The Gazette of Law & Journalism interviews Fairfax's editorial counsel Larina Alick ... The failure of the law to protect public interest journalism ... The uncontested rote of suppression orders ... Rebel Wilson and the assault on damages caps ... Getting the big stories over the line ... Cultural divide between judges and the newsroom
Larina Mullins: sitting on the right hand side of reporters
GLJ: Larina tell us a bit about your background first. How did you start off in this business?
LA: I started off with a combined Arts Law degree at the University of Queensland – I’m a Queenslander at heart – I majored in media studies in the Arts degree because I was always interested in the media, film, television and issues around that and I needed something to keep me sane while doing five years of Law. So I did film studies and journalism and these great topics that just fascinated me. But I couldn’t imagine them having anything to do with a real job. Then I worked in litigation for a few years.
GLJ: With a firm in Brisbane?
LA: Actually I came to Sydney initially and then went to London where I landed a job at the BBC in their litigation department which was pure media law and fascinating work, right in the middle of White City surrounded by their film studios and BBC World Service and things like that, which was amazing. From there I worked in two Boutique media law firms in the West End before coming back to Australia and landed the job at News Corp – I think I was there almost four years before starting at Fairfax in November last year.
GLJ: You were with Michael Cameron and his team at News Corp. So was that all the papers in News Corp …?
LA: At News Corp we didn’t do any legal advice for The Herald Sun or The Australian, they are really both based in Melbourne. We covered the rest of the country. And it’s much the same at Fairfax.
GLJ: How many papers do you do pre-publication work for at Fairfax?
LA: The number of mastheads is over 100 which is not as bad as it sounds. The vast majority of work I do is for The Sydney Morning Herald and The Australian Financial Review but I am also available for all the other papers and websites.
GLJ: Regional places?
LA: For Fairfax, other than The Age where the excellent team at Minter Ellison to do their legal work. So for the rest of the country from Perth to Brisbane, to Launceston and everywhere in between, I am covering the field.
GLJ: You are not looking at every article that they put on the front page?
LA: No. That wouldn’t be possible. They send me the things that they are worried about and part of my job is making sure that they know what to be worried about. So I am travelling the country providing training and having these sort of roundtable meeting with everybody, to hear what their concerns are and also to make sure they are aware of what the issues can be that are coming up especially with other papers.
No paper likes to admit to anyone that they have made mistakes – it’s kind of my job to make sure we have that awareness across the business and where mistakes have been made, how they could have been avoided so that we can learn and get better, otherwise these things just happen and are forgotten.
Where’s the evidence?
GLJ: How do you find journalists generally react to your advice or if you chop something out or you change their copy?
LA: They are generally very positive about it and they accept my advice without question which sometimes is a bad thing. I would prefer they tell me if there’s some background that I just don’t know. It can be very difficult when you’re looking at a story for the first time and you can only judge it by the words on the page whereas the journalist will have been working on this on-going saga for six months. They know the background, they know the detail, they know the evidence that they have should we need it to prove something’s true.
So I try and go back to them before I change something and ask questions if I can, but a lot of the time if I do suggest a change they are very grateful for the help because they understand that my role is to help them, not to hinder them.
GLJ: Fairfax is concentrated quite a bit, particularly The Sydney Morning Heraldand The Age, on investigations – big and exclusive, dig, dig, dig, type stories. Do they present special in-depth problems for the lawyer?
LA: I think it’s the same problems but the way we approach it is different. So they’ll come to us when they are first pitching the story and we are involved from day one, and it’s a much more rewarding experience actually when you have those big long investigative pieces and you get to work with the journalist and you understand all of the evidence that we have, the witnesses when they come forward, the confidential witnesses – sources that won’t – the documents we have, the documents we might be able to get – under subpoena if we need them – those are the kind of issues we are looking at, really to look at a truth defence down the road.
GLJ: So you’re always looking at litigation ahead when you’re advising on a story?
LA: Yes, exactly. And that can be a very different approach to the journalists because they’re just trying to get us the information and try and find the story and try and understand the motivations of these people. I have a different approach, and I am trying to work with them on that.
GLJ: You’re thinking of evidence?
LA: I’m thinking about evidence almost always because we don’t have a great qualified privilege defence under Australian defamation law. The journalists are always talking about the public interest and I keep telling them it’s worthless to me because we just don’t have a defence for that.
GLJ: So you’re looking at truth?
LA: Almost always.
Newspaper cultures
GLJ: What are the noticeable differences between the work you were doing at News Corp and now at Fairfax?
