Media Law Handbook by IIP Digital of the US Embassy. - HTML preview

vertising sides of the news business. Ad-

or television program, it may be appropri-

vertisers must not influence favorable cov-

ate to reimburse her reasonable expenses,

erage or suppress negative reporting. Any

including meals, travel, and lodging. But

advertisement should be clearly labeled so

“checkbook journalism” and bidding for

there is no possibility of confusing an ad

news should be avoided.

with news reporting or commentary.

Memberships in clubs, associations, po-

Ethical Issues When

litical parties, or religious organizations

Covering Government

can create a conflict of interest for a jour-

Reporting on government raises partic-

nalist. Some news organizations prohibit

ularly difficult challenges. The public

certain kinds of political or philanthropic

generally expects journalists to act as watch-

activities, such as running for political of-

dogs, guarding against improper government

fice or volunteering with an advocacy

behavior. But what about when law enforce-

group. Most forbid journalists to report on

ment officials ask reporters not to report the

organizations with which they, or close

details of an ongoing hostage situation, for

family members, are affiliated. Although

example? Should journalists cooperate? If

an editor at the Washington Post even ab-

they do not, lives may be endangered. But if

stained from voting in elections, individu-

they do, they may compromise their own

als obviously do not surrender their civil

ability to hold government accountable.

rights when they choose to become jour-

During war, crisis, or emergency, jour-

nalists. But it is important to remember

nalists may feel conflicting loyalties. The

that affiliations can be interpreted as bias.

pressure to be patriotic can be great. Or a

If a conflict of interest is unavoidable, it

newly elected government may claim that

should be disclosed.

it cannot afford a completely free press and

Many news organizations have special

will urge journalists to write favorably as a

rules for reporters and commentators who

way to help solidify a fragile and emerging

cover business and financial topics. Laws

democracy. Sometimes journalists are

forbidding insider trading (buying and

asked to report propaganda as truth in the

selling stocks and other equities when one

interest of protecting “national security.”

possesses nonpublic knowledge that may

When editorial decisions conflict with

affect the stock price) may apply. Journal-

government wishes, news organizations

ists should not write about companies in

can be criticized for substituting their own

which they own stock or have some other

judgment for that of elected officials. This

financial interest, particularly if their re-

can arise when the government claims

porting might influence the market and

that there is a compelling need for secrecy

benefit them personally. They should dis-

about intelligence and law enforcement

close to their editors the financial instru-

matters. On the other hand, journalists

ments they and their families own and

may also be condemned for withholding

refrain from trading stocks within a short

information or accused of delaying publi-

time of writing about them.

cation for partisan reasons.

Just as journalists should not take

These are difficult calls. The answers

payments intended to influence news cov-

are not always easy. One guiding principle

erage, they should not offer bribes or pay-

is that a journalist’s loyalty is to the public,

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not to a particular government or regime.

But when errors do occur, they should

No journalist wants to harm his commu-

be acknowledged promptly and correct-

nity or country. But governments may be

ed prominently.

tempted to suppress critical reporting by

claiming it could damage public safety or

Special Ethics Issues Raised by

national security. Reporters can respect

New Media and Citizen Journalism

these claims, but they should also be skep-

Most, if not all, traditional media’s eth-

tical. They can give government officials

ical guidelines make sense for citizen

an opportunity to explain why a particular

journalists, bloggers, and other new media

story might endanger lives or a specific na-

practitioners. But those who publish in

tional interest. But journalists should scru-

cyberspace face additional challenges.

tinize those in power and hold them to ac-

Bloggers, unlike mainstream journal-

count. Sometimes, the most patriotic thing

ists, often publish anonymously or use a

a journalist can do is question authority.

pseudonym. In some societies, those hold-

ing controversial or dissenting views with-

Being Accountable to the Public

A

hold their identity as a matter of personal

n important part of a journalist’s job

safety. But those who speak anonymously

is to hold those in positions of au-

still have an ethical obligation to be truth-

thority accountable to the public. News

ful, accurate, and as transparent as pos-

organizations have a similar ethical obli-

sible about conflicts of interest.

gation of accountability.

