‘Extraordinary and unprecedented’: Court order could have chilling effect on journalism

Investigative journalists and publishing executives have warned a court order compelling a major media company to hand over documents before publication would have a chilling long-term effect on freedom of the press unless overturned.

Former Fairfax Media chief executive Greg Hywood and high-profile investigative journalists Hedley Thomas and Nick McKenzie slammed a judgment forcing The Sydney Morning Herald, The Age and 60 Minutes to hand over draft copies of an upcoming television program and newspaper investigation into the cosmetic surgery industry, arguing the ruling would be detrimental to public interest journalism if it became commonplace.

Gold Walkley Award-winning investigative journalist Adele Ferguson.Credit: Simon Schluter

Double Bay cosmetic surgeon Joseph Ajaka and his Cosmos Clinic successfully obtained a NSW Supreme Court order on Friday night that requires the mastheads and TV program to hand over material related to an investigation by Gold Walkley Award-winning journalist Adele Ferguson that was due to air on Sunday night.

Nine, the owner of those titles, had the orders stayed pending an appeal and was ordered not to publish before that occurred.

The ruling is being closely examined by Australian publishers, which are considering the impact on their newsrooms if the order is not successfully overturned. But it also generated outrage in the sector, with high-profile ABC investigative journalist Louise Milligan describing the move as “extraordinary” and “concerning”.

Hywood, who led Fairfax Media when it faced several high-profile defamation trials, said the decision was alarming. Fairfax Media merged with Nine in 2018.

“It’s extraordinary, unprecedented and if maintained, would have a deleterious effect on freedom of speech,” Hywood said. “We already have the most draconian defamation laws in the Western world and this would just be an added layer of restriction on the ability to publish issues of the public interest.”

Justice Stephen Rothman, who had not seen the draft content when he made the decision, said he accepted there was a possibility the level of damage to Ajaka and his Cosmos Clinic that could potentially arise might be “so great” and irreversible that it was necessary for the draft content to be handed over.

The order allows Ajaka and his high-profile lawyers, Sue Chrysanthou and Rebekah Giles, to review the content and assess whether to commence an application for an interlocutory injunction against their publication. Nine’s barrister, Dauid Sibtain, told the court on Friday it would set a precedent that was effectively “placing every plaintiff in the position of an editor”.

Nick McKenzie, president of the Melbourne Press Club and an investigative journalist at the Herald and The Age, said the case should send a “grave alarm” to the media.

“If the subject of a piece of journalism is wealthy enough, following this precedent they can go to the court and have a story handed over prior to publication,” McKenzie said.

“This will empower people who want to suppress stories to use the courts to do just that. It is one of the most alarming court decisions that I’ve come across in my 20 years as a journalist.”

The Australian’s investigative journalist Hedley Thomas, creator of The Teacher’s Pet podcast, said if the court order became commonplace, it would hobble journalists “to the detriment of the entire community”.

“It is unthinkable that the work and stories of outstanding investigative journalists like Adele Ferguson are being abruptly suspended and possibly terminated by a judge’s order,” Thomas said.

“There is overwhelming public interest in cases involving cosmetic surgery and its track record. Surely people who may feel wronged by investigations such as this one already have legal remedies in defamation rather than attempting to interfere in what should be the media’s unfettered right to publish without fear or favour.”

A date for the appeal has not been set.

Tory Maguire, executive editor of the Herald and The Age, said in a statement on Friday that she too was alarmed by the decision.

“We are determined to appeal this decision both so this important story can be published and broadcast and to prevent any precedent that threatens freedom of the press,” she said.

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