Obtaining and using information from other sources is one of the mundane tasks of journalists. However, not all understand the legal and ethical rules and regulations of obtaining and using information for the purpose of publication. This essay explores the legal and ethical dynamics of journalism with a special focus on copyright infringement and defamation of individual reputation. The essay is therefore divided into five parts: four analyzing case scenarios and the last section providing some lessons learnt from the scenarios.
Bubbles Barrette is a celebrity as exemplified by her roles in Hollywood films as well as being the favorite topic of weekly magazine stories. Correspondingly, the public is highly interested in her life and hence Woman’s Digest reporter Tansy Career is eager to write a story about her private life. To write the story, Tansy seeks the consent of Bubbles for an interview which she agrees. Seeking consent of subjects before interviewing is one of the main tenets of ethical journalism (Pearson, 2014). Consent of the interviewee by extension gives green light to publication of the details of the interview except where the interviewee declines publication.
Apparently, Bubbles prohibited Tansy from taking photographs of her home during the interview and indication that she is highly sensitive of her home life. As such, Tansy should have expected Bubbles to be unhappy with her bringing along a photographer. Such a deliberate act of harm is unethical according to the care ethical school of thought (Rhonda, 2011).Despite this prior admonishment, Tansy arranges for a photographer to ride-along anyway. In Australia, however, there is no explicit prohibition of riding-along. Therefore, Tansy’s decision to have a photographer ride-along is not illegal.
However, according to International covenant on civil and political rights such an act can be regarded as unlawful interference of one’s own privacy and/or home and therefore an offence. In fact, even in Australia riding-along can raise legal questions as was indicated in one case of Lenah Games Meat Case (Pearson, 2014, pp. 422-424), where the court warned “public authorities against invitation of journalists on“ride-alongs.”Although there is implied risk of riding-along constituting a breach of confidence, Australia media law does not prohibit publication of information gathered by third-parties (Pearson, 2014).
In this scenario the photographer is in plain trespass as he sneaked back into Bubbles property moments after stepping out upon being asked by Barrette to do so. “Staying on someone’s property after being asked to leave” constitutes a trespass (Pearson, 2014). Trespass is both illegal and unethical and is punishable in Australia.In Australia, the court can award aggravated damages to the tune of $25000 for trespass.In the same vein, trespass constitute breach of Australian Journalists’ Association code of ethics that stipulates journalists should respect “personal privacy” (Pearson, 2014). Correspondingly, request for permission to enter private premises must be granted by the premise owner.
Apparently, Tansy congratulates the photographer despite his illegal and unethical conduct. As Pearson (2014) contends, “Photographs acquired illegally and where what is depicted is private may constitute confidential information” and therefore the photograph depicting Bubbles in her home is confidential information and its publication a breach of confidence. Consequently, there is a clear disregard for Australian Journalists’ Association code of ethics on the part of Tansy.
Subsequently, the photograph taken by Tansy’s photographer although taken while in trespass it can be legally published by Tansy. The Australian law provides no restraint on third party publishing, only publishing by the trespasser. However, Bubbles prohibited Tansy from using both the interview and the photograph and therefore publication would amount to breach of confidence. Apparently, Australian media law includes tort on confidence, and injunction banning publication of material acquired deceptively can be granted where the risk of “irreparable harm” may result from the publication (Pearson, 2014).
While on one hand Bubble’s right to privacy was infringed upon, on the other, it could be argued that being she is a celebrity therefore a public figure she cannot “claim protection of her private life in the same way as private individuals” (Pearson, 2014, p. 415). Moreover, Tansy’s actions could can be interpreted as an act performed in the course of journalism” and hence exempted from “many privacy obligations” under Australia’s privacy act of 1988 (Pearson, 2014). Subsequently, in the practice of journalism a journalist is obliged to keep confidential the identity of a person who shares “information, document, or record in confidence” and “must not be revealed by the journalist either through answering of questions, giving f information, or producing of document or record” (Pearson, 2014). It is in adherence to the privacy act that Tansy chose to call the source of her information ‘an unnamed source.’
