Journalists Under Siege
Australian journalists at risk of prosecution
Each of these three cases has two major elements in common: a high-profile defendant and intense public interest. The subject of each case holds a position of power in his respective profession. George Pell, as the highest ranked Australian Catholic, Ben Roberts-Smith, highly respected SAS soldier, and Geoffrey Rush, acclaimed actor, are all well-known Australians. Whilst each of these cases has broad interest, not all of them are in the public interest: with one outlier, the Geoffrey Rush case, falling into the category of public curiosity. I will elaborate on the reasons why later.
The details of each case are vastly different: child sexual abuse by a cleric; war crimes; and, sexual harassment. Similarly, the legal issues are different. Firstly, in the Pell case, there are several complex legal issues to consider. They include: breach of suppression order; contempt of court; and, the effectiveness of suppression orders in the digital age. In the Roberts-Smith case there is the invocation of the National Security Information Act and its implications for open justice; and defamation. Finally, in the Rush case, there is defamation.
Ethical issues in the Pell and Roberts-Smith cases include the journalistic principles of monitoring power, public interest, free speech and protection of sources. Protection of sources/identity manifests differently in each case: one by law and the other guided by ethics. In the Pell case, by court order, the identity of the victims remains confidential, or rather, suppressed, and in the Roberts-Smith case, the sources who leaked information to journalists remain confidential. The ethical issues in the Rush case are different to the others, as they centre on the conduct of the media organisation that published the story. They include: verification of sources and respect for fairness and privacy.
As each case has distinct features and separate issues, each one will be discussed separately in terms of the legal and ethical considerations. In conclusion I will outline why I would, or would not, have published each story and whether I think each case will be successful or unsuccessful in prosecuting the defendants. The defendants I refer to here are the journalists and media organisations who are facing civil or criminal action as a result of publishing these stories. Finally, viewed through the prism of these cases, I will discuss the potential implications for journalists and media organisations in their quest to publish the truth.
George Pell Case
From the moment Pell was charged with historical child sex abuse offences the media rushed to report the case as a major story and the public devoured it. As the highest ranked Australian Catholic globally, Pell is of significant public interest. The final report of the Royal Commission into Institutional Responses to Child Sexual Abuse, released in 2017, had brought the issue of clerical abuse of children in the Catholic Church into sharp focus. It was during this Royal Commission that Pell was found to have mishandled child sexual abuse cases within the church.
In the separate charges brought against Pell it is clear that two fundamental ethical principles of journalism — public interest and free speech — were the underlying justifications for publishing this story. In essence, the public has a right to know about any alleged criminal behaviour committed by a powerful public figure.
What separates this story from public curiosity is the fact that it presented “the existence of a crime or serious corruption or impropriety in public life”. (Muller, 2014, page 64) The public’s right to know however, intersected with Pell’s right to “be tried by due process in the courts and not through the media at the bar of public opinion.” (Muller, 2014, page 66) and this is where the law and the ethical principles of journalism come into conflict with each other.
A suppression order was placed on the Pell criminal trial, which ended up being a hung trial, in 2018. A second trial took place after the hung trial and resulted in Pell’s conviction in December 2018. The judge imposed a suppression order on both the hung trial, and Pell’s later conviction due to the intense media scrutiny and public interest surrounding the case and the risk of tainting of a future trial. Pell was due to face a fresh trial on different charges in the April of the following year. The suppression order was imposed by county court judge, Peter Kidd, in an attempt to prevent “a real and substantial risk of prejudice to the proper administration of justice” (MEAA, 2019). The suppression order was lifted on February 26, 2019 when the second case was ruled inadmissible after a two-day preliminary hearing.
Pell’s guilty verdict was covered by some Australian news outlets, but Pell was not named and few details were revealed, other than the fact that a high-profile case had produced a guilty verdict. However, several international news outlets wrote about the case in detail and named Pell. Some Australian news outlets subsequently provided links to the foreign news articles in an attempt to avoid breaching the suppression order, which does not apply to media organisations overseas. This led to at least 36 Australian news organisations, journalists and editors potentially facing jail time and fines for sub judice contempt of court and apparently interfering with the “due administration of justice in the prosecution of Pell”. (the Guardian, 2019).
