Submission on the journalists' code of ethics
And methods of enforcing it
A version of this article was first published: (publication unknown) - December 1993
- The social 'compact'
- The idea of a guild
- The idea of a profession
- The distinctive end of journalism?
- Ends and means
- Trust and knowledge of two kinds
- Some specific observations
- The journalists' place of employment (1)
- The journalists' place of employment (2)
- Liberty, confidentiality and respect for persons
- The current code
Some journalists claim that they practice a craft and belong only to a guild. Others claim that they are members of a profession. And some are unable to see the point of the distinction.
But there is a distinction, and an important one at that!
One of the purposes of this paper is to explore this distinction in order to see what bearing it might have on the subject of a Journalists' Code of Ethics. The sections comprising this introduction are necessarily brief and therefore offer the most cursory of analyses. There is much more that could and should be said. However, it is hoped that this bare outline of an argument will suffice.
While a society might be expected to tolerate (and even welcome) all manner of associations as a proper expression of a commitment to the principles of liberty, it is a little more difficult to see why it should allow any group, defined by a common occupation, to enjoy privileges not available to other occupational groups. A moment's reflection will lead one to conclude that a society founded on the idea of the formal equality of all can accept only one reason for positively discriminating in favour of one group over another. This is that to do so must promote the interests of the community as a whole.
For example, it is accepted by most people that the community would suffer if I had the right to perform open-heart surgery on my kitchen table. Instead, the right to perform such operations is restricted to those properly qualified and registered as medical practitioners. Similarly, it has been concluded that society would suffer if each individual was permitted to take the law into his or her own hands. Civil peace is thought to be enhanced if a properly accountable State is able to exercise a monopoly in the administration of force. Thus, powers of arrest are limited. An impartial cadre of judges supervises the trial of alleged offenders and the State (on behalf of the community) punishes the guilty.
None of this is controversial. At the heart of the position described above is the idea of a social compact made between society and particular occupational groups and associations. Certain privileges are accorded in return for the provision of social goods that would not otherwise be available. It is within this general scheme of arrangement that an understanding of the role of the professions in Australia must be located.
The guild is a form of association made up of people who have attained a defined level of mastery of their chosen craft. It sets standards of performance, both in terms of the members' personal and public life, and regulates conduct accordingly. Above all, a guild acts in a manner designed to ensure mutual aid and protection and to advance and secure the interests of its members. 'Provisional' association with the guild is open to apprentices in the craft.
Traditionally, guild members have enjoyed high status and incomes. They have exercised special privileges, especially in terms of the work that they might carry out to the exclusion of all others. They have been possessed of skills equal to any professional. To many contemporary observers, it would seem that this description is nothing more than that which applies to a profession. So at what point lies the supposed distinction?
Professions are very like guilds - except in one important respect.
There is, however, another dimension to the discussion of professions. Rather than flowing from a consideration of the external environment in which the professions are sustained, this other dimension relates to what have been held to be the internal standards of a profession per se. One can observe that all manner of occupational groups can make bargains with society in return for privileges or other social goods and yet still not be considered to be professions. For example, the police have special powers not normally conferred on ordinary citizens. Yet, to be a police officer is not to be a member of a profession. So where does the distinction lie?
One particularly influential definition of a profession was offered by Roscoe Pound. It goes as follows (1):
The term refers to a group ... pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means to livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.
The point should be made that to act "in the spirit of public service" at least implies that one will seek to promote or preserve the public interest. A person who claimed to move in a spirit of public service while harming the public interest could be open to the charge of insincerity or of failing to comprehend what his or her professional commitments really amounted to in practice.
In August of this year, the Australian Council of Professions issued a discussion paper, Professional Services, Responsibility and Competition Policy (2). Significantly, a press release about this paper was issued under the title, In The Public Interest. Both the paper and the release sought to distinguish a profession from "more commercially minded occupational associations". As opposed to others, professional practitioners:
... must at all times place the responsibility for the welfare, health and safety of the community before their responsibility to the profession, to sectional or private interests, or to other members of the profession.
