MEDIA LAW [ HANDBOOK SERIES ]

[ United States Department of State ]

[ Bureau of International Information Programs ]

MEDIA LAW [ HANDBOOK SERIES ]

[ United States Department of State ]

[ Bureau of International Information Programs ] [ Media Law ]

Media Law Handbook A Handbook Series Edition

Published in 2013 by: Bureau of International Information Programs United States Department of State

ISBN (print) 978-1-622-39903-1 ISBN (ePub) 978-1-622-39906-2 ISBN (mobi) 978-1-622-39909-3 staff Coordinator:...... Dawn McCall Executive Editor:...... Jonathan Margolis Publications Office Director:...Michael Jay Friedman Editor in Chief:...... Lynne D. Scheib Managing Editor:...... Anita Green Art Director/Design:...... David Hamill, Lauren Russell, Julia Maruszewski Writer:...... Jane Kirtley Photo researcher:...... Maggie Sliker

Jane Kirtley has been the Silha Professor of Media Ethics and Law at the School of Journalism and Mass Com- munication at the University of Minnesota since August 1999. She was named Director of the Silha Center in May 2000. Prior to that, she was Executive Director of The Reporters Committee for Freedom of the Press in Arlington, Virginia, for 14 years. Before joining the Reporters Committee staff, Kirtley was an attorney for five years with the law firm of Nixon, Hargrave, Devans and Doyle in Rochester, New York, and Washington, D.C. She is a member of the New York, District of Columbia, and Virginia bars. Kirtley also worked as a reporter for the Evansville Press (Indiana) and The Oak Ridger and Nashville Banner (Tennessee).

Front Cover: From left to right, top to bottom: Courtesy of Prints and Photographs Division, Library of Congress. © AP Images/Haraz Ghanbari. © AP Images/Jim Wells. © AP Images/Marcio Jose Sanchez. Illustration © Rob Colvin/Images.com. © AP Images/Jacques Brinon. © AP Images/John Lent.

Image credits: Page vi: Illustration © Adam Niklewicz/www.illustratorusa.com. 2: Courtesy of Prints and Photographs Division, Library of Congress. 4: © AP Images/Haraz Ghanbari. 6: Illustration © Jody Hewgill. 8: Courtesy of the National Archives and Records Administration (NARA) 10: © AP Images/Thomas Kienzle. 11: © AP Images/Jacques Brinon. 14: Illustration © Wictor Sadowski. 16: © AP Images/John Lent. 24: © AP Images/Ron Edmonds. 25: © AP Images. 31: © AP Images/Richmond Times-Dispatch, Joe Mahoney. 38: Illustration © Douglas Fraser /lindgren & smith. 42: Illustration © Rafeal Olbinski. 44: AP Images/Fabrizio Giovannozzi. 45: AP Images/Jim Wells. 51: AP Images/Marcio Jose Sanchez. 52: Illustration © Brad Holland. 55: AP Images/Kathy Willens, Pool. 58: Illustration © Rob Colvin/Images.com.

[ iv ] [ Handbook Series ]

Table of Contents

Introduction 1 Thoughtful people disagree about the proper role of the news media. Despite these disagreements, there are standards for the privileges and responsibilities of a free press in a free society.

A Good Environment for Fostering Journalists 7 National legal systems vary. Some have detailed and precise statutory schemes, others have a mix of statutes, regulations, and case law.

A Framework for a Free Press 15 A useful starting point create a framework for a free press is to consider what rights are essential in order for journalists to do their jobs.

Self-Regulation In Lieu of Litigation 39 Journalists and news organizations make mistakes. Courts offer aggrieved individuals remedies. Self- regulatory mechanisms offer a valuable alternative.

The Responsibilities of Journalists 43 Many individual media organizations and journalists’ associations voluntarily adopt codes or standards of practice as guideposts to help journalists determine the best way to do their jobs.

New Media, Citizen Journalists, and Bloggers 53 The freewheeling world of the blogosphere seems like the last bastion of truly free speech. Bloggers are a law unto themselves. Or are they?

Free Exchange of Information and Enhancing Civil Society 59 Journalism thrives best where the rule of law is respected. A free press is best protected through a national constitution or by statutory or common law.

[ v ] [ Introduction ]

But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.

John Stuart Mill English philosopher and economist 1806–1873

[ vi ] [ Media Law ]

Introduction

houghtful people disagree about the proper role of the news media. Some believe that journalists T should support government and supply the public only with information the government deems appropriate. Some believe the press instead should be the government’s watchdog, searching out and reporting on abuses of power.

Some want the press to be an advo- will challenge assumptions, it will ques- cate, to champion causes, and to take po- tion authority, and it will seek truth, no litical positions. Others believe the press matter where that search may lead—to should be objective and nonpartisan. the highest corridors of power, to the Some believe that the press should re- owners of the news organization, or even spect and reflect social institutions and if it leads to death, as was the case with traditions. Others believe that the press investigative Russian journalist Anna should question and challenge them. Politkovskaya, gunned down in a con- This book suggests that despite these tract killing in Moscow in 2006. disagreements there are standards that A free press is responsible. describe the privileges and responsibili- Perceptions of responsibility ties of a free press in a free society. vary from country to country, A free and independent press is and even from year to year. For many, essential to any free society. the standard in times of peace and sta- But what do we mean by a free bility may seem very different than in press? In this book, we mean a press that time of war or national emergency. For is not subject to undue government con- example, just a few months after the trol and regulation, one that is free from September 11, 2001, attacks in the undue financial influence from the pri- United States, a survey conducted by vate sector, including advertisers, and the Freedom Forum’s First Amendment economic or business pressures from pri- Center reported that 46 percent of vate sector businesses A free and inde- Americans polled believed that the press pendent press provides its readers, view- had “too much” freedom, a figure that ers, and listeners with the information certainly was higher than before the at- they need to participate fully as citizens tacks, or the 39 percent reported in the in a free society. 2009 survey. A free press is courageous Yet some essential principles re- and will pursue those stories main constant. A free press must seek that are important to its read- truth and report it. It must be tireless ers and viewers, without fear or favor. It in seeking and achieving accuracy.

[ 1 ] [ Introduction ]

The press must never knowingly pub- Freedom of Speech and lish a falsehood. a Free Press Most societies would agree that even n the United States, where I live and the most free press must exercise its Iwhere I do most of my research and freedom with a clear understanding teaching, the press is for the most part that actions and editorial decisions have free from government controls as a matter consequences, some of them significant. of law. The First Amendment to the U.S. The press has great power to affect the Constitution prohibits Congress, or state lives of millions of people. Like any oth- legislatures, from passing any statute er powerful institution, it must be pre- that abridges freedom of speech or free- pared to listen to complaints, to explain dom of the press. its decisions to readers and viewers, That absolute language was drafted and to acknowledge and correct mis- by revolutionaries shortly after the takes. But it must also be prepared to American War of Independence (1775– take unpopular positions and to face 1783), during a time of great optimism, critics bravely when important princi- but also of great uncertainty. The na- tion’s courts have, over the two hundred- ples are at stake. Some may call this ar- plus years that followed, interpreted the rogance. I call it courage. First Amendment as powerful, but per- haps not quite absolute.

Above: Andrew Hamilton defended John Peter Zenger, publisher of the New York Weekly Journal, who was charged in 1735 with seditious libel for criticizing the Royal Governor. Hamilton argued the truth of Zenger’s publication was a defense against seditious libel. The jury acquitted Zenger; an action Hamilton praised: “You have laid a noble foundation for securing to ourselves that to which Nature and the Laws of our country have given us a Right—The Liberty—both of exposing and opposing arbitrary power by speaking and writing Truth.”

[ 2 ] [ Media Law ]

The United States Supreme Court has matter of law. In the United States, in- made clear that certain types of speech dividual news organizations have ad- are not protected by the First Amend- opted their own ethical guidelines. ment: publishing details about troop Typically, these codes or guidelines set movements in wartime, for example. out the institution’s rules governing fi- Other exceptions would include restric- nancial and other conflicts of interest. tions on obscene speech or on so-called For example, an ethical guideline fighting words that could predictably may prohibit a reporter from covering a incite violence or criminal actions. And company for which her spouse works. the news media are almost always sub- Or it may forbid a reporter to take part ject to laws of general applicability— in a protest march, or to display a that is, laws that apply to everyone but political sticker on the fender of his car that do not single out the press for spe- or a placard in his front garden, or to cial obligations or punishment. For ex- wear a national flag in her lapel as she ample, laws that prohibit the intercep- reports the news. Or it may prohibit a tion of telephone conversations without reporter from accepting even a nominal permission apply to journalists as much gift from a news source. Guidelines like as they do to corporations. these are intended to maintain both the But even these exceptions are tem- reality and the appearance of journalis- pered by a strong tradition that there tic independence. always will be a presumption against It would seem unnecessary for ethi- any government attempt to stifle the cal guidelines to address the necessity free press. As an American judge once for accuracy and truth-telling. But af- wrote, the default position for the press ter journalists like Jayson Blair of the is to publish. Government should bear New York Times either fabricated or pla- the burden of justifying any restraints. giarized the news stories they submit- This formula preserves the watchdog ted to their editors, many organizations role of the press and facilitates govern- have revised their ethics guidelines to ment accountability. make clear that neither practice can ever be accepted or condoned by a re- Press Accountability sponsible news organization. ut who watches the watchdog? Who Sometimes ethics and the law inter- ensures that the press will be ac- sect. In Northern Ireland, for example, B Suzanne Breen, the Belfast-based edi- countable? In some countries, the answer tor for Dublin’s Sunday Tribune, faced a is the government. Laws, statutes, and legal and ethical dilemma. Breen had codes spell out in detail the conduct re- been telephoned by an individual who quired of news organizations. In these claimed responsibility for murdering two nations, journalists’ rights often depend soldiers at Massereene Barracks in Ant- upon fulfillment of responsibilities. The rim. The police demanded that she turn over her cell phone, computer records, rub is that the government’s definition of and notes about her contacts with the responsibility may differ greatly from paramilitary Real IRA organization. that of the press itself, or even the public. Breen resisted, arguing that to do so In other countries, the answer is, the would breach her professional obligation press itself, and its readers and viewers. to protect the confidentiality of her sourc- In some parts of the world, news or- es. She also candidly acknowledged that ganizations or individual journalists complying with the law enforcement de- subscribe to ethical codes of conduct, mands could endanger her life, and the like that of the National Union of Jour- lives of her family members. But if she nalists in the United Kingdom. Other defied the order, Breen faced the pros- countries impose ethical standards as a pect of up to five years in jail for contempt.

[ 3 ] [ Introduction ]

In June 2009, a judge in Belfast ruled Privacy and Libel that compelling Breen to surrender her news-gathering materials would put her s it ever appropriate for a reporter to life at risk in contravention of the Euro- Iviolate an individual’s privacy? In the pean Convention on Human Rights. United States, the Supreme Court has By contrast, in the United States, ruled that it is lawful for the press to New York Times reporter Judith Miller publish the name of an individual who refused to cooperate in a criminal inves- has been sexually assaulted. But is it tigation seeking the identity of a govern- the right thing to do? ment official who had revealed the iden- Is it right for a journalist to make tity of a covert intelligence agent. Miller fun of a public official or to lampoon a defied orders to testify, even after judi- name or image that is sacred to a cial rulings that journalists possessed particular ethnic or religious group? In no special privilege to decline naming the United States, after the porno- confidential sources. She spent 85 days graphic Hustler magazine satirized the in jail in 2005. Some judges and mem- outspoken clergyman Rev. Jerry Fal- bers of the public argued that journal- well, the Supreme Court ruled that a ists can never hold themselves above the free society must tolerate even “outra- law. But the ethics policies of most news geous” speech in order to guarantee ro- organizations would require a reporter bust public debate and discussion. As to honor a promise given to a source, one justice once wrote, “There is no such even if it means going to jail. thing as a false idea. However perni- Legal and ethical provisions vary cious an opinion may seem, we depend from country to country. Reasonable for its correction not on the conscience people—and even journalists them- of judges and juries, but on the competi- selves—may disagree on how they should tion of other ideas.” apply in a particular situation and On the other hand, in March 2008, whether they strike the proper balance the United Nations Human Rights between competing societal interests. Council adopted a resolution condemn- ing “defamation of religions.” And many

Above: New York Times reporter Judith Miller was jailed for contempt of court for refusing to reveal a confidential source. Miller, accompanied by her legal team, leave the U.S. District Court in Washington, DC, on June 29, 2005.

[ 4 ] [ Media Law ] countries retain, and enforce, statutes to challenge conventions and flout the that make it a crime to insult or “offend rules lead to greater attempts to regu- the dignity” of any person, even a public late the press? official—even if the underlying facts These are not easy questions. Nor are true. are there easy answers. The Supreme Court of the United It is not easy to live with a free press. States has never upheld a government Doing so means that one is being chal- attempt to stop the press from publish- lenged, dismayed, disrupted, disturbed, ing classified information. Fierce de- and outraged—every single day. bates over whether journalists can be A free press is fallible and at times criminally prosecuted under espionage fails to live up to its potential. But de- laws arise periodically. In China, for veloping democracies around the world example, theft of state secrets is a crime demonstrate every day that they have regardless of who does it, and the defi- the courage and confidence to choose nition of state secrets is an expansive knowledge over ignorance and truth one. But even assuming that they do over propaganda by embracing the ideal not break the law, is it right for journal- of a free press. ists to publish classified information, It is not easy to live with a free press. especially when it is claimed that doing But I know I couldn’t live without it. so will alert terrorists to surveillance techniques and undermine intelligence —Jane Kirtley efforts to maintain safety and security? Transparency espite these concerns, the term D“transparency” has become a watch- word in civil society. Both public and private institutions are exhorted to be more forthcoming about their opera- tions, funding, and governance. The dig- itization of data and the ubiquity of the Internet can help. But universal access to information raises new issues about security and privacy, and it compounds the difficulties of protecting proprietary or copyrighted information. Ironically, some regard the technology that maxi- mizes access to information as a threat to other fundamental rights, such as the right to a private life or, as an American jurist once wrote, “to be let alone.” Add to this volatile mix the legions of unidentified and seemingly ungovern- able bloggers and citizen journalists, op- erating with gusto but without prior training or certification of any kind. There is no question that they contrib- ute a lively counterpoint to the main- stream media. But will their tendency

[ 5 ] [ A Good Environment for Fostering Journalists ]

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all mem- bers of the human family is the foundation of freedom, justice and peace in the world,…

Universal Declaration of Human Rights United Nations 1948

[ 6 ] [ Media Law | Handbook ]

A Good Environment for Fostering Journalists

ational legal systems vary. Civil law nations like Germany and France often adopt detailed and precise statutory schemes that govern the rights, duties, and obligations of journalists. In common law na- tions like the United Kingdom and the United States, a mix of statutes, regulations, and case law establishes broad legal principles that encompass press freedom, even if these laws do not always directly address journalists.

Regardless of the particular legal and ideas through any media and approach, good journalism flourishes regardless of frontiers. where society respects and enforces the rule of law. The work of legal, theoretical, Article 29 then qualifies this right as: and philosophical thinkers, including …determined by law solely for the Confucius, Milton, Rousseau, Meikle- john, and Mill, among others, supplies purpose of securing due recogni- the intellectual underpinning for con- tion and respect for the rights and temporary media law and media ethics. freedom of others and of meeting the just requirements of morality, International Standards public order and the general nternational standards supply guar- welfare in a democratic society. Iantees of free expression. But these standards also typically acknowledge Similarly, Article 10 of the European certain legitimate grounds for the state’s Convention on Human Rights states: restriction of free expression. The Uni- Everyone has the right to freedom versal Declaration of Human Rights, of expression. This right shall in- proclaimed by the United Nations Gen- clude freedom to hold opinions and eral Assembly in 1948, pronounces in to receive and impart information Article 19 that: and ideas without interference by Everyone has the right to freedom public authority and regardless of of opinion and expression; this right frontiers. This Article shall not includes freedom to hold opinions prevent States from requiring the without interference and to seek, licensing of broadcasting, televi- receive and impart information sion or cinema enterprises.

[ 7 ] [ A Good Environment for Fostering Journalists ]

However, that absolute language is ples’ Rights, and the American Conven- qualified further in this convention: tion on Human Rights, as well as many others. The details differ, but all recog- The exercise of these freedoms, nize freedom of expression as a funda- since it carries with it duties and mental right, but one that can be limited responsibilities, may be subject to by duly enacted laws tailored to protect such formalities, conditions, re- equally compelling societal interests. strictions or penalties as are National Standards prescribed by law and are neces- sary in a democratic society, in the ational constitutions also frequent- interests of national security, N ly guarantee press freedom. For ex- territorial integrity or public ample, Article 25 of the Belgian safety, for the prevention of disor- Constitution, which dates from 1831, der or crime, for the protection of provides that: health or morals, for the protection The press is free; censorship can of the reputation or rights of others, never be established; security from for preventing the disclosure of authors, publishers or printers can- information received in confidence, not be demanded. When the author or for maintaining the authority is known and resident in Belgium, and impartiality of the judiciary. neither the publisher, nor printer, nor distributor can be prosecuted. Many international documents, con- ventions, and treaties embrace a similar The First Amendment to the United approach, among them the International States Constitution, ratified in 1791, is Covenant on Civil and Political Rights, the African Charter on Human and Peo- similarly absolute:

Above: Freedom of the press is explicitly protected under the First Amendment of the Bill of Rights in the U.S. Constitution.

