Misinformation and the law

The editor of Justinian tells the AGS information law conference in Canberra that if freedom of the press allows for the protection of a certain amount of misinformation, it should also do more to protect the truth ... The dangers of a statutory tort of privacy ... Speech ... Speech ... Speech

I told Alan Jones I was coming here to speak and he advised that I should insist that this evening's proceedings were to be conducted under Chatham House rules, that journalists identify themselves now, that tape recorders be switched off and that anyone who feels as though they should be offended to sit near the door so they could leave in high dudgeon - as though they were judges having sat through a lewd performance at a family law feast in Hobart. 

But, this is an important occasion. It is one of the rare moments when Michael Kirby has not given the after-dinner speech at a lawyers' knees-up. 

It is wonderful to be back in Canberra. My first real job in journalism was here working for a gentleman called Max Newton. 

Newton was a brilliant, mad, journalist and publisher ... no longer with us after a lifelong struggle with liquor and pills. 

In his heyday he assembled a pile of awful but potentially brilliant publications. The Canberra Post, The Daily Commercial News, Jobson's Investment Digest, Weekend Business Review and the Egg & Fowl. 

The Egg & Fowl was the official organ of the West Australian Poultryman's Association. I was the editor of the Egg & Fowl and little did the readers know that it was produced out of a garage in the porn-infused suburb of Fyshwick by people who knew nothing about eggs or fowl. 

Max's vision was that the Egg & Fowl would be competition for The West Australian and so it was filled with magnificently irrelevant articles about national affairs, economics and politics. 

I had to attend a prime ministerial press conference at Parliament House and ask a question about the money supply and interest rate policy. 

With the proper etiquette of the occasion, I introduced myself ...  

"Richard Ackland from the Egg & Fowl, Prime Minister ..." 

The hoots drowned out Jolly John Gorton's answer to my penetrating question. 

So, that was my introduction to the formalities of life as a reporter in Canberra. 

After the Newton empire collapsed in a heap of debt and unsatisfied contra deals I wound up as a humble recorder of human misery stationed in the parliamentary press gallery for the Financial Review. 

It was there that I discovered the importance of misinformation. 

*   *   *

I know this conference has been about information and the law, but from a journalistic perspective I'm anxious not to exclude from the agenda misinformation and the law. 

I've had a long time to think about this because Tim Moe from AGS was asking me back in February to attend tonight's festivities. 

By this morning a couple of thoughts had dawned on me. 

A few months ago the flame of free speech flickered as Tony Abbott delivered an oration about freedom of the press to the IPA, known in the trade as the Institute of Paid Advocacy. 

He was there to support the freedom fighter Andrew Bolt, who has suffered cruelly for his errors at the hands of Justice Bromberg in a racial discrimination case brought against by Pat Eatock and other fair-skinned Aborigines. 

The freedom to get it wrong, to be misinformed, was part of Mr Abbott's theme and he pledged to abolished s.18C of the Racial Discrimination Act so more people could be like Bolt and get it wrong in safety. 

The fact that in 1999 Abbott went to court himself over a piece of misinformation didn't seem to faze him or his audience, one iota. 

In 1999 he teamed up in with the smirkster, Peter Costello, and their wives to sue Random House over this passage in Bob Ellis' book Goodbye Jerusalem:  

" 'Abbott and Costello', said Rodney Cavalier, pacing up and down his baronial mansion after serving me for dinner as was his custom bread and water, 'they’re both in the right wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals'."

I draw that passage from Justice Terry Higgins judgment, so it must be privileged. 

His Honour found the story to be a tiny bit inaccurate, or a case of misinformation, and awarded pots of money to the Abbotts and Costellos for the damage to their delicate reputations. 

So, it seems, it can be worth fighting to protect misinformation in one situation, while in others it is worth punishing. 

One person's misinformation is another's fortune. On selected occasions, when it suits them, political leaders argue that misinformation, impliedly, should be protected by the law. 

I agree with that. 

If the law sets out to punish misinformation, inevitably it will sweep-up information that is significantly or substantially true. 

Quite apart from which, if all misinformation was punished it would be an awfully dull world. No gossip, no innuendo, and even swathes of the Murdoch newspaper empire might cease to exist. 

*   *   *

Misinformation takes on many guises. 

I can give an example from my own heroic time slaving at the Financial Review in Canberra. Much of what passed for our work was conducted at the Narrabunda Golf Club. 

The entire bureau was there one non-sitting day, having a long lunch. We arrived back at the office around 6pm, a little tired and emotional, to find the phones ringing off the hook. 

Hadn't we heard, inquired the irate editor in Sydney, that the Whitlam government had handed down that afternoon a whole raft of economic measures in what amounted to a mini budget? Where was our copy? 

Brian Toohey, who was then the chef de bureau, smooth as greased lightening said: 

"Of course, we know that. We've been fanning out interviewing everyone to secure the most precious angles and unforeseen insights into this important economic story." 

Whereupon we raced to the press boxes, in which had been stuffed an enormous pile of government media releases about the mini-budget. 

If ever there is a document riddled with misinformation it is a press release. 

Nonetheless, we frantically pasted these press releases onto pieces of copy paper and sent them up the wire to Sydney, word for word as the ministers had written. 

Next day this appeared as "analysis" under the names of the members of the Financial Review parliamentary bureau. 

It was an appalling cock-up and concoction and we were highly nervous when the editor rang that morning:  

"Boys, that was the finest coverage of the mini-budget that I've read." 

Another triumph for misinformation. If the editor of the Financial Review thought that a whole pile of cobbled press releases was the finest coverage on offer, who were we to disagree, 

We retired that day to the Narrabunda Gold Club to celebrate our journalistic triumph. 

*   *   *

Today you have been talking about FOI. 

