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Let’s go to the tape: ethical quandries in Age dictaphone saga

You’d be hard-pressed to find a journalist who doesn’t record conversations, even if they are off-the-record. But ethically, it’s a grey area.

This month’s big political story in Victoria hasn’t covered anyone in glory. After a lost dictaphone fell into the wrong hands, a journalist’s off-the-record briefing has been revealed to the world. But was she right to record it and other briefings in the first place? It’s certainly legal, at least in Victoria, but opinions differ on the ethics of it all.

In May, senior Age reporter Farrah Tomazin lost her dictaphone at the Labor state conference. It was turned in to lost property and quickly fell into the hands of ALP operatives. Kosmos Samaras, the ALP assistant state secretary, then listened to the tape, even though it was marked, according to The Age, with the Fairfax logo stuck on the back. He heard his own voice on the tape, and, according to Opposition Leader Daniel Andrews, became angry at being recorded during what he had said was an off-the-record briefing. He and others then destroyed the dictaphone.

Later, a recording of Tomazin recording another off-the-record briefing with former Victorian premier Ted Baillieu would surface. This, however, appears to have been leaked by someone within the Liberal Party. It’s still not clear how whoever leaked it got their hands on the supposedly destroyed recording.

Andrews cops a drubbing in the Age today, slammed on the front page, pages 2-3, and in the editorial. But key to Andrews defence of his side’s actions has been his assertion that there was no permission given to record the off-the-record briefings given to Tomazin. “The wrong call was made. [Samaras] should have returned the tape recorder,” Andrews said in a press conference outside The Age yesterday. “But he was angry at being recorded without his consent.”

In a statement, Samaras repeats similar points.

That conversation was a private conversation in which I was a confidential source for her. I was shocked and angry that I had been recorded without my knowledge. Had it been put to me that I was being recorded I would have ended any such conversation.”

I listened through the device to ascertain whether there were any other recordings of my private conversations. In doing so I listened to numerous senior politicians on both sides of politics and others whose private conversations, which I presumed had also been recorded without their knowledge. After some consideration, I decided that given the device contained unauthorised private conversations, it was not appropriate to retain, return or disseminate the device. I destroyed it.”

Generally speaking throughout Australia, it is illegal to record someone during a private conversation without their consent. But in Victoria, Queensland and the Northern Territory, exceptions exist if the person doing the recording is party to the conversation, according to media lawyer Geoff Holland (in the other states and the ACT, express consent from all parties is required). Based on this, it appears Tomazin did not breach any laws by recording off-the-record briefings without having been given consent to do so, as The Age repeatedly asserts this morning.

But it’s a bit of an ethical grey area, says Margaret Simons, of the University of Melbourne’s Centre for Advancing Journalism. Though she notes it is common. Indeed, you’d be hard pressed to find many experienced journalists who don’t routinely record conversations, both in the interests of accuracy and to protect themselves if an interviewee then retracts their comments. This can often be done for off-the-record conversations too.

Speaking to the ABC yesterday, Age editor-in-chief Andrew Holden said Tomazin had done nothing wrong.

It is neither unethical nor illegal, and there are certainly circumstances where I actually would want my reporters to tape conversations — if, for example, they’re ringing up a known criminal and they’re fearful of a threat,” he said. “Conversations can move from on the record to off the record backwards and forwards. There’s nothing sinister in that. I can tell you categorically that the Fairfax code of ethics, The Age code of ethics, does not prohibit it nor in fact does the code of ethics used by the MEAA [Media Entertainment and Arts Alliance].”

There is nothing explicitly about the use of recording devices in the MEAA code of ethics. But standard No. 8 says that journalists should “never exploit a person’s vulnerability or ignorance of media practice”.

On this point, Simons says it’s somewhat dubious that an experienced political operative like Samaras would be entirely unaware he could be recorded, even during an off-the-record briefing.

But journalists doing face-to-face interviews, where the recording is more obvious, are often asked to turn off the recorder for an off-the-record part of a briefing. “I think that tells us something [about people’s expectations],” Simons says. “It’s best to seek consent.”

Of course, if they don’t know they’re being recorded in the first place, they can’t do that. So it’s very much a grey area.”

Tomazin was unlucky, and it wouldn’t be fair to single her out for doing what most journalists do.

But it would pay for sources to beware the practice. Off-the-record does not automatically mean off-the-tape.

