Reporting facts not opinion: Fair reports of UK phone hacking trial show the way

By glschoff, July 1, 2014

For the last eight months I have followed the trial in the Old Bailey of two former editors of The News of the World and others on charges including conspiracy to intercept voicemails. The trial and the role of British media in society and politics will be the subject of much discussion in coming months. I have read a daily report of the proceedings published on The Drum (the UK online media and marketing publication) by journalist James Doleman. Mr Doleman’s reports provide a model for responsible court reporting.

An excellent summary of why Rebekah Brooks was acquitted can be found here, why Andy Coulson was convicted can be found here, and of the Judge’s rebuke of the British Prime Minister, David Cameron for commenting on Andy Coulson’s conviction, which was potentially in contempt of court, which can be found here).

Although not in the court room myself, I was not surprised to read that the jury had acquitted one editor and convicted the other because I had read the careful and thorough summary of the evidence and arguments contained in Mr Doleman’s reports.

Recent media coverage of proceedings in Australia has convinced me that our opinions would be better informed if we could offer something similar in this country.

THE DIFFERENCE BETWEEN FACT AND OPINION: SPORT AS AN EXAMPLE

We rely on the media to be our eyes and ears. Unless we have the means to easily learn the facts relevant to ongoing political debate, we cannot hold informed opinions and ultimately our polity will suffer. Until relatively recently most of us have relied upon the mainstream media to inform our views of politics. It was to the pages of a newspaper that we turned to learn the facts and to digest, as well, the analysis and commentary.

A simple but excellent example of what I mean by ‘informed opinion’ based on ‘facts’ concerns the coverage of any on-field sporting incident. Sport is a topic other than politics about which we all feel qualified to comment. The general public, or those particular members of the public with an interest in a sport, watch it either live at the venue or electronically. The footage of a sensational incident is replayed and rebroadcast many times. The facts are there for all to see.

This means, firstly, that when an opinion about a sporting incident is expressed it is discerned from the incident itself. Secondly, there is no debate about the facts of the matter. There may be debate as to their characterisation, but, on the whole, the facts as they actually happened are recorded and everyone who wishes to do so can hold an informed opinion.

One may never persuade a rabid Collingwood supporter that the tackle was too high and the umpiring decision a just one, but he or she is entitled to express his or her opinion no matter how perverse it might be [Ed: Actually, Collingwood supporters are always right]. The important thing is that the rest of us have the means to readily judge for ourselves. The debate is in this way an informed one.

REPORTING OF POLITICAL EVENTS: WE ARE AT A DISADVANTAGE

In the case of government and political matters most of us depend on the media to report the facts and, unless the media reproduces a letter or other document or faithfully transcribes an exchange that took place between the relevant protagonists, the reported facts are almost always hearsay. Members of the general public are rarely in a position to judge for themselves. Unlike our observation of sporting incidents, we are not witnesses to the facts.

This means we rely heavily on our media to provide us with the facts or to do all it reasonably can to report them accurately. Of course, members of the media, like all members of society, are free to comment upon those facts, but we as readers or listeners need to be in a position to discern what is fact and what is merely opinion.

Recent examples of reporting in the media demonstrate how fundamentally the media can influence our political perceptions. Further, they demonstrate how the way in which the media reports important political stories might frustrate the public’s desire to be well and accurately informed.

DEFAMATION LAW OFFERS A ‘CHECK’

Partly, this is not the fault of the media. Defamation law operates as a significant check upon what the media can publish in this country. The purpose of defamation law is to provide a basis for redressing damage to individual reputation caused by the publication of facts that are not true. It does not protect freedom of speech.

That said, the law of defamation affords important defences that recognize occasions when, although the publisher may not be able to establish the truth of what is published, the publication is in any event excusable. One such occasion is the publication of a fair report of public proceedings.

The controversy surrounding Australia’s former Prime Minister Julia Gillard’s involvement as a solicitor in the establishment of a union ‘slush’ fund set up by an Australian Workers Union (AWU) official who was her boyfriend, illustrates the issue. The Royal Commission into Trade Union Governance and Corruption established in 2014 is currently holding hearings into this and other allegations regarding trade union corruption.

In part, these matters relate to the conduct of officials of the Health Services Union, Michael Williamson and Craig Thomson. Mr Williamson, a former president of the Australian Labor Party, is now serving a seven and a half year gaol term. Mr Thomson, who was a sitting member of Federal Parliament in circumstances where his party held power by just one seat when allegations against him were first made, is on bail pending an appeal against his conviction and 12 month sentence for theft and fraud. These men exercised significant political power in Australia.