[ 8 ] [ Media Law | Handbook ]

Congress shall make no law Laws That Discourage Journalists respecting an establishment of ensorship—government-imposed religion, or prohibiting the free restraint on freedom of speech and exercise thereof; or abridging the C expression—poses the greatest single freedom of speech, or of the press; threat to a free press. Censorship can or the right of the people take many forms: peaceably to assemble, and to petition the Government for a » compulsory licensing schemes; redress of grievances. » mandatory pre-publication review; Other national constitutions ac- » imposition of gag orders during knowledge the right of free expression the pendency of a legal proceeding; but do not regard it as absolute. For ex- » extraordinary taxes or fees; ample, Article 8 of the Senegal Consti- tution guarantees freedom of expres- » withdrawal of legal protection sion and opinion “subject to the that would ordinarily be granted to limitation imposed by laws and regula- other businesses or citizens. tions.” Similarly, Article 36(1) of the The threat of post-publication sanc- Constitution of the Kyrgyz Republic ex- tions, such as criminal fines or incarcer- plicitly declares that the “mass media ation, can be as intimidating and crip- are free” but then qualifies that state- pling to the ability of a news organization ment in Article 17(2): to operate as any prior restraint. Restrictions to the exercise of More subtle, but equally problemat- rights and freedoms is allowed ic, are mandates that impose certain duties or responsibilities on the press. by the Constitution and laws of Some autocratic countries and democ- the Kyrgyz Republic only for the racies require that the press publish purposes of ensuring the rights “checked facts” or “the truth.” For ex- and freedoms of other persons, ample, Article 20(d) of the Constitution public safety and order, territo- of Spain states, “The rights are recog- rial integrity and protection of nized and protected…of freely sending constitutional order. But in or receiving true information by any medium” [emphasis added]. doing so, the essence of constitu- Government desire for accurate re- tional rights and freedoms shall porting is understandable. In former dic- not be affected. tatorships, where propaganda and the promulgation of falsehoods were common- It is probably fair to say that no place, the public is eager to learn a va- country in the world regards the cher- riety of facts from many different ished universal or fundamental right of sources. And it is a basic tenet of ethi- free expression as absolute. It is subject cal journalism that no reporter wants to limitation and modification when knowingly to disseminate an untruth. competing rights are deemed to out- But requiring accuracy only raises weigh it. As a result, some press free- more questions: What is truth? Who de- dom laws can weaken rather than cides? The government? strengthen the protections afforded a Certainly all journalists should aim free press. to be accurate. But often the perception of truth will change over time. As a breaking news story unfolds, what ini- tially appeared to be a fact may turn out to be false.

[ 9 ] [ A Good Environment for Fostering Journalists ]

A spectacular example occurred on Should CNN and Fox have been sub- September 11, 2009, when the CNN ject to government sanction for having and Fox cable television networks re- made a good-faith error in their report- ported that the U.S. Coast Guard had ing? In the United States, the answer opened fire on a suspicious vessel in the would be “no.” But in other countries, Potomac River in Washington, D.C., such a mistake might lead to a fine or not far from the Pentagon, where Presi- the loss of a license. dent Barack Obama was attending As troubling as the Coast Guard inci- commemorative services. Relying on dent may be, at least the factual discrep- information obtained by listening to po- ancies were quickly resolved. With issues lice scanners, CNN also used the so- like global warming or the financial or cial-networking application Twitter to health crises, the facts emerge more report, “Coast Guard confronts boat as gradually. How can journalists determine Obama visits Pentagon, police scanner the truth at any given point? And what is reports say shots fired.” the responsibility of the government, or of The Chicago Tribune reported that it the public, to define and interpret the took almost 30 minutes for the networks facts? The reality is that journalism is to determine that they had overheard only one means of ascertaining truth. In open radio transmissions—during which a free society, it is up to members of the personnel made “bang bang” noises and public, not a governmental entity, to re- stated, “We have expended ten rounds”— view the facts from a wide variety of that were part of a routine training exer- sources before deciding what is true. cise, not an attack. White House Press In one prominent example, the U.N. Secretary Robert Gibbs chided the net- Security Council in 1996 called on works for causing panic, observing, “Be- Rwanda to identify and close radio sta- fore we report things like this, checking tions it contended had fomented hatred would be good.” CNN claimed that before and incited acts of mass violence there. reporting the incident, it had contacted The case raised an important question: the Coast Guard’s public affairs office Should the media be held responsible for and been told that the Coast Guard was the violent acts of their viewers, listen- unaware of any activity on the river. The ers, or readers? Coast Guard did not apologize for its Punishment may also await those part in the incident, other than to prom- who challenge the accepted wisdom ise that it would review both “our proce- dures and the timing of this exercise.” Commentators criticized the news media for rushing to disseminate the story, suggesting that the networks should have withheld it until they were able to verify the details. But this exam- ple illustrates the difficult tightrope that news organizations walk when re- porting breaking news. In an increas- ingly competitive media marketplace, the pressure to be first with a story is intense. The old Associated Press max- im, “Get it first, but get it right,” seems almost quaint in a 24/7 world, where not only mainstream media, but bloggers Above: Ernst Zündel, author of The Hitler We Love and Why and pub- lisher of Did Six Million Really Die?, was handed the maximum allow- and other “citizen journalists” can ob- able sentence under German law in 2007 for inciting hatred and serve and report events instantly. denying the Holocaust. Holocaust denial is a specific criminal of- fense in several European countries.

[ 10 ] [ Media Law | Handbook ] concerning historical incidents. In Tur- Another dimension arises when the key, it is a crime to refer to the mass effort to suppress unwelcome publica- killings of Armenians during World War tions crosses national boundaries or is I as genocide. In 2007, the neo-Nazi initiated by non-state actors. Most noto- Ernst Zündel was imprisoned in Germa- riously, in February 1989, the Iranian ny after publishing statements denying spiritual leader Ayatollah Ruhollah that the Holocaust occurred, a violation Khomeini issued a fatwa offering a of the German Criminal Code. bounty for the death of the British au- A corollary to the problem is created thor Salman Rushdie, whose novel The when the government declares what the Satanic Verses Khomeini declared “blas- truth is in the enactment of insult laws phemous against Islam.” In September that prohibit criticism of monarchs, poli- 2005, the Danish newspaper Jyllands- ticians, or other public officials, national Posten published editorial cartoons de- symbols, or a particular race or religion. picting the Prophet Mohammad. Again Dozens of countries throughout the world, blasphemy was charged. Violent protests including some in the European Union, and threats on the lives of the cartoonist former Soviet Union, Asia, Africa, and followed. Blasphemy charges are not lev- Latin America, have enacted such stat- eled only by Muslims. Not until July utes. Although the precise language var- 2008 did the British House of Lords vote ies, it is invariably both broad and vague, to abolish the common law crimes of easily manipulated by governments to blasphemy and blasphemous libel. punish dissent and to silence criticism.

Above: Flemming Rose, center, commissioned the controversial cartoons caricaturing the Prophet Mohammad published by the Danish newspaper Jyllands-Posten in 2005. The cartoon sparked heated public debate about the balance between satire and censorship.

[ 11 ] [ A Good Environment for Fostering Journalists ]

Compulsory Licensing cast airwaves are a public resource that should be operated essentially as a pub- nother mechanism to discourage lic service or, in the words of the Com- journalists is the use of compul- A munications Act of 1934 (U.S.), in “the sory government licensing. This usual- public interest, convenience or necessi- ly is justified as helping to ensure that ty.” The uniquely pervasive nature of only those with appropriate qualifica- electronic media, it is said, justifies tions engage in the profession of jour- greater government interference in nalism. But, as Leonard Sussman of content. On the other hand, broadcast- the New York-based Freedom House ers should enjoy the same editorial au- writes, “Governmental licensing of the tonomy as the print media, subject only press is the old blunderbuss of censor- to laws of general applicability govern- ing weapons.” Government licensing ing expression, such as libel, invasion both determines who may be a journal- of privacy, and obscenity. ist and circumscribes the parameters of acceptable reporting and commentary. Regulation and the Internet In short, it encourages self-censorship and stifles dissent and debate. ith each new medium of commu- Even in countries where any individ- Wnication, government efforts to ual has the right to engage in journal- control information appear. Some coun- ism, those who seek to operate broad- tries, including China, Iran, Saudi cast, cable, Internet, or even print news Arabia, and Tunisia, have blocked ac- organizations may be subject to compulsory cess to Web sites based on their politi- licensing. By their very nature, broad- cal or cultural content, monitored indi- cast and cable franchises are limited in viduals’ activities on the Internet, and number and scope within a particular imposed stringent restrictions on Inter- geographical area. Most countries have net service providers. Even mature de- concluded that some governmental au- mocracies, including Australia, France, thority will be the “traffic cop” that al- India, and the United States, have locates operating frequencies in the blocked access to or punished publica- broadcast spectrum, or assigns to cer- tion of online material that they deem tain operators the “natural monopoly” to be objectionable. of cable or Internet service providers. The Internet provides individuals an Without this type of licensing, any- unprecedented ability to communicate one might, to use one example, broad- without relying on newspapers, televi- cast on the same radio frequency as his sion, or any other traditional media. neighbor. The result would be complete But many countries retain legislation cacophony and chaos. Even so, when from the era when, in the words of New the state chooses who will be allowed to Yorker magazine contributor A.J. Li- operate the electronic media, there is a ebling, “Freedom of the press belongs to real danger of inhibiting the free flow the man who owns one.” Some countries of information. In some countries with grant an individual an enforceable a tradition of state-owned public broad- right of reply to an article concerning casting, it is difficult, if not impossible, her that she deems false, inaccurate, for independent media to secure a place defamatory, or misleading. The logic of in the broadcast spectrum. In nations these laws is that because radio and where privately owned commercial me- television stations and newspapers are dia predominate, questions about how in the hands of a few, the free exchange much the state may inquire into pro- of ideas requires that they provide gramming and editorial decisions when those who disagree an opportunity to reviewing initial license applications or be heard. renewals remains a nagging problem. Predicated on the idea that a news On the one hand, some argue, broad- organization has an obligation to be

[ 12 ] [ Media Law | Handbook ] fair, a statutory right of reply usurps a nal history of a defendant facing news organization’s editorial authority a murder charge? by requiring an editor to publish mate- � Why shouldn’t an individual rial he otherwise would not. When edi- have the right to demand that a tors tone down their coverage to avoid broadcaster refrain from airing being compelled to publish replies, the footage that would reveal inti- result is more self-censorship and less mate personal information, such publication of controversial material. as the identity of a child who has As a U.S. Supreme Court justice wrote, been sexually abused? in a case striking down a Florida state � Why shouldn’t a licensing board right-of-reply statute, “A newspaper or have the authority to stop the dis- magazine is not a public utility subject tribution of a book or film that it to ‘reasonable’ governmental regulation deems contrary to public morality? in matters affecting the exercise of � Why shouldn’t laws proscribing journalistic judgment as to what should racist or “hate” speech be upheld? be printed.” Regardless of how a society resolves Ironically, the Internet, which em- these hard questions, the danger is powers anyone with access to be a pub- that, all too frequently, these seemingly lisher, has nevertheless encouraged reasonable restrictions are utilized as a right-of-reply measures directed at means of restricting press freedoms bloggers and other digital journalists. and ultimately to restrict the dissemi- In 2006, the European Parliament ad- nation of unpopular opinions and ideas. opted a Council of Europe recommen- This is not to suggest that freedom of dation that a right of reply be imposed the press will, or should, inevitably on the online media. The council ar- trump other fundamental values. The gued that the physical limitations of challenge is to strike a balance between space and time that exist in convention- legitimate competing interests. This is al forms of media like newspapers or not an easy task. television do not apply in cyberspace, lowering drastically the cost of afford- ing a reply privilege. In 2009, the Phil- ippine legislature was considering bills requiring anyone who speaks on the In- ternet, including bloggers and posters on social-networking sites, to grant a right to reply to anyone who considers herself wronged. Compelled publication arguably is another form of censorship. Balancing Legitimate Competing Interests The most insidious aspect of censor- ship is that at first glance it can seem justifiable, or reasonable. � Why shouldn’t a government au- thority have the power to stop a news organization from publish- ing classified material in the name of protecting national security? � Why shouldn’t a court be al- lowed to prohibit a journalist from reporting the prior crimi-

[ 13 ] [ A Framework for a Free Press ]

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.

William Blackstone English judge, jurist, and professor 1723–1780

[ 14 ] [ Media Law | Handbook ]

A Framework for a Free Press

useful starting point as we set out to create a frame- work for a free press is to consider what rights are essential in order for journalists to do their jobs. These might include no prior restraint; protection from compelled disclosure of information; the right of access to government information and court proceedings; the right to criticize government officials and public figures; the right to gather and publish newsworthy information about individuals; limits on government licensing of journalists and news organizations; and only narrow and carefully tai- lored restrictions on indecent or obscene speech.

No prior restraint Only rarely does a country go so far as Blackstone advocated by absolutely The 18th-century English jurist Wil- outlawing any and all previous re- liam Blackstone argued, “The liberty of straints on the press. We will examine the press is indeed essential to the na- here a number of types of restraints ture of a free state: but this consists in that are recognized as lawful in many laying no previous restraints upon pub- countries. Below are the circumstances lications, and not in freedom from cen- under which a prior restraint might be sure for criminal matter when pub- considered proper: lished.” Blackstone’s was an important �  distinction. The English government’s A compelling interest should be power to license, to control both who identified. could operate a press and what he could � The order should be narrowly publish, was the quintessential abridge- tailored and no broader in scope ment of free expression. By stopping than necessary to address the speech even before it is uttered, govern- compelling interest adequately. ment stifles discussion and dissent. � The order should be precise in But in Blackstone’s view, the its terms and as limited in dura- publisher would properly bear the re- tion as possible. sponsibility for whatever he chose to � It should be demonstrated that disseminate. Blackstone would prohibit the order will actually advance government from censoring speech, but the compelling interest asserted he would still allow sanctions to be im- or avert the identified harm. posed after publication. � Notice of the order and an

[ 15 ] [ A Framework for a Free Press ]

opportunity to be heard to wants to undermine national security contest it should be provided pri- by disseminating information that pos- or to imposition. es a genuine threat. On the other hand, government officials can be tempted to What types of interests might be invoke national security to justify ex- sufficiently compelling to justify a prior pansive censorship. restraint? Such interests could include, The Supreme Court of the United among others: States considered this issue in New York � confidential or proprietary busi- Times Co. v. United States (1971), often ness information; referred to as the Pentagon Papers case. � highly intimate personal infor- After the New York Times began pub- mation; lishing excerpts of classified documents � copyrighted material; about the American involvement in Viet- � information pertaining to an on- nam, the administration of President going criminal investigation Richard M. Nixon sought a judicial re- or prosecution; straining order to stop further � obscene or immoral material. publication. The Supreme Court ruled against the government. “Any system of But probably the most frequently in- prior restraints comes to this Court voked justification is national security. bearing a heavy presumption against its This poses a genuine dilemma for jour- constitutional validity,” the Court noted nalists. On the one hand, no journalist and concluded that in this case the

Above: (from the right) Reporter Neil Sheehan, Managing Editor A. M. Rosenthal, and Foreign News Editor James L. Greenfield formed part of theNew York Times team responsible for publishing the Pentagon Papers, excerpts of classified U.S. government documents about American involvement in the Vietnam War.

