Trial by media sets dangerous precedents
Updated: Sep 15, 2018
Australia must avoid delivering justice through ‘trial by media’.
Across the western world, a sweeping phenomenon is now underway to expose current and historical hidden and entrenched sexual misconduct as well as organisational cultures that enable sexual misconduct.
This phenomenon, whose forces have been building overtime, was recently triggered by the Harvey Weinstein revelations.
This phenomenon hit Australia early last week through a joint Fairfax Media/ABC report, which catalogued a series of allegations against former TV presenter Don Burke.
These allegations against Burke, stemming back from the 1980s and 90s, covered behaviour which ranged from inappropriate language to workplace bullying of a non‑sexual nature to sexual misconduct.
A number of the claims made are denied by Burke, who has engaged legal counsel who specialises in defamation.
According to Fairfax Media’s reporting, Channel 9 was responsible for the production of Burke’s Backyard up until 1991, when Burke himself took over the show’s production from 1991 via his firm CTC productions meaning that Burke’s relationship with Channel 9 was in the form of supplier‑customer defined through a commercial contract between the two parties.
Therefore, staff employed to work on Burke’s Backyard prior to 1991 were employees of Channel 9, while afterwards, staff employed by CTC Productions were effectively Burke’s employees.
It is alleged that inappropriate conduct took place both prior to and after the establishment of CTC Productions (i.e. before 1991 as well as from 1991 and beyond).
Fairfax Media reports that Channel 9 claims it never received any official complaints against Burke during the period when Channel 9 was legally responsible as an employer (i.e. prior to 1991) nor were any payouts made.
This assertion, if true, is extraordinary as it underscores Australia’s historically endemic secretive culture that emphases not to ‘dob’ on other people.
It is this culture which has enabled many a scandal in Australia whether it be institutional child sex abuse or endemic police corruption as catalogued by the 1995 NSW Wood Royal Commission.
There is no honour or virtue in remaining silent and taking no action whether you are the victim, a witness, employee, contractor or manager, etc.
Remaining silent will only create the environment and conditions for the next victim to suffer the same injustice.
Moreover, there is no honour or virtue to remaining silent or taking no action while economic benefits are being solicited, only to come out on the public record many years later once those economic benefits have dried up.
No employee, irrespective of gender, ever asks to be mistreated at work and no one, in an ideal world, should ever be subject to mistreatment.
In cases of workplace bullying or sexual harassment, if an organisation is not willing to take action against toxic managers or employees (especially when the toxicity comes from the company’s ownership) and legal recourse is not available, then the only recourse is for an employee to leave.
As I noted in an appearance last week on the ABC’s the DRUM, I have resigned from two jobs due to workplace bullying without any regard to my personal financial circumstances.
In hindsight, those two decisions have been great decisions.
Empirical research indicates that working in a toxic work environment results in poor organisational performance as well as detrimental employee outcomes such as stress, depression, insomnia and other psychological trauma.
Fairfax Media’s reporting establishes that Burke’s professional reputation and behaviour was effectively well known throughout the industry and in some instances, women who experienced inappropriate behaviour were warned ahead of time, which they choose to ignore.
In other instances, according to Fairfax Media’s reporting some women were requested to be interviewed at Don Burke’s private residence.
The world has always been a jungle and everyone must ultimately assume responsibility to advance their own interests. This can include avoiding people with poor reputations or conducting due‑diligence before entering into a commercial or employment relationship.
For those who worked at CTC Productions (employees or contractors) and were subject to workplace bullying or sexual harassment, a prudent student would have quickly observed that it is near impossible to take-on an owner through internal organisational procedures.
For these people as well as other stakeholders dealing with CTC Productions, the only recourse would have been in a free market system is to take action which would have harmed its commercial interests including resigning from CTC Productions, taking industrial action (including striking), taking legal action through seeking compensation or going public which would have harmed the company’s reputation and would have applied pressure on other parties (including channel 9) not to conduct business with CTC Productions.
Obviously, in instances of criminality, all members of the public have the ability to seek redress from the police.
It was this regard – when people who had prior knowledge, or who were requested to attend professional meetings in non-professional environments or have been the victim of ongoing harassment – that I was referencing when I said on the ABC “people should not put themselves in these situations”.
This position, which sparked outrage on social media following my appearance on the DRUM, is now supported by Hollywood star Pamela Anderson who stated last week that with respect to Weinstein, women in Hollywood could have done more to avoid being victimised given how widely known Weinstein’s reputation was.
Obviously, in my remarks on the ABC, I was not speaking about women who had no prior knowledge and found themselves in regrettable situations.
Having said this, Australians, more broadly, must be cautious to rush to judgement when sensational publications against individuals are made both in terms the specific claims made against an individual or the overall impression made by a media organisation.
Fairfax Media, in particular, does not have clean hands in this regard as it has lost several high‑profile defamation cases when challenged in court, in particular the Joe Hockey and Chris Gayle cases.
The automatic presumption of guilt when untested allegations are aired by media organisations is a dangerous mechanism in which to deliver justice.
In a globalised media environment, false accusations which are published can cause significant and potential irreparable damage to the accused career.
Two cases which highlight the dangers of the ‘trial by media’ from last week are worth mentioning.
Firstly, a number of media organisations rushed on Thursday morning to report that an unnamed source lodged a complaint against actor Geoffrey Rush to the Sydney Theatre Company of inappropriate behaviour during his time working on King Lear in 2015-2016.
A bewildered, and caught out, Rush, quickly sought clarification as to the nature of the allegations from the Sydney Theatre Company to which he was denied.
Rush’s lawyer by late Thursday afternoon issued a statement stating:
Not to afford a person their right to know what has been alleged against them, let alone not inform them of it but release such information to the public, is both a denial of natural justice and is not how our society operates.
Rush announced on Saturday he was stepping down as president of the Australian Academy of Cinema and Television Arts “effective immediately and until these issues have been resolved”.
Secondly, a series of allegations of sexual misconduct against republican senator candidate Roy Moore made during the current political contest for US Senate senator appear to be politically motivated and now have collapsed under close scrutiny.
In the most serious allegation against Moore, contradictory statements, the withholding of key items of evidence from independent scrutiny and the accuser’s stepson and former boyfriend stating that the accuser is not a creditable person has the campaign against Moore reeling.
Recent polling suggests that Moore has now recovered his position in the polls and is on track to be elected as a United States Senator.
There can be no excuse for inappropriate workplace behaviour sexual or otherwise.
As a husband and a father of a young daughter, I want nothing more than women to be treated fairly and with respect both in and out of the workplace.
To the extent campaigns led by media advocates such as Tracey Spicer result in the delivery of justice through proper legal channels and the improvement of organisational culture in Australia for both women as well as men, this should be both supported and applauded.
However, Australians must be cautious about being swept up by ‘trial by media’ which can easily be misused as a mechanism to tarnish reputations of innocent people whose reputation may not be able to recover.
John Adams is a former Coalition advisor