Safe Speech and Managing the Media
Bruce Donald
Lawyer, Chair EDO (NSW)

Summary

Acknowledging the threat media laws and practices pose for environmental debate, the paper first provides basic guidance on the way defamation laws can be used for safe speech, emphasising the role of the defences of truth on public issues, protected reports of Parliaments and Courts, honest opinion and qualified privilege. Then some important pointers are provided on using the media effectively including understanding the exposure of any person being interviewed, understanding how the media Codes of Practice and complaints systems can be used both for and against environmental debate and understanding the devices for actually getting your message into the media.

This paper was first presented at the Environmental Defender's Office Conference, Defending the Defenders on October 24 1998

Two years ago a notorious developer made it clear to Penny Figgis, Vice-President of the Australian Conservation Foundation that his methods of dealing with his environmental opponents were to call them liars and to sue them for defamation.

Regrettably the defamation laws and other media laws operate in a complex and hugely expensive way which can seriously inhibit public interest discussion. To put it bluntly, the mere mention of defamation sends many rushing for cover. The purpose of this paper is reduce that sense of terror while acknowledging the risks.

It's not just maverick developers who threaten action using wide ranging defamation and other media laws. BHP blasted the ABC (letter 10 June 1994) over a number of broadcasts about the Ok Tedi catastrophe and the litigation started by Slater and Gordon for the villagers affected. BHP charged of the broadcasts that:

In all cases there was a lack of balance and, in many cases, the information was factually wrong or misleading. We regard many of the statements to be defamatory. A number of the statements would also appear to be in contempt of Court.

Then followed a 13 page attack on the broadcasts with the final warning:

BHP would be most concerned to hear any further broadcasts of misleading or defamatory statements on this matter. In this regard, our legal advisors have informed me that BHP may rely upon this letter as evidence of the ABC's knowledge of the true facts ... and ultimately as evidence going to malice.

It is significant that far from the broadcasters and critics having a case to answer for their well sourced and well argued criticism, BHP was so exposed over Ok Tedi that the Chairman-elect himself, Jerry Ellis was ultimately forced to appear in a series of TV ads to try and cover BHP's position.

More recent examples arose from the film"Jabiluka". Not unexpectedly, ERA responded to the theatric release of the film with a blast against filmmaker David Bradbury from its solicitors, Corrs Chambers Westgarth :

It is our client's view that the film is misleading, deceptive, inaccurate and defamatory in specific parts and in its overall effect....It resembles more of a propaganda film than anything else... It damages the reputation of our client, its employees and in particular its senior management.... Our client requires you to mitigate some of the enormous harm and damage that you have caused to our client's reputation.

Then when SBS proposed to broadcast a version of the ‘Jabiluka' film, Corrs legal bombardments were rained down upon SBS and Minter Ellison, the Melbourne law office retained by SBS to assist. An injunction was threatened and the ERA lawyers sent Minters ERA's own film about mining in Kakadu so Minters could see how wrong the Bradbury film was! SBS proceeded to screen the Bradbury film.

It is significant that in neither of these cases did any legal action follow the publications which of course indicates that the pre-publication thinking and legal review that went into them ensured they were lawful and that the companies would be unlikely to take legal action. However you cannot always avoid consequences, as can be seen from the case of Comalco v. ABC (1986) 68 ALR 259 where the ABC suffered a damages award of $100 000 plus costs for a Granada program run on Four Corners about the Weipa bauxite mine and its impact on Aboriginal people.

And it's not just developers; Governments have used the defamation laws. John Sinclair, the great campaigner who saved Fraser Island and became Australian of the Year was driven out of Queensland and virtually bankrupted by the defamation actions brought against him with the financial support of the Bjelke Petersen government. This practice is thankfully rare (although still occurs; see below on the NT Government action against Bell) and was roundly condemned by the Fitzgerald Commission of Inquiry (1989, p.143) whose views were endorsed by the Senate Legal and Constitutional References Committee Report into Payment of Minister's Legal Costs (February 1997).

Query whether, in light of the Federal Court decision against lawyers Flower and Hart, and the negative comments by Goldberg J about Ian Callinan QC's advice, such conduct may in certain circumstances be illegal as an abuse of process, ie where there was no basis for the defamation claim or any prospect of success and it can be shown to have been commenced for other tactical reasons such as the likelihood that the opponents will refrain from further comment.

The purpose of this introductory discussion is to encourage the environment movement to maintain the political and social pressure against the use of these laws, with all their intimidating effect, and to remind both business and government that in a free society open discussion should not be constrained by resort of well funded parties to pursuing legal remedies against unfunded parties. As that debate has still not shifted the legal ground significantly, environmentalists must continue to confront the use of defamation and other media laws as one of the key pieces of artillery used by developers.

How then to deal with this. There are four key elements:

First, understand the defamation and other media laws and learn those elements which facilitate the criticism and exposure of environmental threats - safe speech.

Second, don't trust broadcasters and publishers - do your own thinking and planning and be ready to look after yourself.

Third, learn how the media Codes of Practice and complaint systems work and can be used to the advantage of your campaign, or against you!.

Fourth, and most importantly, learn how effectively to use and mobilise the media in your campaign.

Speak with Safety

The best place to start learning how to speak with safety is to get a copy of the ABC All-Media Law Handbook from your ABC Shop. Now in its 3rd Edition and ninth printing, this booklet will explain in the simplest terms the scope for free speech under the media laws.

To begin with, not all criticism of or disagreement with people actually goes so far as to be defamatory. You only defame somebody when you publish something which lowers their reputation in the minds of ordinary people who hear, read or see the publication. This permits a wide range of ordinary analysis and criticism of what people do in their various pursuits that will not constitute defamation.

