Alan Jones: I repeat the comments were, in the light of everything, unacceptable. They merit an apology from me and you have got to be big enough to admit that you got it wrong... — ABC News 24, Alan Jones Press Conference, 30th September, 2012

Welcome to Media Watch. I'm Jonathan Holmes.

Alan Jones's apology for telling a Sydney University Liberal Club dinner that the Prime Minister's father had died of shame didn't stem the public backlash. Macquarie Radio, 2GB's owners, have taken the unprecedented step of suspending all advertising on his program while they try, somehow, to stop the exodus of advertisers.

So the story first broken by Sydney's Sunday Telegraph has had powerful consequences.

But during his press conference eight days ago, Alan Jones also made these claims about his speech:

Alan Jones: At all times during this, at the beginning of the show and during it was indicated there was Chatham House rules and it was also indicated that if there was any journalists present could they say so or words to that effect. No-one conceded to any of that... ...no-one at this meeting knew there was a person in there recording the speech. There was no permission gained to record the speech... ... (I think) there is an issue here... — ABC News 24, Alan Jones Press Conference, 30th September, 2012

We agree there's an issue. In fact, there are a whole bunch of issues which we thought were well worth exploring. The Sunday Telegraph has been unusually co-operative. So we can answer some questions tonight, and leave you, and the nation's journalists, to ponder some others.

Let's start with how reporter Jonathan Marshall got to that dinner in the first place. Last Monday he told the ABC's 7.30...

Jonathan Marshall: This was an event which anyone from the public could've purchased a ticket to and I simply did that. At no point was I asked to provide my occupation. — ABC 1, 7.30, 1st October, 2012

Well, there's a bit more to it than that. Marshall was researching a longer story, we're told, on student politics. This July, he applied online for membership of the Young Liberals. Here's the information he put on the form: He gave his real name. He used a private email address, not a News Ltd one - we've blurred it - but the physical address that he gave

2 Holt St, Surry Hills — Jonathan Marshall email to Young Liberals, 5th July, 2012

is News Ltd's Sydney headquarters. At the bottom was this:

Why do you want to join? Strong interest Libs policy and want to get involved. — Jonathan Marshall email to Young Liberals, 5th July, 2012

That's pretty close to deceptive, I'd say. Some weeks later, the aspiring Young Liberal was sent an invitation by the President of the Sydney University Liberal Club, Alex Dore.

I'll hold off a spot for you for the President's Dinner with Alan Jones AO this Saturday at 8PM ... The cost is $100 for students. — Email from Alex Dore to Jonathan Marshall, 19th September, 2012

Clearly, Dore thought Marshall was a student. Marshall didn't disillusion him. He paid his hundred bucks.

Alex Dore tells us :

the Facebook invitation ...clearly notes that this was a function for Liberal students and alumni. This event has always been a private function. — Alex Dore, President, Sydney University Liberal Club, 4th October, 2012

But here's the invitation Mr Dore is referring to. And it says...

President's Dinner '12 with Alan Jones Public Event — Facebook, Sydney University Liberal Club President's Dinner invitation, 2012

Whether it was private or public might matter a lot, as we'll see.

On the night, Jonathan Marshall arrived early to the dinner - and right from the start surreptitiously recorded the proceedings.

Last Monday, Michael Rowland of ABC News Breakfast asked Marshall about Alan Jones's claims

Michael Rowland: In fact he said in that media conference (that) the MC on the night said specifically, 'This is Chatham House rules' and actually asked were there any journalists in the room. Did you hear that?' — ABC News Breakfast, 1st October, 2012

We'll come to the Chatham House rule - there's only one, by the way - in a minute. First, were journalists asked to identify themselves?

The Sydney Morning Herald's Kate McClymont reported last week :

another journalist who was at the function said the MC clearly asked any working journalists present to identify themselves. — Sydney Morning Herald, 1st October, 2012

McClymont's source has been outed as an off-duty cadet at The Australian. Even the Sunday Telegraph admits that he's sticking to that claim. And four other people who were at the dinner - including Club President Alex Dore and another senior Liberal - have told Media Watch the same thing. One said, quite definitely...

That happened bang on 8pm. The MC was Simon Berger. — Statement from guest at SULC President's dinner

But this is what Jonathan Marshall told the ABC's Michael Rowland.