[ 16 ] [ Media Law | Handbook ] government had failed to meet the geoning new media pose a significant “heavy burden of showing justification obstacle to the effective imposition of a for the imposition of such a restraint.” prior restraint. An example is the The brief opinion provided little in- Wikileaks case. In February 2008, a sight into the Court’s reasoning. It is federal judge in California issued a per- difficult to discern what conditions, if manent injunction on Wikileaks, a Web any, might in a future case justify a site that claims to have been founded prior restraint. We only know that the by “Chinese dissidents, journalists, government did not meet its burden in mathematicians and…technologists, this case. The Court did not say that it from the U.S., Taiwan, Europe, Austra- never could. lia and South Africa,” whose self-pro- Practically speaking, the case of the claimed mission was to “reveal unethi- Pentagon Papers has created a virtually cal behavior in…governments and cor- insurmountable barrier to government- porations.” Wikileaks allowed users to imposed censorship on national securi- publish anonymously a wide variety of ty grounds in the United States. Never documents, such as rules of engage- since has the Supreme Court upheld a ment for American troops, operating prior restraint on the media’s ability to manuals for Guantanamo Bay prison, publish national security information, and confidential Swiss bank account not even in the post-9/11 environment. information. The site claimed it was not Given the limits of territorial juris- responsible for the content of materials diction, it has always been challenging that users posted on its site. for the government of a particular coun- The injunction ordered Dynadot, the try to impose a restraint that will be California company that had registered truly effective worldwide. In the late Wikileaks’s domain name, immediately 1980s, the British government’s at- to lock and disable the domain name tempts to restrict the publication of and to block access to the documents. Spycatcher, a former MI5 agent’s mem- But the New York Times reported that oirs, were ultimately futile. While an even after Dynadot placed restrictions English court did ban publication, the on the site, users worldwide could still book circulated widely in Australia, reach it and read the documents by ac- and even in Scotland, a part of Great cessing mirror sites registered in Bel- Britain not covered by the writ of the gium, Germany, and the Christmas Is- English court. Copies poured into Eng- lands. Two weeks after the initial land from these and other jurisdictions. injunction had been issued, the same Eventually the English courts were federal judge lifted it. “It is clear that forced to lift their ban on the grounds in all but the most exceptional circum- that publication elsewhere meant there stances, an injunction restricting no longer were any secrets left to pre- speech is impermissible,” Judge Jeffrey serve. At the height of the controversy, White wrote. He also observed that his British editions of The Economist maga- initial order had not only been ineffec- zine ran a blank page with this nota- tive but “had exactly the opposite effect tion: “In all but one country, our read- as was intended” because the press cov- ers have on this page a review of erage of the injunction had only in- ‘Spycatcher,’ a book by an ex-M.I.5 creased public attention to the man, Peter Wright. The exception is Wikileaks materials. Britain, where the book, and comment Other types of gag orders, injunc- on it, have been banned. For our tions, and restraining orders will be 420,000 readers there, this page is discussed in more detail in the appro- blank—and the law is an ass.” priate sections below. The Spycatcher case predated the growth of the Internet. Today, the bur-

[ 17 ] [ A Framework for a Free Press ]

Protection from Compelled es could justify compelling him to testi- Disclosure of Information fy. For its part, the British government contended that no compelling public in- he right of a journalist to protect terest justified recognizing the privi- confidential sources and unpub- T lege in this situation, especially given lished information from disclosure is that the source had, at worst, acted ir- essential to promoting both the free responsibly in providing the proprietary flow of information and the public’s business information to Goodwin. right to know. Reporters must be able The court ruled in favor of Goodwin, to assure their sources that their iden- finding that the company’s interest in tities will remain secret in order to en- pursuing the source was not sufficient courage them to speak freely. They to outweigh the public’s interest in pro- must also be able to protect the fruits of tecting the right of journalists to keep their news gathering from scrutiny by sources confidential: government or private entities in order to maintain their editorial indepen- Protection of journalistic sources is dence. Without these privileges, the one of the basic conditions for press ability of the press to scrutinize gov- freedom. …Without such protection, ernment and to uncover corruption sources may be deterred from would be severely compromised. assisting the press in informing Most media codes of ethics require the public on matters of public that journalists protect the confidenti- interest. As a result, the vital ality of their sources. For a reporter, public-watchdog role of the press this is both a matter of honor and a may be undermined and the ability pragmatic necessity. A journalist who violates a promise of confidentiality of the press to provide accurate and will not be trusted by other sources in reliable information may be the future. For this reason, journalists adversely affected. Having regard will protect their sources, even if it to the importance of the protec- means facing contempt of court. tion of journalistic sources for The rationale for recognizing a re- press freedom in a democratic porter’s privilege was persuasively set society and the potentially chill- forth by the European Court of Human ing effect an order of source Rights (ECtHR) in Goodwin v. United disclosure has on the exercise of Kingdom (1996). The case involved re- that freedom, such a measure can- porter William Goodwin, who had re- not be compatible with Article 10 ceived a company’s confidential finan- of the Convention unless it is cial information from a source whose justified by an overriding require- identity he had agreed to keep secret. The company claimed that the material ment in the public interest. had been stolen and obtained an injunc- All countries that are parties to tion restraining publication of the infor- ECHR are bound by the Goodwin deci- mation, as well as an order under the sion, but the decision has been influen- Contempt of Court Act to compel Good- tial even outside the European Union. win to reveal his source’s identity “in Other international and regional bod- the interests of justice” so that it could ies, including the Inter-American Com- take legal action against the source. mission on Human Rights and the Afri- After the Court of Appeal and the can Commission on Human and People’s House of Lords upheld the order, Good- Rights, have issued declarations recog- win appealed to the ECtHR, where he nizing the right of journalists to main- argued that under Article 10 of the Eu- tain the confidentiality of their sources ropean Convention on Human Rights and unpublished information. (ECHR), only exceptional circumstanc-

[ 18 ] [ Media Law | Handbook ]

In some countries, the journalist’s granted journalists a privilege to avoid privilege is included in the constitution. testifying under specified circumstanc- For example, the Constitution of Palau es. About 20 countries have adopted says, “No bona fide reporter may be re- legislation giving journalists absolute quired by the government to divulge or rights to protect their sources, among be jailed for refusal to divulge informa- them Mexico, Indonesia, Mozambique, tion obtained in the course of a profes- and Turkey. More common are national sional investigation.” Sweden’s Freedom laws that recognize a qualified privi- of the Press Act, which is part of the lege, which may be overcome under cer- national constitution, provides an ex- tain situations. Armenia, for example, pansive privilege for journalists, subject grants the privilege but withdraws it in only to a limited number of exceptions, cases where the information sought is such as if the source is suspected of es- directly related to a heinous criminal pionage or treason, or if an accused per- case when the public interest in disclo- son demonstrates that the information sure is strong. In some countries, in- sought is essential for her defense in a cluding Germany and the United criminal case. The law also provides States, statutory protection has been that a journalist who reveals a source left to the individual states. Like the without consent may be prosecuted. national laws, these statutes can be ei- In other countries, courts have ruled ther absolute or qualified in scope. that the journalist’s privilege may be In the United States, although 39 derived from constitutional provisions. states, plus the District of Columbia, In 2006 in Japan, for example, the Su- have enacted journalists’ shield laws, preme Court found that Article 21 of Congress has considered, but has the constitution, which guarantees failed to pass (as of summer 2010), fed- freedom of expression, also protects eral legislation recognizing a report- “the freedom of gathering news,” as er’s privilege. This means that state well as the reporting of news. In Cana- shield laws apply in some state court da in 2008, the Ontario Court of Ap- proceedings but not in the federal peal struck down a finding of contempt court system. (For further information against a reporter who refused to dis- on the roles of federal and state laws close the source of leaked confidential and court systems, see Outline of the municipal investigative reports con- U.S. Legal System, http://iipdigital. cerning a nonprofit nursing home. It usembassy.gov/st/english/publication/ ruled that the right to protect confiden- 2011/07/20110726143910su0.8681996. tial sources is an essential part of free- html#axzz2K2gVwZL5) dom of expression as recognized under Although each society will work out the Canadian Charter of Rights and the precise contours of a journalistic Freedoms. “The likely effect of reveal- privilege against compelled disclosure ing a journalist’s confidential source,” of information, an effective privilege the court said, “would be to discourage would supply broad answers to the fol- from coming forward other potential lowing questions: sources who, for whatever reason, need � To whom does it apply? A broad to conceal their identity.” Although it privilege would apply to anyone declined to find an absolute privilege who is practicing journalism— governing all confidential communica- meaning anyone involved in the tions obtained in the course of report- process of gathering, writing, ing, the court nevertheless recognized editing, or publishing news or that the contempt power should be used information for dissemination only as a last resort, mindful of the to the public, whether for com- competing rights at stake. pensation or not. Some other nations have by statute

[ 19 ] [ A Framework for a Free Press ]

� Is it limited by media platform? War correspondents face many spe- The most effective privilege cial challenges. Maintaining source would not be limited to those in confidentiality can be essential to pro- the print and broadcast main- tecting these journalists’ safety. But stream media. It would include what happens when the journalist is an book authors, as well as bloggers eyewitness to atrocities and is sum- and others who disseminate their moned before a war crimes tribunal to work on the Internet. give evidence? � Which sources does it protect? In 1993, Washington Post reporter A comprehensive privilege would Jonathan C. Randal interviewed Ra- cover not only the identity of sourc- doslav Brdjanin, a Serbian nationalist, es but also unpublished informa- whom he quoted in an article on ethnic tion and documentary materials, cleansing. Years later, after Randal had such as photographs, notes, tapes, retired from journalism, Brdjanin was drafts, and other unpublished charged with genocide. Prosecutors journalistic work product. wanted to introduce Randal’s article as evidence in the trial before the U.N. In- In the absence of an absolute privi- ternational Criminal Tribunal for Yugo- lege, one who seeks to compel a journal- slavia (ICTY). When the defense insisted ist to reveal confidential sources and on the right to cross-examine Randal, information should be required to show the former reporter was subpoenaed to good cause. Nations have devised dif- appear before the court. Randal resisted, ferent standards, but the more common arguing that being compelled to testify factors include: would compromise his ability to gather � The information is unobtainable news in war zones and could endanger from any other nonjournalistic his personal safety were sources to per- source after all reasonable alter- ceive him as a potential witness. natives have been exhausted. In December 2002, the Appeals � The information sought is mate- Chamber recognized a qualified testi- rial, or absolutely essential, to monial privilege for war correspon- the disposition of the underlying dents, even where their sources are not case (such as exonerating evi- confidential and their information has dence for an accused criminal). already been published. It defined war correspondents as “individuals, who for � A judge must find that the public any period of time, report (or investi- interest in disclosure outweighs gate for the purposes of reporting) from the public interest in the free flow a conflict zone on issues relating to the of information. conflict.” The court acknowledged that The final element is the most prob- to do their jobs, “War correspondents lematic. When does another interest must be perceived as independent ob- outweigh the fundamental right to servers rather than as potential wit- press freedom? In cases involving na- nesses for the Prosecution. Otherwise, tional security, for example, govern- they may face more frequent and griev- ment authorities often argue that pre- ous threats to their safety and the safe- serving public safety outweighs ty of their sources.” The tribunal ruled, protecting editorial independence. In ”The amount of protection [recognized] the United States, federal efforts to en- is directly proportional to the harm act a journalists’ shield law have been that it may cause to the newsgathering stymied for years, in part, because of function.” To compel testimony, it held, fears that terrorists might use it to pro- the subpoenaing party must show that tect their communications from law en- the evidence is of “direct and important forcement scrutiny. value in determining a core issue in the

[ 20 ] [ Media Law | Handbook ] case” and that the evidence cannot rea- es, or of the identity of the sourc- sonably be obtained elsewhere. es themselves. Randal’s case was a controversial In response to the majority ruling, one. Although more than 30 interna- the U.S. Congress enacted the Privacy tional news organizations supported his Protection Act of 1980. This statute for- appeal, Ed Vulliamy, a British journal- bids both federal and local law enforce- ist who also covered the war in Bosnia ment authorities from seizing documen- and voluntarily testified at the trial of tary, or work product, materials in the Milan Kovacevic, argued that Randal’s possession of persons intending to dis- position was wrong. “At the root of the seminate them to the public (i.e., jour- Washington Post’s objection is the sup- nalists). Exceptions include materials posed bedrock of the journalists’ profes- necessary to prevent death or serious sion: neutrality,” he wrote. “I believe injury, or child pornography. Similarly, that there are times in history…that in 1995, the New Zealand Court of Ap- neutrality is not neutral but complicit in peals ruled searches of journalists’ the crime. …The court needs reporters workplaces appropriate only in excep- to stand by their stories on oath.” tional cases when essential to promot- A related issue involves the power of ing the interests of justice and, even governmental authorities to search me- then, not to be executed in a way that dia offices. Zurcher v. Stanford Daily would impair the dissemination of news. (1978) was a U.S. Supreme Court case But in other parts of the world, news- challenging the power of police officers room searches occur frequently. For ex- to enter the office of a university stu- ample, in 2004, the Independent Com- dent newspaper and to seize unpub- mission Against Corruption in Hong lished photographs of a violent con- Kong obtained 14 warrants to search frontation between police officers and newspaper offices and journalists’ demonstrators who had seized and oc- homes. The commission sought the cupied the Stanford University hospi- identity of an individual who had pro- tal. Although the student newspaper vided a witness’s name to the news or- argued that the First Amendment pro- ganization. The Court of Appeal ruled tected it from law enforcement search- these searches justified. es of its premises, the majority opinion Although the European Court of Hu- by Justice Byron White ruled that man Rights holds that newsroom news organizations enjoy no special searches violate Article 10 of the Euro- status under the First Amendment, al- pean Convention on Human Rights, though they would be protected by the many European countries still permit Fourth Amendment, as any other en- them. Austria and Germany are two tity would be, from “unreasonable exceptions, with the German Constitu- searches and seizures.” tional Court ruling in February 2007 In dissent, Justice Potter Stewart wrote: that these searches violate constitu- It seems to me self-evident that tional freedom of speech protections. police searches of newspaper Antiterrorism laws adopted in much offices burden the freedom of the of the world since 2001 have expanded press. The most immediate and law enforcement and intelligence obvious…injury…is physical authority to intercept communications disruption of the newspaper. … through wiretapping and similar But there is another and more means. These laws typically afford serious burden…imposed by an journalists no less, but also no more, unannounced police search of a protection than other citizens. However, newspaper office: the possibility a few countries do grant the news me- of disclosure of information dia special protection. In Georgia, in- received from confidential sourc- tercepting journalists’ communications

[ 21 ] [ A Framework for a Free Press ] for the purpose of uncovering profes- Declaration of Human Rights and sional secrets is a crime. And in Bel- the International Covenant on gium, the Law on Protection of Civil and Political Rights guaran- Journalists’ Sources imposes the same tees the right to seek, receive, and restrictions on surveillance as on an at- impart information. This phrase tempt to compel disclosure of a confi- has been construed to include a dential source. right of freedom of information. In short, there is broad recognition that protecting journalists’ confiden- � Article 9 of the African Union tiality is essential to maintaining (AU) Convention on Preventing their independence. and Combating Corruption, a treaty signed by 40 of the 53 The Right of Access to members of the AU, says, “Each Government Information State Party shall adopt such and Proceedings legislation and other measures to hy is the right of access to govern- give effect to the right of access to Wment proceedings and information any information that is required important? to assist in the fight against � Access helps keep government corruption and related offenses.” accountable to its citizens. As a � The Organization of American U.S. Supreme Court justice once States, the Arab Charter on wrote, freedom of information laws Human Rights, and many other allow citizens to find out “what the treaties, conventions, agreements, government is up to” in the pres- and declarations recognize free- ent, and also what it did in the dom of information as a funda- past. By helping to check improper mental human right. conduct, access serves as a valu- But the reality often falls short of able anticorruption tool and helps the rhetoric. Individual nations decide build public trust. whether and how they will implement � Access allows the public to tap these lofty principles. The journalist into the vast quantities of govern- who sets out to exercise her right to know may find the experience a chal- ment-collected and -maintained lenging one. information, information paid for Freedom of information is a constitu- by the public’s tax dollars. tional right in about 80 countries. Swe- � When journalists can obtain pub- den’s 1766 press law, often considered lic records, they need not rely on the first freedom of information act, is the whims of a government source part of its constitution, and some older to report on government actions constitutions have been amended to in- and activities, and they can bet- clude a right to know. Many developing ter disclose how tax dollars are democracies in Central and Eastern Eu- spent and how policies are made rope and Latin America include access and implemented. provisions in their new constitutions. Even when the constitution contains no In short, journalists’ access to govern- explicit language, the highest courts in ment information is an essential tool for some countries, including Korea, Japan, building and maintaining democracy. and Israel, have found a right of access Many international agreements em- to information implicit in the right of brace and promote transparency: freedom of the press or expression. � Article 19 of both the Universal More than 70 additional countries

[ 22 ] [ Media Law | Handbook ] have enacted freedom of information mally what types of records may be statutes. These are well established in available before filing a formal access Europe and the Americas, less so in request. In the United States, no spe- Asia, the Middle East, and Africa. But cial form is necessary to file a FOIA re- the trend is definitely toward greater quest—just a simple letter, addressed transparency in government around to the pertinent FOIA officer, reason- the world. ably describing the records sought. Most agencies are prepared to accept Freedom of Information Laws requests in writing or electronically. ost freedom of information laws Despite the presumption of open- Mshare common principles and ness, however, nearly every freedom of characteristics. Many recent examples information law includes exemptions— were influenced by the U.S. federal categories of records an agency can Freedom of Information Act (FOIA), so withhold. The U.S. FOIA has nine ex- we will use that statute as an example. emptions, which, under the terms of the President Lyndon B. Johnson signed statute and based on guidance from the FOIA into law on July 4, 1966. Despite Department of Justice, should be nar- its name, the statute does not actually rowly construed: create a right of access to information. � national security; Rather, it establishes a presumptive � internal agency rules/practices; right of access to existing records, in paper or digital form, held by executive � internal agency memoranda branch agencies, departments, regula- (such as working papers, re- tory commissions, and government-con- ports, and studies prepared as trolled corporations. These include, for ex- part of the agency’s decision- ample, the Departments of State, Defense, making process); and Justice, as well as the Federal Bureau � trade secrets; of Investigation and the Central Intelli- gence Agency, among many others. Un- � records made secret by another like laws in countries like Ireland, federal statute; FOIA does not list covered agencies by � some law enforcement records; name, nor does it categorically exclude � bank records; bodies that handle intelligence and se- � oil and gas well data; curity, as in the United Kingdom. But the U.S. FOIA covers neither the legis- � records containing information lative nor judicial branches of govern- that, if revealed, would constitute ment. Access to state and local execu- an unwarranted invasion of tive branch agency records are covered personal privacy. by state open-government laws. Most of these exemptions are not In the United States, as in most mandatory. Agencies may release re- countries, anyone can make a FOIA re- cords if they conclude that the public quest. Neither U.S. citizenship nor resi- interest in disclosure outweighs any dency is required, and access is open to harm. They must be prepared to justify all, not just journalists. Requesters are any exemption and to withhold only the encouraged to utilize government read- exempt portion of any record while re- ing rooms, either brick-and-mortar or leasing the balance. The necessity of virtual, to gain free access to records withholding a particular record may already released under so-called E- evolve over time. In the case of classi- FOIA initiatives or disclosed in re- fied records, requesters have the option sponse to an earlier FOIA request. to appeal to a special review board that They are also invited to contact the will determine whether a previously agency FOIA officer to discuss infor- classified record can now be made