If the idea of a profession is to have any significance, then it must hinge on this notion that professionals make a bargain with society in which they promise conscientiously to serve the public interest - even if to do so may, at times, be at their own expense. In return, society allocates certain privileges. These might include one or more of the following:
- the right to engage in self regulation
- the exclusive right to perform particular functions
- special status
At all times it should be remembered that what society gives, it can take away. It only accords privileges on the condition that members of the profession work to improve the common good. Having said this, there should be no doubt that all citizens are served by the existence of independent professions that are free to interpret the common good as being something other than that which a government of the day decrees. Once again, it should be noted that a capacity for a profession to fulfil this role depends on the extent to which the broader community trusts its judgement and motives.
Deciding to take up the full and proper responsibilities of a professional career is akin to the old idea of finding a vocation. In most cases, the actual rewards on offer hardly seem to cancel out the sacrifice that is made when the narrower pursuit of self-interest (common in the market) is eschewed in favour of the public interest. Instead of relying on the operation of the 'invisible hand', the professional must choose - and choose well! The burden of choice is sometimes felt to be intolerable. This may explain the move towards a world in which journalists claim that they do nothing more than provide a commodity for purchase.
Perhaps the idea of 'vocation' has become foreign to most of those who make up the contemporary professions. Perhaps the belief in intrinsic goods has faded. But even if one is motivated by a spirit of public service, how is one to determine what may be in the public interest? One answer, from as far back as the ancient Greeks, is to try to identify certain core goods. Some of these immediately come to mind. For example, a good society is likely to be one in which people are treated with justice, in which good health is commonplace, in which the environment is rich, rewarding and safe.
And it is likely to be an environment in which members of the public have access to information prepared and disseminated by people who are committed to the aim of seeking and presenting the truth. This is not to say that it is always easy to find the truth. But surely, there must be a predisposition amongst journalists to seek out the truth and a corresponding aversion to the publication of falsehood by either act or omission.
The idea at work here is that the profession of journalism (if that is what the journalists wish it to be) is, in part, defined according to the distinctive end that its practitioners pursue. For example, arguments going back at least as far as the time of Plato have suggested that medical practitioners need to have a particular understanding of the concept of health, and that lawyers should have a particular relationship with justice. I would want to suggest that journalists should have a particular relationship with truth. To the extent that they do, then they should be interested in understanding its particular character and demands. And they should be its protectors and promoters.
It is easy enough to identify ends. The trouble is that discussion about ends can easily conclude at a point where participants feel convinced of the rightness of pursuing ends as a matter of course. They can then make the slip of thinking that the ends somehow justify the means. Once this slip is made, then it is but a short step to arguments in favour of adopting any means thought to be likely to secure the preferred ends. For example, some journalists have been tempted in the past to lie and to cheat in order to uncover the facts of a story.
While it is understandable that extreme circumstances may necessitate extreme methods, and while the investigation of weighty matters of public interest may depend upon the adoption of extraordinary means, it is still important for journalists to appreciate fully the significance of the means that they adopt from time to time.
That is, it should be no light thing for a journalist to adopt means that compromise the end to be served. In particular, this suggests that journalists will need to exercise discernment when evaluating whether or not a certain course of action is appropriate. For example, when it comes to invading a person's privacy, can the same weight be given to the principal and overriding aim of boosting circulation as to that of seeking information about a matter of significant public importance?
It is sometimes argued that journalists should not impose their judgement about the relative value of news:
Let the public decide through the operation of the market-place. If they want to purchase 'info-tainment' then so be it. If they wish to participate in a charade in which everyone discounts the reliability of that which passes as news, then so be it!
There are at least two difficulties with this position. Firstly, it is somewhat disingenuous to suggest that the public can decide about anything other than a limited choice of material that has already been filtered and edited by journalists. Secondly, when an information hungry population is faced by a fairly limited range of options, then it is sometimes difficult for it to monitor a progressive, incremental reduction in standards.
None of this is meant to suggest that there ought to be a homogeneity about the style and content of material produced by journalists. But it is to suggest that the professional journalist will be especially conscious of his or her duty to the community and of the need to exercise judgement in order, and of a kind, to promote its interests.
So to summarise: it has been suggested that the idea of journalism as a profession gives rise to some specific obligations and relationships. At the heart of this discussion has been an unspoken assumption that journalists, who enjoy both power and privilege, should exercise both in a manner not injurious of the common weal. But why should the community trust journalists and why is it important that they be able to do so?
