Mark Pearson

Mark Pearson

No Fibs media writer and author at Journlaw
Mark Pearson is professor of journalism and social media at Griffith University. He is Australian correspondent for Reporters Without Borders.
Mark Pearson
Mark is the author of Blogging and Tweeting Without Getting Sued – A Global Guide to the Law for Anyone Writing Online (Allen & Unwin, 2012) and co-author with Mark Polden of the fourth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2011).

The Age front pages from July 25, 2014 and July 29, 2014


It is a sad day when senior political figures steal a journalist’s recording device and destroy its contents, as we have been told happened at this year’s Victorian Labor conference.

But it is an even sadder day when we hear a major newspaper – The Age – justifying a senior reporter secretly recording their conversations with sources.

That newspaper’s editorial thundered at the state opposition leader: “Here is a lesson in the law, Mr Andrews: it is not illegal in this state to record people without their consent if you are a party to the call.”

The journalist involved – The Sunday Age’s state political editor Farrah Tomazin – went even further in her account: “It is not illegal or against our code of ethics to record private conversations for the accuracy of note-taking, but it was my responsibility to keep that information secure.”

While I accept the mea culpa on the lack of information security, I am sceptical that the newspaper and the reporter are on solid ground legally or ethically.

But before we go into a quick review of the relevant law and ethics let me tell you why I think it is such a sad day.

The community has not learned much that is new about its politicians and their minders from this mess: they cheat and lie for political advantage.

The far more newsworthy – and depressing – news in this story is that journalists’ sources can never be sure whether their trusted reporter is secretly recording their telephone or face-to-face conversation.

We are coming to expect that of our federal policing and security agencies, particularly as they are given progressively more legal powers to do this, but there are laws, ethical codes and damn good reasons to stop journalists doing it.

This kind of practice is selling out the brand of quality journalism as we knew it – that trust between a journalist and a source was a two-way street and that a contact could confide in a reporter with background or off-the-record comments or information knowing it was ‘as safe as houses’. They’d go to jail to keep it secret.

We continually hear that the future of the legacy media is in the trust capital they have earned with audiences over centuries of fair and accurate reporting. This incident seriously erodes that – particularly when we hear a major newspaper excusing it as acceptable practice for its journalists.

Firstly, to ethics. I’m not sure how either the reporter or editor are interpreting The Age’s own code of conduct or the MEAA’s Journalist’s code of ethics, but each has a clause addressing this kind of behaviour.

The Age code of conduct states at clause 11:

“Only fair and honest means should be used to obtain material. Misrepresentation and the use of concealed equipment or surveillance devices should be avoided. The use of deceptive methods or subterfuge may be condoned only where the Editor is convinced that the potential story is of vital public interest and there is no other way of obtaining the story.”

It doesn’t appear the editor of The Age issued any special permission in advance.

The MEAA code of ethics states at clause 8:

“Use fair, responsible and honest means to obtain material.”

No matter what the law says, I find it hard to accept that secretly recording a conversation – whether over the phone or in person – represents “fair and honest means” for obtaining information.

In the midst of the News of the World scandal in the UK I blogged at about the fact that Australian journalists break surveillance laws every day.

There are laws affecting this practice at both Commonwealth and state level, but both appear to offer The Age some wriggle room.

Under Commonwealth law, it is an offence to intercept (listen to or record) a communication passing over a “telecommunications system” without the knowledge of the person making the communication. This is detailed in section 7(1) of the Telecommunications (Interception and Access) Act 1979, which states:

A person shall not: (a) intercept; (b) authorize, suffer or permit another person to intercept; or (c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system.

Thus, for the secret recording of the telephone interview in this instance, The Age may be on shaky ground. This would depend on what device was used for the telephone recording and whether it was configured so that it actually ‘intercepted’ the conversation while it was still passing over the telecommunications system.

Of course, I’d hate to see them charged over it and I hope the federal police have bigger fish to fry.

Each of the states and territories also has legislation prohibiting the recording of a private conversation without the consent of all parties to the conversation, by someone who is not a party. In some places it is an offence to even record the conversation without a party to the conversation knowing it is being recorded, but the Victorian law is quite generous to someone who might secretly record a conversation to which he or she is a party. Section 11 of the Surveillance Devices Act 1999 states: “a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.” It does not apply to a “communication or publication that is no more than is reasonably necessary— in the public interest”.

It means that in this instance – on state law – The Age is likely in the clear. It did not publish the fruits of the recording and – even if it had – if a court agreed with an argument that the material was of such public importance that its publication was “reasonably necessary in the public interest” then it would be excused.

But this brings us to a tangle in logic. If there is not the intention to communicate or publish the fruits of such a secret recording, then what value is it to anyone? There was a time – and I hope this is still the standard practice elsewhere – when a journalist would put down their notebook or turn off their recorder when a source wanted to go ‘off the record’. That’s what those three words mean.

Any journalist worth their salt would listen carefully to deep background or off the record briefings and remember the jewels they had been told so they might use other means to get them published later.

Clearly, those days are long gone at The Age, where an editor is now happy to put all sources on notice that they might be secretly recorded next time they are talking to a reporter. In the public interest, of course.

It is indeed a sad day for Australian journalism.