Finally, Woman’s Digest publishes a two-page story of Bubbles accompanied by the photo taken deceptively. When Bubbles’ lawyer sends a letter of concern to Woman’s Digest demanding apology or retraction, the response is that Bubble agreed to be interviewed. In effect, Bubbles has grounds to file for defamation. Although she initially agreed to be interviewed, she withdrew her consent at the end of the interview by admonishing Tansy from using the interview and the photo. Interview subjects have the right to withdraw consent at any stage.For example, A Current Affair Case where the film crew and reporter of A Current Affair channel accompanied an environmental protection authority in a raid on private premises to establish if there were any environmental offenses, the court held that “Although the owner did temporarily make the statement, ‘Right, I think you’d better hang on until I’ve got a statement to make’ and then ‘I want no people here unless Current Affair are prepared to do a deal with me’ after the crew were already filming, he withdrew that within a few seconds- this brief exchange did not constitute an express license to trespass” (Pearson, 2014, p. 429).
Similarly, Bubbles’ initial consent to interview is not an express license to publish. As such, Tansy’s use of the interview against Bubbles wish is a breach of confidence which can be awarded damages of up to $ 250,000 or more depending on the court’s discretion (Dwyer, 2012). Besides breach of confidence, the story puts Bubbles’ reputation at risk by claiming that ‘Bubbles’ is not her real name and she lied about being related to Hollywood great, Steven Spielberg. These claims portrays Bubble as a liar which would expose here to ridicule, and cause ordinary right-thinking people to think less of her (Banki and Lawrance, 2014; Pearson, 2014). Moreover, according to Banki and Lawrance (2014) there is risk of defamation where information is played “in public or to a significant-sized group of people.” Essentially, defamation must satisfy three criterions: must be published, identifying and defamatory.
In essence, a journalist should report true facts and honest opinions based on facts and not merely repeating what was said by another person (Dwyer, 2012). Likewise, Aufderheide, Boyles and Bieze (2013) portend that in their duty to further “public enlightenment”, journalists must seek truth and provide “a fair and comprehensive account of events and issues.”As such, it is upon Tansy to verify information gathered from the ‘unnamed source’ before reporting. That Raylene is the real name of Bubbles and that she is not related to Hollywood great, Steven Spielberg is not ‘notorious.’ Therefore, the story should provide the readers with factual background information used to arrive at the opinion. The background information helps readers to make their own judgments on a matter.
Unfortunately, the story only quotes the unnamed source without further substantiation. Thus, although the story does not explicitly term Bubbles as a liar, there is risk of“imputation” (Dwyer, 2012; George, 2012) meaning that in between the lines the story implies that Bubbles is untruthful. Such “suggestions of duplicitymight offend someone who values trust of the community” (Dwyer, 2012). And in this case, Bubbles is offended.
Australian law is highly favorable to individuals filing for defamation unlike US law that favors publishers. As such,Banki and Lawrance advice journalists to act promptly to complaints of defamation as the monetary implications are hefty. The damages include aggravated and exemplary damages as well as bearing the cost of litigation on the other side. However, defamation law in Australia rarely grants injunction on publication that has already been published.
Where there is a strong case for defamation such as this, it would have been wise for Woman’s Digest to issue an apology. Furthermore, an apology does not amount to acceptance of “liability in defamation proceedings” (Banki and Lawrance, 2014). Moreover, Woman’s Digest should have considered the cumbersomeness of proving innocence as the burden of proof is not on Bubbles, but the publisher. In a case of defamation, good intentions is no defense. Therefore, the Woman’s Digest as well as Tansy cannot argue that there was no intention of defamation and must take liability of the indirect imputations of the publication (Dwyer, 2012).
