MEDIA LAW AND ETHICS

[ U n i t e d S t a t e s D e p a r tme n t o f S t a t e ]
[ B u r e a u o f I n t e r n a t i o n a l I n f o rma t i o n P r o g r ams ]
[ H a n db o o k S e r i e s ]
M E D I A LAW

[ Un i t e d S t a t e s D e p a r tme n t o f S t a t e ]
[ Bu r e a u o f I n t e r n a t i o n a l I n f o rma t i o n P r o g r ams ]
[ h t t p : / /w w w. ame r i c a . g ov / p u b l i c a t i o n s / b o o k s /me d i a _ l aw. h tml ]
[ h a n d b o o k s@s t a t e . g ov ]
[ H a n db o o k S e r i e s ]
M E D I A LAW
[ ii ]
[ M e d i a L a w ]
Media Law Handbook
A Handbook Series Edition
Published in 2010 by: Bureau of International Information Programs
United States Department of State
http://www.america.gov/publications/books/
media-law.html
medialaw@state.gov
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
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 Communication
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: Illustrations from: © Shutterstock/-cuba- and © Shutterstock/Colorlife.
Image credits: Page iv: 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. 40: Illustration © Rafeal Olbinski. 42: AP Images/Fabrizio Giovannozzi. 43:
AP Images/Jim Wells. 49: AP Images/Marcio Jose Sanchez. 50: Illustration © Brad Holland.
53: AP Images/Kathy Willens, Pool. 56: Illustration © Rob Colvin/Images.com.
[ iii ]
[ H a n d b o o k S e r i e s ]
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. Selfregulatory
mechanisms offer a valuable alternative.
The Responsibilities of Journalists 41
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 51
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 57
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.
Table of Contents
[ I n t r o d u c t i o n ]
[ iv ]
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 Stua rt Mill
English philosopher and economist
1806–1873
[ M e d i a L a w ]
[ 1 ]
Some want the press to be an advocate,
to champion causes, and to take political
positions. Others believe the press
should be objective and nonpartisan.
Some believe that the press should respect
and reflect social institutions and
traditions. Others believe that the press
should question and challenge them.
This book suggests that despite these
disagreements there are standards that
describe the privileges and responsibilities
of a free press in a free society.
A free and independent press is
essential to any free society. But
what do we mean by a free press?
In this book, we mean a press that is not
subject to undue government control and
regulation, one that is free from undue financial
influence from the private sector,
including advertisers, and economic or
business pressures from private sector
businesses A free and independent press
provides its readers, viewers, and listeners
with the information they need to participate
fully as citizens in a free society.
A free press is courageous and
will pursue those stories that
are important to its readers and
viewers, without fear or favor. It will challenge
assumptions, it will question authority,
and it will seek truth, no matter
where that search may lead—to the highest
corridors of power, to the owners of
the news organization, or even if it leads
to death, as was the case with investigative
Russian journalist Anna Politkovskaya,
gunned down in a contract killing
in Moscow in 2006.
A free press is responsible. Perceptions
of responsibility vary
from country to country, and
even from year to year. For many, the
standard in times of peace and stability
may seem very different than in time of
war or national emergency. For example,
just a few months after the September 11,
2001, attacks in the United States, a survey
conducted by the Freedom Forum’s
First Amendment Center reported that
46 percent of Americans polled believed
that the press had “too much” freedom,
a figure that certainly was higher than
before the attacks, or the 39 percent reported
in the 2009 survey.
Yet some essential principles remain
constant. A free press must seek truth and
report it. It must be tireless in seeking
and achieving accuracy. The press must
never knowingly publish a falsehood.
Most societies would agree that even
the most free press must exercise its
freedom with a clear understanding
that actions and editorial decisions have
consequences, some of them significant.
Thoughtful people disagree about the proper role of
the news media. Some believe that journalists 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.
Introduc t ion
[ I n t r o d u c t i o n ]
[ 2 ]
The press has great power to affect the
lives of millions of people. Like any other
powerful institution, it must be prepared
to listen to complaints, to explain
its decisions to readers and viewers, and
to acknowledge and correct mistakes.
But it must also be prepared to take unpopular
positions and to face critics
bravely when important principles are
at stake. Some may call this arrogance.
I call it courage.