The liability is only for publishing to other people. So you can write confidential letters of the most severe criticism direct to the person criticised saying what you like, taking care to ensure the confidentiality. If they publish such a letter to someone else, you are not liable for that. Obviously you can't leak such a letter!

Next, you only defame when you identify a specific person. This means that a defamatory attack eg., on the ‘chemical industry' for poor standards in carcinogenic side-effect research, without naming any company, is not a problem. (And the person has to be alive!).

More importantly even if something does defame a person, the law permits this in the interests of free speech and the operation of a democratic society if the defamation is:

• true and relates to a matter public importance;
• a fair report of what is said in Parliament or in a Court;
• the honest opinion of the person making the statement;or
• protected by qualified privilege.

1. Truth Relating to a Matter of Public Importance

Of these defences to defamation, ‘truth relating to a matter of public importance' is often the hardest one to prove because the laws of evidence are complex and admissible evidence even under the civil standard of proof (ie. on the balance of probabilities rather than beyond a reasonable doubt as under the criminal standard) still often creates a real barrier. The reason corruption can thrive for years is that direct evidence is seldom forthcoming.

The limitations of the truth defence are best demonstrated by considering the value of ‘leaked documents'. While there is nothing more devastating as a weapon in a campaign than having an original document that reveals an important issue, (remember the front page picture of the amended Sydney Water press release), a document is of no legal value unless it is possible to prove its validity by evidence from a person closely associated with it. The only documents which stand on their own terms are official registered documents, title documents and company searches. Even a statutory declaration or an affidavit does not ‘prove itself' - it does not stand alone. It is only admissible if the person who swore it comes into Court and confirms the truth of its contents.

This is very important in environmental campaigning because documents are often leaked and people can easily wrongly assume that such documents can be used with absolute safety. They cannot and many a campaigner on public interest issues has used leaked documents to their peril.

The other important dimension of the truth defence is that it is often a fine line between published material being comment and therefore defensible under the honest opinion defence discussed below and on the other hand constituting a statement of fact which can only be supported if it is true.

The statement ‘... old growth forests are disappearing at an alarming rate', may arguably only be defensible as comment if the measured rate at which the forests are in fact are disappearing is either commonly known (as it is not) or is set out in the same statement. Otherwise you may have to prove it as a statement of fact.

Or consider ‘...John Howard has no commitment to good environmental laws' which would be a statement of fact you couldn't prove to be true; he will always say he has, of course. On the other hand ‘...if John Howard thinks this package of new environmental laws is the way to go, then I reckon he's in cloud cuckoo land' is not a statement of fact but, as we shall see, a defensible opinion.

It is regrettable that, except in clear cases, proving the truth of a defamatory statement is difficult; and worse still, if you set up a truth defence and fail to prove the truth, the damages can be increased (or aggravated).

Therefore from a practical point of view, except in clear cases, it is better for environmental defenders to rely on the next two defences, protected report and honest opinion.

2. Fair and Accurate Report

Because the law, in the interests of an open society, permits absolute privilege for politicians to speak within Parliament and for information to be presented in Courts, the law naturally extends this principle to protect a fair and accurate report of this absolutely privileged material.

This is a very powerful defence and any review of the daily press will see it constantly used with references such as ‘it was revealed in court', ‘as said in Parliament today'. It can be of vital assistance in raising matters of environmental importance where opposition and independent members of Parliament consider that the matter of concern is of sufficient importance that they should use the privilege of Parliament even where something may not be able to be factually proven as true. So a good way of using a document which is hard to prove, but for which there is a basis for supporting its authenticity, is to convince an MP that it should be tabled in Parliament.

There are of course limits to this. We are seeing them tested at the moment in NSW where the Privileges Committee of NSW has decided that Ms Franca Arena MLA exceeded an appropriate use of Parliament in publishing her paedophile allegations, that her conduct ‘...fell below the standards which the House is entitled to expect from a member and has brought the House into disrepute'. Arena was required to apologise or be suspended; she apologised. This will confirm the limits on MPs using privilege to table documents or make allegations on environmental issues without some basis for believing the veracity of the information.

Even within accepted limits, great care is needed because the privilege which attaches to reporting Court and Parliamentary proceedings, is not absolute but instead is ‘qualified'. This means that the report must indeed be fair and accurate.

The High Court in the recent case Chakravarti v. Advertiser Newspapers Ltd. (1998) 154 ALR 294 found against the Adelaide Advertiser for reporting proceedings of the SA State Bank Royal Commission. In a nut-shell, the Court said that the meanings which came out of the press report of the proceedings were different from the meanings which came out of the Royal Commission transcript. To the uninitiated in defamation law, this may sound very silly but it must be remembered that in this area of the law, the so-called ‘imputation' is king. Cases are fought not as much on the actual words themselves as on the meanings or imputations which are conveyed by those words. It was this distinction which was the downfall of the Advertiser in the Chakravarti Case.

For the environmental campaigner, it means that where you are using parliamentary or court material, you must stick to the material precisely and not depart from it. This of course includes not being selective of the material. The fairness of the report requires that all aspects of it be covered so that for example if the report includes a denial of certain facts you cannot simply quote the facts set out in the parliamentary discussion.

Another crucial element of protected report is that the protection does not permit the person who made the statement in Parliament or Court themselves to come out and repeat that statement outside in the public arena. Arguably it ought to be possible for a Parliamentarian to simply say, ‘As I have just said in Parliament…'. However, the defence does not technically work this way.