The matters concerning the Health Services Union have already been the subject of criminal proceedings widely reported in the media. The matters concerning the AWU have for many years been the subject of rumour and innuendo, particularly on the Internet. Reporting of the story by The Australian (a News Corp publication) though, was hampered by threats of defamation suits.

In 2011 The Australian reported that Ms Gillard shared a home in Fitzroy bought by her then boyfriend Mr Bruce Wilson using embezzled union funds. In fact, Ms Gillard did not share a home in Fitzroy with Mr Wilson. She had her own home in Abbottsford, which is now the subject of allegations before the Royal Commission. A builder who did work on that home has given evidence that Ms Gillard told him that Mr Wilson was paying for the renovations and that on two occasions he saw Mr Wilson hand Ms Gillard wads of notes. The sting of the allegation is, you might think, the same (irrespective of where Ms Gillard lived). That is, that Ms Gillard directly benefited from embezzled funds. Yet, the mistake of fact in the reporting enabled Ms Gillard to stop The Australian from pursuing the story at the time. [I note that this matter is yet to be the subject of any finding by the Commission. Ms Gillard, has also previously denied any wrongdoing, and not yet provided any evidence about it.]

In 2012, another factual inaccuracy in reporting by The Australian (a journalist inaccurately described the ‘slush’ fund set up with the assistance of Ms Gillard as a ‘trust’ fund) elicited the publication of an apology to the Prime Minister. At the time, the presenter of ABC’s Media Watch program Jonathan Holmes analysed how these errors in the reporting of what is an important political story served to undermine its credibility. He went on to ask whether the Prime Minister’s office may have exerted influence to suppress reporting of the story by other media organisations, an allegation denied at the time by Fairfax executives (Media Watch, episode 30, 27 August 2012).

QUALITY OF MEDIA COVERAGE IMPACTED BY POLITICAL PERSPECTIVE

Whilst editors and journalists are fiercely independent, newspapers express political opinions all the time. The two things are not mutually exclusive. The same is likely true of television and radio media organisations but, in the absence of an editorial voice, such views are difficult to identify. At least two points follow:

1. A member of the public might only read or hear a particular view of government and political matters, depending upon his or her news sources.
2. Left leaning members of society might reject stories antithetical to their political allegiances as being the sort of rubbish one would expect from a particular conservative newspaper, and vice versa. Indeed, it is not uncommon for one media organisation to criticise the reporting of a particular story by another media organisation.

The reporting of Ms Gillard’s involvement in the AWU matter furnishes an example. Reporting on the AWU controversy in the Sydney Morning Herald in 2012, Peter Hartcher described The Australian newspaper as dedicated to the destruction of the Labor government and linked it to the “small industry of feverish Gillard haters who inhabit the nether realm of the internet, people she [Ms Gillard] called misogynists and nut jobs”.

DIFFERING COVERAGE OF ROYAL COMMISSION

Let me return to the Royal Commission into Trade Union Governance and Corruption. With respect to the claims and counterclaims as to corrupt trade union activity and the extent of the former Prime Minister’s involvement if any, the public can finally discover the facts of these matters. That is one of the advantages of a Royal Commission or a trial. The relevant witnesses are called to give sworn evidence, they are cross-examined and documents are produced.

In the case of the current Royal Commission, in 2014 members of the public can watch the proceedings via live stream on the Internet or read the transcript of the evidence uploaded onto the Commission’s website. The live streaming of hearings, of enormous benefit in a democratic society, is in stark contrast to proceedings in our courts that (with few exceptions) are almost never telecast. Those unable to attend court proceedings must rely instead on the reports of proceedings in the mainstream media. Further, due to private funding arrangements with transcription services, transcripts of proceedings are not available on court websites and cannot easily be obtained.

The Sydney hearings of the Royal Commission re-commenced on 10 June 2014 with counsel assisting outlining the evidence that would be called. Three witnesses gave evidence and were cross-examined that day. The proceeding was the subject of a front-page story in The Australian and other News Corp publications of 11 June 2014. However, as pointed out by the ABC’s Media Watch program, it did not make the front page of The Age or The Sydney Morning Herald (both Fairfax publications) and was completely absent from some ABC nightly news bulletins.