Michael Rowland: Did you hear that?' Jonathan Marshall: No and more than not hearing it then as I've been able to go back and review all of the audio from the night and there's absolutely no mention of that... — ABC News Breakfast, 1st October, 2012

The Sunday Telegraph has supplied Media Watch with a copy of Jonathan Marshall's recording of Simon Berger's opening remarks. It starts when he walks onto the stage singing 'Tomorrow' from the musical Annie. We'll spare you that...

Simon Berger: Thank you very much everyone. Welcome to the Sydney University Liberal Club dinner... — Recording of Simon Berger, Sydney University Liberal Club Presidents Dinner, 22nd September, 2012

That was at around 8pm, and they are clearly Mr Berger's first words. His speech lasts about six minutes. At no time then, or later when he introduces Alan Jones, does Berger ask for journalists to identify themselves. The recording might, of course, have been tampered with, but it sounds seamless to us. Yesterday the Sunday Telegraph published an alternative explanation ...

Liberals caught lying in cover-up — Sunday Telegraph, 7th October, 2012

Media Watch makes no such allegation. We simply can't explain the discrepancy.

Yet it matters. During the course of last week we canvassed the views of five investigative journalists, some from News Ltd, some not, and a senior journalism academic.

[See end of transcript]

All said that if asked , in a similar situation, they would feel obliged to declare they were journalists - unless, as The Australian's Cameron Stewart put it

... you were likely to witness behaviour which was illegal, corrupt or dangerous to the public. — Cameron Stewart, Associate Editor, the Australian, 5th October, 2012

Well, Marshall, backed by his recording, says he wasn't asked, so the issue never arose.

But what about the Chatham House rule ? Chatham House is the London headquarters of the Royal Institute of International Affairs. Its famous rule is used at meetings and conferences worldwide. It states simply that...

participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed. — The Chatham House Rule

Chatham House told Media Watch last week that

It should be clearly stated at the start of a meeting if it is to be held under the Chatham House rule. It should never be implied or assumed. — Nicola Norton, Chatham House, 2nd October, 2012

Despite the claim by Alan Jones, there's no evidence on the Sunday Telegraph's recording that any such announcement was made. Nor do any of our other sources remember it. And MC Simon Berger hasn't answered our phone calls and emails. On balance, we reckon it didn't happen.

What's not disputed is that Jonathan Marshall made a covert recording of the entire dinner, and part of that recording has been published. Was that behaviour legal? Even if it was, was it justified?

The legal issue, if it ever came to court, would depend on whether the speech could be construed as part of "a private conversation". According to the New South Wales Surveillance Devices Act , it's a crime to record a private conversation with the purpose of reporting it unless...

all of the principal parties to the conversation consent... — NSW Surveillance Devices Act, 2007

which they clearly did not in this case. Most states have a similar law.

Sunday Telegraph Editor, Neil Breen states flatly that the dinner was

a public event, not private in any way, and therefore not covered by the Act. — Neil Breen, Editor, Sunday Telegraph, 5th October, 2012

As we've seen, The Liberal Club's President insists the opposite:

it matters, because according to Sydney barrister Mark Polden, a media law specialist...

If the speech is made at a private dinner, and the circumstances can be reasonably taken to indicate that the speaker and the audience want the words heard only by themselves...then like it or not, recording (and publishing) what was said is likely to be a problem. — Mark Polden, Barrister, 4th October, 2012

There is no exemption to the law for bona fide investigative reporting, no matter what the public interest.

For example, two years ago in Indonesia, an Iraqi refugee secretly filmed people-smugglers for Four Corners...

Sarah Ferguson: Colonel Hotman is planning to send a boat from Kupang to Australia. Colonel Hotman (Translation): Let's talk about the best strategy. This is an opportunity. They're already in Kupang. Sarah Ferguson: He says the bribes he's taking have to be worth the risk to his career. Tens of thousands of dollars aren't enough. — ABC 1, Four Corners, 2nd August, 2010

That simply could not have been done, legally, in most Australian states.

In my view, there should be an exemption to the Surveillance Devices Act for journalists in pursuit of stories that are of major public interest. But the bar should be set high - as News Ltd's own Professional Conduct Policy recognises, when it deals with what it calls

Covert Activities Journalists and photographers may at times have to operate surreptitiously to expose crime, significantly anti-social conduct, public deception or some other matter in the public interest. All such operations must be approved in advance by the editor. This approval will be given only where good cause exists to suspect crime or deception has taken place... — News Ltd Professional Conduct Policy

So, under that policy, did a single crass remark justify the surreptitious recording of Alan Jones's speech - which the Sunday Telegraph admits, in its response to us, constitutes a covert activity?