The case of Finch v Bell in the Northern Territory was brought after an MP in the NT, Bell, repeated and discussed on the ABC information just tabled in the Legislative Assembly. Similarly, John Della Bosca, the NSW Labor Party Secretary is suing Franca Arena for saying outside Parliament: ‘I stand by the comments that I made over this matter, and I believe that there has been a massive cover up to protect certain paedophiles …' Della Bosca says he was identifiable as a relevant person attacked by the allegations and that Arena had no parliamentary protection for repeating these matters outside Parliament. The Bell Case was settled (as discussed below) so the Court did not rule on the point. In the Arena Case it is possible that the Court would say this was a protected report but authority tends to be against Arena.

3. Honest Opinion

What I have called the ‘honest opinion' defence is more generally called the fair comment defence which is a misnomer because what makes this defence so strong is that your comment need not necessarily be fair at all. The common law of free speech in a diverse society permits people to express their opinions, however unreasonable or biased they may be. I have always thought this is a good thing because as I have often put it, without rat-bags at both ends of the spectrum, the middle ground of any community is seldom challenged to reconsider its positions.

So, you can freely say that it is absolutely outrageous and contemptible for ERA to be building a uranium mine in the middle of a World Heritage National Park where the traditional owners disagree. You can say that the approval by the Minister for the Environment of the Hinchinbrook Project, the biggest coastal resort development on the entire east coast of Australia, in a National Estate area and adjacent to a World Heritage area, is stupid, appalling and wrong. You can say that everybody associated with the decision approving the Toaster near the Sydney Opera House, from the Mayor through the City Planning Committee, should be deeply ashamed of themselves for utterly failing in their exercise of sensitivity to the environment by making such a hopeless decision.

All of these may be statements of the honestly (even if unreasonably) held opinion of a person and even if they do defame the people identified by the comment, they are completely defensible.
There are two key problems with the honest opinion defence which mean that people should not have a false sense of security about using it.

First, as noted above, the statement must be a statement of opinion and not in reality a statement of fact defensible only as truth on a matter of public importance.

This is a fine distinction which even has QC's guessing, so be careful. But while it's not opinion to say, ‘the Minister is dishonest', (that's a statement of fact), it is opinion to say, ‘It would be very dishonest for the Minister to say the mine will not significantly affect the endangered birds when faced with the evidence before him that they will die in large numbers' (provided there is such evidence before him).

Or statements which seem to be factual but which are really opinions, eg.,. ‘ The Minister for Resources has really divided the nation by approving the Jabiluka mine'. You wouldn't have to prove the statistics on such a division because it is clearly an opinion. (Actually, it may not even be defamatory in that it may one of those critical statements that does not denigrate the Minister in the eyes of ordinary people).

Secondly, the statement must be based on facts which are either set out in the same publication as contains the comment or else are well known to the audience.

A good example relates to conflict of interest. The precise legal definition of what amounts to conflict of interest in each particular commercial or public context may differ and be complex. You can avoid this problem if you set out specific facts about a Councillor or a Minister which are true, such as their ownership of certain shares or property or that of a member of their family, and then say that for that person to make a decision on the particular issue in question would in your opinion be a conflict of interest. You have set out the facts on which your opinion is based, they are true so your opinion is defensible.

One of the best illustrations of the strength of the opinion defence lies in the wide use in Australia of satire. The endless representation of public figures as being extremely silly often falls within the legal classification of acceptable, if outrageous, opinion. (Of course, it can also mean that most people don't take satire so seriously as to consider the reputation of the butt of a joke to have been reduced!)

4. Qualified Privilege

The last group of defences to defamation arises in a range of limited circumstances where, in the interests of protecting the essential flow of information, a limited or qualified privilege is allowed by the law. They are circumstances where the publisher or speaker has a duty to provide information on a subject to a person who has an interest in receiving the information. The duty may be a moral or social duty as well as a legal duty. These circumstances can be important in environmental campaigns.

The best cases covered by this are confined communications such as letters where the writer and the recipient are sharing information on a subject of importance for one or other of them.
Examples of this are submissions to Ministers or officials (such as local councils) who are empowered to make a decision and have invited or would benefit from views and representations from interest groups. If you send your submission to that person you don't have to be able to prove the precise truth of defamatory material it contains unless perhaps the claims made are wild assertions with no relevance or clearly factually wrong.

Qualified privilege will however be defeated as a defence if the publication was malicious, ie, not for the purpose of contributing to the debate on the issue in question.

Another limb of the qualified privilege defence is the limited so-called public interest qualified privilege defence involving matters of major governmental public importance where the publisher has acted reasonable under quite strict criteria. For a while, the decisions of the High Court in Theophanous (1994) 124 ALR 1 and Stephens (1994) ALR 80, excited enthusiasm that Australia might develop a healthy public interest defence along US lines. The High Court has however in Lange (1997) 145ALR 96 retreated from this and reformulated this test within the normal law of qualified privilege.

The principle in the Lange Case after years of legal argument and hopeful anticipation, really comes down to virtually no change in the law and the introduction of a concept which really does not provide much help at all to people seeking free debate on public issues. The High Court said that the concept of freedom of speech and communication implied in the Australian Constitution requires, not a separate defamation defence for public debate but rather, that the common law categories of qualified privilege include the dissemination and receiving of information about government and political matters that affect the people of Australia.

However the publication must be ‘reasonable' and ‘not actuated by malice'. The reasonableness test set out by the High Court is very strict namely that conduct will not be reasonable unless the publisher had reasonable grounds for believing the defamation was true, took all reasonable steps to verify the accuracy of the material, did not believe the defamation was untrue and sought a response from the person defamed and published any such response.

