June 18, 2017 by Ed Kennedy
The Biggest Week in Australian Journalism History? 3 Stories that Tested Principles of Privacy, ‘Off the Record’ and Defamation
Disclaimer: The following article is for information purposes only and does not constitute legal advice. The author urges you to obtain professional advice if you desire legal advice.
By any measure the week prior was a big one for journalism in Australia. Three major stories broke in which the journalists themselves became the story. While Pulitzer Prizes exist for a reason to recognise outstanding journalism, generally speaking, notable episodes prior have shown it is not ideal when the journalists themselves become the story.
That’s why the emergence of three major stories in one week has been so notable. Each one independent of the other, but sharing in common a controversy surrounding whether the stories were ‘fair and free’ in their publication, or instead crossed the bounds of good practice.
Let’s look now at them one by one, see whether the ‘old rules’ of journalism still apply, and what lessons emerge that new and upcoming journalists may glean from them.
Mia Freedman, Mammamia, and Roxane Gay
The Issue: Most Australian shall recognise Mia Freedman’s name. For readers abroad, Mia Freedman is a prominent Australian editor who chiefly presides over the Mamamia empire, while also serving as a media personality and commentator.
Freedman’s was all set to interview Roxane Gay, the American author visiting Australian to promote Hunger: A Memoir of (My) Body. Within it, Gay has documented her lifelong struggles with food addiction and obesity. Gay also identifies herself as bisexual, and is a survivor of sexual childhood abuse.
Accordingly, she is a source of inspiration and courage to many folks from many walks of life, but instead of the focus being on Gay and the impending launch of her book, Mamamia had a podcast intro and a companion article on Gay that quickly drew fierce criticism for its focus on Gay’s physical appearance, variously describing her as “super-morbidly obese” and that “her size is incredibly imposing”.
The basis of Freedman making these remarks was drawn from a number of personal requests that were made and negotiated by Gay’s publishers in preparation for the interview. Rather than this remain between Gay’s publishers and Mamamia personnel, it instead found its way into an introduction for the podcast that was to contain Gay’s interview. The quote is as follows;
“Now, I would normally never breach the confidence of what goes on behind the scenes of organising an interview, but in this case, I’ve thought a lot about it and the fundamental part of her [Gay’s] story and what her book is about. She writes about it in the book, I’m sure she won’t mind me telling you any of this”, said Freedman.
The Fallout: Alongside getting a blast from Roxane Gay on Twitter that makes it unlikely she’ll ever be available for a repeat interview with the Mamamia team again, Freedman and Mamamia has received a ton of criticism hereafter for their handling of this. Much has already been written, and there’s little this author need add to it, but suffice to say: a little presumption by the media outlet earned it huge criticism.
The Lesson: However you look at it, presumptions are problematic when it comes to presuming something is ‘on the record’. 9 times out of 10, a journalist’s judgement might well be right that an interviewee “won’t mind”, but if they decide to take that risk (and it is not wise that they do) the fallout of it can be seen in the experience of Mia Freedman and Mamamia. Freedman and the Mamamia team later issued apologies for what occurred, but the nature of the mistake left many feeling it shouldn’t have happened in the first place.
Malcolm Turnbull, Donald Trump, and Laurie Oakes
The Issue: Australian Prime Minister Malcolm Turnbull made headlines this week when footage was leaked of him doing a cheeky impersonation of US President Donald Trump at a Canberra media dinner.
Intended to be an ‘off the record’ event for politicians and journalists to mingle, the tape found its way into political journalist Laurie Oakes’ hands, who was not attending the event – and feeling therefore he was not bound by the off the record agreement of the evening (alongside his feeling the idea of an off the record dinner is not credible anyway) – elected to publish it.
The Fallout: This is an event where it is clear something has happened, but the impact of it is still unfolding. Whether you are a politician, political reporter, or completely apolitical, it’s not breaking news to say U.S. President Donald Trump is a unique character. His greatest fans and biggest detractors would agree as much. The US/Australia relationship is historically robust and built upon many facts, so even if Trump hereafter loathes Turnbull, the ship shall stay upright. Whether Trump feels Turnbull insulted his character with his caricature remains to be seen.
Distinct from the experience with the previous case, while Laurie Oakes may not be on Malcolm Turnbull’s Christmas card list, it’s hard to argue he is a party at fault here. He received the info, decided it was a good story, and ran with it.