[ 23 ] [ A Framework for a Free Press ] public. In some countries, although not the tendency for most records custodi- in the United States, access laws in- ans is to withhold the record if there is clude specific prohibitions on withhold- any doubt. ing certain categories of information. A requester denied access to a record Although the United States does not has a right to appeal. Under FOIA, and have an official secrets act of the type in most countries, she begins by seek- found in many other countries, records ing an internal review within the agen- properly classified in accordance with a cy. This tactic sometimes, but not al- presidential executive order can be ways, results in release of the records. withheld. In the post-9/11 environment, The next step is to submit the appeal the practice of classifying information for external review. In the United has increased in much of the world. States, that means filing a lawsuit in a This imposes new obstacles to citizens federal district court, with subsequent seeking both intelligence and law en- appeals as necessary through the fed- forcement records. And as governments eral appellate courts and even to the collect more personally identifiable in- Supreme Court. In other countries, and formation, agencies frequently invoke in some of the individual states in the the privacy exemptions as grounds to United States, the requester may ap- withhold many government records. peal to a freedom of information om- These exemptions are sometimes budsman, or to an independent tribu- vague and difficult to interpret, and nal or information commission. Even in those jurisdictions, a final review can be sought in the national courts. A successful requester may be able to obtain not only the records but attor- ney’s fees, as well. In some U.S. states, and in many countries, courts can im- pose sanctions on government agencies and employees who willfully withhold records in violation of the law. These sanctions can include monetary fines and, in rare cases, even a jail sentence if the violation is particularly egregious. Even where the law requires disclo- sure, administrative backlogs, lack of re- sources, or inefficiency may result in de- lays. Most freedom of information laws set short deadlines for initial responses but allow additional time to handle com- plex requests. In the United States, the National Security Archive, a private or- ganization that conducts research on ac- cess policy, reported in 2007 that the old- est pending FOIA request was 20 years old, although many others are processed far more quickly. Under certain circum- stances, as where a journalist demon- Above: U.S. President Barack Obama signed five executive orders on January 21, 2009, requiring staffers to comply with strict new rules strates compelling public interest in im- on the Freedom of Information Act. In a memo released that day, mediate release, a requester may be President Obama wrote: “The Government should not keep infor- mation confidential merely because public officials might be embar- entitled to expedited processing. rassed by disclosure, because errors and failures might be revealed, Agencies may be authorized to re- or because of speculative or abstract fears.” coup costs from requesters, even if they

[ 24 ] [ Media Law | Handbook ] do not fulfill the entire request. Some cessing plants; from cost overruns by countries (although not the United defense contractors to the most danger- States) assess a filing fee, regardless of ous places to work in the United States. the size or scope of the request. Others Even features about unidentified flying demand payment for administrative objects (UFOs) are based on informa- costs, including search time, redaction tion obtained under the FOIA. All that of exempt information, and copying. is required is the persistence to make Under the U.S. FOIA, certain catego- use of it. ries of requesters, including the general public and the press, are entitled to full Access to Court Proceedings or partial fee waivers, but commercial he official activities of the judiciary requesters (not including the news me- Thave a tremendous impact on and are dia) are required to pay all applicable of great interest to the public. And yet, costs, which are determined by the when journalists set out to report on agency according to a fee schedule. court cases, it may result in an adver- Freedom of information laws create a presumption of public access. FOIA sarial relationship. Simply put, journal- disclosures have empowered journal- ists frequently want to publicize ists to write thousands of stories, some information attorneys and the judge embarrassing to the U.S. government. would prefer to keep secret. These range from the revelation of the Most countries at least tacitly ac- 1968 massacre at My Lai in Viet Nam knowledge that court proceedings to unsanitary conditions in food-pro- should be presumed open to the press

Above: U.S. soldier Ron Ridenhour was largely responsible for uncovering the massacre at My Lai in 1968 by gathering eyewitness accounts and sending letters to 30 members of Congress and to Pentagon officials. Ridenhour later became an investigative journalist.

[ 25 ] [ A Framework for a Free Press ] and the public, subject to certain lim- tive will avert the threat and must also itations. Article 6 of the European establish that closure will be effective. Convention on Human Rights pro- In addition, any closure must be nar- vides, in part: rowly tailored—as brief in scope and duration as possible. In the determination of his civil Some countries, such as Spain and rights and obligations or of any Sweden, among many others, afford criminal charge against him, similar constitutional guarantees that everyone is entitled to a fair and the administration of justice is to take public hearing within a reason- place in public. However, a separate is- able time by an independent and sue arises concerning limitations on impartial tribunal established by what journalists may report about a law. Judgment shall be pro- pending or ongoing case. nounced publicly but the press Prior Restraints and Gag Orders and public may be excluded from all or part of the trial in the n the United States, the strong interest of morals, public order or Itradition against prior restraints makes it almost impossible to persuade national security in a democratic a court to issue a gag order on the press. society, where the interests of For the most part, restraining orders juveniles or the protection of the are limited to court officials and trial private life of the parties so participants. The courts have ruled al- require, or the extent strictly most uniformly that dissemination of necessary in the opinion of the information pertaining to a case that court in special circumstances has been obtained legally by the press where publicity would prejudice cannot be restricted, whether it origi- the interests of justice. nated in or out of the courtroom. The Supreme Court ruled in 1976 that a In common law countries, the Anglo- gag order would be permissible only if Saxon tradition since Magna Carta publication would pose a “clear and (1297) has presumed that trials would present danger” to the conduct of the be open in order to protect the rights of trial, if the order actually would be ef- the accused and to ensure accountabil- fective to alleviate the harm, and if no ity. In the United States particularly, a less drastic means would address the line of Supreme Court cases beginning problem. For this reason, journalists in in 1980 has construed broadly both a the United States are almost never criminal defendant’s Sixth Amendment subjected to gag orders, and they nearly right to a fair and public trial and the always succeed in challenging those right of press and public under the First that are imposed. Amendment to attend that trial. Many A rare exception occurred in 2003. courts recognize a presumed right of Professional basketball player Kobe access to court documents, as well. Bryant was charged with rape and But the Supreme Court also has faced trial in Colorado. A court clerk ac- ruled that a specifically identified state cidentally e-mailed the transcript of a interest can outweigh the presumption closed pretrial hearing to seven media of openness. This could include a sub- organizations. The transcript included stantial threat to the criminal defen- the name of the alleged victim, infor- dant’s right to a fair trial or a compel- mation that was secret under the Colo- ling need to protect the privacy of a rado rape shield law. particular witness or victim during tes- Upon discovering the mistake, the timony. However, before closing the presiding judge ordered news organiza- courtroom, the presiding judge is re- tions to “delete and destroy any copies quired to consider whether any alterna- and not reveal any contents thereof, or be

[ 26 ] [ Media Law | Handbook ] subject to contempt of Court.” Although Cameras in the Courtroom some U.S. legal authority suggests that ourtroom cameras provide greater journalists may defy transparently un- public access, but they remain a con- constitutional gag orders, in this case C the news organizations immediately tentious issue in many nations. Coverage appealed the order to the state’s high- of the notorious O.J. Simpson murder est court. The Colorado Supreme Court trial in 1995 in California continues to in- ruled that protecting the accuser’s pri- fluence judges and policymakers around vacy and preserving the ability to pros- the world. They cite the perceived excess- ecute future sexual assault cases con- es of that case as proof that cameras un- stituted significant state interests dermine the right to a fair trial—even justifying the order. The dissenting jus- though Simpson was acquitted. Concerns tices, noting that the news organiza- that cameras will disrupt the proceed- tions had broken no law, observed, “It is ings, intimidate witnesses, and encour- the responsibility of the government, age lawyers to act inappropriately are not the media, to protect information just a few of the justifications offered to that lies within its control.” Ironically, keep electronic media from covering court within a short time, even more infor- mation, including the alleged victim’s cases. Nevertheless, cameras continue to last name, was posted on the Internet. be allowed in many U.S. state trial courts The judge released most of the tran- and in the highest appeals courts in a va- scripts, and the media dropped their riety of countries—though not, as yet, the appeal to the U.S. Supreme Court. Supreme Court of the United States. In By contrast, judges in the United 2000, a report commissioned by the Inter- Kingdom and Canada enjoy broad au- national Criminal Tribunal for Yugosla- thority to enjoin publication of material via concluded that cameras in the court that could create a “substantial risk did not significantly affect the partici- that the course of justice…will be seri- pants’ behavior and helped to provide a ously impeded or prejudiced,” and to full and accurate court record. It noted hold in contempt anyone who engages in further that cameras can inform the in- conduct that tends to “interfere with the ternational community about tribunal course of justice…regardless of intent to do so.” As a consequence, from the time workings and encourage a transparent a suspect is arrested or charged until and fair system of justice. It suggested sentencing, journalists in these nations that other international judicial proceed- may attend the proceedings but are lim- ings should follow suit. ited in what they may report. In other countries, provisions in either the civil The Right to Criticize or criminal code specify what types of Government Officials and information may or may not be report- Public Figures ed. Common restrictions include the ournalists report on the activities of identity of crime victims, familial de- Jgovernment officials and public fig- tails in divorce or child custody pro- ures. But, ironically, the more prominent ceedings, or details about an accused and powerful the individual, the more person’s past criminal record. In some she may object to criticism. During the nations like Sweden, where the law is course of their careers, many reporters silent, the journalists’ own code of con- duct specifies that defendants should find themselves facing a lawsuit, - ac not be identified unless “an obvious pub- cusing them of having falsely defamed lic interest requires it.” an individual. Libel is broadly defined as a false and defamatory statement made to a third party about another individual, with the

[ 27 ] [ A Framework for a Free Press ] potential to harm the subject’s reputa- tance. Henceforth, no public official tion. In most jurisdictions, an action could prevail in a libel case without for libel is a civil case, brought by the proving actual malice—that the state- individual as a means of recovering ment was published “with knowledge monetary damages. that it was false or with reckless disre- Because the right to reputation is re- gard of whether it was false or not.” In subsequent cases, the Court extended garded as an important, though not nec- the actual malice test to include libel essarily fundamental, right, international suits brought by public figures as well. conventions and treaties generally do not In cases involving private individu- reject libel suits as necessarily violating als (not public officials or public fig- the right of freedom of expression and the ures), the Court permits each state to public’s right to know. Article 19 of the establish the requisite standard. It ac- International Covenant on Civil and Po- knowledges a legitimate government litical Rights, for example, provides that: interest in affording individuals the op- The exercise of rights...carries portunity to be compensated when pub- lished falsehoods harm their reputa- with it special duties and respon- tions. But even then, the Supreme sibilities. It may therefore be Court requires at a minimum that a subject to certain restrictions, plaintiff prove publisher negligence, a but these shall only be such as standard that affords journalists some are provided by law and are leeway for good-faith errors. necessary…for respect of the Journalists possess a variety of priv- rights or reputations of others ileges and defenses against libel claims, [emphasis added]. even those of non-public figures. Truth, of course, is an absolute defense to li- The U.S. Supreme Court first grap- bel. The fair report privilege permits pled with the question of whether the reporters to republish without liability First Amendment to the Constitution government documents, including court applied in libel cases in New York Times filings, that contain libelous allega- v. Sullivan (1964). The case arose after tions, as long as the report of their con- the newspaper published a paid editorial tents is accurate. Fair comment per- advertisement protesting the treatment mits good-faith criticism of individuals of civil rights activists by law enforce- involved in matters of public concern, ment personnel in Montgomery, Ala- provided it is based on facts that are bama. Although he was not named in truthfully stated or otherwise privi- the advertisement, L.B. Sullivan, a city leged. And, as a matter of First commissioner who supervised the local Amendment law, the Court has held police, sued, claiming that the adver- that pure opinion—statement that tisement included erroneous statements can neither be proven true nor false— and that it had defamed him. He was is absolutely protected. awarded $500,000 in damages. The laws of many nations—Canada, The U.S. Supreme Court reversed Australia, Japan, Thailand, Brazil, the decision. In the majority opinion by and Poland, among them—include Justice William Brennan, the Court variations on these privileges and de- observed, “Debate on public issues fenses. Many countries make no dis- should be uninhibited, robust and wide- tinction between public and private fig- open,” recognizing for the first time ures, although they may impose stricter that, paradoxically, the First Amend- standards of proof on plaintiffs who are ment must protect some false state- also government officials. Some coun- ments in order to encourage truthful tries permit corporations to sue for li- speech about matters of public impor- bel, but many limit those actions to

[ 28 ] [ Media Law | Handbook ] statements damaging to the company’s to occur. In Italy, not only can prior re- trade or business reputation. Many straints be obtained, but under Arti- countries have abolished seditious libel cle 321 of the Italian Criminal Code, and prohibit government entities from a court can order the seizure of a de- suing for defamatory statements, even famatory publication. though individual officials may be per- In many countries, a state prosecu- mitted to do so. tor can bring a criminal libel suit. Assuming that a plaintiff both pleads Many scholars view criminal libel as and proves the elements of libel, she outdated (its original purpose was to then typically will seek monetary dam- protect the monarchy or aristocracy ages. Although harm to reputation will from criticism or insults). One rationale be presumed in some circumstances, was to provide a legal alternative for such as when a statement falsely ac- those who might otherwise turn to du- cuses an individual of a crime, in most eling or vigilantism to seek satisfaction instances, the plaintiff will be obliged for affronts to their honor or dignity. to prove that she actually suffered dam- However unrealistic these threats may age as result of the publication. Many be today, even some mature democra- countries allow plaintiffs to recover cies, including the United States, re- damages to compensate them for actual tain criminal libel statutes on their out-of-pocket monetary losses, as well books, although they are rarely used. as impairment of reputation, loss of In Germany, criminal defamation standing in the community or profes- laws have been defended as necessary sion, or personal humiliation. In addi- to protect the individual’s right to dig- tion, where the journalist’s conduct is nity under the Basic Law. Portugal has considered outrageous, courts may argued that the state has the duty to award punitive damages, designed not protect an individual’s reputation. Ar- to compensate the plaintiff but to pun- ticle 443 of the Belgian Criminal Code ish the media defendant. permits prosecution for libel, defined as In some countries, media defendants “viciously and publicly attributing to a may mitigate or reduce their damages given person fact, the legal proof of by demonstrating that they promptly which may not or cannot be established published a full and fair retraction of and which is likely to harm that per- the false and defamatory material. In a son’s honor or to expose that person to number of nations, a defendant’s offer public contempt.” of amends—a claim that the libel was However, the European Court of Hu- published innocently—will either nul- man Rights has overturned criminal lify the libel action or act as a defense defamation convictions based on Article in a subsequent suit. 10 of the European Convention. In Lin- An alternative to monetary damages gens v. Austria, for example, it ruled is an injunction prohibiting publication that a politician who “inevitably and of the allegedly libelous material. knowingly” opens himself to scrutiny Courts in the United States and Cana- by journalists and the public must be da have rejected injunctions as a reme- prepared to accept harsh criticism. The dy for libel, finding them to be incom- court noted that criminal libel convic- patible with free-expression principles. tions have “a chilling effect” on the But many other countries permit them. press and discourage the media from Courts in India, for example, will some- practicing their role as public watch- times issue pre-publication injunctions, dog. Nevertheless, criminal libel laws but only if the statement complained of have been justified as necessary to pro- is demonstrably false and only if the tect nascent democracies from damag- plaintiff can demonstrate that immedi- ing criticism. Azerbaijan and the Mal- ate injury to person or property is likely dives are just two countries that, in the

[ 29 ] [ A Framework for a Free Press ] summer of 2009, prosecuted journalists pellate court upheld this verdict, but a for defamation. unanimous Supreme Court reversed. Some nations apply much looser Citing the long American tradition of standards that are less compatible with robust and caustic political commen- press freedom. Some jail reporters for tary, Supreme Court Chief Justice Wil- erroneously reporting falsehoods about liam Rehnquist rejected Falwell’s at- individuals. In many others, desacato tempt to impose an “outrageousness” laws permit criminal prosecution of standard that would permit recovery. journalists for insulting or offending He wrote, “‘Outrageousness’ in the area the dignity of public officials or institu- of political and social discourse has an tions. Turkey, for example, has 11 sepa- inherent subjectiveness about it which rate insult laws, including one to pro- would allow a jury to impose liability tect the memory of Mustafa Kemal on the basis of the jurors’ tastes or Ataturk. Expressions of contempt for views, or…their dislike of a particular the president, vice president, or a for- expression.” Absent a showing that a eign head of state are punishable by false statement of fact was made with one to five years imprisonment, and/or actual malice, Rehnquist wrote, a pub- a fine in Cameroon. A journalist who lic figure must tolerate such attacks, in “dishonors or discredits” another indi- order to give adequate “breathing vidual can be fined or imprisoned in space” to the freedoms protected by the Argentina. And even France retains First Amendment. the Law of July 29, 1881, on its statute books, permitting the press to be pun- The Right to Gather and ished for insulting the president, the Publish Newsworthy Information senate, foreign dignitaries, and the About Individuals national flag. n 1890, two Boston lawyers, Louis By contrast, in the United States, Brandeis and Samuel Warren, pub- the Supreme Court has said, “There is I lished an article in the Harvard Law no such thing as a false idea.” In Gertz v. Robert Welch (1974), Justice Lewis Review entitled “The Right to Privacy.” Powell observed, “However pernicious They observed that: an opinion may be, we depend for its The press is overstepping in correction not on the conscience of every direction the obvious judges and juries but on the competi- bounds of propriety and decency. tion of other ideas.” In 1988, the Court Gossip is no longer the resource categorically rejected a cause of action of the idle and vicious, but has for infliction of emotional distress become a trade, which is pursued brought against Larry Flynt’s Hustler magazine by the Rev. Jerry Falwell. with industry as well as effron- The magazine had published an “ad- tery. To satisfy a prurient taste vertising parody” depicting the clergy- the details of sexual relations are man purportedly describing his first spread broadcast on the columns sexual encounter with his mother in of the daily papers. To occupy the an outhouse while both were intoxicat- indolent, column upon column is ed. The publication included a dis- filled with idle gossip, which can claimer that the parody was fiction, only be procured by intrusion “not to be taken seriously.” upon the domestic circle. …When Falwell sued Flynt for libel, invasion personal gossip attains the of privacy, and intentional infliction of dignity of print, and crowds the emotional distress. Although Falwell space available for matters of lost on the first two claims, the jury real interest to the community, ruled in his favor on the third. An ap- what wonder that the ignorant