I venture to suggest that in virtually no case of an ordinary presentation of published material, will these preconditions be able to be satisfied. Certainly, it would have been of no benefit in the Lange case because the program in that case, being roundly critical of the private sector funding of the New Zealand Labor Party wouldn't have had a hope of getting to air if responses were necessarily sought on every occasion from all parties.

Managing the Media

1. Keep close to the Journos but Don't Trust the Publisher or Broadcaster

It is essential to know the journalists on the environment beat and to keep open the flow of information to them. We have an extraordinary tradition of fine journalism on the environment in this country. It is crucial to engage these people and win their trust as to the accuracy and relevance of your information. But don't assume that because you have a professional working relationship with a journalist that you can necessarily trust their product in the hands of their superiors. (Sometimes you cannot even trust the journo!)

While all major broadcasters and publishers have media law compliance programs to ensure that the published material does not give rise to liability for defamation, these systems are not foolproof.

If you are the talent on a broadcast making a statement or if you are directly quoted in a newspaper report, then you are equally liable to be sued with the publisher of the material as you are a party to the publication.

Generally speaking, defamation plaintiffs pursue publishers because they have deep pockets but as has been clearly revealed in this conference, in the environment field individuals can cop legal action.

The general policy of most publishers and broadcasters is that they do not indemnify talent and sources against their own separate liability. Publishers will however generally work with talent and sources where they are sued together with the publisher and will stand behind them through the proceedings.

There is a good reason for this. To indemnify people who provide information to publishers would remove an important incentive for talent and sources to take care in providing information. A recent case illustrates the risks for an individual defendant.

The Northern Territory CLP Government financed defamation actions by one of its Ministers against a political opponent, Neil Bell, the Labor Member for MacDonnell arising from Bell discussing allegations raised in Parliament as to the travel activities of the Minister. The ABC had published an interview with Bell discussing information that had been provided to him and tabled in Parliament concerning travel irregularities. The Government funded action was commenced first against Bell and then some time later against the ABC but the publication the subject of the Statements of Claim was identical and the imputations said to arise were also identical.

Bell and the ABC co-operated for a period of four years coordinating the defence action. The defences pleaded by the parties were virtually the same, first claiming that the imputations did not arise and then relying on qualified privilege, fair and accurate report and fair comment. The cases were formally consolidated. To any outsider there is no question that the ABC and Bell were co-defendants.

As the trial approached, Bell had been successful in obtaining further direct evidence of the matter in question, evidence which would however not have been easy to use in the context of the defamation proceedings but which clearly enhanced the bargaining position of the defendants. At the last minute the Northern Territory Government, through the solicitors for the Minister, offered to settle the matter with the ABC on a walk-away basis with no apology and no contribution to costs, despite the fact that the case had eaten up costs considered to be in excess of $100,000. However, the NT discriminated between the defendants and did not offer the ABC the same terms to Bell, its now retired political opponent.

Without insisting that the same terms be offered to Bell, the ABC went ahead and settled on a basis offered to it alone; it clearly abandoned Bell to a hopeless negotiating position against a fully funded government, leaving him no option but to agree to a settlement which involved giving an apology and making a payment of $40,000 by way of damages and costs.

This decision by the ABC was unprecedented and in my view sets a deeply regrettable precedent. It certainly left Bell feeling punished by his political opponents' use of the defamation laws.

It has been well understood throughout Australia that the defence of any such proceedings where the ABC and interviewees or informants are co-defendants, will involve the closest cooperation. This policy is the direct corollary of the careful control system well developed within the ABC for evaluating and monitoring potentially defamatory material such that it is well understood that the ABC is always a knowing publisher of its material. For the ABC to settle on preferential terms in my view is an abandonment of an important element of that policy.

This case is all the more distressing because apart from the Bjelke Petersen government funding defamation actions against its political opponents, this case is to my knowledge the only case ever in Australia where a government publicly funded the plaintiff against a political opponent. The NT went even further than I understand the Bjelke Petersen government to have gone, namely to have provided government funding for the action while permitting the former Minister to retain the damages personally.

As noted above, the practice was roundly condemned by the Fitzgerald Inquiry and the Senate Committee. In such circumstances it is all the more crucial that a person invited to make a statement on the ABC can look to the ABC to conduct the case through to completion or a mutual settlement in full cooperation with the co-defendant.

The ABC has defended its decision on the basis that the defences of the ABC and Bell would have operated differently at trial with the likelihood that the ‘imputations not arising' defence was stronger for the ABC than for Bell, whose words within the total ABC publication might have been separately considered out of the context of the total broadcast in assessing whether the imputations arose.

It is very difficult for any ordinary person to understand this assertion when, as noted above, the publications were identical and the defences as pleaded by the ABC and Bell were identical. Furthermore, such an arcane, fine and complex distinction, even if correct in law, (which to me is very questionable), should play no part in the policy of the National broadcaster in managing co-defended cases in circumstances like this.

The signal to any person in the future invited to make a statement on the ABC is, that when push comes to shove, you will be on your own.

2. Codes of Practice and Complaints Systems

All commercial broadcasters are required under the Broadcasting Services Act, Part 9 s.123 to develop a code of practice to include setting up practices for promoting accuracy and fairness in news and current affairs programming. Both the ABC and SBS under their own special acts are required to develop codes of practice (Australian Broadcasting Corporation Act 1983 s.8(I), Special Broadcasting Service Act 1991, s.10). These codes of practice are in turn overseen by the Australian Broadcasting Authority under Part 11 of the Broadcasting Services Act. Copies of these codes are available on request from the broadcasters. These standards are backed up by complaints management systems. For print media publishers there is the complaints system to the Press Council which is entitled to examine complaints for similar failure to include accuracy and fairness.The standards for fairness and accuracy for the commercial broadcasters, ABC and SBS as well as the Press Council standards are extracted in the Appendix to this paper.

