Cactus Kate and that smoking gun

Radio New Zealand’s Mediawatch yesterday reported a furore, largely confined to the blogosphere, over legal guidelines reportedly issued to editors of APN publications, which include the New Zealand Herald and The Listener.

News of these guidelines, supposedly emanating from APN’s head office in Sydney, was broken by blogger Cactus Kate under the headline APN Chicken Out . Cactus Kate could barely contain her excitement, writing that she was on to such a humdinger of a story that her hands were shaking.

The Hong Kong-based New Zealand lawyer, much of whose writing (or at least what I’ve seen of it) seems to revolve around social gossip, sexual exploits, international travel and bragging about expense accounts, breathlessly reported that she had been told of the guidelines by “not one, not two, but three separate, anonymous sources”. She added in melodramatic tones that none of her sources could write about the story themselves for fear of losing their jobs.

(Did it occur to Cactus Kate, I wonder, that it was a coincidence that three “separate, anonymous sources” apparently chose – independently, separately and simultaneously – to notify her of their concerns? That would have caused my journalist’s antennae to twitch, just as they twitched a few years ago when Nicky Hager claimed several National Party insiders independently, separately and simultaneously had leaked damaging information to him about dodgy goings-on inside the party. Fancy that! But then Cactus Kate, perhaps seeing herself as positioned at the epicentre of the news media universe, may have thought it perfectly natural that these whistle-blowers would come straight to her. In any case, surely no disaffected APN journalist would set her up? No, of course not. Let’s move on.)

After giving herself a hearty pat on the back for having the balls to break the APN legal guidelines scoop when no gutless mainstream media hack would, Cactus Kate finally got around to telling us what was in them.

“Not content with slashing their newsrooms and replacing real free-ranged [sic] journos with young battery hens,” she wrote, “they [APN] are now thrusting guidelines from Sydney upon editors such as the ones at New Zealand Herald. The thrust is all to do with NO budget allocated for legal action or defence [the bold type is Cactus Kate's] so the editors have basically been told not to run stories that could cause legal action or are risky in other ways.”

I’m afraid those antennae started twitching again here. When I see vague phrases such as “the thrust is all to do with” and fuzzy words like “basically” I wonder why we are not being shown the source material on which such claims are based.

If it’s true that APN editors have been told they have no budget for legal action or defence, and if this means editors have no money to consult lawyers over potentially risky stories, then that would certainly be cause for alarm. But it’s hard to tell from Cactus Kate’s vague paraphrasing whether this is in fact what it means, and in the meantime the Herald has published a statement by editor Tim Murphy categorically stating that “there is no truth whatsoever to the claim that our editorial legal budget has been restricted or that we need to alter our approach to legal challenges or threats over Herald stories. No cut. No change.”

Now it’s possible that Murphy has put his reputation at risk by telling a huge fib but somehow I doubt it. Moreover, his statement is clear and emphatic whereas Cactus Kate’s use of language such as “the thrust is all to do with” is suspiciously imprecise. So for the time being, I’m putting my faith in Murphy. Time will soon tell if the Herald has lost its nerve and stopped publishing risky stories, in which case people will notice and stop buying it.

So what of the other guidelines? Unlike the above, these are purportedly reproduced in their entirety on Cactus Kate’s blog, so we can judge for ourselves what they mean. And I’m afraid that for the most part, they strike me as standard advice from a big media firm that not surprisingly wants to keep a check on legal costs.

Let’s go through them one by one.

1. Conservative editorial approach
Editorial could take a more conservative approach to the subject matter and content of the risky or contentious articles. Where editorial identifies an issue or risk in an article the relevant passages could be proactively removed, or rewritten internally, to remove the perceived risk, as an alternative to obtaining legal advice on the risks of publication.

Cactus Kate condemns this as “utterly soft cock” and concludes that it means “the poor editor cannot even go and get legal advice as to whether to keep subject matter in an article. They have to basically remove the content as an alternative to obtaining legal advice!”

I don’t see where it says that. I read it as simply saying the “full steam ahead and damn the torpedoes” approach shouldn’t necessarily be the first option for an editor considering whether to run a risky story. I interpret the guideline as saying editors should weigh up whether the importance of the story justifies the potential legal risk. This is a routine judgment call which is made more or less daily on big newspapers, though Cactus Kate – not being a journalist – wouldn’t necessarily know that. Significantly, the guideline doesn’t say editors must take a more conservative approach or that relevant passages must be removed. Yes, it’s cautious; but that’s the way media lawyers are.

2. Checklist for common issues
There are a number of issues which have arisen repeatedly and have either required legal advice and the re-writing of articles, or have not received legal advice and have led to claims. Editorial could avoid the need for a reasonable amount of legal advice and potential claims by applying the following general guidelines:
a. In criminal reporting:
i. Avoid the publication of any information which discloses the fact that a person facing prosecution has any previous criminal convictions (in addition to revealing that directly, this includes reference to having been in prison, use of police “mug shots”, etc)
ii. Check whether there is any name suppression order, or order suppressing any particular evidence, and that no details are published which could lead to identification or revelation of the suppressed information.
iii. Be mindful that it can be contempt (as a breach of the sub judice rules) for the newspaper to carry out and publish its own investigations into matters that are before the Court, or to publish other evidence which may be contentious at trial.
b. Particular care should be taken to ensure that people are always correctly identified and that photographs accurately depict the intended people, and do not implicate unrelated people.
c. Avoid entirely, or take particular care in relation to, any allegations or implications of fraud, dishonesty, untruthfulness and other improper conduct, unless they can be clearly substantiated.