It is a media practice for a journalist to “participate in,respondsto,andinnovatesinrelation to the popular expression of the day” (Aufderheide, Boyle, and Beize, 2013). It is therefore a commonplace occurrence that Channel X carried a story of Bubbles the next day. Channel X is also not in breach of copyrights for using Bubbles’ photograph form Woman’s Digest. According to Copyright Council of Australia, people are free to take “information, facts, or ideas from other sources to write about a topic” (Rhonda, 2007). This is in line with US doctrine of fair use which does not prohibit use of copyrighted material which is underlined by transformative purpose and appropriate proportion (Aufderheide, Boyle, and Beize, 2013).
In essence, the use of Bubbles’ photograph in an exclusive story about Bubbles’ new life coaching business is transformative. It is transformative because it is not a repetition of the news, and life coaching contributes to shaping of culture and therefore a matter of public enlightenment. It was also used to report new developments in Bubbles’ life which obviously is in the public interests.
Moreover, in the duty to respond to popular matters of the day, Channel X, gives the audience another dimension of Bubble’s story carried in Woman’s Digest; that it might be a fabrication.This is in line with evaluative and analytical duty of journalists. According Rhonda (2014), journalists should be analytical and report all perspectives of a phenomenon. Basically, pluralism of ideas is a hallmark of democratic society such as Australia. It also bears its role of informing the public about the steps taken by Bubbles and promises to keep the audience posted.
Nonetheless, images and videos are not like text information and their usage encounters “multiple layers of copyright ownership rights (Aufderheide, Boyle, and Beize, 2013). Similarly, Copyright Council of Australia prohibits use of footage produced by another news organization from use without acknowledgement of the source (Rhonda, 2007. As such, by using ABC TV footage of Bubbles’ Elwood home without acknowledgement of the source, Channel X infringed copyrights of ABC TV.
Every journalist should familiarize himself with domestic and international media laws applicable in the country of operation. For instance, Australian media law is different from that of US, UK, and New Zealand. One of the main diversions of Australian media law from international laws is the absence of explicit tort on privacy. As a matter of fact, Australian media is exempted from many privacy laws. However, this is not a green light to conduct journalism in disregard to people’s privacy as breach of confidence could be used instead. In addition, journalist should be wary of defamation and report only what is factual. Precedence shows that it is easy for individuals to successfully file for defamation in Australia. As such, journalists must exercise self-restraint in publications and avoid publishing material that could be defamatory. In addition, where there complains of defamation have been raised journalists should act promptly by offering an apology or retraction especially it was unintended or information is not factual. Nonetheless, the chilling effect due to fear of defamation may cause news of public interest not to be published (Kenyon, 2010).
Aufderheide, P., Boyles, J. L. and Bieze, K. (2013)Copyright, free speech, and the public’s right to know.Journalism Studies, 14(6), pp. 875-890. DOI: 10.1080/1461670X.2012.739320
Banki, P. and Lawrance, D. (2014) ‘Defamation: When private reputations collide with creative endeavor’, in Sayer-Jones and Lyndon (eds.)Media law for non-lawyers(Australian 2nd ed). Sydney:Prêt à Porter Publications, pp. 303—314.
Dwyer, T.(2012) ‘Defamation and the protection of reputations’, in Dwyer T (ed.)Legal and ethical issues in the media. London: Palgrave Macmillan, pp. 50-76.
Goerge, P. (2012) ‘Defamation’, in George P. (ed.) Defamation law in Australia (2nd ed.). New York: LexisNexis Butterworths, pp. 193-205.
Kenyon, A. T. (2010) Investigating chilling effects: News media and public speech in Malaysia, Singapore, and Melbourne. International Journal of Communication, 4, pp. 440-467.
Pearson, M. (2014) The journalist’s guide to media law: a handbook for communicators in a digital world (5th ed). Sydney: Allen & Unwin.
Rhonda, B. (2011) Professional communication; legal and ethical issues (2nd ed.). LexisNexis Butterworths, pp.97-98.