The importance of understanding these codes is that they can be used to require publishers and broadcasters to cover both sides of stories and where the spin doctors for the developers and governments would otherwise succeed in having slanted information published, they do provide a basis for challenge.

The Press Council is regrettably toothless and slow, however, and tends to be of limited concern to publishers.

Even with these codes and standards, we all know only too well that wrong and slanted information gets published. That's what the spin doctors are paid to achieve.

A classic example involved the Jabiluka case. Tuesday, 18th May, 1998 was International Day of Action on Jabiluka with rallies planned all over Australia and in many countries around the world. The opposition of the traditional Aboriginal owners of the Jabiluka and Ranger mines, the Mirrar, to this extension of uranium mining within the World Heritage Kakadu National Park, has been well known for a long time.

It was astonishing then that a story ran on the most listened to ABC Radio News broadcast at 7.45am in the morning in both Sydney and Melbourne, the major markets in Australia:

A large Aboriginal organisation in the Kakadu region of the Northern Territory has reaffirmed its support of the proposed Jabiluka uranium mine … In a statement released overnight the Gagudju Association representing around 300 Aboriginal people in the wider Kakadu region says only a small and vocal minority opposed the project. …The Association says safety and environmental concerns about uranium mining are unsupported by hard objective evidence.

What a PR coup for those who support the mine! This story was virtually a straight read of a fax received late the previous night which purported to be authorised by the Gagudju Association, the royalty management organisation for the Kakadu region relating to the Ranger Mine.

Trouble was, the story was wrong, completely wrong. The Gagudju Association has never said it supports the Jabiluka mine let alone ‘reaffirmed' its support. Nor has it ever said that only a small and vocal minority opposed the project or that it considers safety and environmental concerns are unsupported.

You might have thought that just a moment's reflection on such a fax might have induced the ABC to say ‘Hang on a minute, how can this be right?' ABC Darwin would have had a lot of background information on this long running and very public issue to ring the alarm bells, not to mention the extraordinary timing right before the International Day of Action nor that it was a very skilfully crafted media release. Even the fax itself on the transmission report showed that it had been sent from the Mobil Gas Station (one of Gagudju's businesses) in Jabiru, at nearly nine o'clock at night, not from the Gagudju office in business hours.

When this clear error was drawn to the attention of ABC Darwin, the ABC gave an employee of the traditional owners air time in the 9 am news, but this only ran in Melbourne, not Sydney, and only for that bulletin with the original story continuing throughout the remainder of the day.

The next day, even with the error pointed out to them, the ABC was only prepared to say there was ‘confusion' in the matter. Not that they were simply wrong.

After concerted ducking and weaving by ABC staff in the Sydney Newsroom and in Darwin, a correction was run on Thursday 21st May in the 7.45 am news in Sydney and Melbourne. However, the ABC would not say it was wrong.

Then there was the aftermath.

The full story was first published the very morning the traditional owners were informing the Stock Exchange and the public that the mining company had not in fact, as it had claimed, completed all Aboriginal approvals for the proposed mine. This attempt to set the record straight on those approvals would certainly have been blunted by the false publications.

The NT Minister for Mines picked up on the false press release to attack the Mirrar in his own press release and a full reprint of the false press release ran in the Jabiru Rag the local newspaper for the mining town put out by the Jabiru Council. Both of these are further examples of how a false story can run once it is published with the authority of the ABC.

Next, the false press release was published by the Uranium Institute on its web site. And then, not at all unexpectedly, the Chairman of North Limited, the parent company of ERA, felt under no constraint in repeating the false information in a letter to his company shareholders.

When things go as badly wrong as this, how valuable are the complaints systems established by broadcasters and is it worth pursuing them first at the level of the broadcaster and then by way of further complaint to the Australian Broadcasting Authority (ABA) (or in the case of the ABC to its own internal Independent Complaints Review Panel as an intermediate step between an initial complaint and reference to the ABA)?

My general experience is that publishers and broadcasters will always do their darndest to justify their conduct. Therefore, an initial complaint will more often than not be rejected by the broadcaster. In the Jabiluka case mentioned above, the complaint to the News and Current Affairs division was rejected.

In the case of the Jabiluka complaint, the ABC National News Editor backed up the ABC staff. He said that it was reasonable to have run the press release in the circumstances on the national news without further direct verification based on the background knowledge of ABC Darwin staff and the apparent authority on the face of the fax of the person who issued the press release. While other may have regarded this example as ‘win for spin', the ABC rejected that complaint. For myself, this was a case where the story should obviously have been checked out that morning instead of being run on the early news. The error would quickly have been uncovered

However, I suggest that the effort of complaining from time to time, while it may not win in the instant case, constantly reminds broadcasters and publishers that the standards are there and will be followed up by a range of interested groups.

On the other hand the extra effort in then taking a complaint to the ABA is in my view seldom worth the effort not because the ABA doesn't deal with things in an unbiased manner, but principally because the final determination of complaint means at these circumstances for correcting wrong reporting are so long passed that it is of marginal value.

Interestingly enough over the years, there has been a considerable level of success achieved by the opponents of the environmental movement, the forestry industry and the state forestry agencies, in complaining about programs critical of forest policy and practices. When I had just arrived at the ABC that the much loved and now lamented Peter Hunt had run a program, as I recall it, ‘The Wood or the Trees', critical of forest practices in the mid-80's. The complaints against this program from forest interests both public and private sector, were to consume the ABC for years and included complaints and investigations by the Commonwealth Ombudsman.