Editor Neil Breen says , yes, because it was in the public interest:

Alan Jones is a prominent Australian. He is closely aligned with the federal Opposition and he is campaigning against the Prime Minister of Australia to a large audience on radio and beyond. What he says is relevant and important. Australians have a right to know about it. — Neil Breen, Editor, Sunday Telegraph, 5th October, 2012

Well, I'm sorry Neil, but I don't think that's enough. The speech contained one highly offensive sentence. No crime, no public deception. Certainly, the public was very interested in it. But the point is, you had no idea what Jones was going to say before he said it.

In Britain, covert recording isn't illegal. But it's forbidden by the media's codes of conduct, unless editors have a powerful reason to authorise it in advance

For example, two years ago Britain's Telegraph newspaper - nothing to do with the Sydney paper, and not owned by Rupert Murdoch's News Corporation - broke a huge story:

Vince Cable: I have declared war on Rupert Murdoch — The Telegraph (UK), 21st December, 2010

Vince Cable, a senior Liberal Democrat cabinet minister, was stripped of his power to decide whether News Corporation could take total control of pay TV giant BSkyB, thanks to...

... extracts from a covertly recorded conversation between Mr Cable and two undercover reporters from this newspaper posing as Liberal Democrat supporters in his constituency. — The Telegraph (UK), 21st December, 2010

The UK Press Complaints Commission agreed that the story was of major public interest. But it still found the covert recordings weren't justified because...

...it did not believe that the Telegraph ... had sufficient grounds, on a prima facie basis, to justify their decision to send the reporters in. — Press Complaints Commission, 9th May, 2011

In other words, when it comes to covert recordings, the UK regulators don't tolerate fishing expeditions. You've got to have reasonable evidence of serious wrongdoing in advance.

So what did the Sunday Telegraph know before Jonathan Marshall secretly recorded Alan Jones's speech? That he might say something so inappropriate that it would retrospectively justify the covert recording?

It doesn't stack up for me. But it's a grey area. After all, if any other guest had secretly recorded the speech, and leaked it afterwards, any news outfit would have run it, if their lawyers thought it was legal.

Editors and reporters everywhere are good at stretching the rules that supposedly govern their conduct - and the bigger the yarn, the more the rules tend to be stretched.

That goes for Fairfax's Sun-Herald too, which blithely reversioned the Sunday Tele's scoop for its late editions, without any attribution. Not unusual in the news business, but hardly ethical either.

Fairfax Editorial Director Garry Linnell's response to that is on our website - as are responses from Neil Breen, Alex Dore, and the six journalists whose views we sought out. Our thanks to all of them

Until next week, goodnight.

NOTE BY JONATHAN HOLMES:

The following are response we received (some by telephone, some by email) from six journalists to questions we put to them. They are:

Hedley Thomas (National Affairs Editor, The Australian);

Cameron Stewart (Associate Editor, The Australian);

Kate McClymont (The Sydney Morning Herald) ;

Nick McKenzie (The Age) - Response still to come;

Sue Spencer (Executive Producer, Four Corners) ; and

Dr Margaret Simons, (Director, Centre for Advanced Journalism, University of Melbourne.)

Two other prominent journalists declined to respond.

The responses should not be taken (unless explicitly stated) to be directly relevant to the Sunday Telegraph story about Alan Jones's speech. They are addressing hypothetical situations.

The program as broadcast had no room for another important point: while denying that the Sydney University Liberal Club dinner had been held under the Chatham House rule, News Ltd reporter Jonathan Marshall told the ABC's News Breakfast program on 1 October, 2012 that even if it had been,

"I think the public interest in this would greatly override any of those concerns and we probably would have published anyway" — ABC News Breakfast, 1st October, 2012

We asked some (though not all) of the respondents in what circumstances a journalist who has attended a meeting to which the Chatham House rule applied might feel justified in breaking the rule and reporting what was said, and by whom. However we made it clear that we did not believe that an announcement had been made to the effect that the Chatham House rule applied to the SULC dinner.