Many bloggers encourage readers to

The news media are more transparent

engage in the discussion and to add com-

than many businesses because their work

ments to their sites. They may invite user-

product is constantly available for scru-

generated content and post it on their

tiny. Journalists regularly critique and

blogs. They may link to external sites. And

challenge each other’s work. And in most

they may excerpt others’ work for the pur-

countries, the consumer has many news

pose of commentary and criticism.

choices and can reject those whose stan-

All these techniques add vitality to a

dards fall short.

blog. But bloggers should consider whether

That said, most news organizations

they will attempt to verify links and to

can do more to be accessible to the public.

moderate postings made by others, as well

If business or political affiliations influ-

as whether they will establish policies for

ence their editorial choices, they should

certain content types, such as sexually ex-

be disclosed. Did a merchant who adver-

plicit video or personal attacks. It is wise

tises heavily in a newspaper, for instance,

to post these policies prominently and to

request favorable news coverage? Media

apply them consistently.

should explain how they make editorial

decisions, especially controversial ones.

Using Social Media

Deviations from usual ethical standards

Many journalists, both traditional and

should be explained. News organizations

new media practitioners, are turning

should invite readers to comment and en-

to social media, such as Facebook, Orkut,

courage them to raise concerns and com-

and MySpace, or tapping into YouTube or

plaints. Ideally, a dedicated, impartial staff

other sites that allow individuals to post con-

member should address these complaints.

tent. These media can provide story ideas and

All news organizations make mistakes.

useful leads. They can even allow a journalist

They should strive to minimize these

to interact with a community or to promote a

by establishing fact-checking proce-

journalism “brand” by encouraging readers

dures throughout the editorial process.

to visit a news organization’s Web site.

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Above: Social media raises new questions for journalists. Facebook CEO Mark Zuckerberg delivered the keynote address at an internet conference in San Francisco on April 21, 2010.

But social media pose new challenges

has been posted to the social media, there

for the ethical journalist. Verifying post-

is really no way to take it back or to stop

ings can be difficult. Reporters should

others from using it in whatever way

make clear when they utilize social media

they choose.

sites as the basis for a story. They should

exercise special caution when using infor-

Conclusion

mation concerning minors, which could

Many journalists believe they should

damage someone’s reputation, or when us-

not have to justify their role as gov-

ing information that someone else claims

ernment watchdogs and as conduits of

to own—such as a trade secret. The laws

public information. Surely, they think,

of libel, privacy, and copyright still apply

modern recognition that freedom of ex-

in cyberspace.

pression is a fundamental right has al-

Some news organizations have adopt-

ready settled all that. Therefore, some

ed ethics policies for their employees’ use

journalists think that they must have

of social media. Dow Jones, publisher of

the legal right to be wrong—sometimes.

the Wall Street Journal, discourages its

But journalists’ own ethical standards

reporters from expressing personal or

can be more stringent than legal ones.

partisan viewpoints on their personal

They encourage journalists to examine

Facebook pages or from discussing devel-

their motivations, their methods, and their

oping stories that have not yet appeared

work product. They encourage reporters

in the newspaper. Some organizations

and editors to ask tough questions about

recommend that a reporter maintain sep-

how they make decisions. And these eth-

arate professional and personal Facebook

ical precepts invite journalists both to

pages. Journalists should remember that

consider other perspectives and to contem-

friending a confidential source on Face-

plate how their decisions affect others.

book may reveal that source’s identity to

Adopting and applying ethics princi-

the world. They also should recall that

ples can seem daunting. But they help

decisions to friend or to join a fan page

journalists do the best job possible. They

may be construed as evidence of bias.

provide a mandate to act independently

Finally, nothing on Facebook or simi-

—even courageously—when seeking and

lar sites is really private. Once something

pursuing truth.