Freedom of Speech and
a Free Press
In the United States, where I live and
where I do most of my research and
teaching, the press is for the most part
free from government controls as a matter
of law. The First Amendment to the U.S.
Constitution prohibits Congress, or state
legislatures, from passing any statute that
abridges freedom of speech or freedom of
the press.
That absolute language was drafted
by revolutionaries shortly after the American
War of Independence (1775–1783),
during a time of great optimism, but also
of great uncertainty. The nation’s courts
have, over the two hundred-plus years
that followed, interpreted the First
Amendment as powerful, but perhaps
not quite absolute.
The United States Supreme Court has
made clear that certain types of speech
are not protected by the First Amendment:
publishing details about troop
movements in wartime, for example.
Other exceptions would include restrictions
on obscene speech or on so-called
fighting words that could predictably incite
violence or criminal actions. And the
news media are almost always subject to
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 Liber ty—both of exposing and opposing arbitrary power by speaking and writing Truth.”
[ M e d i a L a w ]
[ 3 ]
laws of general applicability—that is,
laws that apply to everyone but that do
not single out the press for special obligations
or punishment. For example,
laws that prohibit the interception of
telephone conversations without permission
apply to journalists as much as they
do to corporations.
But even these exceptions are tempered
by a strong tradition that there
always will be a presumption against
any government attempt to stifle the
free press. As an American judge once
wrote, the default position for the press
is to publish. Government should bear
the burden of justifying any restraints.
This formula preserves the watchdog
role of the press and facilitates government
accountability.
Press Accountability
But who watches the watchdog? Who
ensures that the press will be accountable?
In some countries, the answer
is the government. Laws, statutes, and
codes spell out in detail the conduct required
of news organizations. In these nations,
journalists’ rights often depend
upon fulfillment of responsibilities. The
rub is that the government’s definition of
responsibility may differ greatly from that
of the press itself, or even the public.
In other countries, the answer is, the
press itself, and its readers and viewers.
In some parts of the world, news organizations
or individual journalists subscribe
to ethical codes of conduct, like
that of the National Union of Journalists
in the United Kingdom. Other countries
impose ethical standards as a matter
of law. In the United States, individual
news organizations have adopted their
own ethical guidelines. Typically, these
codes or guidelines set out the institution’s
rules governing financial and other
conflicts of interest.
For example, an ethical guideline may
prohibit a reporter from covering a company
for which her spouse works. Or it
may forbid a reporter to take part in a
protest march, or to display a political
sticker on the fender of his car or a placard
in his front garden, or to wear a national
flag in her lapel as she reports the
news. Or it may prohibit a reporter from
accepting even a nominal gift from a news
source. Guidelines like these are intended
to maintain both the reality and the appearance
of journalistic independence.
It would seem unnecessary for ethical
guidelines to address the necessity for
accuracy and truth-telling. But after
journalists like Jayson Blair of the New
York Times either fabricated or plagiarized
the news stories they submitted to
their editors, many organizations have
revised their ethics guidelines to make
clear that neither practice can ever be
accepted or condoned by a responsible
news organization.
Sometimes ethics and the law intersect.
In Northern Ireland, for example,
Suzanne Breen, the Belfast-based editor
for Dublin’s Sunday Tribune, faced a legal
and ethical dilemma. Breen had been
telephoned by an individual who claimed
responsibility for murdering two soldiers
at Massereene Barracks in Antrim. The
police demanded that she turn over her
cell phone, computer records, and notes
about her contacts with the paramilitary
Real IRA organization. Breen resisted,
arguing that to do so would breach her
professional obligation to protect the confidentiality
of her sources. She also candidly
acknowledged that complying with
the law enforcement demands could endanger
her life, and the lives of her family
members. But if she defied the order,
Breen faced the prospect of up to five
years in jail for contempt.
In June 2009, a judge in Belfast ruled
that compelling Breen to surrender her
news-gathering materials would put her
life at risk in contravention of the European
Convention on Human Rights.
[ I n t r o d u c t i o n ]
[ 4 ]
By contrast, in the United States, New
York Times reporter Judith Miller refused
to cooperate in a criminal investigation
seeking the identity of a government
official who had revealed the identity of
a covert intelligence agent. Miller defied
orders to testify, even after judicial rulings
that journalists possessed no special
privilege to decline naming confidential
sources. She spent 85 days in jail in 2005.