12
  • 1
    klewso
    Posted Tuesday, 29 July 2014 at 1:44 pm | Permalink

    This would be a drop from one of those “party sources/a senior Party spokesperson” - that don’t like being quoted - would it?

  • 2
    Yclept
    Posted Tuesday, 29 July 2014 at 2:07 pm | Permalink

    Gee, politicians who are introducing more and more draconian laws to allow the rest of us to be spied on at will, don’t like being spied on. Well, well, who’d have thought?

  • 3
    Peter Blakeley
    Posted Tuesday, 29 July 2014 at 3:31 pm | Permalink

    hmmm what it does mean is don’t trust journalists, now I expect that of News Ltd, News of The World types but did I perhaps naively think that some could be trusted?

    Do not speak to journos unless they are naked and you are both inside a Faraday cage.

  • 4
    The Pav
    Posted Tuesday, 29 July 2014 at 4:18 pm | Permalink

    Given that there was a whole lot of other confidential convesations on the tape and Tomazin failed to keep them secure is a slam dunk for why they shouldn’t record.

    If it isn’t on tape it can’t be lost.

    Why did she keep them on the machine? Should have backed them up elsewhere and had a clean machine so when it got lost the harm was minimal

  • 5
    CML
    Posted Tuesday, 29 July 2014 at 4:43 pm | Permalink

    I don’t care what The Age says. NO ONE should have their conversations recorded unless they give consent. Anything else is deception by the journalist.
    Since consent is required in most of the country, perhaps it is time to make it Australia wide.
    And surely Tomazin should be a little more careful with equipment containing the private conversations of others. She deserves the blame for all that has happened since.
    Get off Daniel Andrew’s back - he had nothing to do with it!

  • 6
    Brian Melbourne
    Posted Tuesday, 29 July 2014 at 7:43 pm | Permalink

    Surely Farrah Tomazin should be accepting most of the blame. She leaves behind a tape of a confidential interview with a member of the Liberal party at a Labour conference. It’s an amazing example of carelessness or worse. It’s generated pages of bluster from the thin ranks of Age journalists, though. It’s a self generated story.

  • 7
    klewso
    Posted Tuesday, 29 July 2014 at 9:05 pm | Permalink

    Almost everyone else (depending on Party of course) has to take responsibility for their actions - check the viewsmedia for details - except the media?

  • 8
    AR
    Posted Wednesday, 30 July 2014 at 11:58 am | Permalink

    As Pav notes, bad enough that Tomazin records covertly, and apparently deceitfully in that the conversation was meant to be confidential, but to not have transferred the other conversations to a more secure format is just sloppy.Back to cadet skool.
    On tuther hand, could the Lib comments have been “lost” accidentally on purpose at an ALP venue?

  • 9
    drsmithy
    Posted Wednesday, 30 July 2014 at 1:10 pm | Permalink

    I don’t care what The Age says. NO ONE should have their conversations recorded unless they give consent. Anything else is deception by the journalist.
    Since consent is required in most of the country, perhaps it is time to make it Australia wide.

    It’s not hard to come up with scenarios where recording another person without their knowledge or consent is reasonable.

    Very few of them involve journalists, and even fewer, politicians, however.

    Legally, the standard where at least one participant must consent is fine. Ethically, a reporter telling someone they won’t record them, and then doing so, is very questionable.

  • 10
    Kevin_T
    Posted Wednesday, 30 July 2014 at 7:18 pm | Permalink

    Quote: “Off-the-record does not automatically mean off-the-tape.”

    But doesn’t putting an off-the-record interview onto tape, actually put the interview “on-the-record” - particularly if you irresponsibly leave an apparatus containing supposedly confidential information lying around for anyone else to find and listen to?

    =============
    Quote: “But journalists doing face-to-face interviews, where the recording is more obvious, are often asked to turn off the recorder for an off-the-record part of a briefing.”

    Wasn’t the point of the Ricky Muir scandal, when interviewed by Mike Willesee for Chanel Seven, that an interviewee can not just go on and off the record at their own whim?

  • 11
    Richard Farmer
    Posted Wednesday, 30 July 2014 at 9:35 pm | Permalink

    In 55 years I have not used a recording advice

  • 12
    David Duncan
    Posted Thursday, 31 July 2014 at 8:45 am | Permalink

    Indeed,you’d be hard pressed to find journalists…

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