Evans, Richard --- "The deathknock dilemma" [1998] PrivLawPRpr 4; (1998) 4(7) Privacy Law & Policy Reporter 130

The deathknock dilemma

Richard Evans

Peter Ryan, now head of news and current affairs at ABC TV in Victoria, was only a teenager when he started work in the media, as a cadet reporter on the Sydney afternoon tabloid, the Daily Mirror. Speaking at the launch in October of the Communication Law Centre’s research paper, Privacy and the Media by Paul Chadwick and Jenny Mullaly[1], he told the story of one of his first assignments. It was a story depressingly familiar to many journalists:

I had my first lesson in privacy when I made a cadet, and I was sent out on my first death knock. It was quite an experience. In Sydney’s far western suburbs, a three-year-old had wandered away from the house and was playing in the driveway, and the father had unknowingly backed out of the garage, killing the child instantly. We heard about this on the police scanner, and the chief of staff dispatched me and a marginally more senior photographer to go out and interview the grief stricken family.

Of course the last thing certain news editors consider is privacy, particularly in what was then an extremely competitive afternoon newspaper market. If pressed, chiefs of staff would tend to say that reporting crimes and tragedies in this way would help the police with their inquiries. We arrived, anguished that we had to knock on the door, arguing over who would do the talking. The photographer suggested we should just ‘knock on the lawn’. But we knocked on the door, there was no answer.

We radioed back that it was no go, the chief of staff said to stay put..

The Sun, with which the Mirror had a fierce rivalry, had also sent a reporter out, Mr Ryan recalled.

Neither the Sun nor us wanted to leave in case the other got the interview. It was a stakeout which lasted until we agreed to leave. We drove around the block and got back to the house in time to see the Sun journalist going back to the house for another try.

It turned out, he said, that no one got the story.

‘I have reflected with an element of shame since then on the unnecessary grief and anguish that we were visiting on the poor family. At the time, I just didn’t know what grief was: I was too young, I had not had the experience of someone close to me dying.

Mr Ryan said he was pleased to see that the research paper identified the practice of sending young and inexperienced journalists on deathknocks, seen as a sort of professional ‘blooding’, as a problem. But, he said, he was disturbed by incidents in which more senior journalists were needlessly invading privacy. In particular he cited the photographs of Liberal Senator Bob Woods and his wife in their backyard, taken by a photographer from the Sydney Telegraph and published by News Corporation papers across the country.

‘I worry that that indicated the start of a slippery slide into UK tabloid journalism,’ he said.

The Woods photographs also raised the concern of another speaker at the launch, Sally White, the co-author, with John Hurst, of Ethics and the Australian News Media and who acted a consultant to the Herald and Weekly Times in developing that company’s professional practice policy.

‘The Woods photo was precisely the sort of thing which the professional practice policy was intended to prevent,’ Ms White said. ‘The Herald Sun later said that the public interest justified the breach of the privacy provisions of the policy, but there was no public interest there.

‘Publication of those photographs did not meet the public interest as defined in the policy itself,’ she said.

It was an example of the limitations of codes of ethics in improving media practice, she said.

‘Every decision taken in the news room situation is surrounded by so many constraints that to resort to what is on paper [in a code of ethics, say] is seen as impeding the media’s proper role of getting information to the public as quickly as possible.’ A big constraint was time, she said.

‘As we draw up codes which are bigger and bigger — the Herald and Weekly Times code of practice, for example, is a long document — the less likely it is that journalists will read it and know it and refer to it. There is no time to consult a book.’

‘Even the short existing code of conduct is not especially well known,’ she said. ‘Most journalists probably only know one part of the code, that they shall not disclose sources of information, what I call the martyr clause. Another constraint is the power differentials within media organisations.

A junior journalist, however hard he or she may try to make an ethical decision will very often have that decision pre-empted by a more senior editorial decision maker. And the more senior you become in the editorial decision making process, the more distance you can put between yourself and the absolute messiness of a wrong decision.’

Dominique de Stoop, a visiting fellow at the Law School of Melbourne, told the launch that the consequences of some invasions of privacy were so serious that there was a legitimate need for legislation. After all, he said, ‘A breach of privacy can be far more damaging to a persons’ interests than trespass or some of the other laws which currently exist, and which may be used indirectly to protect privacy’.

There is an immediate difficulty, however: the law is to a large extent about definitions, and privacy is a notoriously difficult thing to define. Moira Scollay, the federal Privacy Commissioner, told the launch that was an extremely complex issue. ‘While it is easy to describe privacy as important, it is much more difficult to describe what it actually is. The right to privacy is more likely to be felt than it is to be articulated. It is sometimes said in terms of privacy that the honest have nothing to hide, so why worry about it. But in my view it is not an issue of having nothing to hide, it is choosing not to reveal.’

The essence of privacy infringement in the modern world, especially when technology allows so much information to be transferred so quickly, was the individual’s loss of control over personal information. In the traditional culture of a village there was not much privacy for individuals, she said, but at least there was a balance of power. If every person knew secrets about every other person, there was a certain social control over revealing private information.

Paul Chadwick, one of the research paper’s authors, said that while privacy was extremely difficult to define, this was no excuse for the media not to try. ‘It is really hard to define what privacy is, but the lack of a precise definition does not excuse media decision makers from attempting at least a working definition.’ Journalists needed an ‘internal trip wire’ which would make them pause when a serious invasion of privacy was possible. ‘One problem with the way the media works is that there is a lot of post-mortems, but that what was needed was the prevention of invasions of privacy in the first place. We need to develop a journalism culture in which ethics is taken seriously,’ he said. ‘We need a willingness to engage and not be so instantly defensive. We need to see the subjects of stories not as “talent” — and how revealing that industry jargon word is — but as people.’

But Mr Chadwick cautioned against a legalistic approach to the problem. ‘The question to ask when you hear calls to law in this area, is whose law, and who will it serve? Law works best for the well-resourced, the well-educated, the well-advised, and people who are reasonably seasoned in the ways of the world. A law would not work for Jaidyn Letskie’s mum, or for Lindy Chamberlain in those terrible early weeks after her baby disappeared.’

This last point was also emphasised by Moira Scollay, who put it this way: ‘Privacy is about protecting those who don’t have the money to sue.

Richard Evans,

Communications Law Centre, Melbourne.

Privacy and the Media, by Paul Chadwick and Jennifer Mullaly, is published by the Communications Law Centre and costs $35.

To order, phone (02) 9663 0551.