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. [pullquote position=”right”]Indeed, you’d be hard pressed to find many experienced journalists who don’t routinely record conversations[/pullquote], 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.