Some judges and members of the public
argued that journalists can never hold
themselves above the law. But the ethics
policies of most news organizations would
require a reporter to honor a promise given
to a source, even if it means going to jail.
Legal and ethical provisions vary from
country to country. Reasonable people—
and even journalists themselves—may
disagree on how they should apply in a
particular situation and whether they
strike the proper balance between competing
societal interests.
Privacy and Libel
Is it ever appropriate for a reporter to
violate an individual’s privacy? In the
United States, the Supreme Court has
ruled that it is lawful for the press to
publish the name of an individual who
has been sexually assaulted. But is it the
right thing to do?
Is it right for a journalist to make fun
of a public official or to lampoon a name
or image that is sacred to a particular
ethnic or religious group? In the United
States, after the pornographic Hustler
magazine satirized the outspoken clergyman
Rev. Jerry Falwell, the Supreme
Court ruled that a free society must tolerate
even “outrageous” speech in order
to guarantee robust public debate and
discussion. As one justice once wrote,
“There is no such thing as a false idea.
However pernicious an opinion may
seem, we depend for its correction not on
the conscience of judges and juries, but
on the competition of other ideas.”
On the other hand, in March 2008, the
United Nations Human Rights Council
adopted a resolution condemning “defamation
of religions.” And many countries
retain, and enforce, statutes that make it
a crime to insult or “offend the dignity”
of any person, even a public official—even
if the underlying facts are true.
The Supreme Court of the United
States has never upheld a government
Above: New York Times repor ter Judith Miller was jailed for contempt of cour t for refusing to reveal a confidential source. Miller, accompanied by
her legal team, leave the U.S. District Cour t in Washington, DC, on June 29, 2005.
[ M e d i a L a w ]
[ 5 ]
attempt to stop the press from publishing
classified information. Fierce debates
over whether journalists can be criminally
prosecuted under espionage laws
arise periodically. In China, for example,
theft of state secrets is a crime regardless
of who does it, and the definition of
state secrets is an expansive one. But
even assuming that they do not break
the law, is it right for journalists to publish
classified information, especially
when it is claimed that doing so will alert
terrorists to surveillance techniques and
undermine intelligence efforts to maintain
safety and security?
Transparency
Despite these concerns, the term
“transparency” has become a watchword
in civil society. Both public and private
institutions are exhorted to be more
forthcoming about their operations,
funding, and governance. The digitization
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 maximizes
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 ungovernable
bloggers and citizen journalists, operating
with gusto but without prior training
or certification of any kind. There is no
question that they contribute a lively
counterpoint to the mainstream media.
But will their tendency to challenge conventions
and flout the rules lead to greater
attempts to regulate the press?
These are not easy questions. Nor are
there easy answers.
It is not easy to live with a free press.
Doing so means that one is being challenged,
dismayed, disrupted, disturbed,
and outraged—every single day.
A free press is fallible and at times
fails to live up to its potential. But developing
democracies around the world
demonstrate every day that they have
the courage and confidence to choose
knowledge over ignorance and truth
over propaganda by embracing the ideal
of a free press.
It is not easy to live with a free press.
But I know I couldn’t live without it.
—Jane Kirtley
[ 6 ]
[ A G o o d E n v i r o nme n t f o r F o s t e r i n g J o u r n a l i s t s ]
Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all
members of the human family is the foundation
of freedom, justice and peace in the world,…
Univ ersa l Decla r ation of Hu m a n Rights
United Nations
1948
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[ M e d i a L a w | H a n d b o o k ]
Regardless of the particular legal approach,
good journalism flourishes where
society respects and enforces the rule of
law. The work of legal, theoretical, and
philosophical thinkers, including Confucius,
Milton, Rousseau, Meiklejohn, and
Mill, among others, supplies the intellectual
underpinning for contemporary
media law and media ethics.
International Standards
International standards supply guarantees
of free expression. But these
standards also typically acknowledge
certain legitimate grounds for the state’s
restriction of free expression. The Universal
Declaration of Human Rights,
proclaimed by the United Nations General
Assembly in 1948, pronounces in
Article 19 that:
Everyone has the right to freedom
of opinion and expression; this right
includes freedom to hold opinions
without interference and to seek,
receive and impart information
and ideas through any media and
regardless of frontiers.