LA: There is definitely a different culture at Fairfax, which I quite like. I have to admit I didn’t enjoy legaling some of the opinion pieces at News Corp and that won’t be a surprise to anyone who knows me. I could name some names, but I probably shouldn’t. It was more challenging legaling those opinion pieces and walking away feeling good about yourself than it does at Fairfax.
I find the people at Fairfax very professional – not that the journalists at News Corp weren’t – but they do have a level of responsibility that I find really inspiring. They are consummate professionals – day in and day out. And I work with two women mainly, Gail Hambly and Lisa Davies, the editor of The Sydney Morning Herald and they are impressive business people and very impressive professionals and I have enormous respect for the two of them.
Also Michael Stutchbury and Paul Bailey at the Financial Review who have an impressive knowledge across their industries that I am in awe of.
Wrong advice
GLJ: Have you ever let something through that you shouldn’t have?
LA: Yes I have and I think any media lawyer who says they haven’t is lying. We are humans and we make mistakes and I know I have. The one that immediately comes to mind was that there was a story about a sexual offence in Queensland and a story came to me for legaling. I made sure that the victim was not identified, but the accused’s name was there in the story. And I legaled it and I cleared it. In Queensland, you cannot identify the accused until they are committed for sentence or trial.
GLJ: So they’ve got to be committed.
LA: Yes, so they need to be committed for sentence – they plead guilty and they go for sentencing – or they have to be committed for trial.
GLJ: Only then can you name the accused?
LA: Only then can you name them and it’s a very weird quirk about Queensland law, but that’s a statutory restriction. It’s a criminal offence under the legislation that we committed for about an hour. Because this was an online story and I cleared it and it went online. How many people saw it I don’t know and thankfully in the end that accused pleaded guilty so it doesn’t keep me up at night, but that mistake was made.
GLJ: Did someone ring you up and say…?
LA: No. I spotted it actually. Something in the back of my mind reminded me to have a look at it again later …
GLJ: These things can haunt you and it keeps nagging away. I think it’s the same with being a journalist. Invariably there’s a little thought nagging that you should go and double check something.
LA: Yes. But what does keep me up at night is how easy it is for a publisher to commit a criminal offence just by including a name or a detail or some reference to another case. It takes so little to have such serious ramifications.
Fighting suppression
GLJ: At News Corp I know you were doing a lot of going to court and standing up and challenging suppression or no publication orders. Do you still do that in your new role?
LA: I can occasionally do that but the vast majority of my work now is the pre-publication advice. And I knew that I had my eyes open that would be the case. It does feel like a compromise because I loved the advocacy side of that job. I think like any solicitor working in litigation you dabble with the idea of going to the bar one day, but that’s not where I am professionally or personally right now. This is the perfect role for me and what I can do.
GLJ: Victoria has just done a report on the Open Courts Act and suppression orders and now the attorney general has announced he is going to introduce some amendments to give effect to the recommendations. Do the recommendations look positive to you?
LA: I was surprised they are so positive. I thought it would be a lot weaker than the report has actually ended up being. I think the report is positive, whether those things are implemented I don’t know.
GLJ: Was there a cooling off period first in that all suppression orders were interim orders, which could be challenged?
LA: Yes, any order will only be temporary until the media have a chance to oppose it. The difficulty is the media doesn’t have the resources to oppose every order. We’ve already seen more than 100 suppression orders come out of Victoria this year …
GLJ: Are they leading the tally?
LA: Yes, they are about three times the number of suppression orders in NSW.
GLJ: I wonder that is that. Is it a cultural thing?
LA: I think it is that the judges are used to making those orders so they don’t hesitate when they perhaps should. The defence lawyers and prosecutors are used to making these orders and it’s become a matter of practice.
GLJ: The other thing that seems to be a factor is that they’re easy to get because the judges never seem to give reasons for them, they just say ‘oh, s.8 of the Act and therefore have a suppression order’. If there was a requirement to give reasons it would be more powerful.
LA: If only human laziness will save us – maybe that is what will make the difference – if they have to do more work to make the order. Suddenly the orders wouldn’t be so attractive. But the difficulty is …
GLJ: But there were never this many orders under the common law regime before the legislation came into being.
LA: I think this is why, it gives the judges and the prosecutors and the defence lawyers a piece of legislation that says this order can be made. It then becomes this self-fulfilling prophesy that the orders will be made, no matter how many safeguards and requirements and hurdles you put into the legislation. There it is, let’s use it. And they have, hundreds of times a year.