The focus of the argument can be sharpened by considering a paper by Bella and King (3) (1989) in which they argue for the importance of what they term "common knowledge of the second kind" and, in particular of trust. The general thrust of their argument is to establish that much of that which we regard as knowledge is, in fact, only considered as such because it is taken on trust. That is, people rely on the expertise of those who warrant that the knowledge is true. This type of knowledge, which is frequently repeated and 'known' by most people only on the word of others, is called "common knowledge of the first kind".
On the other hand, "common knowledge of the second kind" is that which is 'known' through direct involvement with a thing-in-itself, or through participation in a shared practice. Bella and King (ibid, p. 419) give the example of our experience of our coming to know "water' by drinking it, splashing in it and so on. In a similar vein:
... words like push, pull, life, see, hear, and many others only gain their meanings from practices and involvements that we both participate in.
(Bella and King, ibid)
The ticklish point to be grasped here is that given that experts can disagree about what should be counted as knowledge, and given that there is a competition of ideas, then most people have to rely on the fact that the whole process of negotiation about knowledge is being conducted by people who can be trusted to seek the truth. That is, the community assumes that there is a climate at work in which the 'experts' really care about what is said in the name of knowledge.
If such communities truly care about their claims, then they will not cover up their disagreements and inconsistencies. Indeed, they will be drawn to them because they care about what they say. But such communities, whether they be scientific, religious, professional, educational and the like, must participate within a history of care, for only then are their claims worthy of trust.
(Bella and King, ibid, p. 420)
The argument then proceeds to demonstrate how it is that the process of giving weight to considerations that are 'external' to a tradition of care can, of itself, erode the very foundations for participating in practices involving "knowledge of the second kind". Bella and King warn against allowing functional justifications to usurp the place of those that are internally related to such practices as caring and trusting.
Thus, it is argued that people who are involved in relationships only so that they can 'get something out of them' need to be distinguished from others whose involvement allows them to participate in ways that will reinforce their understanding of what specific practices actually mean. On this argument, questions of motivation assume great importance.
Arguments such as those advanced by Bella and King go a long way to demonstrating both the foundation for the community's expectation that journalists should care about the truth and for explaining why it is that they should. Any group that accepts a role in providing information (common knowledge of the first kind) to the community must accept that its approach to the task has implications that go beyond questions of 'info-tainment', profits for the corporation or even technical competence. A cavalier approach to truth by journalists has the more serious effect of undermining the shared practice of trusting itself.
This then is the theoretical framework in which the observations that follow are to be set.
- Professional journalists ought to act in a spirit of public service,
- Professional journalists ought to develop a particular relationship with truth,
- Professional journalists ought to act always to merit the community's trust.
Notions of service and trust would seem to require that journalists accept personal accountability for the work that they do. In many senses this is the corollary of a requirement that the journalists' authorship be noted in bylines, etc.
Thus if an error of substance is made, then it seems only proper that the source of error be prepared to give account. This should not be a matter of external compulsion by proprietors, regulators and the like. Rather, the profession ought to insist on nothing less from its members. To do so will be to make a serious application of the principle that a profession will put the interests of the public before that of its own or any of its members.
Acceptance of this principle will lead to the identification of a journalist who has made an error or who has caused one to be made. A high level of functional accountability is likely to lead to a proper investment of public confidence in the reliability of particular journalists. This will help to ensure that there is a proper balance between the reputation of the medium per se and the journalists who contribute to its content.
Having raised the question of accountability, it is suggested that there is a need to extend the principle of accountability to cover those holding positions as sub-editors. It is not infrequent for an error or misrepresentation to be the product of the sub-editing process. Yet, it is the hapless journalist who is left to bear the ire of the aggrieved party.
Having argued that the source of error ought to be identified, it will be important to ensure that a reasonable and balanced approach is taken lest this process be abused or trivialised. As a simple example, it would be inappropriate to identify a journalist who makes a spelling error. Similarly, minor errors that do not affect the substantive accuracy and integrity of the piece should not be the subject of identification. Application of the relevant quality maintenance processes should be sufficient.
If journalists are to be held accountable by their peers and if one of the chief reasons for doing so is that it is necessary to maintain public trust, then it is difficult to understand why the deliberations of the profession's disciplinary body should be kept secret. Opening the procedures to public scrutiny will be of benefit to both the community and to journalists alike.
Looking to the interests of journalists, it can be observed that closed enquiries are open to abuse by the more powerful parties. Transparency ensures that disinterested parties can ensure that the rules of natural justice apply when the conduct of a journalist is being assessed. This is a protection for the journalist.