Perhaps that effort softened up the ABC such that when recently reviewing David Bradbury's film, ‘Loggerheads', the ABC required deletion of a statement by a distressed protester standing on the forest floor, among the discarded branches and roots of what he described as a wasteful logging operation:

All the forests of south-east NSW, Victoria and Tasmania, our hardwood forests are disappearing at a great rate of knots to woodchips.

The ABC concern was that the filmmaker could not establish that all the forests are disappearing whereas in the context of this film this was clearly a crie de coeur using understandable hyperbole. The fact is that even under the proposed reserve system, the objective is only to save 15% of pre-1770 forest types, which rather supports the cry that they are ‘all' disappearing at a rate of knots. In the letter setting out its concerning about this and other statements, the ABC stated:

… our past history with the forest industry has shown them to be well organised and likely to complain to the ABC, ICRP or the ABA over any inaccuracy …

Mind you, this sensitivity to an interest group doesn't necessarily flow when the complainant is an environmental interest group. When the ABC recently screened the over-the-top attack on environmentalists, the Against Nature series, it did so in the face of a ruling by the British Independent Television Commission upholding complaints from, and ordering apologies to, four participants in the program on the grounds that: The editing of interviews with the four contributors had distorted all and misrepresented their known views. It was also found that the production company has misled them when it originally sought their involvement, as to the format, subject matter and purpose of the programs.

The ABC did not make any apologies after it broadcast the program.

The whole point of the first Against Nature program was that environmentalists idealised the pre-developed world and ignored the brutalising effect of Third World poverty. Yet as its official response to a complaint from the environment movement against such a gigantic ‘strawman' argument, the ABC blatantly resorted to denying that the program said this.

It will be recalled that Against Nature made such outrageous links between the environment movement and conservatism as to include images of Hitler and of Nazis planting trees as a relevant basis for evaluating environmentalists today. In response to the complaint that this charged environmentalists with being fascists, the ABC felt well able to respond that the program did not do this:
Rather, it links the environment movement with a long history of conservatism. One of the program participants suggests conservatism idealises nature and the past, and goes on to claim conservative instincts motivated nineteenth century figures like Nietzsche and Wagner, and movements such as the Romantics in Britain. He then argues that some of the more xenophobic right-wing movements of the nineteenth century, including German fascism had strong environmentalist dynamics. The images of Hitler, of Nazi tree planting programs and the like are placed in this context. The episode does not equate the environment movement with Nazism.

Its nice to know that the ABC in its new found wisdom considers there is an acceptable context within which environmentalists can be likened to the genocidal, murderous and barbaric Nazis who committed the worst crimes against humanity ever. The ABC clearly scraped the bottom of the barrel in applying its documentary program standards in supporting this completely unbalanced and vicious program.

Of course in relation to documentaries, it's important to note that in television speak, these programs are different from current affairs programs and so don't generally fall within the news and current affairs standards set out in the Appendix. Accordingly, the basis for complaining about such programs is much more generalised and leaves even more leeway to the broadcaster to reject a complaint.

Even so, the Against Nature series had the ABC floundering on more than just the above points.

To start with, there was no inclusion by the ABC in the broadcast that the program had been produced with the involvement of a particular political group, the so-called Revolutionary Communist Party, an apparently Stalinist group in reality linked to far right wing organisations in the UK and the US with an anti-environment agenda. This was only later revealed on the ABC Radio National Earthbeat program (1st August 1998) by Prof George Monbiot of the University of East London.

Next, the ABC asserted, in response to complaints about the Australian broadcast, that:

...the ITC (Independent Television Commission) ...rejected 147 complaints alleging the program was inaccurate or biased. The Commission found no evidence to support these complaints, and each was rejected.

However when you read the ITC decision (www.itc.org.uk/divisions/prog_div), the ABC can be seen to have vastly overstated, if not misrepresented, the ITC decision. The ITC clearly approached the factual questions on a generalised basis and did not consider in any detail the evidence on each factual issue. The ITC found under its ‘unfairness' program standard that the totality of the broadcasts had allowed both sides to put their views and therefore rejected the 147 complaints for not establishing unfairness rather than because of factual accuracy.

Central to this decision was the fact that Channel 4 had broadcast a subsequent studio debate allowing environmentalists to refute factual and other issues. The ABC decided, again in its new found wisdom, that the Australian audience was not entitled to that debate or one using Australian participants.

Thankfully Earthbeat was on the job and searched out George Monbiot to alert us to the deficiencies in the basis of the ABC's judgment. Monbiot told Earthbeat that the ITC judgement on Against Nature was one of the harshest it has ever handed down on a documentary series; sadly Earthbeat's 7.30am Saturday audience will not have been as extensive as prime time weekday evening, just as Channel 4's UK studio debate at midnight on a Tuesday was hardly a match for the Sunday night prime time slot for Against Nature in the UK!

To sum up on the Codes and Complaints systems, these examples show that while they often work in an unsatisfactory and frustrating manner, and are equally available for effective use by the opponents of the environment movement, it is important for campaigners to understand them well and to know how use them to keep broadcasters a little more balanced.

3. Using the Media

Above all else, the great skill which environmental defenders need to develop is the skill of using the media with all its fickleness, lust for immediacy and need for grabbing the audience. There are many rules to learn in acquiring this skill but two stand out.

The first rule of media is brevity, or ‘keep it simple, stupid'. You rarely get much more than a three-second grab or a couple of lines quoted in a print article. Whether in news items or current affairs segments, producers and editors stringently confine talent to the briefest of time or space. Perhaps only in the unusual spots like Lateline (ABC) or Insight (SBS) is there much of a change to develop a point, and even then three or four sentences is about as much as you will get in any unbroken statement. Even AM and PM rarely give the commentator more than a few sentences.

