How the press manages conflicting interests when faced with confidential or scandalous information is a question for the ages. The question is, at heart, one of the public’s ‘Right To Know’. Should Honi Soit, The Sydney Morning Herald, The Daily Telegraph, or any other news source have a right to publish what they know, regardless of the fallout? Or should a third party intervene to protect themselves from scrutiny?
News media should act as the regulatory fourth estate: the overseer, acting as a positive influence on institutional and societal hierarchies that often go unquestioned. When investigative journalism gets cut off below the knees, the press becomes the toothless tiger. Without any bite to back up an insignificant bark, journalism is useless.
It’s a question that goes to the heart of what we do here at Honi, and what we do as journalists. The public has a right to know, regardless of legal compulsion. What they need to know is another matter entirely. But that question is best answered in the broadest terms: any actions of organisations or individuals within the public sphere of influence, acting in a public capacity with public consequences, or using public funds. The private affairs of companies and individuals have no place here – unless of course they will have a consequence for our readers.
However, the debate over the ‘need to know’ is only ever hypothetical. Under the Commonwealth Privacy Act (1988), there are obligations to keep confidential information secret, on pain of a lawsuit. It is a contentious topic. The Legal Reform Commission wants it repealed, to broaden legal rights of journalists, and give us some legal autonomy.
The capacity to break news, investigate stories, and unveil scandals is no good, then, when faced with this legal threat. Luckily we are protected somewhat by publishers. But this is a poisoned chalice. When these publishers aren’t journalists themselves, and don’t share the same journalistic values, they won’t take the same chances. Even though legal action arising from these circumstances is rare, the mere prospect scares all but the most stalwart news outlets away. No-one wants to be sued. Under the current legal framework, censorship stifles the true power of journalism, and belittles any onus on the journalist to maintain a workable sense of ethics.
Censorship should not work to ‘save’ a publication from legal action. Censorship should work to stop the publication of illegal, vilifying, harmful, or subjugating material – and that is all. Censorship can be a force for good. Use it too liberally, and you are removing the voice keeping others accountable.
What this means in light of censorship, and what this means for you, is more important than it may seem. In the current legal climate, censorship acts to preference individual interests over the public’s ‘need to know’. Impenetrable safety from possible legal action, it seems, is paramount.
The moral from all this is clear: publish what you need to break the story, without fear and without favour, as the Financial Times’ slogan goes. At least, then, we have done our jobs.
If the Law Reform Commission has its way, we may not have to worry anymore. Until that time, a journalist with an actual scoop is victim to the fortitude of his or her employers. A journalist at the mercy of a higher power’s veto can’t do true journalism. Especially when that higher power lacks the constitution to take risks when they are really needed.
One question remains – is this unknown information really that important? Does the public really need to know? The question is not one of content. It is the concept that really matters. Bad precedent leads to bad practice. The cumulative effect of bad precedent means that when something really does matter, investigative journalism will face a slow death in the jaws of the toothless tiger it has become.
Reporting the best, most salacious, and most interesting information will always be an exercise in balls-to-the-wall, seat-of-your-pants legal improvisation. Ultimately, without this arrogant gall from publishers and news outlets, a journalist will get nowhere. You may face a fine. You may have an injunction unceremoniously slapped upon your publication. You may face a few months of frustrating court proceedings. But at the end of the day, at least you will have told the people what they need to know.
James O’Doherty is an Honi Soit editor.
He is on Twitter: @jmodoh