The public interest has a similar interest in seeing that the process of professional self-discipline is fair to all concerned. The community's confidence in the system is susceptible to erosion if the deliberations of a tribunal are held behind closed doors. No matter how unjustified, there will be some who believe that the process of self-discipline is more a matter of show than substance, or even biased. Once again, a profession of journalists will need to understand that it will have to accept standards of accountability that are higher than those that will apply simply to a guild.
Finally, it must be observed that this whole issue raises questions about the integrity of journalists. Many ask how it can be that journalists are so insistent that all tribunals be open to reporting - bar one, their own. There is a sense in which the profession says one thing and does another. To act as such is to act without integrity.
An emerging feature of debate about journalism is discussion about the significance of the distinction between fact and opinion. This seems to be a useful distinction, in that it seeks to draw attention to the need for a clear demarcation between the 'strict' reporting of facts (what I will call 'news') on the one hand, and legitimate editorial comment on the other.
In turn, the basis for this distinction seems to be founded on the principle that the community should be able to rely on journalists to provide timely and accurate information that is free from all interpretation other than that which necessarily flows from the exercise of the editor's discretion to include or exclude material in the publication. A further and related principle would seem to be that whenever a journalist begins to offer an opinion on some matter under consideration, then the 'audience' should be given clear signals to indicate that a move from 'strict' reporting conventions has taken place.
It is hopefully uncontroversial to suggest that the reporting of news should not only be accurate but also balanced. Once again, the justification for the application of such principles would seem to flow from the basic ethical principles outlined above.
While accepting that there are always difficulties associated with the presentation of facts as 'news' (are the sources reliable?, how much 'spin' has been applied to the facts?, is it true? and so on). There are at least some fairly direct answers available to those who would seriously enquire about the standards to be applied when evaluating the essential quality of ‘news’. But what standards might apply when evaluating editorial opinion? And specifically, does the distinction between fact and opinion lend any support to the claim (that is sometimes made) that editorial content is justifiably open to bias?
In answering these questions, I would submit that the journalist has a clear and unambiguous responsibility to express only those opinions that he or she has formed after reflecting on matters as a detached and well-informed observer who is committed to determining what will best serve the public interest.
This is, of course, a high standard to set. However, it is difficult to see how it could be otherwise - unless, of course, one were prepared to sacrifice the journalists' claim to participate as members of a profession.
To the extent that this point is accepted, so it gives rise to a number of significant implications:
- Editors have a responsibility to ensure that journalists are free from any undue influence likely to, or designed to, impair their exercise of independent discernment and judgement.
- Owners and managers of media outlets have a responsibility to respect editorial independence and to refrain from attempting to exercise any undue influence likely to, or designed to, impair the exercise of independent discernment and judgement by journalists.
- Journalists have a responsibility to protect their independence and to be seen to do so.
Each of these points is liable to be contested. Taking them separately:
1. Editors have a responsibility to ensure that journalists are free from any undue influence likely to, or designed to, impair their exercise of independent discernment and judgement.
Some editors will argue that they are entitled to determine the style and content of their publication. In the final analysis, this is true as an editor always has the right to exclude a journalist's work, or if thought to be necessary, terminate the journalist's employment. But this is not to say that the editor should be able to direct a journalist to produce opinions of a particular cast or colour.
2. Owners and managers of media outlets have a responsibility to respect editorial independence and to refrain from attempting to exercise any undue influence likely to, or designed to, impair the exercise of independent discernment and judgement by journalists.
Likewise, some proprietors will want to influence editorial policy so that a particular point of view is given particular weight. Some owners will argue that the protection of their investment is of ultimate importance. In the final analysis, this too may be true as an owner can always dismiss an editor. But this is not to say that the owner should be able to direct the editor to produce opinions of a particular cast or colour.
Having said this, one supposes that, in the majority of cases, the relationship between owners, management, editors and journalists will be such to give rise to a genuine 'coincidence' of interests. In such circumstances, independent evaluation can give rise to shared opinions in much the same way as the individual exercise of a well-informed conscience can lead people to act in concert.
3. Journalists have a responsibility to protect their independence and to be seen to do so.
But it is in examining what all of this might mean for journalists that there is, perhaps, the greatest room for controversy. This is because the arguments presented above lead naturally to the conclusion that journalists will need to refrain from exercising some of the rights normally accorded to citizens in a democracy.
