Adjudication Case Studies

for Journalism Schools

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Contents

Suggestions for use

Introduction

The Press Council’s Standards of Practice

The Press Council’s complaints-handling process

Case Studies

Introductory Item—Complainant/WA Today (December 2015)

General Principle 1—Paul Lynch/AAP (October 2015)

General Principle 2—Timbery-Curtin/Southern Courier (October 2016)

General Principle 3

A. Complainant/news.com.au (October 2016)

B. NECA/The Australian (June 2015)

General Principle 4—Complainant/news.com.au (September 2016)

General Principle 5—Complainant/The Queensland Times (March 2016)

General Principle 6

A. Complainant/The Courier-Mail (September 2016)

B. Complainant/Hamilton Spectator (September 2015)

General Principle 7—Complainant/The Australian (June 2016)

General Principle 8—Peter Burke/WA Today (November 2015)

Press Council Complaints Form

Press Council Information Brochure

Members of the Press Council

Press Council Strategic Plan 2016-2020

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The purpose of these case studies is to give participants an opportunity in a classroom or seminar

setting to examine a series of articles that have been the subject of complaints to the Australian Press

Council and then to consider these in light of the Press Council’s Standards of Practice.

Background is provided for each article selected, as well as a summary of the complaint made about

it and of the responses of the publication in question. The conclusions of the Press Council’s

Adjudication Panel are also provided.

Lecturers or seminar leaders should ask participants to decide whether in their view the publications

acted in accordance with the Press Council’s Standards of Practice in publishing the articles in

question.

The materials in this package are set up so that elements can be printed out or projected onto a

screen and used in any order a lecturer or seminar leader thinks appropriate.

For each case study, a lecturer or seminar leader could, for example, introduce the article and outline

its background and the complaints made. Photocopies of the article or articles in question can be

distributed or the material can be viewed on a screen.

The seminar leader could then pose a series of questions regarding the issues raised by the material.

Details of the complaints can be distributed or summarised, as can a publication’s responses. Smaller

groups could perhaps then consider and discuss the articles and issues in more detail.

The objective, in such a scenario, would be for participants to come back to the main session with

their thoughts and, possibly, a draft adjudication to present to the full group. All participants could be

asked to discuss/debate the issues further and then, under one possible scenario, vote on whether

the complaints, or aspects of them, should be upheld or dismissed and why.

Copies of the Press Council’s conclusions could then be distributed or this can be projected onto a

screen. A final discussion could follow consideration of the actual adjudication and participants’

positions can be contrasted with the Press Council's findings on the material.

However, again, the materials may be used in any order or in any way that a lecturer or seminar

leader thinks appropriate.

Teaching notes are available for this training materials package, to assist lecturers and seminar

leaders in generating discussion. These were not in the first instance intended for distribution to

participants/students, but lecturers or seminar leaders may of course use them in any way they see

fit. They are available by emailing a request to info@presscouncil.org.au.

.

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The Australian Press Council was established in 1976 and is responsible for promoting good

standards of media practice, handling complaints about Australian newspapers and magazines

(whether in print or online) and advocating for freedom of speech and freedom of the media.

It is now the case that:

publishers form only a minority of the Council;

the Council’s funding is on a rolling three-year cycle, and those levies are payable by

publishers even if they withdraw from the Council during that period;

publishers are no longer involved in considering and determining complaints, with the

task now assigned to panels made up only of public members and independent

journalist members; and

publishers remain bound by the Council’s Constitution to cooperate in good faith with

the complaints-handling process, including publication of the outcomes of all

adjudications to which they were the respondent.

The Australian Press Council currently has 26 members, comprising:

the independent Chair and 10 public members, who have no affiliations with a media

organisation;

eleven nominees of media organisations that are constituent bodies of the Council; and

four independent journalist members, who are not employed by a media organisation.

The independent Chair is chosen by the Council and has always been a judge or university professor.

The public members and independent journalist members are appointed by the Council on the

nomination of the Chair. The nominees of publishers are chosen by media organisations but are

expected to act in the public interest as individuals and not as representatives of the nominating

organisation.