Article 29 then qualifies this right as:
…determined by law solely for the
purpose of securing due recognition
and respect for the rights and freedom
of others and of meeting the
just requirements of morality, public
order and the general welfare in a
democratic society.
Similarly, Article 10 of the European Convention
on Human Rights states:
Everyone has the right to freedom of
expression. This right shall include
freedom to hold opinions and to receive
and impart information and ideas
without interference by public authority
and regardless of frontiers. This
Article shall not prevent States from
requiring the licensing of broadcasting,
television or cinema enterprises.
However, that absolute language is qualified
further in this convention:
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 nations
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.
A Good Environment for
Fostering Journal ists
[ 8 ]
[ A G o o d E n v i r o nme n t f o r F o s t e r i n g J o u r n a l i s t s ]
The exercise of these freedoms, since
it carries with it duties and responsibilities,
may be subject to such formalities,
conditions, restrictions or
penalties as are prescribed by law
and are necessary in a democratic
society, in the interests of national
security, territorial integrity or public
safety, for the prevention of disorder
or crime, for the protection of
health or morals, for the protection
of the reputation or rights of others,
for preventing the disclosure of
information received in confidence,
or for maintaining the authority
and impartiality of the judiciary.
Many international documents, conventions,
and treaties embrace a similar
approach, among them the International
Covenant on Civil and Political Rights,
the African Charter on Human and Peoples’
Rights, and the American Convention
on Human Rights, as well as many
others. The details differ, but all recognize
freedom of expression as a fundamental
right, but one that can be limited by duly
enacted laws tailored to protect equally
compelling societal interests.
National Standards
National constitutions also frequently
guarantee press freedom. For example,
Article 25 of the Belgian Constitution,
which dates from 1831, provides that:
The press is free; censorship can
never be established; security from
authors, publishers or printers cannot
be demanded. When the author
is known and resident in Belgium,
neither the publisher, nor printer,
nor distributor can be prosecuted.
The First Amendment to the United
States Constitution, ratified in 1791, is
similarly absolute:
Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of
speech, or of the press; or the right
of the people peaceably to assemble,
Above: Freedom of the press is explicitly protected under the First Amendment of the Bill of Rights in the U.S. Constitution.
[ 9 ]
[ M e d i a L a w | H a n d b o o k ]
and to petition the Government for
a redress of grievances.
Other national constitutions acknowledge
the right of free expression but do not
regard it as absolute. For example, Article
8 of the Senegal Constitution guarantees
freedom of expression and opinion “subject
to the limitation imposed by laws and
regulations.” Similarly, Article 36(1) of the
Constitution of the Kyrgyz Republic explicitly
declares that the “mass media are
free” but then qualifies that statement in
Article 17(2):
Restrictions to the exercise of
rights and freedoms is allowed by
the Constitution and laws of the
Kyrgyz Republic only for the purposes
of ensuring the rights and
freedoms of other persons, public
safety and order, territorial integrity
and protection of constitutional
order. But in doing so, the
essence of constitutional rights
and freedoms shall not be affected.
It is probably fair to say that no country
in the world regards the cherished
universal or fundamental right of free
expression as absolute. It is subject to
limitation and modification when competing
rights are deemed to outweigh it.
As a result, some press freedom laws can
weaken rather than strengthen the protections
afforded a free press.
Laws That Discourage Journalists
Censorship—government-imposed
restraint on freedom of speech and
expression—poses the greatest single
threat to a free press. Censorship can
take many forms:
􀂼 compulsory licensing schemes;
􀂼 mandatory pre-publication review;
􀂼 imposition of gag orders during the
pendency of a legal proceeding;
􀂼 extraordinary taxes or fees;
􀂼 withdrawal of legal protection that
would ordinarily be granted to other
businesses or citizens.
The threat of post-publication sanctions,
such as criminal fines or incarceration,
can be as intimidating and crippling
to the ability of a news organization
to operate as any prior restraint.
More subtle, but equally problematic,
are mandates that impose certain duties
or responsibilities on the press. Some autocratic
countries and democracies require
that the press publish “checked
facts” or “the truth.” For example, Article
20(d) of the Constitution of Spain
states, “The rights are recognized and
protected…of freely sending or receiving
true information by any medium” [emphasis
added].