Specifically, it would seem that in order to maintain their position as an independent reporter and/or commentator (and in order for this to be seen to be so), it will be ideal for journalists to refrain from participating in the events that they cover. And to the extent that journalists maintain any interests in matters that are the subject of their attention, so these interests ought to be declared.
Realistically, there are going to be times when it is impossible to achieve this ideal. For example, journalists must be free to cover events involving the dealings of the publications owners and managers. Journalists attached to a particular publication clearly have an interest in how its internal affairs are reported. Yet it would be ridiculous to suggest that this should act as a bar to their participation. However, it should always be made obvious to the users of the publication that the interest exists. In most cases this will be obvious.
Although it is unreasonable to expect journalists to strip themselves of all interests - as even if this were possible, it would be too great a disadvantage to bear, it is still important that the principle be recognised as having validity. And in turn, it should be that journalists strive to limit the range of interests that might give rise to a prima facie conflict. One reason for this is to ensure that journalists are always available to be deployed on stories as and when determined to be appropriate by the editor. A journalist who is ruled out of contention because of clearly identified interests can not meet this obligation to be reasonably available.
This suggests that there may be a 'hierarchy' of interests that more or less threaten the independence of journalists. Pecuniary interests immediately come to mind. In normal circumstances, it would be less than desirable for a journalist to cover the dealings of a company in which she had a significant holding.
Similarly, it would normally be inappropriate for a journalist to cover a matter involving a spouse, partner or close relation. The same might hold true in the case of active involvement in (and concurrent coverage of) political affairs. Could a journalist who is secretary of the branch of, say, the Liberal Party, really be allowed to cover a story involving one of its members? At the very least, such a state of affairs would give rise to adverse perceptions about the independence of the journalist involved.
When the need to avoid types of involvement that give rise to possible conflicts is combined with the editor's right to expect that each and every journalist be able for deployment on the full range of stories, it becomes obvious that a controversial professional obligation may fall on the shoulders of journalists.
It is not possible to give a clear sense of where the dividing line between a serious conflict and a lesser matter may lie. At this point I merely raise the question as a matter that will need to be addressed. And I note that of all the professional obligations of journalists, this need to limit the scope for conflicts of duty may be the heaviest burden to bear. This is because, unlike other professionals, journalists are 'generalists' whose activities cover the full spectrum of activity within a community.
In closing this part of the discussion, it should be noted that there is a further question to be considered in this matter. It has been suggested that the underlying reason for asking journalists voluntarily to sacrifice their right to participate in the full gamut of democratic activities is that for them to do so is in the interest of the community. That is, such a sacrifice is to be made in order to reinforce a climate of community trust in that which journalists provide. But it will need to be considered whether or not, on balance, the community suffers more from journalists withdrawing from active involvement in certain areas of public life than it gains in independence.
Perhaps the answer lies in a balanced approach to the ideal, with something like the 'hierarchy' of interests featuring in a practical formulation of the position that journalists ought to adopt. It may also be the case that periodic specialisation by journalists (the basic de facto situation in any case) will come to the fore as editors decide not to insist on the availability of all journalists for all assignments.
Although this submission is directed towards a consideration of the journalists' code of ethics, it is not possible to proceed without saying something more about the obligations that fall on those who employ journalists. This is because the environment in which journalists work is never of their sole making and because this environment has a profound effect on the capacity of journalists to apply their professional code. While it is true that each person is called upon to exercise moral courage in the defence of right, there are reasonable (albeit taxing) limits to the extent which people must sacrifice themselves in defence of a principle.
Given the Kantian maxim that "ought implies can", it is incumbent on employers and managers to help create an environment conducive to an application of ethical principles. Such an environment can be encouraged by a range of factors:
- All employees, as partners in the enterprise, ought to be encouraged to express their views about the organisation in a climate of open communication that goes beyond tolerance and actually welcomes constructive criticism. Apart from anything else, the formation of such a climate is an example of best practice in management. On a strictly ethical level, such openness is an active expression of the principle of respect for persons.
- Justifiable complaints should be heard and redressed without demur. Entrenched and unreasonable opposition (for the sake of opposition) undermines attempts to foster a climate conducive to ethical behaviour. An independent, internal 'ombudsman' to hear and resolve complaints is one way in which an organisation can signal its preparedness to take seriously the grievances of its people.