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The Council’s Standards of Practice are developed after consultation with the media industry and

members of the broader community. They comprise the Statement of General Principles, the

Statement of Privacy Principles, and some Specific Standards.

These, along with the Council’s various Advisory Guidelines, are all subject to ongoing review in the

light of experience, research and consultation. They are also subject to ongoing assessment against

current media practices to ensure they are promoting good practice, as well as freedom of

expression, access to reliable information and an independent and vigorous media.

For more details on the Standards of Practice and the Advisory Guidelines, visit:

ww.presscouncil.org.au

The Council revised its Statement of General Principles in 2013-14. The eight revised Principles,

which set out the basic standards applied by the Council when handling complaints and making

adjudications, came into effect on 1 August 2014.

The revised General Principles have now been applied in many adjudications and are working

effectively.

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The Press Council is now receiving an average of more than 500 complaints a year. Complaints to

the Council may lead to one of three outcomes:

Adjudication - the Council issues a formal adjudication upholding or not upholding the complaint; or

Remedy without adjudication - the publisher takes action facilitated by Council staff, eg provides a right of reply, correction or apology, as a result of which the complaint does not proceed to an adjudication by the Council; or

Other - the complaint does not proceed to resolution or adjudication because, for example, the Executive Director decides that the matter is unlikely to be a breach of the Council’s Standards of Practice or the complainant does not pursue the matter.

Upon receipt, all complaints are reviewed by Council complaints staff, and then carefully ‘triaged’, with

the more complex or difficult matters reviewed more extensively at a senior level. Generally, just over

one third are dismissed, another third are withdrawn or discontinued, and about one quarter yield a

remedy negotiated by Council staff with the cooperation of the publication in question. Approximately

5-10 per cent of complaints result in referral to the Council’s Adjudication Panel for determination, with

around three-quarters of those complaints eventually upheld.

In a Direct Adjudication, a panel of around three people will usually, though not always, make its

decision solely ‘on the papers’, without the participation of the complainant or the publication. In a Full

Adjudication, 5-7 members of an Adjudication Panel meet in a formal session and the complainant

and the publication’s representative are able to make statements and answer questions from panel

members.

In order to decide whether a matter should go to an Adjudication Panel, the Executive Director will

prepare a Provisional Summary of Issues (PSOI) taking into account information and comments

provided by the complainant and the publication. The PSOI will include the:

relevant wording or other aspects of the published material in question;

relevant parts of the Council’s Standards of Practice; and

facts and issues relating to the complaint.

The PSOI will be sent to the complainant for comment and then, after consideration of any such

comment, will be sent to the publication for a response. The complainant and the publication will be

given an opportunity at that time to suggest supplementary material which they consider should be

taken into account. These responses will be considered by the Executive Director, who will then

decide whether to refer the complaint to either a Direct Adjudication process or a Full Adjudication.

When the complainant’s comment is sought, the complainant will be advised that his or her name and

some details of their complaint are likely to be disclosed publicly if an adjudication is made. Any

request for confidentiality must be made at this stage, before any decision about whether to refer the

matter to the Council’s adjudication process. A later request will be considered only in exceptional

circumstances.

In ‘secondary complaints’, ie complaints by someone who is not personally named or directly affected

by an article, consideration of possible referral to the Council’s adjudication process may not involve

the complainant unless the Executive Director decides that it is desirable to do so in order to clarify

relevant issues. However, where practicable, the complainant is kept informed of the stage which the

Council’s consideration has reached and of the final outcome.

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Once a Final Summary of Issues has been completed, the Executive Director makes a decision as to

whether to refer the complaint to adjudication. It is an Adjudication Panel that has the power to

determine whether a breach of the Council’s Standards of Practice has occurred, on behalf of the

Press Council. Panels comprise a Chair (either the Council’s Chair or one of the two Vice-Chairs) plus

an equal number of public panel members and industry panel members (journalists without a current

connection to a publisher).

In selecting whether to refer a matter to the Full Adjudication or Direct Adjudication process, the

Executive Director will consider:

the seriousness, novelty and complexity of the issues; and

the facts, issues and evidence involved.