Since the charges were brought against media organisations in the wake of the Pell suppression order, more than half the charges have been dropped, indicating that Victoria’s director of public prosecutions is reconsidering the validity of the charges. The remaining charges are due to go to trial in November this year. (The Guardian, 2020) Victorian prosecutors have asked court to find the Australian journalists and media organisations guilty of contempt of court by:
· Scandalising the court
· Aiding and abetting overseas media’s contempt
· Interfering with the due administration of justice
Lawyer Justin Quill believes that suppression orders are outdated. “The laws of contempt and suppression orders have been around for decades. When the front page of the newspaper was the only real source of news, the law made sense. But we live in a different world and this case demonstrates that.” The Media Entertainment & Arts Alliance (MEAA) does not believe suppression orders are relevant today, describing them as “19th century tools” incapable of reigning in 21st century digital publishing platforms (MEAA, 2020). The Pell case highlights the deficiency of suppression orders. “The internet has no borders, so something that is suppressed in Australia can be reported in other countries by journalists who have not been present in the courtroom.” (Law Council of Australia, 2019).
It does seem absurd that private citizens were free to share the overseas news stories about Pell’s conviction on social media, when mainstream media outlets were criminally charged for doing the same. Predictably, social media platforms such as Facebook and Twitter are not facing any charges for breaching the suppression order, even though millions of people used these platforms to share the details of the Pell case. It’s hard to imagine dozens of Australian media outlets being successfully prosecuted for contempt of court for covering and sharing links to this story. It would appear to be an extraordinary miscarriage of justice, when technology companies are allowed to run rampant without any accountability whatsoever.
In considering the ethical implications of this case some experts argue that suppression orders show a lack of faith in the robustness of juries. Eminent human rights barrister, Geoffrey Robertson, said in reference to the Pell case, that “secrecy is the enemy of justice” and that “a secret trial is…prone to produce miscarriages of justice.” (The Weekend Australian, April 2020) He believes the Pell trial was held in secret due to a lack of faith in juries. If we don’t trust juries, why have them? Juries are fundamental to democracy, allowing members of the community to participate in the justice system to ensure it functions transparently and fairly. (The Conversation, 2019) If juries and suppression orders are incompatible in the digital age, then clearly suppression orders need to be reconsidered.
Unsurprisingly, the Law Council of Australia has called for a review of suppression orders. “Open justice is one of the fundamental attributes of a fair trial and this means wherever possible, the media should be able to report on matters that come before our courts. While suppression orders and closed hearings are appropriate in particular cases…their need should always be balanced with the broader public interest in open justice.” (The Law Council, 2019). Lawyer, Michael Bradley says that suppression orders are “routinely circumvented” because Australian courts do not have jurisdiction to bind overseas media. Furthermore, it’s futile to attempt to shut down information online. Prolific online breaches of suppression orders create a “real danger that the authority of the courts will undermine their own authority”. (Lawyers Weekly, 2019).
Barrister, Matt Collins QC, representing the media organisations accused of committing contempt of court is concerned that the case could have a “chilling effect on open justice”. (ABC News, 2019) He believes that the allegations are unjustified and has pointed out that never before have charges such as these been brought against the Australian media. The Journalism Education & Research Association of Australia (JERAA) released a statement in early May calling for all charges to be dropped. (JERAA, 2020) As evidence that the charges are unjustified they point to the fact the Victorian DPP has already dropped 105 of the original 205 charges against dozens of media organisations.
The justification for the suppression order was to avoid a “trial by media”. The judge wanted to avoid a prejudiced jury in the second trial by not releasing the verdict in the first. If it was perceived that a trial by media had occurred, Pell’s defence team could have argued that the case was “unsafe” and this could have led to his acquittal, denying the victims a chance to receive justice. If the second trial had proceeded and resulted in a conviction, Pell’s defence team could have argued that the jurors had been compromised. However, I believe it was impossible to prevent this. A quick social media search would have revealed all, demonstrating clearly that unfettered technology platforms overpowered the suppression order.