You cannot blame the media for this. It's because the attention span of the audience has been so reduced over the forty years of television and by the explosion in magazines (with their impact on the length of items in other print media), that the media simply has to work within those parameters if it is to maintain contact with its audience. This means that when you are engaging the media, you must refine to the most precise statement what it is you want to say.

The best advice I ever had was when I was working out bush and Matt Peacock, now chief political reporter for ABC Radio, gave a group of indigenous leaders and their advisers a media workshop. He used a whiteboard to first record all the ideas about a major issue and then reduced them right down by careful process of elimination to three or four salient points and then to the core material which could be stated basically in one or two lines well within the thirty second grab limitation.

The rule that flows from this is that when you are interviewed, don't answer the question; simply state the proposition you are seeking to communicate, restate it and then repeat it.

The same applies to press releases. The worst press releases in the world come from earnest people committed to the detail of their cause. The brutal reality is that a press release running over more than a couple of paragraphs just won't get read and any that goes over one page hasn't a hope in hell! A huge amount of material is poured into media organisations daily and the task of a press release is a mini-exercise in what the media in turn seeks to do, namely grab attention. The task of the press release is to grab the attention of the journalist or the program producer, not to tell the whole story. If that attention is grabbed then the contact number on the press release will be used by the journalist to follow up and build on the story.

Justin Murphy, the seasoned 7.30 Report presenter would always paradoxically say to me during my brief stint as an aging cub-reporter:-‘Remember, less is more'.

The second rule of media is that a story needs a hook. There must a reason for the media to run a story or a context which gives it immediacy and currency. Many environmental issues are such continuing problems that it is often difficult to convince the media that there is a new aspect of a campaign requiring coverage. Often the hook can be the mere presence of a particularly good talent, what one might call the Attenborough / Bellamy syndrome ie. using the visiting dignitary to hang the story on. Or else there may have been a public agency decision made or a new report issued which will justify comment.

A good hook may even be that there are particularly good recent pictures, these being the ‘worth a thousand words' reason why media can always be enticed by them. But don't forget that the pictures the media like best are those depicting conflict, anger, feral greenies and disaster. While this can work dramatically in favour of a campaign, eg., those appalling pictures of Ok Tedi, the dead river, they can also lose public support, eg., wild angry demonstrators.

Here we get back to the old leaked document routine. There is no hook more enticing to the media than those juicy leaked documents. I remember as adviser to 4 Corners we would spend hours lapping up the loads of documents that seemed to fall off trucks passing the ABC TV Gore Hill studios. The risks here have been referred to earlier; leaked documents need to be able to be proved before being used. Often the very reason they are leaked is because the person who gets them cannot prove their authenticity. This in turn often leads to them being tabled in a Parliament which can put the leak at one remove but at least frees them up for publication if in a protected fair and accurate report.

Sometimes environmental groups manufacture their own hook. The right media event or hook can reverberate for years. Who will ever forget the picture of anti-nuclear campaigner Ian Cohen on his surfboard clinging to the bow of the USS Missouri in Sydney Harbour. The Wilderness Society Koalas scaling the Sydney Harbour Bridge or the Greenpeace demonstrators climbing the roof of the Prime Minister's Sydney residence on solar energy were hooks or events that worked to a lesser extent. Mere demonstrations often don't. Press conferences are notoriously problematic and with all due respect, if you end up attracting SBS and 2SER, you know you've laid an egg.

Even if you have the hook, be ready for that hook to hang the story upside down, ie., even the best journalists are subject to their sub-editors, editors and producers.

A classic case of this sub-rule of the hook hanging up the wrong slant was when the Australian Heritage Commission had listed the St Mary's Australian Defence Industries (ADI) site on the interim list of the National Estate. Here surely was a positive hook; a vast area in Western Sydney listed for its rare and endangered Cumberland Plain and Castlereagh Woodlands communities; a potential magnificent Federation Park for Western Sydney among the urban sprawl. Perhaps this would cause the corporatised public agency, ADI, to step back from its joint venture with Lend Lease for yet another 8000 house annihilation of one of the last bits of available open space in the Sydney basin. Yet even when a balanced and fair journalist like Murray Hogarth of the Sydney Morning Herald reported the story in positive terms, the headline writer tipped it on its head with;-

‘HERITAGE THREAT TO DEVELOPMENT'!

In conclusion, the simple fact of life in the current climate is that all environmental groups need media awareness, media training and, whatever their financial constraints, a media liaison person with skills in access and managing the media and in knowing what constitutes safe speaking.



APPENDIX
CODES OF PRACTICE - STANDARDS

THE COMMERCIAL TELEVISION INDUSTRY CODE OF PRACTICE - AUGUST 1993
SECTION 4 - NEWS & CURRENT AFFAIRS PROGRAMS
OBJECTIVE

4.1 This Section is intended to ensure that:

4.1.1 news and current affairs programs are presented accurately and fairly;
4.1.2 news and current affairs programs are presented with due care, having regard to the likely composition of the viewing audience at the time of broadcast (and, in particular, the presence of children);
4.1.3 news and current affairs take account of personal privacy and of cultural difference in the community;
4.1.4 news is presented impartially.

SCOPE OF THE CODE

4.2 Except where otherwise indicated, this Section applies to news programs, news flashes and current affairs programs. A "current affairs program" means a program focussing on social, economic or political issues of current relevance to the community.