[ 30 ] [ Media Law | Handbook ]

and thoughtless mistake its ple, declares, “The private life of an in- relative importance. dividual is natural and inviolable.” The Danish Criminal Code guarantees the The lawyers’ prescient observations right to privacy by making it an offense eventually led to the recognition of a to trespass into private homes, to ac- common law right to privacy in the cess private papers, to use mechanical United States. Their concerns seem devices to eavesdrop, to photograph or remarkably timely more than 100 spy on individuals when on private years later. property, to communicate someone Privacy rights are enshrined in a else’s private facts to another person, or number of international legal docu- to intrude on another’s solitude after ments. Article 17 of the International having been warned to leave him alone. Covenant on Civil and Political Rights Germany guarantees “the right of per- says, “No one shall be subjected to arbi- sonality” in its Basic Law. And the trary or unlawful interference with pri- right of privacy is guaranteed in South vacy, family, home or correspondence,” Africa both in Section 14 of the consti- and Article 8(1) of the European Con- tution and by common law. vention similarly guarantees “the right Courts in the United States, however, to respect for his private and family were slow to recognize a right to privacy. life, his home and his correspondence.” Although the Supreme Court has inter- On the national level, privacy rights preted the Fourth Amendment of the may be guaranteed by the constitution, U.S. Constitution to protect individuals by statute, or by common law. Article 5 from unreasonable searches and sei- of the Constitution of Brazil, for exam- zures, as well as other unwarranted

Above: After Hustler owner Larry Flynt, left, published a lewd parody of Virginia televangelist Rev. Jerry Falwell, right, Falwell sued Flynt for libel. The case reached the U.S. Supreme Court where Chief Justice William Rehnquist wrote that Falwell, as a public figure, must tolerate such at- tacks in order to give sufficient “breathing space” to the freedoms protected by the First Amendment.

[ 31 ] [ A Framework for a Free Press ]

intrusions by government agents, the young son after she was photographed amendment applies to the government on an Edinburgh street while pushing and not to actions by other individuals. him in a stroller. A young Canadian With the exception of a handful of fed- woman recovered damages from a Mon- eral statutes that prohibit certain types treal magazine that had photographed of electronic interception of private com- her sitting on a door stoop after, she munications, U.S. privacy law is almost claimed, her friends made fun of her. exclusively the province of the 50 states. Even though she was in public at the By 1960, the American legal scholar time the picture was taken, the Su- William Prosser had identified four dis- preme Court of Canada found that her tinct privacy torts: right to control the use of her image in � intrusion on seclusion; the media was guaranteed by the privacy clause in the Quebec human � publication of private facts; rights charter. � depiction of another in a false light; The publication of private facts tort � misappropriation or commercial presents a free-expression dilemma be- use of another’s name or image. cause it permits legal action to be Some arise from common law. Oth- brought against journalists who have ers are statutory. Not every jurisdiction published the truth. Nevertheless, recognizes all four torts. But each is de- many countries recognize some version signed to provide a remedy to an indi- of this tort. The United States con- vidual based not on his external repu- strues it narrowly, limiting actions to tation, as in libel, but on his own sense publication of intimate facts highly of- of violation of self. Many countries rec- fensive to a reasonable person and of no ognize some or all of them. legitimate public concern. A public fig- Intrusion on seclusion most com- ure or public official will probably be monly arises in the context of news held to have a diminished expectation gathering. It includes not only physical of privacy. trespass into another’s private space The challenge for any journalist is to but also eavesdropping, tape recording, determine whether a court would deem or otherwise intercepting private con- a particular fact newsworthy. A news versations without permission. Al- organization’s decision to publish infor- though the Supreme Court once ob- mation does not necessarily mean that served, “Without some protection for it is of public concern. One also must seeking out the news, freedom of the distinguish between issues that are of press would be eviscerated,” the high legitimate public interest and connect- court has never exempted journalists ing those issues with individuals. For from generally applicable laws that pro- example, when the British tabloid news- hibit intrusion. The use of hidden cam- paper The Daily Mirror published pho- eras, for example, is unlawful in some tographs of Naomi Campbell leaving a states, and the Supreme Court let stand Narcotics Anonymous meeting, the su- a Florida ruling that statutes prohibit- permodel was able to recover damages ing the use of concealed tape recorders for invasion of privacy. The House of do not violate the First Amendment Lords concluded that although the gen- rights of the press. eral topic of substance abuse was a In most, but not all, jurisdictions, matter of public concern, Campbell’s journalists are free to record or photo- addiction and treatment were not. graph anything they can observe in a A more extreme example involved public place. However, there are excep- Princess Caroline von Hannover of Mo- tions. Scottish author J. K. Rowling, of naco, who claimed that publication of Harry Potter fame, successfully sued photographs depicting her going about for invasion of privacy on behalf of her ordinary activities, including horseback

[ 32 ] [ Media Law | Handbook ] riding, shopping, and skiing, violated of information, or who affirmatively her privacy under German law. The disclose it themselves, generally cannot German courts rejected her claims, but complain if it is published. in 2004, the European Court of Human The tort of false-light invasion of pri- Rights upheld them, finding that her vacy is something of a legal anomaly rights as guaranteed by Article 8 of the and is not universally embraced. A few European Convention on Human countries, such as Hungary and South Rights had been violated. The court ac- Africa, allow actions for publication of knowledged that Von Hannover is a false and misleading information, but public figure but ruled the photographs only about two-thirds of American involved no matter of general concern: states recognize the tort. Similar to li- A fundamental distinction must bel, false light allows individuals to sue for depictions that imply inaccurate, be made between reporting but not necessarily defamatory, facts. facts—even controversial ones— These may arise in the context of em- capable of contributing to a debate bellishment or fictionalization, such as in a democratic society relating to in a docudrama or other dramatization politicians in the exercise of their of a true story. But many false-light functions, for example, and report- cases arise from the publication of pho- ing details of the private life of an tographs or videotape coupled with individual who, moreover, as in misleading captions, headlines, or sto- this case, does not exercise official ries. For example, in 2002, an actor functions. While in the former whose photograph appeared on the cov- case the press exercises its vital er of Playgirl successfully sued the role of “watchdog” in a democracy magazine in federal court in California by arguing that the combination of the by contributing to impart[ing] picture and the headlines created the information and ideas on matters false impression that nude photographs of public interest,…it does not do of him appeared inside. so in the latter case. Appropriation of an individual’s Broadly speaking, however, informa- name or image for commercial purpos- tion that is in the public domain—for es is regarded in many jurisdictions as example, details that can be obtained essentially a proprietary right, compa- from public records or proceedings— rable to trademark or copyright. Others cannot be the basis of an invasion of consider it an extension of the right of privacy suit for publication of private personality. As an Irish Law Reform facts. In 1989, the U.S. Supreme Court Commission report put it: ruled that the victim of a sexual as- Where the person does not con- sault could not sue a newspaper that sent to such use of the photo- included her name as part of a criminal graph, she or he may feel offended incident roundup. Even though Florida, and embarrassed simply because the state in which she resided, prohib- they dislike publicity or because ited news organizations from publish- they dislike being associated with ing the names of rape victims, the high the product. In such cases, the court found that because the newspaper had obtained the information legally— protected interest is not necessar- from a police report form that had been ily proprietary or commercial. It is inadvertently made available in the human dignity. sheriff’s department press room—it China, Australia, Austria, Canada, could not be held liable for accurately Germany, and France are among the reporting the information. Similarly, countries recognizing some variation of individuals who consent to the release

[ 33 ] [ A Framework for a Free Press ] this tort. In Italy, Article 41(2) of the Rights ruled a Costa Ricanjournalist- constitution permits individuals to com- licensing statute contrary to the Ameri- mercially exploit the image of another can Convention on Human Rights and, person, as long as consent is first ob- by extension, all human rights conven- tained. In the United States, the tort is tions, “insofar as it denied some persons limited to unauthorized uses in adver- access to the full use of the news media tisements or product endorsement. For as a means of expressing themselves or example, the Texas appropriation stat- imparting information.” ute, (known as the Buddy Holly Act be- Mandatory membership, certifica- cause it was enacted in response to ex- tion, or educational requirements can ploitation of the deceased singer’s name prevent individuals from gathering and and image,) specifically exempts any use disseminating information and deprive in a play, book, film, radio program, others of the opportunity to receive it. magazine or newspaper article, political Principle 8 of the Declaration of material, or work of art. Parodies or sa- Chapultepec draws the logical conclu- tirical works are also protected. sion: “The membership of journalists in Limits on Government guilds, their affiliation to professional Licensing of Journalists and and trade associations and the affilia- News Organizations tion of the media with business groups must be strictly voluntary.” Mandatory andatory licensing of reporters licensing or affiliation requirements for Mhas been justified as a means of journalists remain in place in many ensuring that only qualified individuals countries in Africa, Asia, and the Mid- engage in journalism and of keeping dle East. Although in June 2009, the professional standards high. Some in- Supreme Court in Brazil abolished a ternational organizations have advocat- legal regulation requiring a university ed licensing to protect journalists from degree and membership in a union, government harassment or harm. But nine Latin American countries contin- when a government asserts authority to ue to impose some requirements. And in Zimbabwe, journalists challenged determine who can and cannot cover the establishment of a media accredita- the news, it claims, says Leonard Suss- tion authority empowered to assess li- man of Freedom House, “a license to censing fees, which the journalists censor.” The lack of a license can pro- claimed were grossly unreasonable and vide the pretext for arresting journal- restrictive of freedom of expression. ists or expelling them from a country, Licensing conditions news organiza- and regimes can arbitrarily withhold tion operations upon government ap- licenses from reporters whose work they proval. It affords another means of con- wish to suppress. As the 1980 Interna- trolling the press and promoting tional Commission for the Study of self-censorship. Article 10 of the Euro- Communication Problems, also known pean Convention on Human Rights as the MacBride Commission report to guarantees freedom from “interference UNESCO, concluded, “Licensing by public authority” but has never been interpreted to prohibit licensing re- schemes might well lead to restrictive quirements. Nevertheless, licensing re- regulations governing the conduct of quirements can, under some circum- journalists; in effect, protection would stances, also be viewed as censorship be granted only to those journalists who and, accordingly, as incompatible with had earned official approval.” In 1985, freedom of expression. the Inter-American Court of Human

[ 34 ] [ Media Law | Handbook ]

Additional Government waves during the period immediately Regulation preceding an election. n many jurisdictions, the govern- The fairness doctrine, which re- Iment’s power to regulate content dif- quired broadcast licensees to report on fers between print and broadcast media. controversial issues of public impor- In the United States, the First Amend- tance in their communities and to pro- ment is held to prohibit any government vide responsible representatives of licensing of newspapers and magazines, opposing views a reasonable opportu- but the Federal Communications Com- nity to reply, was repealed by the FCC mission (FCC) has exclusive authority to in 1987. At that time, the commission license use of the electromagnetic spec- concluded that because of the explosion trum, which is regarded as a scarce pub- of new media outlets, the doctrine was lic resource. As the Supreme Court no longer necessary to serve the public observed in 1969: interest in receiving “diverse and an- tagonistic sources of information.” The Where there are substantially commission added that: more individuals who want to broadcast than there are fre- The intrusion by government into quencies to allocate, it is idle to the content of programming occa- posit an unabridgeable First sioned by the enforcement of doc- Amendment right to broadcast trine unnecessarily restricts the comparable to the right of every journalistic freedom of broadcasters individual to speak, write or …and actually inhibits the pre- publish. …It would be strange if sentation of controversial issues the First Amendment, aimed at of public importance to the detri- protecting and furthering com- ment of the public and in degrada- munications, prevented the tion of the editorial prerogatives of broadcast journalists. Government from making radio communication possible by Taxation, too, presents issues. Tax requiring licenses to broadcast laws that apply to all for-profit corpora- and by limiting the number of tions are generally acceptable, while licenses so as not to overcrowd those singling out the news media for the spectrum. special obligations often are deemed un- constitutional prior restraints on speech. U.S. law authorizes FCC control over By the same token, restrictions on the in- some aspects of broadcast station own- ternational circulation of news media ership. It may prohibit the concentra- products violate both Article 10 of the tion of many outlets in the hands of a European Convention on Human Rights single entity or limit cross-ownership, and Article 19 of the International Cove- where one company controls multiple nant on Civil and Political Rights, which guarantee the free flow of information media platforms in a single market. and ideas “regardless of frontiers.” Nevertheless, the FCC’s jurisdiction An extensive discussion of licensing over broadcasters’ content decisions is and regulatory schemes is beyond the subject to the First Amendment, and in scope of this book. In general, it is legiti- recent years has been limited primari- mate to require news organizations to ly to regulating indecency and to re- abide by corporate laws and regulations quiring broadcasters to provide equal of general applicability (such as regis- opportunities for opposing candidates tering the names and addresses of those for public office to appear on the air- legally responsible for the organization’s

[ 35 ] [ A Framework for a Free Press ] operations). Any government regulation tions. But in some countries, outdated of media operations or content decisions statutes still recognize offenses like should be transparent; subject to public “conspiracy to corrupt public morals” or scrutiny, participation, and oversight; “outraging public decency.” Vaguely and no more extensive than necessary worded laws may proscribe indecent or to promote identified public interests. obscene material without defining it, or they may lack qualifying language like Only Narrow and Carefully that adopted by the U.S. Supreme Court Tailored Restrictions on in 1973, which limited obscenity to those Indecent or Obscene Speech works that, “taken as a whole, lack seri- robably the biggest challenge to eval- ous literary, artistic, political or scientif- uating government controls on inde- ic value.” In these situations, journalists P may run afoul of the laws if they publish cent or obscene speech is defining the sexually explicit, but newsworthy, mate- terms “indecent” and “obscene.” The rial. Or the obscenity laws may be used United Kingdom’s Obscene Publications as a pretext to censor other material. For Act of 1959 (as amended), for example, example, in Vietnam, the government provides that material shall be deemed claims that it filters out Internet access obscene if “the effect…is, if taken as a only to sexually explicit material. Yet a whole, such as to tend to deprave and 2007 report by the Internet watchdog corrupt persons who are likely, having group OpenNet Initiative found instead regard to all relevant circumstances, to that pornography remains relatively un- read, see or hear the matter contained or fettered, while religious and political embodied in it.” The late U.S. Supreme sites critical of the government routinely Court Justice Potter Stewart, when are blocked. asked to define obscenity, famously ob- Even in the United States, the Su- preme Court has upheld greater re- served, “I know it when I see it.” strictions on the broadcast of indecent In most countries, publishing or dis- material that would be constitutional- tributing obscene materials is a criminal ly protected speech in the print media, offense. Prior restraints on their distri- on the ground that the pervasive na- bution are often considered constitution- ture of the broadcast medium makes al. Many laws seek to protect children its programming uniquely accessible from both exploitation and exposure to to children. pornographic materials. However, na- The best approach to regulating ob- tional and international freedom of ex- scenity is a focused one. Laws should de- pression guarantees generally protect fine with precision what is being banned. the access rights of consenting adults, That way, all parties are on notice of except for certain specific categories. In what is impermissible. Laws should dis- Germany, the criminal code prohibits tinguish materials that are offensive but not demonstrably harmful. Content distribution of pornography that depicts that has redeeming social, political, sci- abuse of children. In Sweden, some im- entific, or artistic value should be pro- ages of sexual violence can be banned. tected. Any government body authorized Child pornography, whether or not legal- to classify or restrict distribution of ob- ly obscene, enjoys no constitutional pro- scene or indecent material or to impose tection in the United States. Many sanctions on publishers should operate countries forbid the sales of any pornog- transparently and follow clearly articu- raphy to those under age 18. lated standards. In mature democracies, obscenity laws usually raise no significant con- cerns for mainstream news organiza-

[ 36 ] [ Media Law | Handbook ]

[ 37 ] [ Self-Regulation In Lieu of Litigation ]

[ 38 ] [ Media Law | Handbook ]

Self-Regulation In Lieu of Litigation

o freeman shall be arrested, or detained Nin prison or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him nor send against him, unless by the lawful judgment of his peers and by the law of the land.