The ethical principles of truth telling, respect for truth and the public’s right to know were overridden by the imposition of a suppression order in the Pell case. Was this justified? On the one hand, the suppression order was put in place to protect the integrity of the case by avoiding a prejudicial jury, but on the other, it was not possible to prevent the Pell verdict being reported on in overseas publications. This raises the question of whether suppression orders are now redundant.
Ben Roberts-Smith case
The case of former SAS soldier, Ben Roberts-Smith, another person in a position of power who was alleged to have committed criminal offences, is similarly controversial and of high public interest. A revered and decorated Australian Defence Force soldier, Roberts-Smith came under investigation by the Australian Federal Police in 2017 for breaches of the laws of armed conflict whilst he served in Afghanistan. It is alleged that he was involved in unlawful treatment and execution of several Afghani detainees. He continues to be the subject of a war crimes investigation in which he is alleged to have killed an unarmed Afghani teenager. Roberts-Smith has this month been referred to the Commonwealth Department of Public Prosecutions to face possible charges for war crimes. (The Age, 2020).
Investigative reporter, Chris Masters, uncovered the story when he was researching his book on the history of Australian special forces in Afghanistan, No Front Line. He discovered discrepancies in accounts of an incident in Afghanistan and delved further. When it became apparent that there were serious allegations against Roberts-Smith, the Sydney Morning Herald, the Age and the Canberra Times made the decision to publish, running the story over several articles in 2017 and 2018. Roberts-Smith subsequently launched defamation proceedings against Fairfax media (now Nine Entertainment) for publishing the allegations against him.
Roberts-Smith said that scrutiny of Special Armed Services (SAS) actions in Afghanistan is “un-Australian”. Brendan Nelson, the former Defence Minister, supported this view. The use of the term “un-Australian” should ring alarm bells. It’s a vernacular term used by politicians and powerful organisations as a smokescreen to shut down debate or criticism. In recent years it’s taken on more insidious connotations, used by divisive politicians to undermine asylum seekers and migrants, or anyone perceived to be an “outsider” to the dominant culture in our white, male-dominated political sphere. Or, as Urban Dictionary bluntly puts it: “it’s a word used by arrogant Australian bigots”. (Urban Dictionary, 2010)
In responding to the “un-Australian” comments, journalist Dan Oakes, on ABC news on October 26, 2017 said that “we should be worried when legitimate questions about what is done in our name to an impoverished people on the other side of the world are deflected with accusations of disloyalty.” Public interest in this case increased when it became apparent that Roberts-Smith was being protected by the Australian Defence Force and information about him was being suppressed.
An article written by Dan Oakes and Sam Clark called “Death in Kandahar”, published by ABC news on 10 July 2017, detailed a secretive enquiry by the Australian Defence Force (ADF) into the alleged killings of at least two children by Australian troops in Afghanistan that were covered up. (ABC news, 2017) Through a confidential source the ABC obtained photos of one of the dead children, as well as details of the alleged cover-up. The ABC contacted the ADF to inform them of the material in their possession and the ADF then referred the matter to the Australian Federal Police (AFP) to investigate potential war crimes. The next day hundreds of pages of defence force documents were leaked to the ABC by military lawyer, David McBride, which detailed incidents of troops killing unarmed men and children. Some of these allegations related to unlawful killings committed by Ben Roberts-Smith. The series of articles based on this leaked information was called the Afghan Files.
Mr McBride, facing charges of stealing Commonwealth property under Australia’s national security laws, described the files as “not national security…just nationally embarrassing…I have no doubt once I’m acquitted that the media and the world will hear about what went on.” He says he leaked the documents in order to expose corruption in the ADF and the Australian Government. (ABC news, 2019)
It was the Afghan files that sparked the AFP raids on the ABC headquarters in 2019. Could these raids have been triggered by Ben Roberts-Smith’s request to reveal journalists’ confidential sources during his defamation hearing against Fairfax media? (Nieman Reports, 2020). It’s hard to find the evidence to link these together, such is the secrecy surrounding these war crimes allegations. The extreme lengths the government and ADF have taken to suppress the allegations against Roberts-Smith is exactly why the public has a right to know about them. The ethical considerations are very clear here — the public has a right to know and this overrides Robert-Smith’s right to privacy, or concern about national security.