Government desire for accurate reporting
is understandable. In former dictatorships,
where propaganda and the
promulgation of falsehoods were commonplace,
the public is eager to learn a variety
of facts from many different sources.
And it is a basic tenet of ethical journalism
that no reporter wants knowingly to
disseminate an untruth.
But requiring accuracy only raises more
questions: What is truth? Who decides?
The government?
Certainly all journalists should aim to
be accurate. But often the perception of
truth will change over time. As a breaking
news story unfolds, what initially appeared
to be a fact may turn out to be false.
A spectacular example occurred on
September 11, 2009, when the CNN and
Fox cable television networks reported that
the U.S. Coast Guard had opened fire on
a suspicious vessel in the Potomac River
in Washington, D.C., not far from the Pentagon,
where President Barack Obama
was attending commemorative services.
Relying on information obtained by listening
to police scanners, CNN also used the
social-networking application Twitter to
[ 10 ]
[ A G o o d E n v i r o nme n t f o r F o s t e r i n g J o u r n a l i s t s ]
report, “Coast Guard confronts boat as
Obama visits Pentagon, police scanner
reports say shots fired.”
The Chicago Tribune reported that it
took almost 30 minutes for the networks
to determine that they had overheard
open radio transmissions—during which
personnel made “bang bang” noises and
stated, “We have expended ten rounds”—
that were part of a routine training exercise,
not an attack. White House Press
Secretary Robert Gibbs chided the networks
for causing panic, observing, “Before
we report things like this, checking
would be good.” CNN claimed that before
reporting the incident, it had contacted
the Coast Guard’s public affairs
office and been told that the Coast Guard
was unaware of any activity on the river.
The Coast Guard did not apologize for its
part in the incident, other than to promise
that it would review both “our procedures
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 example illustrates
the difficult tightrope that news
organizations walk when reporting breaking
news. In an increasingly competitive
media marketplace, the pressure to be first
with a story is intense. The old Associated
Press maxim, “Get it first, but get
it right,” seems almost quaint in a 24/7
world, where not only mainstream media,
but bloggers and other “citizen journalists”
can observe and report events instantly.
Should CNN and Fox have been subject
to government sanction for having made a
good-faith error in their reporting? In the
United States, the answer would be “no.”
But in other countries, such a mistake
might lead to a fine or the loss of a license.
As troubling as the Coast Guard incident
may be, at least the factual discrepancies
were quickly resolved. With issues
like global warming or the financial or
health crises, the facts emerge more gradually.
How can journalists determine the
truth at any given point? And what is the
responsibility of the government, or of the
public, to define and interpret the facts?
The reality is that journalism is only one
means of ascertaining truth. In a free society,
it is up to members of the public, not
a governmental entity, to review the facts
from a wide variety of sources before deciding
what is true.
In one prominent example, the U.N.
Security Council in 1996 called on Rwanda
to identify and close radio stations it contended
had fomented hatred and incited
acts of mass violence there. The case raised
an important question: Should the media
be held responsible for the violent acts of
their viewers, listeners, or readers?
Punishment may also await those
who challenge the accepted wisdom concerning
historical incidents. In Turkey,
it is a crime to refer to the mass killings
of Armenians during World War I as genocide.
In 2007, the neo-Nazi Ernst Zündel
was imprisoned in Germany after publishing
statements denying that the Holocaust
occurred, a violation of the German
Criminal Code.
A corollary to the problem is created
when the government declares what the
Above: Ernst Zündel, author of The Hitler We Love and Why and publisher
of Did Six Million Really Die?, was handed the maximum allowable
sentence under German law in 2007 for inciting hatred and
denying the Holocaust. Holocaust denial is a specific criminal offense
in several European countries.
[ 11 ]
[ M e d i a L a w | H a n d b o o k ]
truth is in the enactment of insult laws
that prohibit criticism of monarchs, politicians,
or other public officials, national
symbols, or a particular race or religion.
Dozens of countries throughout the world,
including some in the European Union,
former Soviet Union, Asia, Africa, and
Latin America, have enacted such statutes.
Although the precise language varies,
it is invariably both broad and vague,
easily manipulated by governments to
punish dissent and to silence criticism.