On 11 June 2014, both The Age and The Sydney Morning Herald published unexceptional reports of the proceeding by Anna Patty, Fairfax’s Workplace Editor on page 8. Each newspaper also published an article on page 9 that concerned Hilary Clinton having counselled the former Prime Minister about sexism. However, both newspapers gave more prominence to an article published across pages 8 and 9 concerning allegations about the activities of a Mr Nowicki.

On 11 June the Royal Commission heard evidence from three witnesses about the renovations at Ms Gillard’s home in Abbotsford:

• Mr Hem told the Commission that Mr Wilson had asked him to deposit $5000 cash into Ms Gillard’s bank account.
• A builder, Mr James, told the Commission that Ms Gillard told him that Mr Wilson was paying for the renovations to her house.
• Mr James also gave evidence that he saw Mr Wilson hand Ms Gillard wads of notes on two occasions but that he did not know what Ms Gillard subsequently did with that money.
• All witnesses were cross-examined.

There was no report of this evidence or of the proceeding in the edition of The Age published on 12 June 2014. The Sydney Morning Herald contained a report by Anna Patty on page 7, which was also published on The Age website. In fact the only mention of the Royal Commission in the edition of The Age published on 12 June 2014 was an advertisement published by the Royal Commission itself on page 3 providing information about the public hearings.

On 12 June Mr Wilson gave his evidence. He denied having paid for Ms Gillard’s renovations or handing wads of notes to Ms Gillard in the presence of a builder but acknowledged that he may have instructed someone to pay $5000 into her bank account at the time. Whilst a report of that evidence was published on the front page of The Australian, it made only pages 8 and 6 of The Age and The Sydney Morning Herald respectively. It should be noted that the13 June 2014 edition of the Herald Sun, a News Corp publication, also did not mention the Royal Commission until page 6, the first 5 pages of its edition that day being totally devoted to reporting the ‘show cause’ notices served by the Australian Sports Doping Agency the day before on a number of Essendon football players.

Certainly it is a matter for editors as to the prominence they wish to give a particular story. No one has criticised the Herald Sun for relegating the Royal Commission to page 6 at the expense of a drugs in sport controversy. However, an analysis of the way in which the Royal Commission has been reported raises important questions about the extent to which we can rely upon the mainstream media to inform our opinions when the issue is highly politicised.

As for the Nowicki allegations publicised by Mr Faine, in an orthodox ruling on evidence the Royal Commissioner, the Honourable John Dyson Heydon AC QC, a former High Court Judge, rejected the admission of that evidence on the basis that it was not probative of any factual matter likely to be in controversy and described aspects of it as “treble-hand hearsay”.

This ruling on evidence was not the subject of any proper report or discussion by Mr Faine who chose instead to highlight that there was likely to be an appeal against the ruling. Rightly or wrongly, this focus might well have caused listeners to think adversely about procedure in the Royal Commission.

A week later, Mr Faine devoted parts of his morning program on 774 ABC radio to attack practice directions published by the Royal Commission by which cross examination will not take place immediately after examination in chief. Instead, those wishing to advance material bearing on the accuracy of evidence given by a witness are to file a signed statement of contrary evidence, make submissions as to why that evidence should be led and identify in a document topics of relevant cross examination of the first witness.

These directions are not materially dissimilar to directions given in other recent Royal Commissions. They also provide the witness to be cross-examined with notice of identified topics and contrary evidence, a benefit potentially offering greater procedural fairness.

Somewhat surprisingly, Mr Faine described these practice directions as “extraordinary” and contrary to rules of procedural fairness in almost all other courts and tribunals. Again, this might well have caused listeners to think adversely about procedure in the Royal Commission.

Mr Faine is entitled to his view. How though, if we are so inclined, can we come to our own, properly informed views of the facts? How can we be supplied with information enabling us to weigh up the opinions of media commentators such as Mr Faine? How do we overcome frustrating aspects of reporting practices today where we receive the opinion but not all that underpins it?

In the case of reporting of the current Royal Commission into Trade Union Governance and Corruption, the answer is simple. Those interested should go to the Royal Commission website and see for themselves.

Yet there is much, in fact most, that occurs (whether in courts, tribunals or elsewhere) which is not available to us in this way. We must rely on media reports.

COVERAGE OF UK PHONE HACKING TRIAL

This brings us back to the trial of former ‘News of the World’ editors Rebekah Brooks and Andy Coulson together with six others on charges that included conspiracy to illegally intercept voicemails, conspiracy to commit misconduct in public office and conspiracy to pervert the course of justice commenced at the Old Bailey in October last year.