Roberts-Smith is suing Nine Entertainment for defamation over the front -page article in the Age titled “The Cracks in a War Hero’s Façade”. He claims his “business, personal and professional reputation has been and will be brought into public disrepute, odium, ridicule and contempt”. (The West Australian, 2018). He had previously tried to stop publication of the story, but failed in his legal application.
The secrecy surrounding alleged war crimes in Afghanistan has been so extreme that it is difficult to piece the stories together. I suspect that the Afghan Files published by the ABC, the articles written about Roberts-Smith in the Age and the secret trial of Witness J are all related. Why was Witness J, former military intelligence officer, tried, convicted and jailed in complete secrecy last year? Could it be that he is one of Roberts-Smith’s whistle-blowers? These cases reek of murder, corruption and lies and the government is heavily invested in covering them up. There is no doubt that if charges are eventually laid against Roberts-Smith, his case will be shrouded in secrecy too.
The only defence Nine Entertainment can use in its fight against Roberts-Smith’s defamation action against them is truth. Although this is a valid defence, it is going to be difficult to prove this in the absence of criminal charges, let alone a conviction, against Roberts-Smith. Hypothetically, if this case was to be heard in another country, for example, the US, the journalists would have a good chance of defeating the defamation action against them. Given Australia’s burden of proof on the defendant to establish that the information published is true, there is little doubt that our defamation laws provide scant protection to journalists. If the public interest defence was introduced here, then the journalists would have a good chance of winning. Unfortunately, the odds are stacked in Roberts-Smith’s favour.
Geoffrey Rush case
The Geoffrey Rush case is more straightforward than the other two from a legal and ethical point of view, but it provides contrast. Whilst journalists perform a vital public function — monitoring power, revealing the truth and uncovering corruption — they don’t always get it right. If we are going to defend journalists’ freedom to practice their craft, then we must also hold them to account if they do not behave ethically. At times journalists are justified in breaking the law, as outlined in both the Pell and Roberts-Smith cases. Similarly, the ethical principles of journalism can sometimes intersect, presenting a dilemma for journalists that requires personal conscience to inform their decisions. In the Rush case, the Daily Telegraph compromised several journalistic principles and I believe they were not justified in doing so.
In November 2017 the Daily Telegraph published a front-page article, with the title “King Leer”, alleging that Rush engaged in inappropriate behaviour towards a female actor during rehearsals of the Sydney Theatre Company’s production of King Lear in 2015. In publishing the article with this salacious headline, the Daily Telegraph acted unethically and breached the journalistic principle to “use fair, reasonable and honest means to obtain material.” (Muller, 2014, page 210). Female actor, Eryn-Jean Norvill, had made a complaint to the Sydney Theatre Company about Rush and had wanted the matter handled internally, but the complaint was leaked to the Daily Telegraph. (Future Women, 2019).
The Daily Telegraph did not interview Norvill, nor did it give Rush enough time to respond to the allegations before they were published. This indicates inadequate verification of the story. This ethical breach negated Rush’s right to be tried fairly and “not through the media at the bar of public opinion.” (Muller, 2014, page 66) By airing a private matter this way, the publication of this story also annihilated any chance of Norvill seeking justice through proper channels.
Rush immediately denied the allegations and successfully sued the Daily Telegraph for defamation in 2019. During trial the defendant argued the truth defence and called on a number of witnesses and evidence as proof, however, these did not hold up in court. Rush claimed that the articles depicted him as a “pervert” and “sexual predator”. He substantially proved in court that these statements were untrue which led to his success in suing News Corp, the Daily Telegraph’s publisher, for defamation. News Corp has appealed the decision. Defamation law was used to correct the violation of the rights of both parties and in this case, the law worked effectively.