Where a complaint is referred to the Full Adjudication Panel, the normal procedure involves:

consideration of the Final Summary of Issues and any relevant supplementary materials

provided by the Press Council Secretariat;

participation of the complainant (in primary matters but not secondary matters) and the

publication by telephone conference, each of whom makes an opening statement of up to five

minutes, answers questions from the Panel, and makes a two minute closing statement;

members of the Panel deliberating privately and reaching a conclusion on the issues; and

a draft Adjudication being finalised and issued for publication.

In most instances where matters are referred for Direct Adjudication, the panel members will make a

decision without the participation of the complainant or the publication. However, where the Executive

Director believes, in consultation with the Panel Chair, that there are special circumstances that

warrant participation by telephone conference, he or she may authorise this.

Adjudications are generally around 850 words in length, as the Press Council is aware that space is at

a premium in newspapers and magazines. This presents challenges when writing adjudications

involving highly complex issues.

The Panel’s provisional adjudication is sent to the complainant (in primary matters) and the

publication on a strictly and permanently confidential basis. Each party may request revision or review

of a provisional adjudication within seven days.

A request for revision relates to a possible change to the wording of an adjudication but does not

involve a change in whether aspects of the complaint are upheld or dismissed. The grounds may

include, for example, lack of accuracy, clarity or due protection of privacy.

A request for review relates to a possible change in a Panel’s decision to uphold or dismiss any

aspect of the complaint. The only permissible grounds for seeking a review are that:

a serious error of fact or procedure occurred, or significant new evidence has become

available which it was not reasonably possible to provide earlier; and

correction of the error, or consideration of the new evidence, is reasonably likely to justify a

change in the decision to uphold or dismiss.

The final adjudication and requirements for publication are sent to the complainant and the publication

on the basis that these documents are strictly confidential until the date on which the adjudication is to

be published.

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The final adjudication must be published by the publication in accordance with requirements approved

by the Executive Director concerning date, page and positioning, and accompanying material such as

headlines. Failure to comply with the approved detail may lead to a request for re-publication.

Direct Adjudications will be published in the form of a summary (in the order of 200 words)

highlighting the nature of the complaint and the resulting outcome (upheld/dismissed), with a link to

the full text of the adjudication on the publication’s website.

All adjudications will be posted in full on the Press Council’s website and publicised via a media

release and social media channels. Complainants may also publicise the outcome through their own

communication channels.

Even if a complaint is not referred to an Adjudication Panel, the Executive Director may still decide to

send a formal Letter of Advice to the publication about any substantial risks of breach of the Council’s

Standards of Practice that are relevant to publishing material of the kind in question.

The Letter of Advice may identify factors that increased or reduced the risk of breach in the particular

case, and provide advice about action that may reduce the risk in future. In order to provide general

guidance for other publications and for members of the public, any such advice may subsequently be

made public without identifying the publication or complainant in question.

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The following adjudications correspond primarily to one of the eight General Principles. However,

some may involve more than one General Principle. The Introductory Item was chosen because it

involves an unusually large number of Principles.

Introductory Item—Complainant/WA Today (December 2015)

Facts: An article implied that the complainant, a teacher, had lost her job due to photographs on

social media showing her holding a bong at a music festival and showing her topless.

Decision: Complaint upheld. The claims published were unsubstantiated and the publication

failed to take reasonable steps to ensure they were accurate, fair and balanced and to provide

adequate remedial action, The publication also failed to take reasonable steps to avoid intruding

on the complainant’s reasonable expectations of privacy or contributing to substantial distress on

her part and these effects were not justified by the public interest.

General Principle 1—Paul Lynch/AAP (October 2015)

Facts: An article claimed that Labor MP Paul Lynch had attended “a meeting organised in

support of pro-Russian separatists” and implied that he was party to the separatist sentiment. In

fact the event attended by Mr Lynch, and a number of other public officials, was the St Sava

Youth Festival, which was a cultural event and not a meeting.

Decision: Complaint upheld. The publication failed to take reasonable steps to ensure its

description of the event was accurate, fair and balanced by not seeking more accurate

information from other sources or allowing sufficient time for the complainant to respond to its

enquiry.