GLJ: So is that the most vexing issue you face as a media lawyer?
Threat to the damages cap
LA: No defamation law is by far our biggest issue.
GLJ: And there have been some big cases with Fairfax as the defendant – some important cases. What areas of defamation law do you think need to be re-thought?
LA: The Rebel Wilson appeal will be very important.
GLJ: Damages?
LA: On the damages cap and everyone sees the multi-million dollar payout as the issue, that’s a special damages question that goes really to the evidence that supported that part of the claim.
What is more concerning for every commercial publisher is the idea that if there is aggravation of damage that the statutory cap is waived, it doesn’t apply. What that does, and what that particular judge said was that publishing for the purpose of making a profit is an aggravating factor. That puts every commercial publisher in the firing line for an unlimited amount of damages and damages are historically …
So when there are aggravated damages the cap on general damages is disappears. So what has sometimes been used as setting a scale ..
GLJ: Is that the first time that has been applied?
LA: I think there was one previous low-level Victorian judgment that did it and so the judge in the Wilson decision was effectively following the other judge’s decision. But that goes against every other case that has applied the cap and referred to the cap since 2006 when it came into practice. And I think it’s in the Pedavoli case there was a reference to the cap and how that influenced the amount of damage that was awarded to Ms Pedavoli. That’s a standard practice in all of these cases, that the cap is referred to except – sometimes it’s for setting a scale, other times it’s rejected for doing that. But in general it’s still a relevant factor and the reason it was brought in was to try and give some kind of rationality to damages awards – to ensure we didn’t go down the American model where someone gets $120m because a video was shown of them.
GLJ: Yes, there was meant to be some connection or junction for general damages for personal injury. Apart from the aggravated damages and the removal of the cap what other parts of defamation are of concern – you mentioned the public interest and qualified privilege defence …
Unprotected public interest journalism
LA: The qualified privilege defence is a real issue for news media because we are always running stories that we consider are in the public interest and not just interesting to the public, to use the old cliche. These are important stories that either involve public health or politics or companies that influence us in our day-to-day budgets – how it affects household budgets – these are big stories and big issues that these journalists are trying to cover. And I hate having to say to them, how do we prove it’s true because their answer back to me is, ‘Well I’ve got confidential sources, I believe it, I’ve got two sources who told me this, I know it’s right’.
GLJ: But the sources won’t give evidence so you can’t …
LA: Exactly. So what the qualified privilege defence should do is to say even if the story is wrong, if the journalist did their job reasonably in the public interest, the law will defend them. That’s how it should work, that’s how the Reynolds defence worked, but that’s not how the statutory QP defence here works.
Here we’ve got like 20 different hurdles we’ve got to get over and routinely the news media fails and the judge can’t see why the entire Australian public has a right to be told this information that turned out to be wrong. That’s difficult for people who don’t work in the media to understand why we should have that kind of protection, but it’s important.
GLJ: It works in the UK, generally, it’s a much stronger defence there and the threshold to bring the action is higher.
LA: Their serious harm test in the UK is something every Australian media defence lawyer wants to be brought in here because it seems to have dramatically decreased the amount of libel actions in London. There may be other factors going on and I know the serious harm test is being tested itself over there now with the recent decision, I think it was around September last year.
GLJ: What was that case?
LA: I’m trying to remember the name of it but it was literally while I was there for the MLRC conference in London this decision came out. It basically said, like if the imputation is a serious one then the serious harm test will be met. So basically if they can construct an imputation that sounds really bad from the matter complained of, then that’s enough to meet the serious harm test.
GLJ: Serious harm?
LA: Yes, we’ll presume serious harm … It just flies in the face of how we’ve understood serious harm would work. How that affects the number of libel cases going forward I don’t know yet, but we still cling to that idea that we should have a serious harm test here. The triviality defence doesn’t go far enough to give us that kind of protection but we’ve seen frankly ridiculous claims about …
GLJ: The case has to get to court before a triviality test can be applied.
LA: That’s right and it has to have no likelihood of any harm in the triviality test. Not serious harm, but any harm. So if they can show that one neighbour thought less of them and crossed the street to avoid them there we are. There’s harm.
GLJ: You work in print, online and with social media publications. Are there different sorts of requirements or different kinds of thinking for each of the platforms on which you are publishing?
LA: Yes. When it comes to writing the story we don’t consider the differences very much. Usually, it’s the same content going out to the different media. But we are always aware of the fact that there is a one year limitation period for print, but an unlimited limitation period for online.
