Every night on the television news we see journalists shoving microphones in people’s faces, yelling questions at them, pursuing them down the street when they don’t respond. The idea that they might ask the person for any kind of prior consent seems bizarre.

And yet, prior consent is a foundational requirement of any ethical professional interference with a person, even if the interference is only to ask a question. How can we reconcile what we see on the television with this seemingly idealised ethical requirement?

By failing to obtain consent, a journalist may be either coercing or exploiting someone for the purpose of obtaining a story.

The cheeky answer is just to say that journalists don’t care about ethics and let’s move on to something real. But that isn’t true, and even if it were, it isn’t helpful in assisting us all to think about the difficult issues involved.

What kind of consent, if any, is it necessary for a journalist to obtain before publishing an article about someone? It can be a tricky question, and the codes of ethics for journalists pay it scant attention.

Consent can be a difficult enough question for any professional person in any circumstances, but for journalists it is complicated by the fact that they are not always required to obtain it. So, for them, there is an additional question: when must I obtain consent and when am I excused?

Consent is not required, for example, when politicians or others in positions of power become involved in media encounters as part of their professional lives. Nor is it necessary when people hold press conferences or speak at public meetings, or are participants in forums such as parliament and the courts, or when people are the object of disclosures about their criminality or wrongdoing.

So the requirement to obtain consent will vary according to:

• The person’s familiarity with the media;
• Their position of power relative to the media’s power;
• Their position as a participant in a public forum, or
• Whether they are the object of disclosure of some matter that is in the public interest.

For the most part, however, obtaining consent is a basic ethical requirement. Its foundational importance lies in its centrality to the exercising of personal autonomy. Autonomy, in the liberal tradition, is generally understood as self-determination — as the philosopher Sir Isaiah Berlin put it, the essence of being human.

By failing to obtain consent, a journalist may be either coercing or exploiting someone for the purpose of obtaining a story. This would violate the value of fairness that is a part of most media codes of ethics. It is in this way that a thread can be discerned connecting the codes, via the value of fairness, to the concept of autonomy and hence the requirement to obtain consent. However, it is left to the individual journalist to infer these meanings from the codes’ broad abstractions.

Assessing the capacity to consent

There is only limited research into consent capacity and no widely accepted curricula for teaching how to assess it, even to medical practitioners. As a result, it falls to the professional – in whatever field – to make this assessment. While the risks inherent in a journalistic intervention – which typically takes the form of an interview, and perhaps the obtaining of a visual image – are clearly less serious than, say, a medical intervention, there is nonetheless a real risk of harm. This is especially the case when the journalist is dealing with a person who has been traumatised by a tragedy or disaster. And these people are least likely to have the capacity to give consent.

One widely accepted model for assessing the capacity of people to consent is the ‘four abilities’ model:

The ability to express a choice;

The ability to understand the meaning of what is proposed;

The ability to appreciate the implications and consequences; and  

The ability, once equipped with the necessary facts, to arrive at a reasoned decision.

So the ability merely to express a choice is a necessary —but not sufficient — condition to demonstrate capacity. Ethically, the onus is on the practitioner to make a judgment about the extent to which the potential subject exhibits these abilities and to respond accordingly. In the aftermath of Black Saturday, ability Number 1 did appear to be present among survivors generally; abilities 2 and 3 were present in some, at least to a degree, but absent in others; ability 4 was absent entirely in most cases.

In these circumstances, the question arises: what is it reasonable to expect of the media practitioner who, after all, will generally not be a psychologist or have other special training?

Types of consent

Nowadays it is generally accepted that informed consent is required before professional interventions occur. But there are many difficulties with this.

How can people give informed consent when, for example, they don’t know before the interview the subject-matter of the story the journalist intends to write; where, when and in what context it is likely to appear; how they will be portrayed, both in words and pictures, and the risks and benefits for them from this publicity?

It was clear that many survivors . . . were at least to some extent deficient in the abilities to fully understand what was being proposed by the [journalist].

These are certainly the requirements for informed consent, but fulfilling them presents severe practical difficulties. It is often impossible for the journalist to know with any certainty how the story will turn out: new information, obtained later, may alter the story out of recognition. The form and timing of publication are commonly matters that are beyond his or her control. Nor can it be predicted with any certainty what the risks and benefits to the person might be. In reality, then, the informed-consent standard is impracticable in journalism except where the journalist has full control over the use of the material.

However, consent obtained as a result of an intelligible, relevant, accurate and honest account by the journalist, based on his best knowledge at the time, would get close to meeting a less exacting standard, that of simple  consent.

In order to achieve fairness, simple consent in the context of journalism requires three elements:

• Giving the person whatever intelligible, relevant, accurate and honest information the journalist has at the time about the story;
• Raising with the person any foreseeable risks to them where the journalist discerns risks; and 
• Undertaking to inform the person of unexpected developments in the story that may adversely affect the way the person will be portrayed.