This is standard stuff that all journalism students learn (or should learn) in their media law classes. Nothing to see here, folks; move on.

Quivering with indignation, Cactus Kate then goes on: “This is not however the worst affront to investigative journalism - this is:

d. There are categories of people who are more inclined to sue if they are the subject of adverse publications, so particular care should be taken in reporting allegations of misconduct against lawyers, doctors, judges, other professionals, politicians, critics and wealthy businessmen/women.

I ask you, how outrageous is that? “Particular care should be taken”. Gasp!
Please note that it doesn’t say you must not write stories about these people – simply that if you do, you should check your facts and weigh your words very carefully so as not to give them an invitation to sue. Again, this advice won’t come as a surprise to any experienced journalist. It’s not merely standard editorial practice; it’s common sense. But Cactus Kate, in a rush of blood to the head, reads it as a signal that APN newspapers will no longer run stories that reflect badly on prominent people.

She writes: “It chops the cock off the rooster so to speak as most investigative pieces of journalism are by definition against the most successful people in society, or those with the most power such as politicians or judges. Bloggers will simply take you over as I have done in reporting on your behaviour as figures in your own industry gave me this story to run and not a MSM publisher.” (Dear me, she doesn’t write very well, does she? I think I can see why Fairfax dropped her as a columnist.)

But wait, she hasn’t finished. Cactus Kate then cites the following, highly incriminating “guidelines”:

e. It should be remembered that the fact that a publication merely repeats allegations or statements that have been made by other people does not provide a defence to a defamation claim if those statements cannot be substantiated; and that describing such statements as “allegations” or as “claims” rather than as facts does not necessarily provide a defence to a defamation claim (if, for example, the publication implies, or people may believe, that there is some substance to the allegations).
f. It should be remembered that when reporting any death that may have been self-inflicted that it is unlawful to publish any particulars relating to the manner in which the death occurred without the permission of the coroner before the inquest has been completed.
g. The fact that a story has been broken elsewhere without apparent repercussions does not necessarily mean that it is then safe for APN to pick it up. APN should make its own independent assessment of risk.

Ho-hum …. more standard legal advice of the sort that chief reporters and news editors have been handing out to gung-ho young reporters for decades. But CK sees it as the death knell for vigorous, investigative journalism. “APN are chickening out and creating MSM Lite in New Zealand,” she wails.

The guidelines so dramatically exposed by Cactus Kate are not so much a smoking gun as one of those toy pistols with a flag that comes out of the barrel saying “Bang!”. As Tim Murphy says in his statement on the New Zealand Herald website, her supposed exposé consists of “a heavily truncated mish-mash of unremarkable legal discussion points (a to g) in a 66-page media law training paper put together by our lawyers, Bell Gully, and provided to 80 or so participants from throughout APN. Nothing secret about them and nothing new.”

I suspect Cactus Kate’s secret informants either have a grudge against their employer (a possibility that incriminates APN’s entire editorial staff, since nearly all journalists heartily resent their bosses) or have played a practical joke. But at least she has the excuse of not being a journalist, and therefore not knowing how the business functions. The same can’t be said for Janet Wilson, a former television current affairs producer, now married to Bill Ralston, who energetically took up CK’s crusade on Mediawatch.

Wilson worked herself into a highly agitated state over the supposed timidity of media organisations but conspicuously failed to answer presenter Colin Peacock when he asked for examples of the media backing away from risky stories. The best she could do was relate a completely irrelevant anecdote relating to an investigative story she heroically (one assumes) got past TVNZ’s editors two and a half years ago, before she decided her future lay in running a media training company.

Perhaps Wilson was out of the country, or too busy instructing her clients in the dark art of deflecting problematical media inquiries, when The Dominion Post went to court to defend publication of the so-called Urewera terrorism files – just one example of the type of high-risk story she claims the media are no longer tackling.

Wilson was especially incensed over APN’s reported injunction to staff to “take particular care” with stories about potentially litigious people. Brushing aside presenter Colin Peacock’s reasonable protestation that such advice was nothing new, she uttered the tedious old cliché that one of the basic tenets of journalism was to afflict the comfortable and comfort the afflicted. (Actually that’s not, and has never been, a basic tenet of journalism, although the idea has successfully been planted in the heads of countless gullible journalism students, of whom Wilson was possibly one.)

Wilson even had the nerve to suggest that Murphy didn’t know about the instructions being given to editors in his own company (though Wilson of course does – yeah, right). “I think Tim is being left out of the loop,” she said. It was a strange, angry rant that made little sense and left me wondering why Mediawatch bothered.