NEWS AND CURRENT AFFAIRS

4.3 In broadcasting news and current affairs programs, licensees;

4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
4.3.2 must not present material in a matter which creates public panic;
4.3.3 must comply with Clauses 2.7 and 2.25 of this Code in selecting and broadcasting visual and/or aural material which may seriously distress or offend a substantial number of viewers;
4.3.4 must include only sparingly material likely to cause some distress to a substantial number of viewers;
4.3.5 must not use material relating to a person's personal or private affairs, or which invades an individual's privacy, other than where there are identifiable public interest reasons for the material to be broadcast;
4.3.6 must display sensitivity in broadcasting images of or interviews with bereaved relatives and survivors or witnesses of traumatic incidents;
4.3.7 must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age, colour, gender, national or ethnic origin, physical or mental disability, race, religion or sexual preference. Nevertheless, where it is in the public interest, licensees may report events and broadcast comments in which such matters are raised;
4.3.8 must make reasonable efforts to correct significant errors of fact at the earliest opportunity.

4.4 In broadcasting news programs (including news flashes ) licensees must:
4.4.1 present news fairly and impartially;
4.4.2 clearly distinguish the reporting of factual material from commentary & analysis.


ABC CODE OF PRACTICE

4.1 NEWS CURRENT AFFAIRS AND INFORMATION PROGRAMS

In programs produced by ABC News and Current Affairs Departments and information programs:

Every reasonable effort must be made to ensure that the factual content of programs is accurate. Demonstrable errors will be corrected in a timely manner and in a form most suited to the circumstances.

Editorial staff will not be obliged to disclose confidential sources which they are entitled to protect at all times.

Re-enactments of events will be clearly identified as such and presented in a way which will not mislead audiences.

If reported at all, suicides will be reported in moderate terms and will usually avoid details of method.

Sensitivity will be exercised in broadcasting images of or interviews with bereaved relatives and survivors or witnesses of traumatic incidents.

4.2 NEWS AND CURRENT AFFAIRS

Every reasonable effort must be made to ensure that the content of programs produced by ABC News and Current Affairs Departments is:

Impartial: impartiality does not require editorial staff to be unquestioning; nor should all sides of an issue be devoted the same amount of time.

Balanced:balance will be sought through the presentation, as far as possible, of principal relevant viewpoints matters of importance. The requirement may not always be reached within a single program or news bulletin, but will be achieved within a reasonable period.

4.3 NEWS FLASHES

Care will be exercised in the selection of sounds and images and consideration given to the likely composition of the audience.

4.4 NEWS UPDATES AND NEWS PROMOTIONS

News updates and news promotions will not appear during obviously inappropriate programs, especially programs directed at young children. Due to their repetitive nature, there will be very little violent material included in them, and none at all in the late afternoon and early evening."

SBS CODES OF PRACTICE
DECEMBER 1996

2.4 NEWS AND CURRENT AFFAIRS

2.4.1. Introduction

Section 10(1)(c) of the SBS Act makes it a duty of the SBS Board to "ensure by means of the SBS's programming policies, that the gathering and presentation by the SBS of news and information is accurate and is balanced over time and across the schedule of programs broadcast"

SBS believes in the right of the audience to make up its own mind after a fair, objective, balanced and professional presentation of the issues. SBS therefore acts as a forum for views on important issues to be communicated to audiences and will seek to present the widest range of opinion over time.

From time to time SBS will issue operational guidelines to assist broadcasters and journalists in implementing the programming policies of SBS, particularly in the handling of controversial issues which have the potential to create tensions within the community.

In addition to such guidelines, SBS journalists are encouraged to work to the Code of Ethics of the Media, Entertainment and Arts Alliance.

Accuracy has the highest priority and SBS will take all reasonable steps to ensure timely acknowledgment and correction of any errors of fact.

SBS avoids sensationalised and exaggerated treatment of issues and events. In its coverage of murders, accidents, funerals, suicides and disasters, SBS expects its program makers to exercise great sensitivity, particularly when approaching, interviewing and portraying people who are distressed.

SBS abides by the policy of Self -Identification (see Code 2.3 above) and does not arbitrate on validity of territorial claims.

SBS journalists will identify themselves and SBS before proceeding with an interview for broadcast.


AUSTRALIAN PRESS COUNCIL
Aims, Principles and Complaints Procedure –
Revised and Issued October 1996

Statement of Principles

Newspapers and magazines ("publications") should not publish what they know or could reasonably be expected to know is false, or fail to take reasonable steps to check the accuracy of what they report.

A publication should make amends for publishing information that is found to be harmfully inaccurate by printing, promptly and with appropriate prominence, such retraction, correction, explanation or apology as will neutralise the damage so far as possible.

Readers of publications are entitled to have news and comment presented to them honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports, if published at all , should be identified as such.

News obtained by dishonest or unfair means, or the publication of which would involve a breach of confidence, should not be published unless there is an over-riding public interest.

A publication is justified in strongly advocating its own views on controversial topics provided that it treats its reader fairly by:

• Making fact and opinion clearly distinguishable;
• Not misrepresenting or suppressing relevant facts;
• Not distorting the facts in text, headlines, pictures, billboards or posters;
• Disclosing any commercial or other interest which might be construed as influencing the publication's presentation of news or opinion.

A publication has a wide discretion in matters of taste, but this does not justify lapses of taste so repugnant as to be extremely offensive to its readership.

Publications should not place any gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Nevertheless, where it is relevant and in the public interest, publications may report and express opinions in these areas.

Where individuals or groups are singled out for criticism, the publication should ensure fairness and balance in the original article. Failing that, it should provide a reasonable and swift opportunity for a balancing response in the appropriate section of the publication.

Where the Council issues an adjudication, the publication concerned should prominently print the adjudication.