During his judgment, Justice Wigney, who presided over the case said: “it plainly would have been better for all concerned if the issues were dealt with in a place other than the harsh adversarial world of a defamation proceeding.” Outside court, Norvill stated that she had never wanted the case to go to court and she “would have been content to receive a simple apology and a promise to do better”. (The Sydney Morning Herald, 2019) It’s a harrowing realisation that the decision to publish this story has wreaked so much havoc on the personal lives of these two people dragged unwillingly through a defamation proceeding.
Conclusion
Finally, my verdict on the three cases is that I would have published the Pell and Roberts-Smith stories, but I would not have published the Rush story.
Journalists did not interfere with the due administration of justice by alluding to and sharing overseas stories of Pell’s conviction. It seems the problem lies with suppression orders. This is an area of law that needs to be reviewed and reformed in a changed media landscape. I hope that the charges against these journalists are dropped. It would indeed send a chilling message about press freedom in this country if these journalists were prosecuted for contempt of court.
The Roberts-Smith case illustrates suppression of information by the government and affiliated departments under the guise of the National Security Information Act. I predict that he will be successful in his defamation action because he is being protected by the government, his powerful employer, Seven West Media, and backed by Seven Chairman Kerry Stokes, who has vested interests in the military. Roberts-Smith has a formidable team behind him.
In the Rush case, information that was supposed to remain private, was aired publicly and this is the reason I would not have published it. The law was utilised to correct this mistake. I don’t think News Corp will have much success in their appeal given the scathing remarks made by Justice Wigney in his closing remarks of the defamation trial, describing the story as “a recklessly irresponsible piece of sensationalist journalism of the worst kind.” (The Guardian, 2019)
Legal experts have aired their concerns about federal secrecy laws hampering open justice. The Law Council has called for reforms to the National Security Information Act, which was invoked in Roberts-Smith’s defamation case against Nine Entertainment. It is the first time this Act has been used in defamation proceedings. The laws are designed to hide information from the public and allows for trials to be heard in secret. Law Council president, Pauline Wright said it is a “fundamental rule” that justice take place in open court and it should only be in rare exceptions that suppression is appropriate. (The Guardian, 2020).
These are ominous signs for press freedom in Australia and they don’t bode well for the journalists who have been charged with contempt of court and defamation in the Pell and Roberts-Smith cases. It seems that Australia is wading into some dangerous territory with a blurring of lines between our government and the justice system. The Law Council of Australia wants a review of both federal secrecy laws and suppression orders, such is their disquiet about them.
Journalists should be free to investigate and inform on matters of public concern and crimes of national interest for us to continue to be a free and self-governing nation. If journalists are denied this right, our democracy is in peril.
References:
George Pell case
Muller, Denis. 2014. Journalism Ethics for the Digital Age. Australia. Scribe. Pages 64, 66, 210
MEAA. 2019. “Suppression Orders.” Australia. May 2, 2019. Medium.
