. In theory, the freedom of the ‘Fourth Estate’ provides the public with an unbiased and balanced presentation of what is happening, what has happened and what is going to happen. However, journalists are bound by a range of restrictions and guidelines to encourage ethical reporting.
Many guidelines journalists are encouraged to follow are self-regulatory and originate from the ‘Fourth Estate’ itself. The Media, Entertainment and Arts Alliance (MEAA) provide guidelines which ‘journalists’ are encouraged follow. According to the MEAA, all reporting should be fair, balanced and accurate. Often, if reportage falls outside these guidelines, it is other journalists who will be the most critical.
ABC program Media Watch acts as almost a ‘Fifth Estate’ and provides a critical view of media reportage. This is an active form of self-regulation and strongly upholds the values of the MEAA.
While self-regulation of journalism provides critique from within the ‘Fourth Estate’, legal regulations provide further guidance to reporting on events. The law of defamation ensures journalists “strive for accuracy” in their reporting, according to the MEAA. Defamation protects an individual’s right to a good reputation in society, free of hatred, contempt and ridicule in the mind of a “right thinking person”. Journalists should avoid causing harm to an individual’s reputation in their reportage to avoid being taken to court. Even though a statement may be true, it can labelled defamatory. Journalists must balance the philosophy of full disclosure with a commitment to ‘do no harm’.
Defamation is a civil, not criminal action and is now capped at $250,000 compensation.
In 1998, Pauline Hansen sued the ABC for defamation after radio station Triple J played a song titled ‘Pauline Pantsdown’, implying she was homosexual. Hansen argued the song was untrue and harmed her reputation. As a result, the song was no longer played, demonstrating defamation can extend to all forms of media communication.
A journalist can strongly defend their reportage in a defamation case if it was true, in context, in the public interest, published in honest belief it was true, or is clearly labelled ‘opinion’ or ‘editorial’. However, if there is evidence of malice or the other side of the story is deliberately ignored, defence is more likely to be defeated.
Privacy is another area where journalism is both restricted and protected by law. In 2009, the Australian Law Reform Commission made a number of recommendations, including a person should have a right to sue when they have a reasonable expectation for privacy. Hence, the ability for journalists to obtain information was restricted. However, journalists are also protected given the court, in individual cases, takes into consideration the public interest of the information obtained. Therefore, if the public’s need and interest in private information is strong, then a journalist, may be found not guilty of obstructing another’s privacy. Ideally, the restrictions create a fair balance between reporting information which is private but in public interest, and the individual’s right to privacy. According to British newspaper pioneer Alfred Harmsworth “news is something that someone, somewhere wants to keep secret”.
As journalists, we need to protect ourselves in regard to the obstruction of privacy to obtain information for use in a story. It is important, to make sure we have the backing of our editors before running the story. The most appropriate act we can take to ensure we do not end up in an obstruction of privacy suit is to ensure our reportage is fair, balanced, accurate and always seeking a right of reply from the subject.
What is spoken in parliament or court is done so under privilege and is not subject to legal ramifications. The system of privilege allows full freedom of speech without concern for ramifications in a legal and political setting.
But if the same utterances are spoken outside of court or parliament they no longer under privilege. Privilege does not apply to journalists and they can be found liable for defamation.
During a court case journalists are not to report the name of the accused until the case has completed and accused has been charged. Neither are they to imply guilt or innocence in their reporting. Reporting the name of the accused, interviewing witnesses, implying guilt or innocence or preventing a fair trial is considered contempt of court.
Ethical and Legal Dilemmas
Journalists are not offered the same protection as the legislative, executive and the judiciary and are subject to the same laws as the general public. In some cases, journalists can report unethically. The News of the World phone hacking scandal is an example of unethical reportage. Journalists may fail to follow the ‘rules’ (self and legal regulation) and engage in activities such as phone hacking, but this can be due to pressure to sell stories, beat competitors or to follow through on an ethical position of full disclosure.
An example of the abuse of journalism’s power is the reportage of the Lindy Chamberlain case. The media inaccurately reported and implied Lindy Chamberlain had killed her baby, leading to the conviction of an innocent woman.
Journalists face an ongoing ethical dilemma. It is difficult to balance the underlying philosophies of full disclosure, fairness, accuracy, balance and a commitment to “do no harm”.