General Principle 2—Timbery-Curtin/Southern Courier (October 2016)

Facts: Two articles, one front-page, inaccurately stated that the complainant’s great-

grandmother, La Perouse Aboriginal figure Emma Timbery, remained in an unmarked grave,

which implied the family did not care. The publication later removed the online material,

apologised to the complainant, and placed an Editor’s Note in the following print edition which

contained an expression of regret but no apology.

Decision: Complaint upheld. The Editors note was not clearly enough identified as a correction

and was not published prominently enough given the original article was front page. Given the

distress caused, it ought also to have included an apology. As such, the publication failed to take

reasonable steps to provide adequate remedial action.

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General Principle 3

A. Complainant/news.com.au (October 2016)

Facts: The headline and first paragraph of an article reporting the failure to prosecute two men

associated with a woman’s death made references to the trio’s “wild sex” on the night of her death.

Decision: Complaint upheld. The headline and first paragraph of the article unfairly (and also

misleadingly, in breach of GP 1) suggested the woman had consented to sexual acts contributing

to her death and the publication failed to take reasonable steps to ensure otherwise that this was

not implied.

B. NECA/The Australian (June 2015)

Facts: Two opinion pieces claimed that NECA, a trade association, “forced” members into pattern

enterprise bargaining agreement and “received secret commissions”.

Decision: Complaint upheld. The description “forced” was not an accurate reflection of NECA’s

practices and the pieces omitted to say that the fees and disbursements NECA earned are

published in its accounts. Opinion was based on inaccurate factual material and key facts were

omitted.

General Principle 4—Complainant/news.com.au (September 2016)

Facts: An article may have led readers to believe they could enter an American lottery, when in

fact they could only lodge a bet on the outcome. Although an article published a week later

explained the distinction, an Editor’s note was only placed on the original article a month later.

Decision: Complaint upheld. The ‘explainer’ article should have been linked to the original article,

and corrections should have been made sooner and more prominently.

General Principle 5—Complainant/The Queensland Times (March 2016)

Facts: An image published online of an accused man accompanying an article dealing with crimes

the man was accused included what appeared to be his two children standing near him. The

children were not involved in the story and no consent had been obtained from any person to

publish the image of the children.

Decision: Complaint upheld. Although the image was published due to a technical error and the

material was removed within a short time, the publication had failed to take reasonable steps to

avoid intrusion on the children’s expectation of privacy and this was not justified in the public

interest.

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General Principle 6

A. Complainant/The Courier-Mail (September 2016)

Facts: An article identified an eight-year-old boy as a potential witness against his father in his

father’s murder trial by publishing the boy’s name and identifying the location where his father

lived.

Decision: Complaint upheld. In identifying the boy and providing the location, the publication

failed to take reasonable steps to avoid intruding on the boy’s reasonable expectations of privacy

and causing him substantial distress or worse, which was not justified in the public interest.

B. Complainant/Hamilton Spectator (September 2015)

Facts: An editorial referred to child sexual assault by a former teacher as “merely touching” an

under 16 year old girl’s breast and genitals and as “misguided curiosity” and “closer to…appalling

manners”. The article criticised the severity of the offender’s punishment.

Decision: Complaint upheld. The publication failed to take reasonable steps to avoid causing

significant offence to victims, their families and members of the wider community. The effect of the

breach was not lessened by publishing critical responses and a rather grudging apology from the

author.

General Principle 7—Complainant/The Australian (June 2016)

Facts: Two articles reported on an interview with a refugee detained in Nauru as part of Australia’s

offshore detention policy who claimed she had been raped.

Decision: Complaint not upheld. The material put to the Council suggested the woman’s interview

with the reporter and a photo session were agreed to and the publication took reasonable steps to

ensure it did not publish material obtained by deceptive or unfair means.

General Principle 8—Peter Burke/WA Today (November 2015)

Facts: An article criticising urban development processes was heavily focussed on a particular

development. The reporter had a close family member who had actively opposed the particular

development. No response was sought from the developer before publication and no follow-up

stories were published to provide further balance. .

Decision: Complaint upheld. Due to the article’s heavy focus on one development, failure to seek

the developer’s comment, and a lack of follow-up stories, the article required a disclaimer clarifying

the reporter’s interest and family connections.