So when we get complaints four, five or six years after the first publication about an online story, as a lawyer what you have to think about is whether there a compromise that can be reached that would avoid litigation and that usually means takedown.
The problem for any newspaper of record is that when we start removing our stories from our online archive it deletes history. And so it’s something I’m keenly aware of, and certainly the editorial teams are always aware of, they will not rush to take material down, even though it means we could be sued over something we wrote five years ago and also our chances of finding the evidence we had five years ago is practically nil.
How do you prove a story is true? Often the journalist doesn’t work for us anymore. It’s really difficult in those sorts of situations.
GLJ: It’s like the Chel case where the journalist had moved on somewhere else.
LA: Exactly. It happens all the time.
Judicial animosity
GLJ: Do you think there is some sort of cultural animosity between judges and juries on the one side and the media on the other? Is there a sense that the media needs to be kept in its place – it’s far too arrogant or whatever and courts are there to protect the public from the media.
LA: Yes. There had definitely been quotes exactly like that. There was a High Court decision where a judge was saying that the media shouldn’t get the protection to hide its confidential sources because it might just keep them more responsible. They should be aware of their responsibilities and effectively it was a big stick with which to threaten the media if they didn’t do their jobs responsibly. And that was from the 80s.
That is the same line of reasoning we see in judgments time and time again. There is this idea that journalists should spend months on a story and there should be a team of 20 editors checking these things and double checking them and that they should have lawyers going through every single word and checking every document prior to publication, and if we don’t do all these things we are being irresponsible.
There is a complete failure of understanding how a newsroom works and how journalism should be allowed to work. And these are responsible people who are not making up stories in darkened rooms. They work hard on their sources, they’ve cultivated their sources for years, they have great instincts on when to believe people and when not to, they are keenly aware of people who are biased and people who have an axe to grind. They are keenly aware of those kinds of issues. And that comes from years of trying to understand people and I have to believe that they are the best judge of whether these stories are true and whether we should run them. And I try and respect that as much as I can in my role to help them get those stories out. There has to be a way that those stories can be told to the public without us getting sued.
Pixels
GLJ: Another thing that baffles me is sometimes you see pixilations on a face in one story but in another publication or on television you don’t see the pixilation. So when do you decide to pixilate?
LA: It’s completely random. I wish there was some reason to it but there is just not. So much of that is about editorial decisions, not legal ones. Children’s faces will often be pixilated just out of respect for the privacy of children generally, regardless of the legal issues there. And of course, there are the Press Council’s standards that give them guidance on how to deal with those kinds of issues.
But when it comes to a person accused of a crime often we’ll have the police telling us identity is not an issue so we can run the photo without pixilation. Maybe the other newspaper didn’t get that same memo. And they think perhaps there is an eyewitness who needs to know what that person looks like – remember what that person looks like and not pick it up from the media, you know like the Ivan Milat case where Who Weekly ran a picture on the front page, which was disastrous for them.
GLJ: Yes Justice Hunt really climbed into them.
LA: Yes exactly. I think they got a $120,000 fine for that and the whole issue got pulped.
Those are the issues around pixilation, so we worry about children, children’s privacy generally. We tend not to be remotely concerned about adults’ privacy. Whether there is an identity issue in a criminal case – if there is a suppression order on someone’s identity – and usually there is very little guidance in the order about whether it’s just the name, or whether it’s also images of them, if they say the identity is suppressed we tend to take the broadest possible reading of that. And so we will start blurring faces, tattoos, even distinctive haircuts …
The Trump effect
GLJ: You sound like a great defender of a free and open press, which is important for our democracy. I would hate to think to think what life would be like without an open press, or a press controlled by the government, even though some of it is pretty rancid.
LA: About five years ago, we were in danger of losing all of our print publications and certainly at Fairfax that was a real threat for us. And bizarrely, part of the affect of the Trump presidency is people have more respect for the mainstream media now than they ever have. We are seeing an uptake in subscriptions and support from the public that we have never seen before, and part of that is because people realise that journalists do an important job and are a check on power and if they are not there no-one else is going to pick up that job. Online bloggers are not going to fill that void.
GLJ: The online world is too atomised. It simply doesn’t have the aggregated power of print.
LA: Exactly. And to have decent investigative journalism takes time and money and you need to trust where you’re reading it from and with so much fake news that’s flying around nowadays you have to know can you trust the information you are being told and I think that’s where mainstream media is important and can still provide that public service that we need.
GLJ: Many thanks for your time Larina Mullins.