Reflecting on the balance between individual rights and society’s right to freedom of the press

Burke said there were three estates in Parliament. “In the reporters’ gallery yonder”, said Thomas Carlyle in 1840, “there sat a Fourth Estate more important far than they all.”

Carlyle defines journalists and the media as society’s ‘Fourth Estate’. Their role is central to a democratic society; journalists keep an eye on the other three estates on behalf of the public but also circulate information from the judiciary, legislative and executive to the public and from the public back to these three other estates.

However, difficulties can arise in the process of this transfer of information. Journalists must ensure they do not interfere with judicial, legislative or executive processes while reporting on them. As ‘watchdogs’, journalists encounter difficulties in achieving a balance between individual rights (the right to privacy, a good reputation and a fair trial), and society’s right to freedom of the press.

Journalism’s role is to protect the public sphere, facilitate diversity and equality of opinion, and ensure transparency of authority. This role must be balanced with the individual’s right to a fair trial, right to be considered innocent before guilty, right to maintain a good reputation and a semi-right to privacy. Journalists undergo a constant contestation between the philosophies of ‘full disclosure’ and ‘do no harm’.

Stephen Lamble in News As It Happens said journalists, like judges, have a key role in keeping others honest and accountable. “Journalists fulfil a fourth estate role every time they shine a spotlight on official corruption or, sometimes, official laziness.”

“On other occasions they step in when officials themselves have fallen victim to a fabric of lies and deceit,” he said.

The Watergate scandal is a prime example of journalisms ability to keep governments honest, hold leaders accountable for their actions and to scrutinise and criticise those in power ensuring what they do is in the public interest. Carl Bernstein and Bob Woodward’s reportage of President Richard Nixon’s “dirty tricks”, such as the bugging of political opponents and harassment of activist groups, ultimately led to his resignation in 1972.

Similarly, media coverage of Bronwyn Bishop’s unnecessary use of a tax-payer funded helicopter fulfilled the role of the Fourth Estate by holding her accountable to her actions and revealing them to be in self, rather than public interest.

Journalism is society’s “collective social conscience and watchdog” and in summary, it has six main functions:

  • acting as a mirror reflecting society to itself
  •   helping keep influential and powerful individuals and institutions honest and accountable by exposing them and their actions to the sometimes harsh light of public scrutiny
  • an advocacy role: being an agent for the good of society by providing a voice for individuals who have not been able to attain redress or have wrongs righted in other ways
  • protecting, informing and promoting democracy and democratic ideals
  • telling people in one part of the world what is happening in the rest of the world
  • protecting the public interest: raising questions, informing and educating readers and audiences about things which affect their lives and what is in their best interests to know about

The balance between individual rights and society’s right to freedom of the press is achieved through a system of both self and legal regulation of journalism.

Ethical and legal dilemmas occur at times when the public interest may outweigh the right of the individual. One must consider whether the principle of ‘do no harm’ should be sacrificed for the benefit of society.

There can be no set ‘rules’ governing the practice of journalism because punishable rules would restrict freedom of speech, but some regulation must be put in place to protect individual rights. Regulatory systems, including defamation and contempt of court laws, Australian Communications and Media Authority (ACMA), the Privacy Act (1988), and the Media Entertainment and Arts Alliance (MEAAA), are a response to the challenge of balancing freedom of speech and individual rights.

Journalists ensure other journalists are maintaining the values of fairness, honesty, transparency, balance, a commitment to truth under a self regulatory system. While doctors, lawyers and accountants can legally be kicked out of their profession for being unethical, journalists can’t, meaning they are free to continue scrutinising and criticising the other three estates. Self-regulatory systems such as the MEAA, Press Council and in house codes of professional conduct are systems of values and beliefs which dictate journalistic practice. A system of self-regulation avoids regulation implemented by the other three estates and contributes to maintaining freedom of the press, hence journalists defend their right to self regulation fiercely.

However, the MEAA Code of Ethics recognises journalisms values and beliefs can come into conflict: “Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.”

All reports should strive for fairness, accuracy, balance and a commitment to truth, however at times, individual rights may have to be sacrificed if revealing the information is beneficial to the public.

As a young journalist, I find it difficult to balance the conflicting values of full disclosure and ‘do no harm’. The tutorial exercise on Senator Vetinari particularly tested my personal ethical standards. I had originally decided not to write a story on the information Vetinari had entered a brothel and had been abusing the use of a government car. I thought publishing this information would be an invasion of privacy, and would be extremely damaging to his reputation. However, on reflection, I realised revealing the information that Vetinari was seen entering a brothel would be of great benefit to the public and wrote the story with journalisms role as the ‘Fourth Estate’ in mind. Lamble makes it clear when to sacrifice the rights of the individual: “it is only when private behaviour or interests start impacting on public duties, or there is potentially criminal behaviour that a line is crossed and public benefit is seen to outweigh personal privacy”.

There is no legal right to privacy in Australia. In their role as the ‘Fourth Estate’, journalists freedom to invade privacy is seen as allowing the ability to scrutinise and criticise bodies of power. If privacy was a right in law, it could be used to prevent journalists from fulfilling their role in democratic society. Although privacy is a right of the individual, creating a privacy law would protect politicians, public servants and business people from being scrutinised and criticised by the Fourth Estate.

Defamation laws balance the communities right to a free press and an individuals right to an undamaged reputation as both ideals are fundamental to democratic society. Butler and Rodrick recognise “protection of reputation has an obvious conflict with the promotion of freedom of speech” as it can often be in the public interest to report defamatory material as in the Vetinari case. Hence, public interest, fairness, accuracy and balance can be defence to defamation.

Contempt of court laws may be seen as restricting freedom of speech, but do protect the individual’s right to a fair trial and the right to be considered innocent before guilty.

Balancing journalism’s conflicting principles can become even more difficult in the ‘online world’ and era of social media.  We live in an Information Age, where constantly advancing technology has allowed instant dissemination, ensuring news travels further and faster. The 24-hour news cycle and the dissemination of news via social media as it happens reduces the time available to reflect critically as to whether a report will reach ethical and legal standards. Hockey was awarded $200,000 in a defamation case after the headline “treasurer for sale” and tweets accompanying the article were found to be defamatory. Tweets, Facebook posts and other social media activity are subject to defamation and contempt of court laws, and journalists must keep this in mind.

“Though technology may be pushing the industry forwards in different directions, I think the role of journalism itself remains unchanged as a ‘fourth estate’, an independent and unbiased watchdog of the legal, political and business events of the wold,” said ABC News reporter Lucy Carter.

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