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Federal Court judge proposes media code of conduct
The Federal Court’s Justice Michael Lee, whose recent judgments include Lehrmann v Network Ten, has suggested a code of conduct for journalists that would better define reasonableness in case law.
Naomi Neilson
The digital advancements that came with social media, search engines, and the pressures of a 24/7 news cycle have increased the risk to journalistic standards and defamation law, which was not developed with the “complete comprehension” of the internet.
For now, there is no “determinative factor” to assess whether a publication fell within reasonableness, or in the assessment of how reasonableness should be approached as a “multifactorial inquiry”.
“While the nature of the reasonableness inquiry … means it may be more difficult for publishers to understand with precision what conduct will be considered reasonable, or unreasonable, one can immediately see the role codes or guidelines might have in mitigating uncertainty for responsible journalists if those guidelines or codes were perceived as reflecting proper practice,” Justice Lee said.
The current codes for media, including the Media, Entertainment and Arts Alliance’s (MEAA) Code of Conduct, have acted only as a form of “voluntary self-regulation”, meaning it is not enforceable under legislation or particularly binds journalists.
While it may still be useful, respondents in defamation cases have been quick to submit that they are “generally considered aspirational, are interpreted differently depending on the facts and circumstances of a particular case”, and have no bearing on non-MEAA members.
Justice Lee added it could be argued the existence of multiple codes for Australia’s media industry “resulted in a fragmented and arguably over-complicated system of guidance for the conduct of journalists”.
“Perhaps it is time for an attempt to be made to synthesise all these codes into one, comprehensive industry guide (which descends into more detail than mere aspirational statements),” Justice Lee said.
While uncertainty will continue to be unavoidable, Justice Lee said the proposed code could reduce this by embedding within it an interpretation of reasonableness in case law “and the general standards expected of journalists by their peers”.
“How a code would be developed, how it would be adopted (and the significance of adoption in later assessing the conduct of a journalist) are all matters for others, but discussion as to its utility might be a worthwhile endeavour,” Justice Lee said.
“Apart from any use the law may make of it, a comprehensive statement or values and norms representing peer opinion and practice, updated to reflect the realities of the practice of journalism, would presumably serve an educative purpose.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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