Courts must stay out of the investigative journalism process

If a recent court ruling becomes commonplace, legal action could stop news stories in their tracks before they’ve seen the light of day, writes Phoebe Netto.

The NSW Supreme Court’s extraordinary order requiring Nine to hand over draft copies of an investigation into the cosmetic surgery industry is a warning signal to every investigative journalist – and the entire media industry.

The purpose of the media is to expose the truth. The media are obligated to report on situations for both the public good and community awareness. As one of my former journalist colleagues noted, “journalists are trained to report on both sides of the story, however big or small the conflict may be.”

The court system should in no way interfere with this process, because in doing so, it threatens the media’s freedom of speech. But if this latest court ruling becomes commonplace, legal action could stop stories in their tracks before they’ve seen the light of day.

One of the Australian Press Council’s principles is that those working in the press should “avoid intruding on a person’s reasonable expectations of privacy, unless doing so is sufficiently in the public interest.” Is our legal system now determining what is in the public interest and what is not?

If Adele Ferguson had been forced to hand over whistleblower documents and material in her series of banking stories, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry would never have occurred.

If Carl Bernstein and Bob Woodward were blocked from publishing their story in The Washington Post in 1972, President Richard Nixon would never have resigned. If Joanne McCarthy hadn’t been able to publish her reports on child sex abuse in the Catholic Church, a state inquiry and royal commission would never have happened. Not to mention the Panama papers, the Pandora papers… the list goes on.

Reporting is not conducted in a vacuum, because media guidelines don’t allow it to be. Subjects of a story usually – and should – have the opportunity to provide comment before a story is published, and also have the opportunity to request corrections if a report is inaccurate or written with limited understanding. They also have the option to respond publicly. This is something we in PR manage with our clients on an almost daily basis.

Of course, people or organisations who are hiding something would much prefer that media walked straight past, instead of being held to account. When things previously kept hidden behind closed doors (and sometimes legal teams), are brought into the light, the truth is exposed.

This isn’t to say that unfair or exaggerated reporting doesn’t exist. I regularly receive enquiries from people wanting help to clear their name or Google search results because of media reporting on claims that ended up being disproved, without a follow up story to say so.

This is why strategic PR has a role, but it is also why Australia’s media ecosystem is so beautiful. The media listens and values accuracy. Journalists are accessible and know that every story they file is open to huge scrutiny from their peers and vocal armchair critics.

The media can help keep us honest. We should all be grateful for those in the Fourth Estate who dedicate their lives to uncovering the truth.

Media outlets release corrections, publish updates to stories, and listen to other perspectives. They themselves are held to account, and in extreme (but recent) circumstances are subject to raids and are required to prove their accounts in courts of law.

But as things stand, the balance of power is skewed. Defamation laws are ‘already stacked catastrophically in favour of the rich, powerful and connected’, as Greens upper house MP Abigail Boyd told Parliament.

According to the Media, Entertainment and Arts Alliance, there has been an almost 25 per cent increase in journalists receiving defamation orders over the past two years, while 87.7 per cent of journalists in Australia say that they believe our defamation laws make reporting more difficult.

Reporters Without Borders’ 2022 edition of the World Press Freedom Index, which assesses the state of journalism in 180 countries and territories, saw Australia slip 14 places in the space of a year to thirty-ninth in the world.

Whistleblower protections are left wanting, while protections for the unwilling subjects of stories are dangerously strong. Journalists are being prevented from doing their job by people with the power and money to stop them.

As I write this opinion piece, I’m even a little fearful that I will be hit with a defamation order, simply because someone doesn’t like what I’m saying. Imagine being a journalist…

Journalists cannot do their jobs properly if they are muzzled or controlled by fear.

Phoebe Netto is the founder of Pure Public Relations


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