- The freedom to publish should be extended to each and every journalist and not reserved for an 'elite". In turn, each journalist should be open to criticism from the community and, in particular, from colleagues.
- Although journalists should be expected to cover any matter assigned, there should be a limit to this policy based on a recognition of the journalist's right to make a conscientious objection. Such objections should be respected. It goes without saying that conscientious objections should be of substance and sincerely held. In genuine cases, such as where there is a clear clash with religious or cultural convictions, then a request for relief should be granted. From a pragmatic point of view, acceptance of this principle is likely to enhance the quality of journalism as those forced to cover matters over their conscientious objection, will rarely be capable of acting with the degree of detachment that is required.
While the employers of journalists have a number of responsibilities in relation to the place of work, it is clear that journalists also bear responsibility for the ethical climate of their working environment. Thus, the journalists' code of ethics should make general provision for ethical principles relating to the relationships between colleagues and others. It has been noted above that one of the most fundamental of ethical principles is that of respect for persons. Notions of candour, confidentiality, honesty and courtesy (and a plethora of other virtues) receive their primary justification from this point of origin.
Respect for persons also provides a powerful justification for respecting the principle of liberty. Liberty is here conceived as freedom from constraint. Under this conception, a person is free to do all things except those proscribed.
Most people are bound to support the idea that liberty be protected. And to the extent that journalists play a role in the defence of liberty, so they deserve to be congratulated. Yet, perhaps one should be mindful of the fact that many believe that there may be too narrow a concept of liberty at work in the description outlined above.
Rather than liberty being seen as freedom from restraint it may be further articulated as freedom to pursue one's projects in life, providing only that this is done without causing harm to others. This alternative conception may suggest that a commitment to the principle of liberty entails a further commitment to assist others or, at least remove obstacles from their path, as they go about the business of their lives.
Liberty can be expressed and claimed in various forms. The most common form to be claimed by journalists is the liberty of freedom of speech which is then institutionalised into 'freedom of the press'. There is little debate, in a society such as Australia, that this type of liberty is essential for the safe working of our democracy. But as will be noted below, liberty does not (and should not) amount to licence. This is a matter that will be addressed in a separate section.
If liberty is recognised as being an important principle for journalists, then it stands to reason that they will wish to exhibit it in their dealings with each other. That is, journalists will wish to respect the fundamental liberties of their colleagues. It is therefore surprising that some journalists advocate an industrial 'closed shop' while others deny the right of colleagues to choose not to engage in industrial action.
While recognising that the challenge of securing collective benefits has in the past created a prima facie obligation for those who benefit from industrial action to contribute to its prosecution, it does not follow that such an obligation is enforceable. It is a matter of conscience for the individual who must be left at liberty to decide as he or she will. This is particularly so as refusal to join a union or participate in industrial action is hardly ever a source of significant harm to those who would support the action. In other words, the harm that flows from the infringement of liberty is proportionally greater than that flowing from refusal to participate in common industrial action.
It may be worth noting in passing that, as a contingent fact, the arrival of enterprise bargaining may further reduce any prima facie obligation that might exist.
As noted above, the principle of respecting confidences can be derived from that of respect for persons. Given that this is not a philosophical treatise, I will not follow the reductio to its conclusion. The link between confidentiality and respect arises from a recognition that the information given by a person (in the form of a confidence) is for the purpose of the communication, that person's to control. This is because the information is given voluntarily, and as such can be provided in line with pre-determined conditions. If one of those conditions is that the source of the information be kept confidential, then this is of ethical significance. A journalist who promises to maintain this confidence is bound to do so unless sufficiently serious reasons weigh against the keeping of the promise.
A similar argument, linked to respect for persons, can be made when exploring whether or not the identity of a source of information 'belongs' in some significant sense to the source (its 'owner').
As will be seen, this argument for respecting confidences is somewhat different to that usually advanced; namely, that sources of important information will only come forward if their identity is protected. That argument rests on a direct appeal to the public interest. To the extent that this is so, there are fairly straight forward means for evaluating claims that it is sometimes appropriate to reveal the name of a source. For example, a person who reveals that he is a murderer planning a massacre is hardly entitled to the protection of anonymity when the public interest is weighed in the balance.
But what if it is not just a matter of balancing the public interest? What if the interests of the individual (even a murderer planning a massacre) are to be evaluated?