M agna Carta Runnymede, England June, 1215

[ 39 ] [ Self-Regulation In Lieu of Litigation ]

Self-Regulation In Lieu of Litigation

ournalists and news organizations make mistakes. Courts offer aggrieved individuals remedies. Law- suits for libel, invasion of privacy, breach of confi- dence, copyright violation, and infliction of emotional distress are just a few types of civil action one can bring against the press.

ut lawsuits take time, cost money, when the underlying case involves Band often do not afford a plaintiff journalistic misconduct, will inhibit satisfactory results. For example, in the the future free and open publication of United States, constitutional protec- controversial views. tions in libel cases are so strong that Self-regulatory mechanisms offer some trials never reach the point of a valuable alternative. adjudicating the underlying allega- tion’s truth. By contrast, legal stan- Ombudsmen dards favoring libel plaintiffs turned lso known as “readers’ representa- the United Kingdom into the “libel Atives” or “public editors,” ombuds- capital of the world” in the 1990s and men act as liaisons between a news first years of the 21st century, with in- organization’s staff and the public. Typ- dividuals of many nationalities filing ically, they field complaints, investigat- suit in London against foreign publi- ing alleged ethical breaches. They cations that they claimed defamed encourage staff to respond to readers’ them. But in May 2010, the newly questions, and they explain how and elected coalition government vowed to why news organizations make their de- “review and reform libel laws to pro- cisions. They may write a column, or tect freedom of speech, reduce costs, they may simply handle complaints on and discourage libel tourism.” an individual basis. Even though om- The right to free expression often budsmen are generally paid by the news collides with other competing inter- organization, they should be assured ests. Sometimes there is no legal rem- autonomy and independence. edy for types of journalistic miscon- duct that can upset readers and Press Councils viewers. A courtroom is often not the ress councils, which typically op- best place to resolve disputes about Perate as tribunals that consider balance, fairness, and accuracy. And and adjudicate complaints about me- there is always the risk that harsh ju- dia conduct, can take many forms. dicial remedies, even those imposed Some are legislatively mandated.

[ 40 ] [ Media Law | Handbook ]

Many are funded by the news media. tary association of U.S. news reporters Others are underwritten by charitable and editors. Its code encourages jour- foundations or nongovernmental organi- nalists to abide by four core principles: zations, multilateral organizations such � Seek truth and report it: Jour- as UNESCO, or even voluntary contri- nalists should be honest, fair and butions from the public. Still others are courageous in gathering, reporting affiliated with universities. A few re- and interpreting information. ceive support from governmental enti- � Minimize harm: Ethical journal- ties but operate independently. ists treat sources, subjects and Press councils can have national, re- colleagues as human beings gional, or local jurisdiction. The mem- deserving of respect. bers of the tribunal usually include rep- � resentatives of the press and of the public, Act independently: Journalists including academics, and, sometimes, of should be free of obligation to any the government. Those who choose to interest other than the public’s submit their complaints to a press coun- right to know. cil for resolution are usually obliged to � Be accountable: Journalists are waive any right to pursue a law suit. accountable to their readers, Council staff screens complaints and listeners, viewers and each other. submits those of potential merit for adju- By its own terms, the SPJ code is a dication under council procedures. A typ- voluntary guide to ethical behavior. It ical model features an open hearing be- states: “The code is intended not as a fore the tribunal. Both the complainant set of ‘rules’ but as a guide for ethical and the news organization have the right decision-making. It is not—nor can it to appear. After the presentations, ques- be under the First Amendment—legal- tions, and deliberations, the tribunal is- ly enforceable.” sues a ruling. Some news councils re- The SPJ has a National Ethics Com- mittee, consisting of members from quire member news organizations to throughout the United States with a publish the rulings involving them; for special interest and expertise in ethics. others, publication is voluntary. Although the committee does not adju- Codes of Ethics dicate specific complaints, it does pro- vide guidance and opinions to journal- ost associations of journalists, and ists and members of the public. Mmany individual news organiza- tions, have adopted codes of ethics. Terms vary. Some codes are binding, and violation of a provision can lead to dismissal by an employer or expulsion from a professional journalism society. But most codes of ethics, instead, offer voluntary guidelines to help journalists make morally and professionally sound decisions. Codes thus encourage greater accountability to readers and viewers. Some codes of ethics are extremely detailed. Others offer more general principles. A good example is the Code of Ethics for the Society of Professional Journalists (SPJ), the largest volun-

[ 41 ] [ The Responsibilities of Journalists ]

A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.

Chief Justice Warren Burger Supreme Court of the United States Miami Herald Publishing Co. v. Tornillo 418 U.S. 241 (1974)

[ 42 ] [ Media Law | Handbook ]

The Responsibilities of Journalists

n August 2009, a court in Amsterdam ruled that the Associated Press (AP) violated the Dutch royal family’s privacy by distributing photographs taken of them on a skiing holiday in Argentina. The presiding judge prohib- ited further dissemination or sale of four of the photos. She found that the pictures were taken during “a private vacation” and depicted “private activities.” “The right to respect the personal sphere weighs more heavily than the right to freedom of expression,” the judge wrote.

Taking the photographs was legal concluded that publication of the pho- under Argentine law. But the judge cit- tos served no public interest and that, ed a 2005 media code drawn up by the in this particular case, “The right to Royal House with the assistance of the respect the personal sphere weighs Netherlands Government Information more heavily than the right to freedom Service (RVD), requiring the Dutch of expression.” news media to refrain from photograph- This story represents the responsible ing them except during official func- journalist’s worst nightmare. A non- tions or designated “media moments.” binding journalistic code of conduct be- Although she acknowledged that the came the basis to stop an international code “cannot be regarded as a binding news agency from publishing photo- agreement,” the judge nevertheless in- graphs of public figures that had been voked it as the basis to threaten AP taken legally. with a fine of up to 50,000 euros for any It does not always happen that way, future distribution of the photos. of course. Many individual media The AP had argued that royalty’s organizations and journalists’ associa- public actions are of public concern. It tions voluntarily adopt codes or predicted the ruling “would have the standards of practice. These serve not unfortunate effect of unduly restrain- as grounds to restrict press freedom ing the exercise of freedom of informa- but, instead, as guideposts to help jour- tion globally.” Reporters Sans Fron- nalists determine the best way to do tières (Reporters Without Borders) their jobs. As the preamble to the Code denounced both the ruling and the me- of Ethics of the U.S.-based Society of dia code, contending that the system Professional Journalists says, “Profes- established by the code “reduces the sional integrity is the cornerstone of a media to PR agencies.” But the judge journalist’s credibility.”

[ 43 ] [ The Responsibilities of Journalists ]

Above: Was privacy a more important right than freedom of the press? A court in Amsterdam ruled that the AP photographers violated the Dutch royal family’s privacy by distributing photos taken of them during a skiing holiday in Argentina. Is Journalism a “Profession”? ever well-intentioned, they argue, these impose barriers to participation and can he term “code” is usually associated exclude individuals who represent un- with a profession. But whether jour- T popular or minority viewpoints. Licens- nalism is a profession is a hotly contested ing circumscribes freedom of expression question. In many countries, the answer and undermines the public’s right to re- is “no.” Traditionally, a profession is an ceive information from diverse sources. occupation with formal qualifications, re- Ideally, then, journalism codes of eth- quiring specialized training and licens- ics will be aspirational rather than le- ing, and subject to a regulatory body with gally enforceable by the state. The for- the authority to admit and discipline mer might allow a member news members. Lawyers, physicians, and organization to discharge an individual members of the clergy are regarded as reporter who violates the code. But even professionals throughout the world. So then, nothing would stop that reporter are architects, engineers, dentists, phar- from seeking another job elsewhere or macists, and accountants. prevent another organization from hir- Journalists are sometimes subjected to ing her. No court or licensing board similar requirements. Some countries re- could rule that reporter ineligible to quire reporters to complete a particular practice journalism. training or university program. Others mandate their guild or union member- Ethics and Standards: ship or compel them to hold a govern- More Questions Than Answers ment-issued license. thics codes aim not to impose legally Most free-expression advocates oppose enforceable standards but, instead, mandatory credentialing schemes. How- E to offer journalists a framework to help

[ 44 ] [ Media Law | Handbook ] them decide what to report and how to � Should a television station air report it. No code of ethics can answer graphic footage of military con- every question, and good ones probably flict, including scenes of violence raise more questions than they answer. and death? Would this convey to Reasonable people, even journalists the public the reality of war? Or, themselves, may disagree about how a instead, undermine morale and specific ethical standard should apply in needlessly distress surviving a particular situation. family members? � For example, should a journalist Readers and viewers may not agree lampoon a name or image sacred with every choice a news organization to a particular ethnic or religious makes. But ethical standards and group? This is perfectly legal in guidelines can offer guidance toward many countries. But does it contri- thoughtful and defensible solutions. bute to robust public discussion or, instead, foment hatred and Seeking Truth: The First Principle promote conflict? ost journalism codes emphasize that � Should the press publish classi- Mtelling the truth—being accurate— fied information, especially where is essential. “Seek truth and report it” is government claims that doing the first core principle of the Society of so will damage its efforts to Professional Journalists Code of Ethics. protect the public? Would this The British Editors’ Code of Practice also be the act of an independent lists accuracy as its first principle and government watchdog or of one states, “The press must take care not to needlessly endangering public publish inaccurate, misleading or dis- health and safety? torted information, including pictures.” The one universal ethical principle may

Above: In 1971, the New York Times published the Pentagon Papers despite government claims that doing so would endanger national security. The U.S. Supreme Court ruled that constitutional guarantees of a free press overrode other considerations, and allowed further publication.

[ 45 ] [ The Responsibilities of Journalists ] be simply this: A journalist never know- all sources be “on the record” and that ingly publishes a falsehood. facts not be linked to “administration This is not always an easy standard to sources” or some other imprecise for- uphold. Of course, a journalist should mulation. Sources who stand behind make every effort to verify a story before their word are more likely to tell the reporting it. But facts that alter original truth. Attributing information to a named source also helps the reader or perceptions may only be learned over viewer evaluate independently the cred- time, after publication. Here, a responsi- ibility of the source. ble news organization publishes a correc- But sometimes a source has valid tion or clarification as quickly as possible. reasons to request, or demand, that his News organizations should take identity be kept secret. When possible, great care to assure that headlines, a journalist should resist making this teasers, sound bites, or quotations are promise. But it won’t always be possi- not only accurate but do not oversim- ble. Some news organizations require plify the facts or take them out of con- that an editor approve any promise of text. Photographs, audio, and video confidentiality. Although this can frus- may need to be cropped or edited to ad- trate a reporter, the policy makes sense. dress considerations of space or time When an unattributed piece of informa- but not in a way that misleads or mis- tion is published, the news organiza- tion’s reputation is at stake along with represents. The staging of photos or re- that of the individual reporter. enactments of news events should be Reporters should be very clear about avoided or, where absolutely necessary, their promises. Phrases like “off the re- clearly labeled. cord” and “on background” mean differ- Obviously journalists should not fabri- ent things to different people. Journal- cate the news, nor should they plagia- ist and source should agree on the rize—that is, copy without attribution— terms governing the news organiza- another person’s work. They should not tion’s use of information. make up quotations, nor reprint a news Once a promise is made, it must be story prepared by someone else without kept. As the British Code of Practice first obtaining permission to do so. says, “Journalists have a moral obliga- tion to protect confidential sources of Sources information.” Should the journalist be reporter, it is said, is only as good as called to testify in court about her in- formation, keeping that promise can her sources. Knowledgeable ones en- A put the journalist at risk of being held hance a journalist’s news-gathering abili- in contempt in nations that do not rec- ty and help her publish more information. ognize a legal privilege for journalists. But journalists must be cautious and Any reporter must be clear with the determine that a source is credible. source exactly how far he is prepared to This includes ascertaining a source’s go to keep that promise. point of view or what his “agenda” might be. Ideally, reporters should con- Surreptitious and Undercover sult multiple sources to obtain diverse Reporting Techniques perspectives on a subject. And they should make every effort to verify the ournalists should avoid deceptive re- accuracy of a source’s information Jporting techniques, like using hidden whenever possible. cameras, tape recorders, and micro- What about anonymous sourcing, phones, or assuming a false identity. In the practice of attributing a fact to an some jurisdictions, they are illegal. But unnamed source? It is preferable that equally important, they can undermine

[ 46 ] [ Media Law | Handbook ] credibility. Readers and viewers often jective journalist will, of course, report won’t believe that a reporter who essen- what the authorities say. But, to the ex- tially lied in order to get a story will tell tent the law permits, she also should the truth when he reports it. Generally seek independently to verify the accura- speaking, a journalist should identify cy of the information and to search for herself as a member of the news media credible conflicting information from other reliable sources. She should resist and make clear that she may use what- simply parroting the theories of the au- ever she learns in a story. thorities as if they are proven fact. Nevertheless, there are times when a story can be obtained only through sub- Encouraging Diversity of Views terfuge. Journalists and their news or- ganizations should reserve these tech- n many countries, a partisan press is niques for the rare occasion when Ithe norm. Readers and viewers in conventional methods will not work and, these nations may expect that a news or- only then, when a compelling public in- ganization will approach topics from its terest demands it. News media should own particular point of view and select then explain their methods when the the subjects that it covers accordingly. story is published or broadcast. They also know that competing news or- ganizations may advocate different per- Objectivity in the News spectives. This can be consistent with ournalists in the United States strive journalism ethics but only if the news Jto achieve objectivity. This model organization distinguishes between ad- has been criticized in recent years. Some vocacy and reporting. Opinion columns question whether objectivity is desir- and editorial commentary should be able. They suggest that true objectivity clearly labeled and should neither dis- essentially has no moral compass and tort nor falsify the facts that underlie treats all facts and all viewpoints as the opinion. equally deserving of respect. Journalists should seek out diverse Professor Michael Bugeja, director of voices and afford competing and, even the School of Journalism at Iowa State unpopular, views an opportunity to be University, disagrees. “Objectivity is heard. They should support freedom of not a synonym for truth,” he writes, speech for all. News organizations “but the process through which we seek should provide a forum for robust debate to attain it.” No one approaches any on issues vital to their community. Let- story with complete objectivity. As a re- ters to the editor and online readers’ porter begins researching, it is likely comments are two ways to encourage that she will have a definite bias to- public participation. But news organiza- ward at least some aspects of the story. tions also should make every effort to But the goal is to set aside those pre- keep the discussion civil and to discour- sumptions and prejudices and to move age the dissemination of falsehoods or forward with a healthy skepticism. pejorative attacks on others. Suppose a suspect has been arrested and charged with a crime. In many Respect for the Individual countries, an accused person enjoys a he second tenet of the SPJ Code of Eth- presumption of innocence until tried ics is to “Minimize harm…treat sourc- and convicted. Yet law enforcement per- T es, subjects and colleagues as human sonnel often want to convince the public beings deserving of respect.” This principle that the person in custody really is the perpetrator of a crime and will encour- recognizes that a responsible journalist age news media reporting of informa- sometimes unavoidably will harm some- tion that strengthens their case. The ob- one but requires her to make every effort

[ 47 ] [ The Responsibilities of Journalists ] to minimize that damage. The SPJ code, Cultural Sensitivity like many similar codes, exhorts the jour- ournalists should not reinforce stereo- nalist to show compassion for those who Jtypes. The practice is intellectually will be affected by news coverage, espe- lazy and can lead to misperceptions and cially when they become the subject of at- inaccuracy. They should consider careful- tention through no fault of their own. ly whether it is necessary to identify an Crime victims, the relatives of public individual by race, religion, sexual orien- figures and celebrities, children, and tation, or similar characteristic. Gender- other vulnerable individuals should be treated with sensitivity. Journalists neutral language is often appropriate. should consider carefully whether there Reporters should remember and be is a genuinely newsworthy reason to re- sensitive to different cultural tradi- port on them at all. tions. For example, adherents of some Intrusive news-gathering techniques religions forbid or strongly discourage can cause harm. Persistence is appro- photographing individuals. Journal- priate, but aggressive tactics will not ists should respect their preferences, be justified in every case. Although unless there is a compelling reason to they may be legal, making repeated do otherwise. telephone calls, following a person on On the other hand, “cultural values” the street, taking multiple photo- sometimes is a cloak for censorship. Re- graphs, or remaining on private prop- pressive regimes may cite social values erty after having been asked to leave when their real intent is to restrict free- may cause distress. Even the most pub- dom of expression and to silence dissent- lic person is entitled to some zone of ing views. The ethical journalist should privacy, and only an overriding public challenge attempts to suppress the interest justifies intrusion into individ- truth, whatever justification is offered. uals’ private lives. The Independent Journalist On the other hand, there can be good and valid reasons to report information he journalist’s highest loyalty should that a news subject would prefer to keep T be to the public. This means avoiding secret. A public official may wish to keep conflicts of interest that could compro- secret details of an extramarital affair. mise her ability to act independently and But if public funds or other resources are to inform the public free from other influ- used to support the affair, they become ences and considerations. a matter of legitimate public interest. Journalists should avoid accepting Similarly, crime victims often prefer that gifts, fees, tickets, travel, or other goods their identity remain confidential, and or services from news sources. Review a news organization may agree, at least copies of books, music, or movies should in the case of children or sexual assault be donated to charity unless there is a victims. But in many countries, a crime journalistic reason to retain them as a victim plays the role of accuser in a resource for future reporting. Be wary criminal prosecution. Although an al- of travel junkets that are little more leged victim’s credibility might be a le- than thinly disguised attempts to per- gitimate issue to explore—and one of suade reporters to write enthusiasti- some importance to the criminal defen- cally about a particular destination or dant—journalists should not pander to subject. News organizations should pay prurient tastes by publicizing sensa- their own way when sending staff to tional facts that are not a matter of cover sporting or cultural events. If this public interest. The news media should is not possible, a disclaimer should be balance the rights and interests of both included in the story. victims and criminal defendants with Journalists should not endorse prod- the right of the public to be informed. ucts in return for compensation, and