However, even simple consent is problematic when media practitioners are dealing with traumatised people. Evidence from research among survivors of the Black Saturday bushfires showed that their state of mind was such as to make even simple consent impossible. Yet here was a large and important news story, coverage of which would have been seriously incomplete without the voices of survivors being heard. What standard of consent is reasonable in these circumstances?

The Black Saturday research consisted of interviews with 28 media practitioners and 27 ‘ordinary’ survivors – that is, people who were not members of the emergency services or in positions of authority as holders of public offices.

Broadly speaking, the media practitioners agreed that:

• Prior consent was required for interviews and for images where it was likely the subject would be able to identify themselves, even if others may not be able to identify them;
• Refusal of consent for an interview was implicitly also refusal of consent for the use of an image where the subject was identifiable on the same terms;
• People should be asked once only, and a refusal should be accepted; and 
• Traumatised people could, and did, give or withhold consent.

Broadly speaking, the survivors stated:

• They were in no fit state of mind to give informed or simple consent;
• They were, nonetheless, able to give or withhold consent of a kind that turned out to be sufficient for the purposes in the great majority of cases;
• Many had specific reasons for wanting to speak to the media;
• In all cases but four, they subsequently stated that their decision concerning consent had been vindicated inasmuch as their reasons for speaking had been fulfilled in the media coverage, or other, unforeseen, benefits had been obtained; and
• The media encounters had done them more good than harm.

How consent was obtained was a topic on which media practitioners and survivors gave very similar evidence. The characteristics of what both groups considered to be ethically correct conduct were:

• A quiet approach which did not pre-suppose that the survivor would agree to talk and which gave an opportunity to decline;
• An honest introduction, in which the media practitioner gave his name and said whom he worked for;
• A manner that was unhurried and which conveyed to the survivor that her welfare was more important than a story;
• The treatment of the survivor as an equal socially and intellectually;
• The use of open questions, which allowed the survivor to decide what to talk about and how much to tell;
• Allowing the survivor to tell the story in her own way without probing and prompting or putting words in her mouth;
• A tone of voice that was even and steady, not pitying, condescending or impatient;
• Body language that was not aggressive or intrusive; and
• An effort by the media practitioner to place as much control of the encounter as possible in the hands of the survivor.

However, the survivors’ state of mind in the aftermath of the disaster raised large questions about their capacity to consent.

Many said they were aware of believing they were functioning normally – making decisions, taking stock, trying to think about what to do next. In retrospect, however, they came to realise how abnormally they were functioning:

• Many could not remember any details at all of their early dealings with the media, sometimes not even the approximate date of the encounter – whether it was a day or a week after the fires;
• Many could not remember anything much about the content of the earliest interviews – questions or answers;
• Some did not make the connection between giving an interview and appearing in the newspaper or on television;
• Some gave away information that surprised them when they read it or were told by others what they had been reported as saying; and 
• Some were in a state of post-traumatic euphoria, especially in the immediate aftermath.

It was clear that many survivors, while capable of communicating a choice, were at least to some extent deficient in the abilities to fully understand what was being proposed by the media practitioner, appreciate the implications and reason their way to a decision. In these circumstances the nature of the consent given was neither informed nor simple, but instinctual.

This instinctual consent was grounded in the survivor’s assessment of the media practitioner’s approach. The characteristics of an acceptable approach have been listed above. Taken together they may be summed up as recognising and respecting the survivor’s autonomy. In the aftermath of a disaster, and in the context of dealing with media, this autonomy may be expressed as the power to decide whether to speak, to whom to speak and what to speak about.

The evidence suggested that in these circumstances, instinctual consent was sufficient. This rests on the fact that all but four survivors said they felt vindicated: that in hindsight their decision had been the right one, and overall the media encounter had done them more good than harm.

So, there is a hierarchy of types of consent: informed consent, simple consent and instinctual consent. In journalism, as in many other professions, obtaining informed consent is problematic and in journalism is generally infeasible. In most cases, the best that can be hoped for – and indeed the required standard – is simple consent.

In the aftermath of a disaster, however, even simple consent will generally be infeasible. People will possess few, if any, of the abilities needed. In these circumstances, instinctual consent will be ethically sufficient. However, there is a special onus here on the journalist. This may be expressed as recognising and respecting the survivor’s autonomy.

The level of consent thus varies with the circumstances. As a general statement, what is ethically required is valid consent, the validity being assessed by reference to the circumstances of the case. A requirement of this kind, supported by guidance notes, would materially improve the quality of journalistic codes. The explicit presence of consent and what it means in varying circumstances would materially assist journalists make sound ethical decisions on a matter that can be complex and difficult.

* Dr Denis Mulleris a long-time journalist and leading expert on media ethics. He is the author of Media Ethics and Disasters. Together with Michael Gawenda, Dr Muller has been conducting research into how the media covered the Black Saturday bushfires, consulting with journalists and bushfire-affected communities about their experiences. He is a Fellow at the University of Melbourne’s Centre for Advancing Journalism.