In such circumstances, it is more difficult to reach a conclusion because like is not being matched against like. Instead, one is required to follow a number steps linking the principle of respect for persons with the public interest. One way in which this can be done is by appealing to the principle of liberty (at least in its 'negative formulation').
Because intelligible discussion of this principle necessarily involves reference to other people, it introduces a framework of reciprocal relationships in which there is no room for a conception of absolute liberty for the individual. The concept of liberty therefore provides a bridge between the individual who is owed absolute respect as a person and the community which has collective interests and which provides the context in which the individual is located.
As has been seen, liberty of the individual is limited by a minimum requirement that its exercise not be harmful to others. Thus, the journalist may (by using this bridge) accept the proposition that there will be times when a source may be revealed. The difficulty for most is in knowing when the situation is sufficiently grave to warrant the breaking of a confidence.
Some argue that the answer to this question lies in the hands of the legislature and the courts. Others argue that where ethical obligations and legal obligations of equal gravity conflict, then primacy should be given to honouring the ethical obligation. For most people, the choice is a difficult one. Curiously enough, it may be somewhat easier for professionals. This is because their duty to act in the spirit of public service may require them to exercise their judgement in a manner designed always to prevent harm to the community in general.
One task for journalists will be to make an assessment of the harm likely to be done if a source is not revealed. A fairly cursory examination of the issue will indicate that, in general, sources ought to be protected. Therefore it should only be by exception that sources be revealed when to do so is necessary in order to preserve the safety and/or health of the public. The Law should reflect these principles. As such there would be a rebuttable presumption that journalists may maintain the confidence of their sources.
The classic conflict for the journalist arises when required by a court to divulge confidential information. Up until now, the Law has held that a failure to answer the court is a case of contempt. This position has been held because of the assumption that it is almost always in the public interest for evidence required by the court to be made available to it. Journalists do not always accept this view of the public interest. Hence their occasional punishment for contempt of court.
Given the complexity of the matter and the difficulty of making an assessment of the public interest and the fact that journalists do not have a monopoly of wisdom in resolving such matters, it is suggested that judges and journalists meet in camera with a view to resolving such matters on a case by case basis. In this judges would be required to take a broad view of the public interest and not simply assume that such an interest is totally congruent with that of the court. Where there is still disagreement after this consultation, then journalists may be faced with the prospect of having to suffer some punishment in defence of his or her convictions.
Journalists may feel that this suggestion is flawed in that it falls short of recommending an absolute legal privilege to maintain the source's confidence. For example, it has been argued that the privilege should be the same as the lawyers which, of course is not absolute either. Indeed, the only group enjoying absolute privilege are priests in the confessional. This ranking of privilege is based on a recognition of the different goods thought to be protected by the privilege. One could debate the ranking itself, however, this is beyond the scope of this submission.
In concluding this section, it should be noted that journalists have an obligation to inform sources of any ground rules that might apply when considering the matter of confidentiality. For example, journalists should tell potential sources that their identity will be kept secret and the information confidential providing only that to do so will not cause significant harm to others. This would seem to be a minimum condition and one which it is important for journalists to convey to those who would give information.
The AJA, as it then was, adopted the following code:
Respect for truth and the public's right to information are over-riding principles for all journalists. In pursuance of these principles journalists commit themselves to ethical and professional standards. All members of the Australian Journalists' Association engaged in gathering, transmitting, disseminating and commenting on news and information shall observe the following Code of Ethics in their professional activities. They acknowledge the jurisdiction of their professional colleagues in AJA judiciary committees to adjudicate on issues connected with this code.
- They shall report and interpret the news with scrupulous honesty by striving to disclose all essential facts and by not suppressing relevant, available facts or distorting by wrong or improper emphasis.
- They shall not place unnecessary emphasis on gender, race, sexual preference, religious belief, marital status or physical or mental disability.
- In all circumstances they shall respect all confidences received in the course of their calling.
- They shall not allow personal interests to influence them in their professional duties.
- They shall not allow their professional duties to be influenced by any consideration, gift or advantage offered and, where appropriate, shall disclose any such offer.
- They shall not allow advertising or commercial considerations to influence them in their professional duties.
- They shall use fair and honest means to obtain news, pictures, films, tapes and documents.
- They shall identify themselves and their employers before obtaining any interview for publication or broadcast.
