The publication by The Guardian Australia and the ABC of stories based on intelligence material obtained illegally by Edward Snowden while he worked as a contractor to the National Security Agency has raised the question of ethics, press freedom and the national interest.
The stories, concerning claims of spying on senior Indonesian government officials – including Indonesian president Susilo Bambang Yudhoyono and his wife – by Australian agencies created a serious diplomatic rupture between the two countries during sensitive negotiations over border security.
The revelations also prompted accusations from political figures that news organisations may have acted irresponsibly in their approach to the disclosures, with no regard to the national interest.
This led to the question of the role of editors and newspapers and the right to a free press to publish within the law on security matters.
The Newspaper Works canvassed a number of Australian and New Zealand editors for their views. The responses were not uniform, but all editors were inclined to publish material obtained illegally – particularly if it was in the public interest.
The Australian did not take part, but has supported the role of intelligence gatherers in its editorials and has been critical of some in the media who have taken a moral stance against it.
In an editorial in December, The Australian said: “Effective intelligence played a part in tracking down the Bali bombers. It also stopped an Islamic terror cell that was planning to attack Holsworthy Barracks with military weapons and kill as many Australian soldiers as possible.”
“Those in the mainstream of public life know this and are aware of the catastrophic impact of serious intelligence failures. But it’s time for those on the fringes, and that includes some in the media, to face up to the reality that actions they might consider distasteful are an essential part of this country’s armoury.”
The editors who participated are: Andrew Holden, The Age; Damon Johnston, the Herald Sun; Darren Goodsir, The Sydney Morning Herald; Paul Whittaker, The Daily Telegraph; Bob Cronin, editor-in-chief, The West Australian, Chris Dore, The Courier-Mail; and Tony Gillies, editor-in-chief of Australian Associated Press.
Mr Johnston qualified his responses with a preamble. “Firstly, journalists and media organisations have to understand they are not above the law,” he said. “That said, the unique role journalists play in society has rightly been recognised with the introduction of shield laws in several jurisdictions, including Victoria. These laws will assist journalists to expose corruption and misconduct in the public interest while keeping their sources confidential.”
Mr Gillies said media organisations made daily decisions on what to publish based on the individual circumstances. AAP is no exception. Therefore it was difficult to offer definitive answers to hypothetical questions. “AAP’s articles of association, set down in 1935 and since strictly adhered to, state that it shall supply news ‘without any tendency toward or opportunity for the exercise of political partisanship or bias’,” he said.
“Inevitably this sets AAP somewhat apart from newspapers and other commercial media outlets, but AAP believes that democracies can function only if news organisations have the right to publish information the public needs to know.
Here are the editors’ responses:
Would you publish material based on information obtained illegally?
Andrew Holden: Yes, but of course the circumstances are the critical element. We have published information gathered in contravention of the laws of other countries; locally, there are rare but justifiable examples of journalists going undercover to gather information about the alleged misbehaviour of others.
Damon Johnston: If it were established that the information was in the public interest in that it exposed corruption and misconduct in governments or institutions, then the answer is yes.
Darren Goodsir: Yes. There’s a whole range of issues. As a reporter I, and the Herald generally, have obtained material that has been in contravention of the law – Cabinet documents, for instance. It’s an offence to actually receive a Cabinet submission. I’ve gone out of my way to obtain Cabinet submissions in the past. That’s at one end of the spectrum, but the straight answer is yes, I would, and have, published material against the crimes of the state or the commonwealth that has been obtained illegally.
Paul Whittaker: Possibly, but only ever in the most exceptional of circumstances, and after weighing up all the issues.
Bob Cronin: Generally no, but the final decision would depend on the circumstances (for example, would publication save lives?).
Chris Dore: A leaked Cabinet document is technically illegal, so of course we would.
Tony Gillies: Unlikely if we were certain the act of disclosing or obtaining it was illegal. In many cases this would not be clear at the time.
Would you do so if you thought it was in the public interest?
Holden: That is always the justification, but there is plenty of dispute about what constitutes the public interest. Certainly The Age is of the view that the more information made available to the public the better. I am also mindful of the exhortation from Jim Lehrer, of the US Lehrer Report: The first rule of journalism is, if you can’t justify it, don’t do it.
Johnston: Yes, if it exposed corruption or misconduct in government or institutions.
Goodsir: I think the public’s right to know is of paramount importance but always needs to be balanced against a myriad of other considerations, be they legal issues, issues of taste and obviously issues of national security. Quite frankly this is the core responsibility of editing in a newsroom: to make decisions about what is in the public interest. This is not just what the public is interested in, but what is in the public interest and this newsroom takes a great deal of time and consideration of these issues on a continual basis.
Whittaker: Depending on the circumstances.
Cronin: Depends on the circumstances and a case-by-case assessment of the level of public interest.
In your view, would freedom of expression or the public’s right to know take precedence over national security issues?
Holden: I refer you to our editorial on this aspect in December: the editorial stated the role of the media was not to censor the news, but to inform readers. “Where life and liberty may be endangered, however, the media have a duty to consider carefully and soberly what they are doing and how they might best reveal what needs to be told,” it said. “It is not always clear when life may be in danger, and sometimes media outlets do get it wrong. The line we set is that in sharing information we must always endeavour to do so in a way that does not place individuals in physical danger.”