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E veryone is in favor of free speech. Hardly

a day passes without its being extolled, but some

people’s idea of it is that they are free to say

whatever they like, but if anyone says anything

back, that is an outrage.

Sir WinSton churchill

British Prime Minister

Speech, House of Commons—1943

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New Media,

Citizen Journalists, and Bloggers

he freewheeling world of the blogosphere seems like

the last bastion of truly free speech. One does not

need a lot of money, an expensive printing press, or

a transmitter tower. Anybody with access to a computer, a

modem, and a little software can share his thoughts with

the world through a weblog, or blog. And many of the

intensely personal and highly opinionated weblogs prolif-

erating on the Internet inhabit a world apart from the

sometimes-dreary realm of meticulously sourced and fact-

checked traditional journalism. Bloggers are a law unto

themselves. Or are they?

Balancing Free Speech and

cafes to purchase licenses, and banning

Competing Internet Interests

Internet cafes.

From the early days of popular use of In the United States, Congress, state the Internet, the rallying cry was that

legislatures, and the courts have strug-

cyberspace was the new frontier, subject

gled to balance free speech on the Inter-

to no law. But governments around the

net against competing interests, like na-

world, shaken by the implications of the

tional security, copyright protection, and

new communication technology, have tried

the right to reputation. In its landmark

to figure out how to harness and control

Reno v. ACLU (American Civil Liberties

its use.

Union) decision (1997), the U.S. Supreme

Gaining access to the Internet can be

Court extended to communications on the

the first hurdle. A 2007 report by the In-

World Wide Web the same First Amend-

ternet watchdog group OpenNet Initiative

ment protections covering newspapers or

showed that attempts to censor the Web

other print media. Cyberspace, the Court

are spreading and growing more sophisti-

ruled, is neither a “scarce expressive

cated. Saudi Arabia, to offer one example,

commodity,” like the broadcast spectrum

uses filtering software to block everything

used by radio and television broadcasters,

from sites classified as pornography or

nor an invasive one that enters “an indi-

gambling to religious conversion sites and

vidual’s home or appears on one’s com-

sites critical of the Saudi monarchy. China

puter screen unbidden.” With neither of

has been criticized for a combination of

these historical justifications for govern-

Internet control measures, including filter-

ment licensing and control applicable,

ing software, requiring users and Internet

Justice John Paul Stevens wrote for the

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majority, “The interest in encouraging

cency Act, which immunizes providers of

freedom of expression in a democratic soci-

“interactive computer services” (ISPs)

ety outweighs any theoretical but unprov-

from defamation claims arising from

en benefit of censorship.”

third-party content. Courts have extend-

The Reno decision means that Internet-

ed this protection to those who operate

based communication receives the high-

Web sites and listservs, even if they exer-

est level of constitutional protection, in-

cise some editorial control over that ma-

cluding many judicial rulings defining

terial. The same analysis logically would

the scope of the First Amendment. Prior

apply to blogs.

restraints are presumed unconstitutional.

Successful libel suits require proof of

Holding Bloggers Accountable

publisher fault, even if a plaintiff proves

So does that mean that bloggers are

the challenged statement false. Most in-

free to upload whatever they want,

vasion of privacy suits will be rejected if

with no fear of being sued?

the publisher can demonstrate that the

Absolutely not. Whatever immunity

subject of its story was newsworthy.

may exist for links to third-party sites

Copyright violations may be excused if

or to postings submitted by readers, a

the publication constitutes fair use.

blog publisher can still be sued for any

One need not be a recognized journal-

material he writes himself. During the

ist to invoke these protections. As far

course of litigation, the blogger could

back as 1972, the U.S. Supreme Court

face a protracted examination of his

said, “Liberty of the press is the right of

news-gathering techniques. Did he at-

the lonely pamphleteer…as much as of

tempt to verify the accuracy of the story,

the large metropolitan publisher.”

