The federal government’s recent (failed) attempts at media reform unleashed a storm of criticism that it would cramp the freedom of the press. There’s also a spate of legal cases against journalists — including by Australia’s richest person — and experts warn this may have a chilling effect on investigative journalism. So where’s the outcry from the IPA and News Limited?

When the Media Entertainment and Arts Alliance launched its 30 Days of Press Freedom last week, the union pointed to an unprecedented number of journalists facing litigation, including subpoenas and defamation charges. Media law experts told Crikey the numbers aren’t unusual, but they are worried about a possible trend towards lawsuits — expensive, time-consuming and emotionally draining for journalists.

Journalists who refuse to give up their sources face being convicted of contempt of court and possible sentences include up to two years’ jail and heavy fines.

Here are some of the cases currently before the courts:

  • It is now 10 days since the deadline passed for Fairfax’s Adele Ferguson to give up her correspondence with John Hancock, son of Gina Rinehart. Ferguson was subpoenaed, on Rinehart’s request, by the West Australian Supreme Court and faces being convicted of contempt of court for refusing to give up her source. John Hancock was the only one of Rinehart’s children to go on the record in Ferguson’s unauthorised biography of Rinehart, who is the major shareholder of Fairfax, Ferguson’s employer.
  • Steve Pennells and The West Australian are also facing a subpoena from Rinehart to handover “communications” that were used in his Walkley award-winning articles about the feud over the family trust. The subpoena includes any notes that relate to Rinehart by other journalists at the paper. Fairfax is reporting that Pennells and the West Australian have been given a minor reprieve, with Supreme Court Judge James Edelman asking Rinehart’s lawyers to provide documents explaining why the subpoenaed correspondence is relevant to the family’s court battles.
  • Fairfax investigative duo Richard Baker and Nick McKenzie face two separate demands for their sources. Chinese-Australian businesswoman Helen Liu has subpoenaed them, with fellow Fairfax journo Philip Dorling, to give up documents that reveal the identity of sources in their reports that allege Liu made payments to former Defence Minister Joel Fitzgibbon (The Age lost an appeal against the subpoena in the NSW Supreme Court).
  • Baker and McKenzie are also fighting in the Supreme Court of Victoria over the Securency banknotes scandal. Shield laws in Victoria only came into effect on January 1 and are not retrospective, leaving them without protection.
  • The ABC’s Jon Faine is also facing a defamation suit from a talkback caller, but according to Mark Pearson, author of The Journalist’s Guide to Media Law, these are “a dime a dozen and threats are even more common”. The caller, John Casley, says Faine held him “up to public ridicule and contempt” when in July 2010, Faine said “John, owing to your repeated racist utterances on the program, as you are well aware, you have been banned.” Pearson says “[Lawsuits are] not a new thing. One fears that powerful people are using it at the moment and they always have”.

The MEAA has called for uniform shield laws across the country to protect journalists from revealing confidential sources. The only jurisdictions that do not offer some form of protection for journalists are South Australia, the Northern Territory and Queensland.

Paul Murphy, the director of media at the MEAA told Crikey that without uniform laws, it is possible to “forum shop” and bring lawsuits in a jurisdiction that is less sympathetic to journalists’ confidentiality. He says the application of existing laws is slap-dash and although the shield laws introduced federally in 2011 are good, they haven’t adequately protected journalists.

Professor Andrew Kenyon, a director of the Centre for Media and Communications Law, says it is “ludicrous” there is not a uniform law, but says he is “reasonably doubtful that Australian governments will arrive at a uniform approach so journalists will probably keep going to jail”.

Both Pearson and Kenyon say it is possible to unify the laws, as with defamation law in 2006. Pearson doubts the MEAA’s push will succeed due to the politicisation of media freedom: “The Attorneys General have the power — it’s just whether they have the will.”

Many US states have shield laws for journalists, as does the UK and New Zealand, but the key difference between Australia and other jurisdictions is that their laws are backed up by an enshrined right to freedom of expression, which Australia does not have. Murphy says Germany’s shield laws offer absolute protection for journalists.

In Australia, three journalists have gone to jail for refusing to give up their sources and others have been sentenced to community service and hefty fines. Tony Barass was the first in 1989, spending seven days in a Perth jail for refusing to tell a judge who gave him access to two tax files when working for the Sunday Times.

The Courier-Mail’s Joe Budd spent seven days behind bars in 1992 for refusing to give up a source in a defamation case, and ABC journo Chris Nicholls refused to give up a source in his own trial for forgery and misrepresentation, spending three months in jail in 1993.

Pennells speaks of the possibility of a “muzzling” of journalists and McKenzie warns of a “chilling” of serious stories.

Chris Masters, a Walkley-award winning journalist who spent 27 years at the ABC’s Four Corners program, warns that a culture of litigation could lead to journalists self-censoring big stories. “The trouble with self-censorship is you never know when you’re practising it,” he told Crikey. 

Masters’ report Moonlight State on police corruption in Queensland eventually led to more than 100 convictions, but also 12 years in court for Masters himself, fighting defamation charges, in what he calls “my death by 1000 courts”.

Masters told Crikey that it is not only the professional consequences, but the emotional toll of long court battles that affect journalists:

“The hardest things that I ever did in my career were not to do with gathering the story in the first place but in defending it … The worst thing is the emotional burden waking up every day knowing you’ve got court matters to deal with … it gets to a point where it can be extremely demoralising. You begin to say to yourself, I didn’t get into this to be a professional witness or professional defendant.”