Bad stings and remedies
The Daily Telegraph’s latest undercover effort was about as subtle as a sledgehammer, and with arguably less good will. Involving a man entering an Egyptian restaurant wearing a Star of David hat, a reporter and photographers waited on hand to capture the ensuing outrage. Except there was none. Instead, the sting came off as a rather clumsy and deceptive attempt at provoking a news story, which failed to shed any light on the recent and well-documented rise of antisemitism.
Done well, stings can be good for public interest journalism (see Al Jazeera’s How to Sell a Massacre). But when they’re not in the public interest or are considered unethical, it's the unwitting participants who end up bearing the reputational and emotional fallout. In this instance, the restaurant staff and potentially the undercover man. So, what recourse – if any – do these people have?
As any good advisor or lawyer will tell you, it depends on the facts. If the person has means, legal action can be taken against journalists for things such as defamation, trespass or privacy breaches. Trouble is, the threshold is not always satisfied and so they lack the grounds for judicial proceedings. Much simpler – and cheaper, if not free – are the non-legal mechanisms. Where journalistic ethics or codes of practice have been breached, people can take their complaints to ACMA, the Australian Press Council (APC) or the Media, Entertainment & Arts Alliance (MEAA).
Relevantly, MEAA’s code of ethics calls for journalists to: ‘Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability or ignorance of media practice.’ Seems to fit this case to a tee. However, as MEAA is a union and the code applicable only to its members, its utility may be fairly limited.
This leaves ACMA and the APC. ACMA, of course, applies only to radio and television broadcasts, while APC applies to print and digital media.
The APC is an independent body responsible for promoting high standards of media practice and adjudicates complaints. Practitioners are required to uphold principles of accuracy, fairness, transparency, and accountability as well as executing truthfulness, privacy protection, avoiding discrimination and distress, ensuring balance, and maintaining editorial independence. While the APC cannot order fines or damages, it can issue a reprimand or censure. This includes calling for the publication to apologise, retract, correct or carry out other specified remedial action and/or for them to institute measures to prevent future such breaches.
Alternatively, the APC adjudication panel might find that the publication hasn’t breached its standards and dismiss the complaint. A notable example of this concerned a 2018 sting, also from The Daily Telegraph. Journalists covertly attended university lectures to investigate teaching culture, which included Dr Fiona Martin’s classes at USYD. An unsuspecting photo of Dr Martin was later splashed across the front page under the headline ‘The Nutty Professor’. She was accused of fostering a culture of political correctness as well as providing flippant advice on suicide. Dr Martin complained that the articles were inaccurate, misleading and caused distress, and that the material was obtained by deceptive means. Unfortunately for Dr Fiona Martin, however, the complaint was not upheld.
Whatever happens following the so-called ‘UndercoverJew’ operation will depend on those involved. The Daily Telegraph’s editor Ben English has said that the newspaper didn’t intend to provoke but acknowledged it could have handled the situation better. Meanwhile, ‘undercover man’ Ofir Birenbaum appears to have sought legal representation. In any case, investigative stings or ‘stunts’ involve risk and while some may lead to or warrant accountability, it’s clear that increased journalistic rigour is needed to pull one off successfully.
Tamara Markus, CMT Research Assistant