or did he simply repeat an unsubstanti-

So bloggers have First Amendment

ated rumor? Did he rely on anonymous

protections. They may have statutory pro-

sources? Did he, in other words, act neg-

tection as well. Existing laws protecting

ligently or with reckless disregard for

reporters’ confidential sources might or

the truth? If a court finds that he did, he

might not apply to a blogger, depending on

may lose the suit.

the language of the statute or the court

In most countries, libel suits can be

addressing the issue. Although some laws

grounded only in false statements of fact.

limit coverage to full-time employees of

No one can be sued for statements of

for-profit traditional news media, many

pure opinion that can be proven neither

are expansive, covering anyone who en-

true nor false. But many blogs are a ro-

gages in gathering information and dis-

bust mixture of idiosyncratic opinion and

seminating it to a wide audience. A Cali-

unsupported allegation. It can be hard to

fornia court ruled that the state shield law

distinguish between the two when invok-

protected the identities of bloggers who re-

ing an opinion privilege, which requires

vealed Apple Computer’s trade secrets.

showing that the underlying factual

Their publications, the court ruled, consti-

statements on which the opinion is based

tuted “news.” But shortly thereafter, a

are true.

federal court in the same state refused to

U.S. legal protections end at the bor-

acknowledge that blogger and self-de-

der but the Internet does not. A blogger in

scribed anarchist Josh Wolf was a journal-

the United States can brandish the First

ist because he was not “connected with or

Amendment and Section 230 all she

employed by” a news organization.

wants, but a foreign court has no obliga-

U.S. courts have interpreted broadly

tion to pay any attention. Those courts

Section 230 of the Communications De-

will, for the most part, apply their own

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laws. Although traditional journalists

Libel lawsuits are not all that blog-

long have faced lawsuits and even crimi-

gers need worry about. Statutes in many

nal prosecutions in other countries

countries make it an offense, or even a

where their work product is distributed,

crime, to “insult” or “offend the digni-

it may surprise bloggers to learn they

ty” of someone, even if the criticism is

are vulnerable to suit anywhere their

absolutely true. For example, in 2008,

words are read.

blogger Raja Petra Kamarudin, editor

The Australian High Court so ruled

of the Web site Malaysia Today, was ar-

in 2002, when it allowed “Diamond Joe”

rested and detained on charges of vio-

Gutnick to file a libel suit. An Austra-

lating Malaysia’s Internal Security Act

lian national, Gutnick claimed that an

by criticizing Islam.

article published online by U.S.-based

Many countries enforce mandatory

Barron’s magazine defamed him. When

rights of reply, which compel publication

Gutnick showed that a handful of read-

of responses by individuals and corpora-

ers in his hometown of Melbourne down-

tions who claim they have been the sub-

loaded the story, the court allowed him

ject of inaccurate reports. In 2006, the

to file a libel suit there. The chief justice

European Parliament adopted a Council of

wrote, “[T]hose who post information on

Europe recommendation to extend these

the World Wide Web do so knowing that

rights of reply to online media, including

[it] is available to all and sundry without

any “service available to the public con-

any geographic restriction.”

taining frequently updated and edited

Above: Australian philanthropist “Diamond Joe” Gutnick (left) sued U.S.-based Barron’s magazine in 2002 for defaming him in an article posted online. Even though the al eged defaming article was published in the United States, the Australian High Court decided any article available online can be considered published wherever it is read, thus granting Gutnick the right to sue in Melbourne.

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information of public interest.” That

courtrooms and post trial footage online,

sounds like a typical weblog.

a practice they find both disruptive and

Many bloggers already take these

undignified. Gatekeepers often support

steps. They update their blogs, often print

access to government records and pro-

retractions or modifications to errone-

ceedings in the abstract; once access be-

ous postings, and freely publish respons-

comes cheap and easy,