Johnson: it’s not so much about taking precedence; it’s more a question of balancing how important it is for the public to be told about the relevant information versus the potential impact on national security issues.
Goodsir: When you have issues involving privacy and national security, or where people are expressing concern for the safety or indeed the lives of those concerned, then you take a great deal of time over the decision making.
Whittaker: The public’s right to know might override national security issues, if for example, an elected official or government agency had been shown to have knowingly lied to the public or broken the law. The extraordinary powers granted to certain agencies also depend on public trust that they will be administered with due diligence and appropriate supervision.
Cronin: Define national security issues.
Dore: National security issues absolutely have to be taken into account when publishing, as well as other considerations, including the safety of sources, and others involved in the story.
Gillies: In some cases, yes. For instance, there might be proof that a government agency had acted deceptively, maliciously or illegally.
Would you publish material if there was a possibility of endangering lives, particularly operatives performing duties dedicated to the security of your nation?
Holden: No, but that doesn’t justify a blanket exclusion of information by authorities.
Johnston: If it was established that there was a risk to life, then the answer is no.
Goodsir: I’ve had experience in terms of all of those things, and I always go into those discussions with as open a mind as possible. The last thing you want to do is endanger someone’s life or, for that matter, to be gratuitous in terms of an invasion of privacy. There are always a range of very sensitive issues that go into the decision making process.
Whittaker: No, not if there was a risk that the publication of certain details could place anybody’s life in danger. The need for caution and responsibility around the reporting of security and military information is vital.
Dore: If government agencies give us credible warnings about the safety of members of the public and others if we publish, then we will naturally listen to it and take that into account. I have not published certain details in the past for safety reasons.
Gillies: No. AAP always observed government D-Notices.
If material posed a security threat, would you seek clearance from the appropriate government authority? Would you publish information this authority then redacted?
Holden: I would certainly consider the discussion and that approach.
Johnston: Possibly. On occasions, police and other agencies have made requests for us to remove information from stories or delay the publication of stories because they could jeopardise lives and compromise major investigations. These are considered on a case-by-case basis.
Goodsir: I’ve been in a position where I’ve gone against the expressed wishes of government authorities in order to publish. I’ve had recent experience that I’m not inclined to share with you, and we’ve done exactly that. In those cases where you are going against the expressed wishes of government agencies, it is incumbent upon you to double your efforts to be across all the issues involved.
Whittaker: It might be possible to reach agreement with a government agency to publish redacted material in certain circumstances.
Dore: We would have to consider the nature of the contact from the government and the importance of the story. Our role is not to censor information we believe is in the public interest but it is always a balancing act, with national security and other stories that have an impact on safety.
Gillies: Possibly, but in the case of redacted material probably not (otherwise, why approach them?)
Do you feel 9/11 has changed traditional thinking of war? That is, we are now in a continual conflict with extremist elements? And does or does this not influence your decisions on how to handle the publication or otherwise of classified information?
Holden: Not in my view. There have been extremist elements who have resorted to violence previously (i.e. the Baader-Meinhof gang in Germany, ETA in Spain, IRA in England) and I don’t think 9/11 has made this period intrinsically different. Therefore no, I don’t believe the fundamental responsibilities of an independent media organisation in a democracy have changed.
Johnston: 9/11 changed the world in every sense. The risk that the publication of classified information might undermine the war on terror, and therefore endanger lives, is a highly relevant factor for media organisations to consider.
Goodsir: The whole issue of national security has changed manifestly because of 9/11 and in the Australian experience because of the Bali bombings in 2002. I think these issues have gone from the abstract to the real and present dynamic. Fundamentally, it has brought home the issue of civilians being targeted or being caught up in these issues rather than soldiers. Traditional notions of war and conflict have changed, for sure.
Whittaker: Yes, 9/11 changed everything. I don’t think we should be doing anything to help terrorists or their supporters that mean to do harm to us. That has meant more intrusion in ordinary people’s lives but what is the alternative to eternal vigilance? It is a balancing act of rights and responsibilities against the modern reality of terrorism which respects none of these tenets. By the same standard, a free press is sometimes the only safeguard against excesses by law enforcement authorities as The Australian’s reporting on the Mohammed Haneef case showed.
Cronin: Yes, and this has no influence on decisions on publication or otherwise of classified material.
Dore: Well the world certainly changed after 9/11 but the principles are no different to what they have always been.
Gillies: The definition of war may have changed but we would still exercise judgment according to the individual circumstances.
Has the 24×7 news cycle influenced the industry thinking, and/or your thinking over when to publish?
Holden: To the extent that a story can be published at any time, yes, but if the question relates to the fundamental ethics of journalism then no. What can have an impact, both positive and negative, is the level of competition within the media sector, and whether you feel pressured to repeat information quickly that others may have published. In that case, the credibility of the other media organisation is critical.
Goodsir: The internet age has added the complication of publication being able to be made at any time of any day. You don’t have to wait for the print deadline anymore or hold things back. There is an added urgency in the background as well.
Whittaker: The decision of what to publish, and when, is made on how to best serve our audience for our multiple platforms. The fact we now have more ways to deliver information has naturally changed the publication times of some material.
Dore: Not at all. Stories should be published when and only when they are ready to be published, the news cycle should have no bearing on decisions about specific stories. If we don’t have it by the newspaper deadline, we don’t publish it. Online publishing is no different.
Gillies: AAP has always published 24/7.