https://pressfreedom.org.au/suppression-orders-c237df7dfee5
Percy, Karen. 2019. “George Pell trial suppression orders breached by news organisations, Victorian prosecutor alleges.” ABC news, March 27, 2019 https://www.abc.net.au/news/2019-03-26/journalists-accused-of-breaking-george-pell-suppression-order/10939980
Meade, Amanda. “Cardinal George Pell suppression order: 36 journalists and companies to appear in court. The Guardian. March 26, 2019 https://www.theguardian.com/media/2019/mar/26/cardinal-george-pell-suppression-order-36-journalists-and-companies-to-appear-in-court
Younger, Emma. “George Pell media contempt case could have “chilling effect on open justice.” ABC news, April 15, 2019 https://www.abc.net.au/news/2019-04-15/george-pell-guilty-verdict-coverage-media-contempt-case/11002760
Davey, Melissa. “George Pell contempt case: charges over media that allegedly breached suppression orders will go to trial.” May 26, 2020 The Guardian https://www.theguardian.com/media/2020/may/26/cardinal-george-pell-contempt-case-charges-over-media-that-allegedly-breached-suppression-orders-will-go-to-trial
Robertson, Geoffrey. “Secrecy the enemy of justice.” The Weekend Australian, April 11, 2020 https://www.theaustralian.com.au/inquirer/secrecy-the-enemy-of-justice-as-the-george-pell-case-proves/news-story/b63d8ba2610433015498690efce0133a
Horan, Jacqui. “All about juries: why do we actually need them and can they get it wrong?” The Conversation, March 7, 2019 https://theconversation.com/all-about-juries-why-do-we-actually-need-them-and-can-they-get-it-wrong-112703
The Journalism Education & Research Association of Australia (JERAA). “JERAA calls for dropping of all contempt of court charges relating to reporting of Pell’s trial.” May 6, 2020 https://jeraa.org.au/jeraa-calls-for-dropping-of-all-contempt-of-court-charges-relating-to-reporting-of-george-pells-trial/
Law Council of Australia. “Law Council calls for ALRC review of suppression orders, uniformity across jurisdictions.” February 27, 2019 https://www.lawcouncil.asn.au/media/media-releases/law-council-calls-for-alrc-review-of-suppression-orders-uniformity-across-jurisdictions
Doraisamy, Jerome. “Does the Pell trial demonstrate that suppression orders are futile?” Lawyers Weekly. February 27, 2019 https://www.lawyersweekly.com.au/politics/25125-does-the-pell-trial-demonstrate-that-suppression-orders-are-futile
Ben Roberts-Smith case
Galloway, Anthony. “Top Sydney barrister to oversee war crimes probe against Ben Roberts-Smith.” The Age, May 18, 2020
Urban Dictionary, December 6, 2010 https://www.urbandictionary.com/define.php?term=Unaustralian
Oaks, Dan. Clark, Sam. “Death in Kandahar.” ABC news, July 10, 2017 https://www.abc.net.au/news/2017-07-10/elite-australian-soldiers-accused-of-covering-up-killing-of-boy/8466612
Byrne, Elizabeth. “Afghan Files leak accused David McBride faces ACT Supreme Court for first time.” ABC news, June 13, 2019 https://www.abc.net.au/news/2019-06-13/abc-raids-afghan-files-leak-accused-court-canberra/11206682
Dickson, Gary. “Australian media’s fight for freedom should be a lesson to journalists worldwide.” Nieman Reports, May 5, 2020
Clark, Tim. “Reputation ravaged: VC hero Ben Roberts-Smith launches defamation action.” The West Australian, August 18, 2018
Bradley, Michael. “What are Ben Roberts-Smith’s chances against Fairfax?” Crikey. August 29, 2018
https://www.crikey.com.au/2018/08/29/ben-roberts-smith-fairfax-defamation/
Lagan, Bernard. “Afghanistan veteran’s libel case gagged under security law.” The Times, May 11, 2020
Wade, Fiona. “The principals of open justice must be protected, says the Law Council.” Law Council of Australia. March 4, 2020 https://www.lawcouncil.asn.au/media/media-releases/the-principles-of-open-justice-must-be-protected-says-the-law-council
Geoffrey Rush case
Robertson, Lara. “The Geoffrey Rush case: feminists stand with Eryn-Jean Norvill.” Future Women, April 11, 2019
Mitchell, Georgina. “I would have been content to receive a simple apology: Norvill speaks out.” The Sydney Morning Herald, April 11, 2019
McGowan, Michael. “Geoffrey Rush defamation case: newspaper’s appeal ‘weighs heavily ‘on actor.” The Guardian, May 27, 2019
Ford, Matt. “Imagine Trump’s America with Australia’s severe defamation laws.” The New Republic, December 19, 2018
https://newrepublic.com/article/152732/imagine-trumps-america-australias-severe-defamation-laws
Conclusion
Knaus, Christopher. “Law council wants changes to secrecy laws invoked in Ben Roberts-Smith case.” The Guardian, May 8, 2020 https://www.theguardian.com/australia-news/2020/may/08/law-council-wants-changes-to-secrecy-laws-invoked-in-ben-roberts-smith-defamation-case