Australian journalism represents an interesting study in cases like this, as there has been ongoing debates surrounding the tension between freedom of the press versus privacy. The case of the ABC vs Lenah Game Meats – in which the ABC essentially argued ‘hey, we’re sorry if you don’t like we’ve got damaging footage of you here, but we didn’t create it’ was illustrative that Australia doesn’t have a recognised tort of privacy under law, and accordingly anyone seeking to claim (whether in an actual court or the court of public opinion) that they’ve a right to privacy in matters like this would likely fall on deaf ears.
The dilemma here is what exactly off the record means as it can have different definitions. It can mean ‘you can’t repeat any of this ever’ to ‘you can repeat this to others, but you can’t say I’m the source’, to ‘its OK people know I’m the source, just don’t print my name’. It can go beyond this further still, as detailed by Sean Kelly’s piece on this episode.
The Lesson: whether you are an interviewer or interviewee, ensure both parties have a clear understanding of what is off the record and on the record, and if necessary, that needs to include passing on info to others. There shall be times someone goes on record, clearly says something explosive, and then thereafter isn’t happy with the coverage they get – that’s not a journalist’s fault.
If by contrast they’ve clearly indicated something is off the record, and not to be used, and then it is – that is an issue. A new journalist may think they can get away with burning a few sources along the way to build a story – but just as journos who work the same beat each get to know which politicians and public figures can be notoriously hard to interview – so too can going out of your way to scandalise or sensationalise a story quickly make you persona non grata.
Rebel Wilson, Bauer Media, and Defamation
Disclaimer: the following section is for informational purposes only and does not constitute legal advice.
The Issue: Australian actress Rebel Wilson sued Bauer Media, a publishing house of a number of Australian magazines, most notably Woman’s Day. She did so following the publication of eight articles in May 2015 that she alleged were defamatory, misrepresenting her real name and age, among other details surrounding her upbringing. Rebel claimed she lost work once these articles were published, and missed out on future roles as a result.
The Fallout: The Supreme Court of Victoria found in favour of Rebel Wilson. It is not yet clear what the overall costs Bauer shall have to pay will be, but this is a notable case for multiple reasons. Not only has a high profile celebrity won a case that’ll see the rest of her career followed with extra interest, but with defamation actions possessing a traditionally high bar for success at trial, Wilson’s victory could become consequential to future proceedings in Victoria, and wider Australia.
The Lesson: journalists generally great latitude until the protection of freedom of the press, but it is not absolute. This is especially true if the facts are uncertain or questionable. It is a reality that many media outlets daily walk a very fine line between breaking news and defamatory content (think about those cheeky tabloid headlines you see). The old journalism adage ‘trust but verify’ has currency here. If you verify a story with a second or third source on record [meaning: with their names in print] – and then that story does turn out to be wrong – there is ample protection there.
It doesn’t outright guarantee you won’t still be on the receiving end of a nasty phone call or a concerns notice, but it does greatly diminish the likelihood any legal action shall get any momentum if you’ve done the due diligence and taken care to ensure your articles are based on fact.
While other episodes in Australian journalism have show defamation proceedings is not the only way a journo can get in trouble in court, even in the era of ‘fake news’, legal proceedings can indeed make the consequences of a story published without strong foundations very severe.
Beneath the Byline
This author has written in a previous article the use of the word ethics is rarely thrilling. It remains his view today. Nonetheless, ethics at their core have a very practical purpose; a guide on how to stay out of trouble, while also seeking to build a foundation of trust and reliability.
At times this is no easy task, especially in the day and age of the 24-hour media cycle where stories break by the minute, and publishing this hour or in the one ahead can be the difference between being first on an exclusive, or falling far down the SEO rankings and social media shares.
In turn, its known; every journalist makes mistakes along the way in their career. Given these mistakes will invariably occur – and any typo that makes it into print or issuing of a correction of a minor fact error are sure to be painful enough – learning to avoid the big mistakes before you get done learning to not make the little ones is essential.
Yet, for all the nuance, mental gymnastics, and potential scenarios a journo could come up with where the use of off-the-record material or an unproven source is ‘less bad’, there is seemingly only one way to ensure you can use the info without consequence: if in doubt, don’t.
Though journalism daily experiences new evolutions and innovations in the way in which it is diffused, the past week illustrated the old principles of its practice remain in place. Not only shall maintaining them ensure good stories can be published without controversy, but it’ll also provide security against the substantive consequences that can arise when it’s done wrong.
Ed Kennedy is a journalist and ghostwriter from Melbourne, Australia. Contact Ed via firstname.lastname@example.org on Skype or LinkedIn.