Australian journalists work to a code of ethics underpinned by the fundamental tenet of respect for the truth and the enduring right of the public to receive accurate, timely information. Those principles inform what they do and how they do it. When those values are in play, they help to generate journalism of the finest quality: reportage that holds the powerful to account, that reveals truths about the institutions and organisations that underpin our democracy.

But journalism that is brave and tenacious and done in the pursuit of truth and the public’s right to know can at times offend people, particularly those in positions of power or influence who do not want adverse revelations published about them. They want to keep their reputations intact and they will do much to defend them.

The cosmetic surgery articles were clearly in the public interest.Credit:gif

For that reason, public interest journalism can be difficult, time-consuming, stressful and highly complex. For media organisations or journalists working individually, the threat of court injunctions and defamation claims is an ever-present part of bringing uncomfortable truths to light, even if those truths are well sourced and carefully revealed.

All this has been highlighted by the superb work of journalists Adele Ferguson and Joel Tozer in exposing the outrageously unprofessional, patently dangerous and unhygienic activities of some so-called cosmetic surgeons. Their journalism is undoubtedly in the public interest – it could in exposing these practices, literally save lives – but the lengths to which one practitioner went to obstruct or halt their work beggars belief.

In mid-May, two days after Dr Joseph Ajaka received a set of questions from Ferguson about his cosmetic surgery practices, he hired barrister Sue Chrysanthou and solicitor Rebekah Giles, both renowned for their aggressive approach, who demanded to the NSW Supreme Court that the journalists, Age owner Nine and The Age hand over (provide discovery of) the draft of a 60 Minutes program.

With barely 30 minutes’ notice given to news organisations, they succeeded in obtaining the order and an injunction from the NSW Supreme Court based on averting a potential “injurious falsehood”. Last week, the order was overturned by the NSW Court of Appeal and the program and accompanying articles were immediately published. They exposed unsafe medical practices by Ajaka, and revolting and dangerous conduct by another practitioner, Dr Ryan Wells.

Ajaka’s courtroom manoeuvres were yet another example of the rich and powerful seeking to stop genuinely motivated, courageous journalism.

But Ferguson has revealed another course of dissuasive tactics threatened publication. It amounted to intimidation, and emotional blackmail of third parties – of fellow journalists and other media operatives, of doctors and patients – to get them to hand over information or use their influence to derail the program and publication of adverse articles.

Efforts to hinder are not new, but the court’s initial decision was new and alarming. It would, as the media organisations’ counsel told the court, amount to judges, and the lawyers of alleged wrongdoers, becoming the de facto editors of journalists’ work.

Although the NSW Court of Appeal last week found there was “no such power, jurisdiction or authority” in the Supreme Court rules to make the original discovery order, Justice Stephen Rothman, who authorised it, continues to disagree.

That raises serious concerns about judicial discretionary powers. The lawyers who brought the action have been inventive in finding new ways to threaten the work of journalists. An order like the one Ajaka obtained could gravely endanger public interest journalism and jeopardise whistleblowers and confidential sources.

NSW is already the world’s hotbed jurisdiction for defamation. At the moment, the balance between free speech, public interest journalism and the egos of public identities is skewed in favour of those who fear their reputation might be damaged. That urgently needs to change.

In the interests of integrity and accountability new federal Attorney-General Mark Dreyfus, and his state and territory counterparts, must act swiftly to rebalance the law to make it safer to expose the truth and carry out public interest journalism, and so uphold the public’s right to know.

Gay Alcorn sends a newsletter to subscribers each week. Sign up to receive her Note from the Editor.

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