Introduction

Sally Walkers observation on certain contempt actions may produce over-cautious

journalism, as those contempt actions are too vague and, thus, make journalists feel
unsecured (as cited in Fernandez, 2013, pp. 220-221). However this claim can be
challenged. This essay will discuss how far contempt actions produce over-cautious
journalism or not. First, the essay will look at Sally Walkers argument and will
examine the natural and logical assumption behind it. The role of the courts and the
media will be discussed, and why there are tensions between those two and how
contempt actions maybe use to threatened journalists (Fernandez, 2013, pp. 212-213).
Secondly, the last point will be looked at a different point; it will be discussed how
journalists can use contempt actions of past cases as effective defence against law of
contempt. Though, law is constantly challenged to meet contemporary needs. The
pace of such change, however, is generally slow (Fernandez, 2013, p. 53). For this
reason, the defences are not always guaranteed to work against the interpretation of the
courts at any given time (Hinch & Macquarie Broadcasting Holdings Ltd v AttorneyGeneral (Vic), 1987). Finally the essay will essay will argue why over-cautious
journalism is not possible as journalists are pushed by their own ethical motives to
always work for the public interest, conflicting with many courts administrative
matters, but still always push to give the latest information to the society.
Sally Walkers observation
Walkers assumption is natural and logical. As contempt actions are not well defined,
journalists are intimidated to write stories that are about court matters. This
intimidation comes from the penalties that come with contempt of court which are
fines and imprisonment (Fernandez, 2013, p. 211). When a journalist is dealt with
contempt of court, his or her reputation is damaged forever, as records are accessible
on the Internet by anyone at anytime. In addition, the media are a prime target and are
vulnerable to the effect of this law (Fernandez, 2013, p. 213). Courts and the media
deal with common ideals such as freedom of speech, independency, privacy, accuracy,
and fairness amongst other and usually misunderstand each others role (Fernandez,
2013, p. 211; Media Entertainment & Arts Alliance, n.d). The courts are the ones
making justice, not the media. Since the media has strong influence on the society,
courts has the need, in particular circumstances, for restrictions on that reporting as
the courts works for the right of fair-trail when media invoke freedom of speech on too
many occasions (Fernandez, 2013, p. 211). The courts also claim that there are other
stories worth public interest other than matters that could bring contempt of court onto
the journalists (Packer v Peacock, 1912). Although this could be true, it is not the
courts role to tell the media where the stories holding great public interest lie.
Nevertheless courts usually have the upper hand in the power struggle with the
contempt laws, limiting the journalists freedom and independence that result in fear
and thus over-cautious journalism as journalists do not want to be dealt with the
penalties and bad reputation. However, as much it is a logical assumption, it might be

always true. Contempt actions have been understood and defences had been made in
past cases for journalists to know their rights when dealing with court matters
(Fernandez, 2013).
Defences
Contempt actions can intimidate journalists but will not result in over-cautious
journalism. Journalists can defend themselves against contempt actions. The Bread
Manufacturers defence also known as the freedom of speech defence is the most
known in Australian law history (Fernandez, 2013). The media to report on ongoing
court matters that has overriding public interest has used the Bread Manufactures
defence. Journalists can use past cases to learn and use them as defence if they have to
report on cases involving great public interest and do not affect the proceedings of
administration of courts (Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman
Ltd, 1937; hn Fairfax & Sons Pty. Ltd. v. McRae, 1955). It must be noted, however,
law is dynamic and changes to the societys needs and this is why the contempt actions
are broad and not well defined (Fernandez, 2013). For the same reason, defences are
not always guaranteed to work in any scenario case. A notable case would be the Hinch
v Attorney-General (Vic) (1987) where Hinch appeal to the Bread Manufactures
defence and failed as the Chief Justice Mason said Hinch dug too deep in Father
Glennon's past and would eventually influence the society to conclude that Glennon
was a despicable man (Hinch v Attorney-General (Vic), 1987, 34). It has been
discussed as well that law changes very slowly compared to the society where the
media keeps up more easily. This is where further tensions and misunderstandings can
occur. Courts fear social media websites as they are not manageable and can go easily
out of control (The Queen v Hinch, 2013). Journalists are never too cautious nowadays
with new technologies dealing with communication. Hinch was dealt with contempt of
court in 2013 with the Jill Meagher case where social media went out of control and
Hinch thought he was used as an example; courts need to show they still hold some
power position in the society and society should respect the law (Hinch, 2013). In this
case Hinch tweeted about the murderer and rapist of Jill Meagher, whom already
pleaded guilty, and questioned the proceedings of the judge in charge of the case and
also wrote an article on his editorial website (Hinch, 20130; The Queen v Hinch,
2013). These got some web attention and went out of control, displeasing the courts
possibly interfering with administration of courts. This case is an example where both
the media and the courts misunderstood their respective roles. It can be concluded that
over-cautious journalism does not mean the journalists is safe from contempt of court
as things changes and there are other factors will always push the journalists to take
risks when writing on matters dealt with courts.
Journalists code of ethics
The courts and the media both work for the public (Fernandez, 2013). Journalists will
report on anything that attracts public interest. In Australia, journalists follow a code of
ethics set up by the Australian Press in which privacy, independency, freedom of

speech, fairness and accuracy amongst other points, are the strong motives of the
journalists when doing their job (Nordenstreng & Heinonen, n.d.). Ethics are strong
believes that someone can hold and it can be understood academically through the
Potter Boxs quadrants (Media ethics book). The quadrant that finalizes ethical
decision-making is the fourth one: to whom do they owe duty? and for most of
professional journalists, their duty is to their audience that is the society (Media ethics
book). Over-cautious journalism is only a natural assumption that Sally Walker did
basing herself on the fear of journalists about contempt actions. It can be further argued
that over-cautious journalism is not possible for journalists as they are driven by a
strong ethical code they believe in. This code of ethics cannot be used in any case as
defence against contempt of courts in any situation but most of them still respect it.
The most common cases are about confidentiality where journalists refuse to tell the
name of his or her source (Lichtblau, 2008). This is an example why journalists will
not do over-cautious journalism as a lot of them have solid ethical code of conduct
even if their reputation towards law is damaged. Some prefer to keep their word and
reputation towards their audience. Furthermore, as seen in the paragraph before, as
defences do not always work in every context as law is made on the interpretation of
judges to suit the immediate context, journalists has less and less reasons to produce
over-cautious journalism since there is no guarantee safety against contempt actions
(The Queen v Hinch, 2013).
Conclusion
Walkers observation is a natural assumption based on journalists fear of contempt
action and reputation damage. However, it has been seen that law is useful, not only to
law practitioners but also to media professionals to understand it and prepare defence
against contempt of court (Fernandez, 2013). Defence against contempt of court is a
double edge blade as defences do not always succeed in every cases as law, as well as
the media, works in the changing society and needs to adapt to its present needs even
though it has difficulty to keep up compared to the media (Fernandez, 2013; Hinch v
Attorney-General (Vic), 1987; The Queen v Hinch, 2013). Finally over cautious
journalism has no place to be as journalists are strongly driven by their ethical code of
conduct and owe duty to their audience. To conclude, because of all these reasons,
over-cautious journalism remains only a logical assumption based on the fear of
journalists or Walker.