[ 48 ] [ Media Law | Handbook ] they should keep separate the editorial is asked to travel to a particular loca- and advertising sides of the news busi- tion to appear on a radio or television ness. Advertisers must not influence fa- program, it may be appropriate to reim- vorable coverage or suppress negative burse her reasonable expenses, includ- reporting. Any advertisement should be ing meals, travel, and lodging. But clearly labeled so there is no possibility “checkbook journalism” and bidding for of confusing an ad with news reporting news should be avoided. or commentary. Memberships in clubs, associations, Ethical Issues When political parties, or religious organiza- Covering Government tions can create a conflict of interest for eporting on government raises par- a journalist. Some news organizations R ticularly difficult challenges. The prohibit certain kinds of political or public generally expects journalists to philanthropic activities, such as run- act as watchdogs, guarding against im- ning for political office or volunteering with an advocacy group. Most forbid proper government behavior. But what journalists to report on organizations about when law enforcement officials ask with which they, or close family mem- reporters not to report the details of an bers, are affiliated. Although an editor ongoing hostage situation, for example? at the Washington Post even abstained Should journalists cooperate? If they do from voting in elections, individuals ob- not, lives may be endangered. But if they viously do not surrender their civil do, they may compromise their own abil- rights when they choose to become jour- ity to hold government accountable. nalists. But it is important to remem- During war, crisis, or emergency, ber that affiliations can be interpreted journalists may feel conflicting loyal- as bias. If a conflict of interest is un- ties. The pressure to be patriotic can be avoidable, it should be disclosed. great. Or a newly elected government Many news organizations have spe- may claim that it cannot afford a com- cial rules for reporters and commenta- pletely free press and will urge journal- tors who cover business and financial ists to write favorably as a way to help topics. Laws forbidding insider trading solidify a fragile and emerging democ- (buying and selling stocks and other racy. Sometimes journalists are asked equities when one possesses nonpublic to report propaganda as truth in the in- knowledge that may affect the stock terest of protecting “national security.” price) may apply. Journalists should When editorial decisions conflict not write about companies in which with government wishes, news organi- they own stock or have some other fi- zations can be criticized for substitut- nancial interest, particularly if their ing their own judgment for that of elect- reporting might influence the market ed officials. This can arise when the and benefit them personally. They government claims that there is a com- should disclose to their editors the fi- pelling need for secrecy about intelli- nancial instruments they and their gence and law enforcement matters. On families own and refrain from trading the other hand, journalists may also be stocks within a short time of writing condemned for withholding information about them. or accused of delaying publication for Just as journalists should not take partisan reasons. payments intended to influence news These are difficult calls. The an- coverage, they should not offer bribes or swers are not always easy. One guiding payments to news subjects. To the out- principle is that a journalist’s loyalty is side observer, news that has been to the public, not to a particular gov- “bought and paid for” is suspect. In cer- ernment or regime. No journalist wants tain situations, such as when a source to harm his community or country. But

[ 49 ] [ The Responsibilities of Journalists ] governments may be tempted to sup- Special Ethics Issues Raised by press critical reporting by claiming it New Media and Citizen Journalism could damage public safety or national security. Reporters can respect these ost, if not all, traditional media’s claims, but they should also be skepti- Methical guidelines make sense for cal. They can give government officials citizen journalists, bloggers, and other an opportunity to explain why a par- new media practitioners. But those ticular story might endanger lives or a who publish in cyberspace face addi- specific national interest. But journal- tional challenges. ists should scrutinize those in power Bloggers, unlike mainstream jour- and hold them to account. Sometimes, nalists, often publish anonymously or the most patriotic thing a journalist use a pseudonym. In some societies, can do is question authority. those holding controversial or dissent- ing views withhold their identity as a Being Accountable to the Public matter of personal safety. But those n important part of a journalist’s job who speak anonymously still have an A is to hold those in positions of au- ethical obligation to be truthful, accu- thority accountable to the public. News rate, and as transparent as possible about conflicts of interest. organizations have a similar ethical ob- Many bloggers encourage readers to ligation of accountability. engage in the discussion and to add The news media are more transpar- comments to their sites. They may in- ent than many businesses because their vite user-generated content and post it work product is constantly available for on their blogs. They may link to exter- scrutiny. Journalists regularly critique nal sites. And they may excerpt others’ and challenge each other’s work. And in work for the purpose of commentary most countries, the consumer has many and criticism. news choices and can reject those whose All these techniques add vitality to standards fall short. a blog. But bloggers should consider That said, most news organizations whether they will attempt to verify can do more to be accessible to the public. links and to moderate postings made If business or political affiliations influ- by others, as well as whether they will ence their editorial choices, they should establish policies for certain content be disclosed. Did a merchant who adver- types, such as sexually explicit video or tises heavily in a newspaper, for in- personal attacks. It is wise to post stance, request favorable news coverage? these policies prominently and to apply Media should explain how they make them consistently. editorial decisions, especially controver- sial ones. Deviations from usual ethical Using Social Media standards should be explained. News organizations should invite readers to any journalists, both traditional comment and encourage them to raise Mand new media practitioners, are concerns and complaints. Ideally, a dedi- turning to social media, such as Face- cated, impartial staff member should ad- book, Orkut, and MySpace, or tapping dress these complaints. into YouTube or other sites that allow All news organizations make mis- individuals to post content. These me- takes. They should strive to minimize dia can provide story ideas and useful these by establishing fact-checking pro- leads. They can even allow a journalist cedures throughout the editorial pro- to interact with a community or to pro- cess. But when errors do occur, they mote a journalism “brand” by encourag- should be acknowledged promptly and ing readers to visit a news organization’s corrected prominently. Web site.

[ 50 ] [ Media Law | Handbook ]

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 challeng- back or to stop others from using it in es for the ethical journalist. Verifying whatever way they choose. postings can be difficult. Reporters should make clear when they utilize Conclusion social media sites as the basis for a sto- any journalists believe they ry. They should exercise special cau- Mshould not have to justify their tion when using information concern- role as government watchdogs and as ing minors, which could damage conduits of public information. Surely, someone’s reputation, or when using they think, modern recognition that information that someone else claims freedom of expression is a fundamental to own—such as a trade secret. The laws of libel, privacy, and copyright right has already settled all that. still apply in cyberspace. Therefore, some journalists think that Some news organizations have ad- they must have the legal right to be opted ethics policies for their employ- wrong—sometimes. ees’ use of social media. Dow Jones, But journalists’ own ethical stan- publisher of the Wall Street Journal, dards can be more stringent than legal discourages its reporters from express- ones. They encourage journalists to ex- ing personal or partisan viewpoints on amine their motivations, their meth- their personal Facebook pages or from ods, and their work product. They en- discussing developing stories that have courage reporters and editors to ask not yet appeared in the newspaper. tough questions about how they make Some organizations recommend that a decisions. And these ethical precepts reporter maintain separate profession- invite journalists both to consider other al and personal Facebook pages. Jour- perspectives and to contemplate how nalists should remember that friending their decisions affect others. a confidential source on Facebook may Adopting and applying ethics princi- reveal that source’s identity to the ples can seem daunting. But they help world. They also should recall that de- journalists do the best job possible. They cisions to friend or to join a fan page provide a mandate to act independent- may be construed as evidence of bias. ly—even courageously—when seeking Finally, nothing on Facebook or sim- and pursuing truth. ilar sites is really private. Once some- thing has been posted to the social me- dia, there is really no way to take it

[ 51 ] [ New Media, Citizen Journalists, and Bloggers ]

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

[ 52 ] [ Media Law | Handbook ]

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. In the United States, Congress, rom the early days of popular use of state legislatures, and the courts have F the Internet, the rallying cry was struggled to balance free speech on the that cyberspace was the new frontier, Internet against competing interests, subject to no law. But governments like national security, copyright pro- around the world, shaken by the implica- tection, and the right to reputation. In tions of the new communication technolo- its landmark Reno v. ACLU (American gy, have tried to figure out how to harness Civil Liberties Union) decision (1997), and control its use. the U.S. Supreme Court extended to Gaining access to the Internet can communications on the World Wide be the first hurdle. A 2007 report by the Web the same First Amendment pro- Internet watchdog group OpenNet Ini- tections covering newspapers or other tiative showed that attempts to censor print media. Cyberspace, the Court the Web are spreading and growing ruled, is neither a “scarce expressive more sophisticated. Saudi Arabia, to of- commodity,” like the broadcast spec- fer one example, uses filtering software trum used by radio and television to block everything from sites classified broadcasters, nor an invasive one that as pornography or gambling to religious enters “an individual’s home or appears conversion sites and sites critical of the on one’s computer screen unbidden.” Saudi monarchy. China has been criti- With neither of these historical justifi- cized for a combination of Internet con- cations for government licensing and trol measures, including filtering soft- control applicable, Justice John Paul ware, requiring users and Internet Stevens wrote for the majority, “The

[ 53 ] [ New Media, Citizen Journalists, and Bloggers ] interest in encouraging freedom of ex- of “interactive computer services” pression in a democratic society out- (ISPs) from defamation claims arising weighs any theoretical but unproven from third-party content. Courts have benefit of censorship.” extended this protection to those who The Reno decision means that Inter- operate Web sites and listservs, even if net-based communication receives the they exercise some editorial control highest level of constitutional protec- over that material. The same analysis tion, including many judicial rulings logically would apply to blogs. defining the scope of the First Amend- ment. Prior restraints are presumed Holding Bloggers Accountable unconstitutional. Successful libel suits o does that mean that bloggers are require proof of publisher fault, even if Sfree to upload whatever they want, a plaintiff proves the challenged state- with no fear of being sued? ment false. Most invasion of privacy Absolutely not. Whatever immunity suits will be rejected if the publisher may exist for links to third-party sites can demonstrate that the subject of its or to postings submitted by readers, a story was newsworthy. Copyright viola- blog publisher can still be sued for any tions may be excused if the publication material he writes himself. During the constitutes fair use. course of litigation, the blogger could One need not be a recognized jour- face a protracted examination of his nalist to invoke these protections. As far news-gathering techniques. Did he at- back as 1972, the U.S. Supreme Court tempt to verify the accuracy of the sto- said, “Liberty of the press is the right of ry, or did he simply repeat an unsub- the lonely pamphleteer…as much as of stantiated rumor? Did he rely on the large metropolitan publisher.” anonymous sources? Did he, in other So bloggers have First Amendment words, act negligently or with reckless protections. They may have statutory disregard for the truth? If a court finds protection as well. Existing laws pro- that he did, he may lose the suit. tecting reporters’ confidential sources In most countries, libel suits can be might or might not apply to a blogger, grounded only in false statements of depending on the language of the stat- fact. No one can be sued for statements ute or the court addressing the issue. of pure opinion that can be proven nei- Although some laws limit coverage to ther true nor false. But many blogs are full-time employees of for-profit tradi- a robust mixture of idiosyncratic opin- tional news media, many are expan- ion and unsupported allegation. It can sive, covering anyone who engages in be hard to distinguish between the two gathering information and disseminat- when invoking an opinion privilege, ing it to a wide audience. A California which requires showing that the under- court ruled that the state shield law lying factual statements on which the protected the identities of bloggers who opinion is based are true. revealed Apple Computer’s trade se- U.S. legal protections end at the bor- crets. Their publications, the court der but the Internet does not. A blogger ruled, constituted “news.” But shortly in the United States can brandish the thereafter, a federal court in the same First Amendment and Section 230 all state refused to acknowledge that blog- she wants, but a foreign court has no ger and self-described anarchist Josh obligation to pay any attention. Those Wolf was a journalist because he was courts will, for the most part, apply not “connected with or employed by” a their own laws. Although traditional news organization. journalists long have faced lawsuits U.S. courts have interpreted broadly and even criminal prosecutions in oth- Section 230 of the Communications De- er countries where their work product cency Act, which immunizes providers is distributed, it may surprise bloggers

[ 54 ] [ Media Law | Handbook ] to learn they are vulnerable to suit 2008, blogger Raja Petra Kamarudin, anywhere their words are read. editor of the Web site Malaysia Today, The Australian High Court so ruled was arrested and detained on charges in 2002, when it allowed “Diamond of violating Malaysia’s Internal Securi- Joe” Gutnick to file a libel suit. An Aus- ty Act by criticizing Islam. tralian national, Gutnick claimed that Many countries enforce mandatory an article published online by U.S.- rights of reply, which compel publica- based Barron’s magazine defamed him. tion of responses by individuals and When Gutnick showed that a handful corporations who claim they have been of readers in his hometown of Mel- the subject of inaccurate reports. In bourne downloaded the story, the court 2006, the European Parliament adopt- allowed him to file a libel suit there. ed a Council of Europe recommenda- The chief justice wrote, “[T]hose who tion to extend these rights of reply to post information on the World Wide online media, including any “service Web do so knowing that [it] is available available to the public containing fre- to all and sundry without any geo- quently updated and edited informa- graphic restriction.” tion of public interest.” That sounds Libel lawsuits are not all that blog- like a typical weblog. gers need worry about. Statutes in Many bloggers already take these many countries make it an offense, or steps. They update their blogs, often even a crime, to “insult” or “offend the print retractions or modifications to er- dignity” of someone, even if the criti- roneous postings, and freely publish re- cism is absolutely true. For example, in sponses from disgruntled readers. They

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 alleged 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.

[ 55 ] [ New Media, Citizen Journalists, and Bloggers ] claim that laws are not required to For example, in September 2008, a make them act responsibly. But there is California trial judge forbade the Or- a big difference between making an ed- ange County Register to report “by all itorial choice because you believe it en- means and manner of communication, hances your credibility and doing so whether in person, electronic, through under compulsion of law. audio or video recording, or print me- In addition, many bloggers engage dium” testimony by any witness ap- anonymously in vituperative online pearing in a class action wage-and-hour commentary. Under Section 230, an ISP suit brought by its newspaper carriers. can be compelled to reveal an individu- He concluded this injunction was neces- al’s identity if a judge concludes that a sary to prevent future witnesses from plaintiff has made a valid libel claim. being influenced by others’ testimony. Here, ISP includes newspapers and oth- An appellate panel eventually over- er media, who could be forced to unmask turned this order. It ruled that the risk readers posting anonymous comments that news reports might influence wit- on their Web sites, leaving the posters nesses was insufficient to justify censor- vulnerable to retaliation or retribution. ship. Other, less intrusive alternatives, such as admonishing witnesses not to Protecting Privacy and Copyright read the paper, would accomplish the nvasion of privacy presents special same goal. But the pervasiveness of the I challenges in cyberspace. Digital online media had convinced the trial technology facilitates news gathering. judge to overlook nearly 70 years of prec- In theory, digitizing government records edent outlawing similar prior restraints. Copyright law presents separate should create an unprecedented oppor- challenges. The owners of intellectual tunity for citizen access and oversight. property have always possessed the le- But many judges and legislators, driven gal right to demand that violators by fear that access will facilitate identi- “cease and desist” publishing and dis- ty theft, employment discrimination, or tributing infringing works. But the In- other illegal conduct, instead curtail ac- ternet makes copying others’ work cess to electronic files. without permission easier than ever be- Judges also express discomfort at fore. Should the telephone company or the prospect of someone from a distant other ISP be liable when one of its cus- location, with no legitimate interest in tomers uses their connection illegally the local community, surfing through to post a copy of an .mp3 file for down- court or real estate records and pub- load? The U.S. Digital Millennium lishing them online. They fear that Copyright Act (DMCA), enacted in bloggers do little except spread rumors, 1998, was designed to address this sit- violate copyright laws, and identify sex- uation without also stifling protected ual assault victims, all the while hid- speech. The statute’s “safe harbor” pro- ing behind the anonymity that the Web vision protects ISPs from liability if, permits. They worry that citizen jour- upon receiving notice that infringing nalists with cell-phone cameras and re- material has been posted, they “expedi- corders will invade courtrooms and tiously” remove it. post trial footage online, a practice they The problem is that a prudent ISP find both disruptive and undignified. will choose to take down the content Gatekeepers often support access to and leave the subscriber and copyright government records and proceedings in owner to sort out their respective rights. the abstract; once access becomes cheap To facilitate the process, the DMCA and easy, they may question its wis- permits copyright holders to use “ad- dom. Information, they think, is too ministrative subpoenas” to compel the valuable, or dangerous, to be online. ISP to disclose the subscriber’s identity.

[ 56 ] [ Media Law | Handbook ]

Although these are supposed to be is- sued only to curtail infringing activity, the risk is that subpoenas might im- properly be used to circumvent the well-established First Amendment principles protecting the right to en- gage in anonymous speech. The emergence of the Internet as a significant communications technology and publication platform for journalists creates new legal complications. But the governing principles should remain constant. They should not depend on whether a journalist works for the mainstream media or publishes a blog. Judges and legislators should follow the principles that have long protected the press and the public’s right to know, re- gardless of affiliation or platform.

[ 57 ] [ Free Exchange of Information and Enhancing Civil Society ]

Without an unfettered press, without liberty of speech, all the outward forms and structures of free institutions are a sham… if the press is not free, if speech is not independent and untrammeled; if the mind is shackled or made impotent through fear, it makes no difference under what form of government you live, you are a subject and not a citizen.