In addition to James Doleman, coverage was provided by only a few freelance journalists, one of them being Peter Jukes, an original screenwriter for the television show Waking the Dead who has also written for The Independent and New Statesman. He has attributed the balanced nature of James Doleman’s coverage of the trial (and others like him), to their independence. As Mr Jukes wrote for his own blog:

“While every other journalist I have met there, whether from News UK or the BBC, is a person of integrity, who files every day an accurate report of what transpired in Court 12, they are subject to the running orders of the day. Their work is made prominent or not by factors outside their control. James and [another journalist], however, write up everything.”

Mr Jukes also made observations about some of the risks faced by journalists who publish court reports:

“It’s easy to dismiss a journalist either way because of their previous coverage of the media. But I must stress this after constant questions on this: I have not met one partial reporter in the last three months, and it’s important to say that reporting from court carries an additional onus. If you get it wrong, if you comment or prejudge the facts, you’re not only in danger of losing your objectivity: you could also be heading for prison for contempt of court.”

The jury delivered its verdict this week, acquitting Mrs Brookes and all other defendants save for Mr Coulson who was convicted of charges relating to hacked voicemails. James Doleman has covered the trial daily, save for a period when he was unwell. His reports are a model of what a proper report of a court proceeding should be. He does not select parts of the evidence for reporting. Rather, every day he provides a summary of the evidence and arguments. He makes little comment about what occurred. He does not include interviews with persons outside the court. The reader, who is unable to be in court and does not have access to what would, in any event, be a lengthy transcript, is in a very good position to judge the evidence for himself or herself (albeit without the benefit of observing the demeanor of the witnesses) and is in a far better position to evaluate the jury verdict when it is handed down. In the absence of a broadcast of court proceedings or a transcript, reports such as Mr Doleman’s are an invaluable resource for members of the public.

AN INTERNET PORTAL FOR FAIR REPORTS: A NEW WAY

In matters of high public interest, I for one would support the telecasting of trials or, at the very least, the publication on the Internet of the transcript of proceedings (noting that copyright issues might restrict the latter). Whilst the Federal Court of Australia has recently allowed the media to telecast a directions hearing in the very same sport doping case that fascinated the Herald Sun readership on 13 June this year, this is a rare occasion. There has in the past been strong resistance from many interested parties to the telecasting of trials in our courts, some of it well founded and justified for reasons to do with procedural fairness. However, even if all proceedings of public interest were telecast not everyone has the time or inclination to watch the live stream. There will always be a need for good reporting of proceedings.

Inspired by Mr Doleman’s reporting of the ‘News of the World’ trial and my own observations of recent reporting of the Royal Commission into Trade Unions, I envisage a new resource. This new resource would be a website that publishes comprehensive court reports of Australian proceedings prepared by volunteers and published freely to all interested persons on the Internet.

I hope that volunteers might include junior barristers or student journalists using Mr Doleman’s reports of the News of the World trial as an exemplar. Student journalists and junior barristers would be excellent candidates because they represent two categories of people likely to benefit the most from spending time in our courts and tribunals and preparing such reports. The exercise would be of both public and private benefit.

There are many excellent court reporters employed by our media organisations. The preparation of a fair report of court proceedings is no easy task. However, given the other matters that I have raised, there might well be value in a resource that has a single purpose to provide a fair and accurate report of court and other similar proceedings.

If the matters raised are of particular interest to any person who would like to join in this endeavour, please contact me by email or Natalie Hickey via the contact us function on sociallitigator.com. Our aim is to explore a method to help members of the Australian public to be well-informed, so that they have a proper basis on which to develop their own opinions of important legal proceedings.

Georgina Schoff QC

Georgina is a Queen’s Counsel at the Victorian Bar in Australia who has for many years, and consistently with the independence of the Bar, acted for and against the media in relation to publication issues including contempt of court, defamation and suppression.

2 Responses to “Reporting facts not opinion: Fair reports of UK phone hacking trial show the way”

1. Anonymous Cognisance July 2, 2014

   Great idea, but I think ‘neutral’ reporting on process risks ignoring the political context in which that process might be deployed. By ignoring context such reporting itself becomes politicised. If a car was being driven into a crowded bus stop you wouldn’t file a report on the state of the car’s engine as it approached the kerb. Lawyers are fine mechanics. And there’s no “u” in the ALP’s Labor.

   Reply
2. Natalie Hickey July 3, 2014

   Nice pick up of typo. I have fixed (I think!). Damn, now you’ll say it wasn’t a fair report. 🙂

   Reply