- They shall respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them.
- They shall do their utmost to correct any published or broadcast information found to be harmfully inaccurate.
In general, the code is in line with the principles examined in this submission. There are however, one or two questions that might be asked:
- Should the preamble to the code mention the importance of integrity?
- Should there be explicit recognition of the journalist's professional duty to act in the spirit of public service?
- Should the principle of respect for persons be explicitly acknowledged?
- Should personal interests be disclosed as is the case with considerations, gifts or other advantages?
- Why should corrections of inaccuracies only be if harmful? Perhaps they should be corrected if harmful or significant.
These questions draw attention to minor points. Of far greater significance is the matter of the degree to which the code is adhered to and enforced. It is a pity that there is a perception abroad that to the extent journalists subscribe to any code of ethics, they do so only selectively. There is a similar belief that journalists are inclined to interpret their code in a way that more or less allows any form of behaviour whatsoever.
Such perceptions are no doubt the product of the actions of the minority. But despite this, it is difficult to understand how a professional association has allowed so many of its members to escape censure for behaviour that any reasonable person would see as falling within the bounds of proscribed activity.
There are also questions about the coverage of the code. Is the code meant to apply to all journalists or only to those who are part of the journalists' union? If it is to be the former (and there are compelling reasons for its broad extension), then the process for adjudicating on issues connected with the code will need to be open to all.
Having said this, there is no reason for the union to abandon its particular requirement that members subscribe to the code. Indeed, the fact that such a subscription is required may provide an important reason for unionised members to be preferred by employers to others (then again, in the case of some employers the converse might be true!). This point would be reinforced if the union really did take an active stance in the adjudication of matters arising from the code. This assumes that the members of the union are going to allow it to play such a role.
As has been seen in the case of solicitors, the conflict that can arise when elected persons govern an organisation that has to perform the dual functions of acting as a representative body and as a disciplinary authority, tends to lead to discipline being allowed to lapse.
One way in which this difficulty can be overcome is through the appointment of independent or 'lay' persons who can play an active role in the process of adjudication. The Australian Press Council may fulfil such a role at present. One suspects that it could do more. As noted above, however the process of adjudication operates, it should be open to public scrutiny and should ensure that the principles of natural justice are applied.
The preceding discussion has been offered as a general essay on some of the most important issues affecting the profession of journalism - if that is what it is to be. Rather than provide a sharply focused set of recommendations about the contents of its code or, for that matter, a draft, I have tried to indicate a general framework in which the debate might be conducted. Stress has been laid on the following key virtues:
- a commitment to act in the spirit of public service
- courage (especially moral courage)
- respect for persons
The fact that journalists have decided to examine their code is commendable. However, it is also potentially subversive for it confronts the profession with an opportunity to re-found the profession, to renew commitments and to show the community that self-regulation is a reasonable and practical alternative to regulation by government.
The kind of debate that journalists are engaging in is also subversive because it involves the profession in a form of self-examination that is not always pleasant. Yet given the professed ideals of journalists, they should be admirably suited to the task.
Finally, I believe that the community is looking to journalists (and other professions) to take a lead in setting high standards of conduct. As noted above, some argue that the community gets what it pays for, that it participates in setting the standards of the day.
This presumes that every person feels strong enough to exercise their freedom responsibly. In an ideal world this would be so. But this is not an ideal world and many struggle under the burden of their freedom. It was a journalist, Malcolm Muggeridge, who pointed out that if anything brought the liberal democracies to their knees it would be their radical incapacity to cope with their freedom. In time this capacity may be overcome. But in the meantime, members of the profession may have to exercise personal responsibility that goes beyond a mere response to the signals of the market.
This is not to be 'parentalistic'. It is not suggested that journalists should impose their values on others; only that they should not abdicate their personal responsibility to act in good conscience. That is, journalists must choose and, we hope, choose well.
1. Pound, R (1986) quoted in American Bar Association Commission on Professionalism, (1966), ... In the Spirit of Public Service: a blueprint for the rekindling of lawyer professionalism, ABA, p.10
2. Australian Council of Professions, (1993) Professional Services, Responsibility and Competition Policy: a discussion paper prepared for the Permanent Advisory Committee, August 1993, p. 1
3. Bella, D and King, J (1989), 'Common Knowledge of the Second Kind' in Journal of Business Ethics, Vol 8.