William E. Borah United States Senator Speech in the Senate—April 19, 1917

[ 58 ] [ Media Law | Handbook ]

Free Exchange of Information and Enhancing Civil Society

ourageous journalists all over the world have risked their livelihood, and even their lives, to report the news and to bring accurate information to the pub- lic in the face of repressive governments and other sig- nificant obstacles. But journalism thrives best where the rule of law is respected. A free press is best protected through a national constitution or by statutory or com- mon law. However formalized, the law should, at a mini- mum, protect the news media from censorship and guar- antee reporters access to information.

“Freedom of the press” is not just a beneficiary. A free press enhances the slogan. Nor is it only for journalists. public’s right to know by encouraging The right to receive and impart infor- the free exchange of information. Pro- mation is a universal one. But while a tecting it requires a national commit- system of generally applicable laws ment, by government and the public benefits everyone, special-interest leg- alike. The result is a stronger civil soci- islation that singles out the news media ety for all. for protection or provides the press with Once strong legal protections are en- special rights is less desirable because acted, an independent judiciary is es- it invites de facto licensing of the press. sential to ensure they are applied and It can also create a false sense of confi- enforced equitably. No matter how clear dence. Protection a legislature grants the text of the law, confusion and con- today can be withdrawn tomorrow. flicts may occur. When they do, the ju- And that’s the paradox. The “rule of dicial branch’s interpretation of the law law,” however defined, protects every- can be decisive. Judges who appreciate one, including the press. But, of course, the importance of a free press are the bad laws can also be enacted, and even best assurance that it will be protected. the best law can be repealed or struck down. That’s one of the reasons why Advocacy Resources some journalists are reluctant to lobby, n this section, we consider some orga- even for legislation that might benefit I nizations that work to strengthen them, like shield laws. and enact laws that guarantee and Governments change. But public strengthen freedom of the press. support for a free press should be con- stant because citizens are the ultimate

[ 59 ] [ Free Exchange of Information and Enhancing Civil Society ]

Article XIX vides daily Action Alerts by country http://www.article19.org and region and a weekly Communique. stablished in 1986, this human rights Eorganization is named for the Univer- Central European and sal Declaration of Human Rights provi- Eurasian Law Initiative (CEELI) sion that guarantees the rights of http://abarol.ge/about_ceeli.html freedom of expression and opinion. Arti- project of the American Bar Associ- cle XIX is based in London, England. It A ation, CEELI was founded in 1990. lobbies and litigates internationally to Its mission is to provide technical legal promote these universal rights. assistance to increase professionalism This NGO develops networks to raise among judges and lawyers in Central awareness about and to improve moni- and Eastern Europe and the former So- toring of threats to freedom of expres- viet Union. The group maintains a sion. It provides legal training for other training institute in Prague and a num- organizations, journalists, and govern- ber of volunteer legal liaisons. ment officials. It drafts model legisla- Among its goals are promoting ac- tion, including freedom of information countability and increased awareness of laws, and provides a searchable data- international human rights standards, base of legal opinions and other re- combating corruption, and increasing sources. Its periodic reports call inter- public transparency and accountability. national attention to laws and actions that restrict freedom of information Center for International Media and expression. It denounces attacks on individual journalists and the institu- Assistance (CIMA) tional press alike. Among its many ac- http://cima.ned.org/ complishments, Article XIX convened n initiative of the National Endow- the group of international law and hu- Ament for Democracy, a private non- man rights experts who adopted the Jo- profit organization, CIMA supports hannesburg Principles on National Se- programs that assist the media through- curity, Freedom of Expression and out the world. It convenes working Access to Information in 1995. groups, holds events, maintains a data- base of media assistance resources, and Canadian Journalists for Free Expression conducts research. It has established a (CJFE) network of media practitioners and ex- http://www.cjfe.org/ perts through the Global Forum for Media riginally established as a project of Development. CIMA is funded through a Othe Centre for Investigative Journal- grant from the U.S. Department of State. ism in Canada in 1981, CJFE advocates freedom of expression throughout the Chapultepec Project world. It conducts media training in de- http://www.declaraciondechapultepec.org/ veloping countries, including Indonesia he Chapultepec Project began in 1994 and Thailand, and has worked to rebuild Tas a special undertaking of the Inter- key parts of the media in Sierra Leone American Press Association, a member- after the conclusion of the civil war there. ship organization of more than 1,300 CJFE manages the International newspapers and magazines located Freedom of Expression eXchange throughout the Americas. Although its (IFEX) Clearing House, a virtual net- original mission was to increase public work of 88 organizations that monitors understanding of the importance of press the state of free expression around the freedom in civil society, the project has world and transmits that information to more than 120 countries. IFEX pro- expanded to include sponsoring a series

[ 60 ] [ Media Law | Handbook ] of international conferences with repre- articles, news releases, special reports, sentatives of all three branches of gov- and Attacks on the Press, an annual glob- ernment. These conferences have been in- al survey of press freedom. It intervenes strumental in curtailing insult laws in when local or foreign correspondents are several countries. The Chapultepec Proj- threatened, and it provides advice to ect has submitted friend-of-the-court journalists on dangerous assignments. briefs before the Inter-American Commis- CPJ’s campaigns have worked success- sion on Human Rights on behalf of jour- fully to secure the release of journalists nalists in three cases, and it has sent mis- imprisoned in Iran, including Maziar sions and held emergency forums to Bahari, Newsweek’s Tehran correspon- protest legislation that would curtail dent, and freelancers Roxana Saberi and press freedom. Iason Athanasiadis. It published Press Freedom and the Law (1999), the first comparative study Electronic Frontier Foundation (EFF) of laws related to press freedom in the http://www.eff.org Americas, and is undertaking a new non-governmental organization, initiative on the internal issues media EFF was founded in 1990 with of- organizations face and the values that A fices in Washington, D.C., and San should guide them. Francisco. It defends free speech, pri- vacy, innovation, and consumer rights Citizen Media Law Project (CMLP) online. It has litigated many cases in http://www.citmedialaw.org U.S. courts and, through its Action ased at the Berkman Center for In- Center, educates the public, mobilizes ternet & Society at Harvard Law B citizen responses to legislation, and School in Cambridge, Massachusetts, provides advice to policymakers. Al- CMLP provides legal assistance, educa- though much of its work is domestic, tion, and resources to individuals in- EFF also fights for digital rights around volved in online and “citizen” media. It the world, and in July 2009, it pub- also files friend-of-the-court briefs in lished A Practical Guide to Internet appellate cases. CMLP’s Web site pro- Technology for Political Activists in Re- vides a variety of legal guides, as well pressive Regimes. as a “threats database” that outlines current and pending legal cases involv- Freedom House ing online media. www.freedomhouse.org CMLP has organized a network of law- Eleanor Roosevelt and Wendell yers and academics interested in repre- Willkie, the 1940 U.S. presidential can- senting individuals facing lawsuits aris- didate, were the first honorary co- ing from online journalism activities. It chairs of Freedom House, which was is affiliated with the Center for Citizen founded in 1941 and is headquartered Media at Arizona State University. in Washington, D.C. It publishes a wide variety of annual surveys, including Committee to Protect Journalists (CPJ) Freedom of the Press and Freedom in the http://www.cpj.org World, an annual report on journalistic group of foreign correspondents from independence throughout the world. the United States created CPJ in Freedom House advocates globally A for human rights and democracy. It 1981. Based in New York, but with a net- works directly with democratic reform- work of consultants in more than 120 ers in Central Asia, Central and East- countries, this NGO conducts its own re- ern Europe, the Middle East, Africa, search into press harassment. It publishes Latin America, and the former Soviet

[ 61 ] [ Free Exchange of Information and Enhancing Civil Society ]

Union to provide training, policy briefs, International Media Lawyers and support. Association (IMLA) The World Press Freedom Commit- http://www.internationalmedialawyers.org tee (WPFC) (http://www.wpfc.org), a he IMLA is a worldwide network of consortium of 44 press freedom groups Tmedia lawyers that serves as a from throughout the world based in clearinghouse for sharing information, Northern Virginia, merged with Free- strategies, and expertise on media law dom House in 2009. The WPFC has and press freedom. Based at Oxford monitored press freedom developments at international organizations, such as University in England, it facilitates UNESCO, and published authoritative communication between public interest studies, particularly on insult laws, for lawyers around the world who work to more than 30 years. promote freedom of expression. IMLA Freedom House Europe serves as also conducts training sessions for me- Freedom House’s primary European of- dia lawyers and policymakers. fice. It is based in Budapest, Hungary (http://www.freedomhouse.hu/). International Press Institute (IPI) www.freemedia.at Index on Censorship his Vienna, Austria-based NGO http://www.indexoncensorship.org T traces its history to 1950. It works riginally founded as a magazine in to promote and protect freedom of ex- O1972 by a group of London-based writ- pression. Its Death Watch publication ers and journalists, Index on Censorship tracks journalists and media staff who is an NGO that promotes freedom of ex- have been directly targeted for practic- pression. It works with grassroots orga- ing journalism, and IPI recounts the nizations to facilitate and promote this stories of individual journalists through goal. In 2009, it launched projects in Tu- its Justice Denied Campaign. IPI con- nisia, Afghanistan, Pakistan, Iraq, and ducts independent research into the Burma. It also supports the creation of state of press freedom around the world, new journalistic and artistic works and is and its Watch List monitors govern- undertaking a youth outreach program. ments whose official actions threaten Index on Censorship’s Web site is a re- media independence. source for current worldwide news on IPI has sent advocacy and fact-finding freedom of expression. missions to Bangladesh, Nepal, Sri Lan- ka, and other countries. International Center for Journalists (ICFJ) International Senior Lawyers Project http://icfj.org/ (ISLP) non-profit organization based in http://www.islp.org AWashington, D.C., ICFJ provides Launched in June 2001, the organiza- hands-on training to journalists in more tion applies the skills of soon-to-be re- than 176 countries through workshops, tired or retired attorneys to the legal and seminars, fellowships, and international legislative issues in the developing world, exchanges. It operates the International press freedom and access to information Journalists’ Network, IJNet (http:// among them. Based in New York, with www.ijnet.org/), which connects journal- offices in Washington, D.C., and Paris, ISLP’s volunteers have worked primarily ists with opportunities to obtain media in Eastern Europe, Russia, and India, training and other assistance. but the group’s mandate is global.

[ 62 ] [ Media Law | Handbook ]

Among many other projects, ISLP’s freedom of information and expression. lawyer volunteers have convened a con- It also conducts studies, including a no- ference that explored China’s role in es- table 2006 survey of government re- tablishing global Internet norms and sponses to freedom of information standards, provided legal briefings ar- requests. This study concluded that guing that the Sierra Leone criminal more recently adopted laws actually libel law violates that country’s consti- work better than those in some older tution, and worked with the Center for democracies. The OSJI cites its role as Journalism in Extreme Situations to help that group improve its advocacy on a “friend of the court” in Claude v. behalf of journalists facing defamation Chile, a case argued before the Inter- and related legal charges in the former American Court of Human Rights, as a Soviet Union. In 2008 and 2009, ISLP factor that led to Chile’s adoption of a provided advice on draft freedom of in- freedom of information act in April formation and press laws in Yemen. 2009 (http://www.soros.org/initiatives/ justice/litigation/chile). International Research & Exchanges Board (IREX) Privacy International (PI) http://www.irex.org/ http://www.privacyinternational.org ounded in 1968, IREX is a Washing- stablished in 1990 by a coalition of Fton, D.C.-based international NGO E more than 100 privacy experts and that works to strengthen independent human rights organizations from 40 media and improve the political envi- countries, Privacy International con- ronment for journalists. Together with ducts research and sponsors programs its partner, IREX Europe, based in on threats to personal privacy. Based in Lyon, France (http://www.europe.irex. London, PI monitors government sur- org), IREX organizes media training veillance activities and studies the im- programs and provides expert consulta- plications of cross-border information tion to local partners that help support flows. This NGO publishes a wide vari- and advance civil society development ety of books and reports, including an in more than 100 countries. For exam- annual international Freedom of Infor- ple, it empowered local groups to lobby mation Survey. It reviews proposed leg- for change to the media laws in Slova- islation, particularly in developing kia and in Bulgaria. IREX’s Media democracies such as Albania, Moldova, Sustainability Index evaluates and and Croatia, and has studied how coun- quantifies conditions for independent terterrorism measures affect freedom of media in 76 countries. the press and the rights of journalists to protect their sources. Open Society Institute and Soros Foundations Network Radio Television Digital News Associa- http://www.soros.org tion (RTDNA) his New York-based private founda- http://www.rtnda.org/ Ttion was established in 1993 by in- TDNA (formerly the Radio Television vestor and philanthropist George Soros. RNews Directors Association) is the It provides monetary grants designed world’s largest professional association to strengthen civil society. Through the exclusively serving the electronic news Open Society Justice Initiative (OSJI), profession. Founded in 1946, it promotes it promotes legal reform and litigates a ethics in reporting, freedom of informa- range of human rights cases, including tion, and press freedom. It advocates,

[ 63 ] [ Free Exchange of Information and Enhancing Civil Society ] lobbies, and occasionally litigates on is- Society of Professional Journalists (SPJ) sues affecting the electronic journalism http://www.spj.org industry in the United States and abroad. he largest voluntary association of Through its foundation, RTDNA spon- T working journalists in the United sors workshops and training programs, States, SPJ lobbies and advocates for as well as the RIAS Journalist Exchange press freedom. It files friend-of-the-court in Germany. briefs, initiates litigation, and speaks out on behalf of endangered journalists Reporters Committee for Freedom in the United States and elsewhere. of the Press (RCFP) Thousands of journalists voluntarily http://www.rcfp.org embrace the SPJ Code of Ethics, which ounded in 1970, RCFP is an NGO is frequently cited as the most authorita- F located in Arlington, Virginia, that tive statement of media ethics in the maintains a 24-hour hotline offering United States. free legal and research assistance to any journalist working in the United Ujima Project States. It lobbies and advocates for http://www.ujima-project.org press freedom and open government, collection of databases, documents, files friend-of-the-court briefs, and ini- A and other information launched in tiates litigation. RCFP also publishes a September 2009, the Ujima Project at- wide variety of legal guidebooks and tempts to bring greater transparency to handbooks on media and freedom of in- the workings of governments in Africa, formation law. particularly those that have no freedom of information laws. It is supported by Reporters Without Borders the Great Lakes Media Institute (http:// (Reporters Sans Frontières [RSF]) www.greatlakesmedia.org/), an NGO http://www.rsf.org/ whose mission is to encourage profes- ounded in 1985, RSF fights censorship sional and ethical journalism in Sub- Flaws and works to improve the safety Saharan Africa. of journalists, particularly in war zones. It undertakes fact-finding missions and Additional Resources defends reporters who have been impris- n addition to the organizations and oned or persecuted. IWeb sites listed above, the following Among RSF’s many publications is an resources offer a wide variety of publica- annual January round-up of press free- tions and other resources on media law dom, a “predators of press freedom” list and ethics: released on World Press Freedom Day (May 3), and the Worldwide Press Free- Online Resources dom Index each October. Center for International Media Ethics This NGO has branches in nine coun- http://www.cimethics.org/ tries, as well as offices in Paris, New  A resource page for journalistic York, Tokyo, and Washington, D.C., and ethics. The Center has an annual a network of more than 120 correspon- conference, provides training and dents in other countries. presentations, and publishes a month- ly newsletter on ethics in journalism.

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EthicNet New York, NY: Bloomberg Press, 2009. http://ethicnet.uta.fi/codes_by_country The First Amendment Handbook. Ar-  Collection of codes of journalism lington, VA: The Reporters Committee ethics organized by country. for Freedom of the Press, 2003. http:// www.rcfp.org/handbook/index.html Media Law Resource Center http://www.medialaw.org Kittross, John Michael. An Ethics Tra-  A non-profit information clearing- jectory: Visions of Media Past, Present house supported by media organiza- and Yet to Come. Urbana, IL: University tions and law firms to monitor devel- of Illinois/Institute of Communications opments and promote First Research, 2008. Amendment rights in the libel, pri- vacy, and related legal fields. Sterling, Christopher H. Encyclopedia of Journalism. Thousand Oaks, CA: Organization for Security Sage Publications, Inc., 2009. and Co-operation in Europe (OSCE) http://www.osce.org/resources/ Vile, John R., David L. Hudson Jr. and  The OSCE resources web page David Schulz (eds). Encyclopedia of the including links to materials on Free- First Amendment. Washington, DC: CQ dom of the Media. Press, 2009.

Organization of News Ombudsmen Weisenhaus, Doreen. Hong Kong Media http://newsombudsmen.org/ Law: A Guide for Journalists and Media  A website devoted to the concept of Professionals. Hong Kong: Hong Kong the independent, resident ombuds- University Press, 2007. man, a simple and yet effective way of self-regulation for journalists. Wendell, Carolyn R. The Right to Of- fend, Shock or Disturb. Reston, VA: Silha Center for the World Press Freedom Committee, 2009. Study of Media Ethics and Law http://www.silha.umn.edu  The Center's primary function is to conduct research in areas where legal and ethical issues converge and to monitor changes in law or in journal- istic practice that may result.

UNESCO http://unesdoc.unesco.org/ulis/ index.shtml  The Documents and Publications web page provides the search capability to access UNESCO publications.

Selected Recent Books Glasser, Charles J. (ed). International Li- bel and Privacy Handbook, 2nd Edition.

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