FOI is great and wonderful, when it works. But the other more streamlined avenue of access to government information is by means of the inside leaker. 

There's nothing quite like a good Werris Creek and for me it knocks the socks off the FOI process. 

Indulge me please, while I stay with the past. It is so much more real that the present. 

There was a gentleman in the Attorney General's department who worked in the ministerial section, as it was then known, answering questions on notice  from MPs.  

He was also leaking to a member of parliament what questions to place on the notice paper. So he was in the happy position of simultaneously asking and answering his own questions. 

This was an important policy-creation opportunity and very soon the government had committed itself to a range of expensive and unbreakable promises. 

In the days of the old parliament house journalists and politicians lived quite communally. Members of the press gallery wandered into ministers' offices to pick-up gossip or use the photocopying machines. 

Sometimes a precious cabinet document had been left in the photocopier. 

This raised all sorts of moral and ethical tests. 

Was it a subtle way of leaking something? Or was someone carelessly leaving a priceless secret in a photocopier? 

Should the journalist make one more copy and whisk it away? Would that be a theft of a government secret? 

Was it placed there deliberately to trap someone into taking it? Would it ruin future relationships if the journalist did use this information? 

These are the dilemmas that instinctively race through journalists minds as they press the "copy" button. 

There is nothing in the journalists' code of ethics about this so it had to be assumed that documents were deliberately placed there, hoping journalists would find them. 

It was FOI before there was FOI. 

*   *   *

A recipient of leaks soon attracts more leaks. This is called the Oakes factor. 

Soon, even I began to receive leaks. Juicy ones. A Treasury official told me that Sir William Gunn, a governor of the Reserve Bank, was stealing the nation's gold reserves. 

"Get onto it," insisted the source, "this is a scoop". 

The more insane the misinformation, the more exciting the possibilities.

Erring on the side of caution I thought this one better be checked out so, without mentioning the source's name, I asked my friend in AGs if he knew anything about the theft of the gold reserves.

He said he'd discretely research the issue, and unwittingly he asked the very person in Treasury who has supplied the "scoop" to me.

The Treasury bloke was appalled that I should have been doing due diligence on his information and reported me to the ethics committee of the Australian Journalists' Association.

These were troubled time. I sought advice from a fellow journalist on the AFR, who was also a big wheel in union affairs.

His advice was reassuring, and I remember it to this day: 

"Mate, don't worry about. I've got the numbers on the ethics committee." 

*   *   *

Everyone loves free speech and freedom of the press. It's the flavour of the month. Even though they'd like more restraint on the press, but they also want it to be free. 

The next train to come rushing out the tunnel has as its destination "PRIVACY".

Advocates of the tort of privacy also are lovers of a free press, but they are proposing a smorgasbord of remedies to close down stories that trespass on people's privacy: damages, injunctions, account of profits, apologies, corrections - the works. 

The remedy of most immediate concern to the media is injunctive relief - a judge's power to stop publication of a story stone motherless dead. 

With a tort of privacy applicants would be able to wake-up the duty judge in his jim-jams and get an interim injunction for a story that might not amount to a breach of privacy at all. 

It would take weeks, if not months, before the courts weaved their magical determination whether the remedy might more correctly lie in defamation and whether there was a public interest defence. 

A story that was time-sensitive would have no hope of survival in this environment. 

If you are on a barb-wire fence straddling both press freedom and a tort of privacy the best and only option would be the punishment remedy (damages), and not the stop-the-presses remedy. 

Once judges are given a statutory rights to stop journalist, they'll use it freely - as we've seen with the confetti load of no-publication and suppression orders since the arrival in NSW of the Court Suppression and Non-Publication Orders Act. 

In fact, it's doubtful that privacy proponents have fully made out a strong case for a statutory tort, given that there have been relatively few breaches here.

The celebrated ones that come to mind are Pauline Hanson, David Campbell and Clive James.

How would an injunction remedy affect some of the most important pieces of contemporary reporting - the Obeids and corruption in NSW; the Catholic Church and paedophilia; James Hardie and directors' duties; university colleges and fresher bashing, Craig Thomson and rorting the Health Services Union; Julia Gillard, the AWU and Slater & Gordon; Ashby v Slipper. 

Each, arguably, contains some reputational damage touching on privacy and each could be the subject of an application for an injunction. Interim injunctions could conceivably be granted in relation each and every stage of these journalistic investigations. 

As we've seen with defamation, all sorts of intrigue and riddles can be expected to infect a public interest defence in privacy cases. 

My firm suspicion is that great journalism will be adversely affected by a tort of privacy along with undererving junk journalism. 

*   *   *

I can give a startling example of truthful information that was punished.

Some years ago the Cincinnati Enquirer in the USA published a massive exposé of Chiquita Brands, dealing with the fruit company's activities in Central America. 

The 18-page spread alleged mistreatment of workers, company ships bringing cocaine into the USA, violent attempts to prevent the unionisation of workers, bribing foreign officials, the works. 

A month or so after publication, the paper retracted the series of stories, apologised to Chiquita Brands and paid a substantial settlement (over US$10 million). 

One of the journalists had tapped into the company's voice mail system, having been given the code by a disgruntled in-house lawyer. 

None of the facts published by the newspaper was materially incorrect, it was the way the journalism was done that caused the grief. 

If someone had simply leaked to the paper a whole pile of internal documents, it would be unlikely that the investigation would have unravelled. As it was, the substantial truth was punished. 

*   *   *

Any follower of defamation cases knows that serious journalism is punished by the courts in this country, while Ray Hadley, Alan Jones and others, acting out daily dramas from the bully pulpit of commercial radio, have a marvellous error-prone run. 

If misinformation is largely protected, efforts at getting to the truth should be afforded the same privilege.