Another dimension arises when the
effort to suppress unwelcome publications
crosses national boundaries or is
initiated by non-state actors. Most notoriously,
in February 1989, the Iranian
spiritual leader Ayatollah Ruhollah Khomeini
issued a fatwa offering a bounty
for the death of the British author Salman
Rushdie, whose novel The Satanic
Verses Khomeini declared “blasphemous
against Islam.” In September 2005, the
Danish newspaper Jyllands-Posten published
editorial cartoons depicting the
Prophet Mohammad. Again blasphemy
was charged. Violent protests and threats
on the lives of the cartoonist followed.
Blasphemy charges are not leveled only
by Muslims. Not until July 2008 did the
British House of Lords vote to abolish the
common law crimes of blasphemy and
blasphemous libel.
Compulsory Licensing
Another mechanism to discourage
journalists is the use of compulsory
government licensing. This usually is justified
as helping to ensure that only those
with appropriate qualifications engage
in the profession of journalism. But, as
Leonard Sussman of the New York-based
Above: Flemming Rose, center, commissioned the controversial car toons caricaturing the Prophet Mohammad published by the Danish newspaper
Jyllands-Posten in 2005. The car toon sparked heated public debate about the balance between satire and censorship.
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Freedom House writes, “Governmental
licensing of the press is the old blunderbuss
of censoring weapons.” Government
licensing both determines who may be a
journalist and circumscribes the parameters
of acceptable reporting and commentary.
In short, it encourages self-censorship
and stifles dissent and debate.
Even in countries where any individual
has the right to engage in journalism,
those who seek to operate broadcast, cable,
Internet, or even print news organizations
may be subject to compulsory licensing.
By their very nature, broadcast and cable
franchises are limited in number and scope
within a particular geographical area.
Most countries have concluded that some
governmental authority will be the “traffic
cop” that allocates operating frequencies
in the broadcast spectrum, or assigns to
certain operators the “natural monopoly”
of cable or Internet service providers.
Without this type of licensing, anyone
might, to use one example, broadcast on
the same radio frequency as his neighbor.
The result would be complete cacophony
and chaos. Even so, when the state chooses
who will be allowed to operate the electronic
media, there is a real danger of inhibiting
the free flow of information. In
some countries with a tradition of stateowned
public broadcasting, it is difficult, if
not impossible, for independent media to
secure a place in the broadcast spectrum.
In nations where privately owned commercial
media predominate, questions
about how much the state may inquire
into programming and editorial decisions
when reviewing initial license applications
or renewals remains a nagging problem.
On the one hand, some argue, broadcast
airwaves are a public resource that should
be operated essentially as a public service
or, in the words of the Communications
Act of 1934 (U.S.), in “the public interest,
convenience or necessity.” The uniquely
pervasive nature of electronic media, it is
said, justifies greater government interference
in content. On the other hand, broadcasters
should enjoy the same editorial autonomy
as the print media, subject only to
laws of general applicability governing expression,
such as libel, invasion of privacy,
and obscenity.
Regulation and the Internet
With each new medium of communication,
government efforts to control information
appear. Some countries, including
China, Iran, Saudi Arabia, and Tunisia,
have blocked access to Web sites based on
their political or cultural content, monitored
individuals’ activities on the Internet, and
imposed stringent restrictions on Internet
service providers. Even mature democracies,
including Australia, France, India, and
the United States, have blocked access to or
punished publication of online material that
they deem to be objectionable.
The Internet provides individuals an
unprecedented ability to communicate
without relying on newspapers, television,
or any other traditional media. But many
countries retain legislation from the era
when, in the words of New Yorker magazine
contributor A.J. Liebling, “Freedom
of the press belongs to the man who owns
one.” Some countries grant an individual
an enforceable right of reply to an article
concerning her that she deems false, inaccurate,
defamatory, or misleading. The
logic of these laws is that because radio
and television stations and newspapers
are in the hands of a few, the free exchange
of ideas requires that they provide those
who disagree an opportunity to be heard.
Predicated on the idea that a news organization
has an obligation to be fair, a
statutory right of reply usurps a news
organization’s editorial authority by requiring
an editor to publish material he
otherwise would not. When editors tone
down their coverage to avoid being compelled
to publish replies, the result is more
self-censorship and less publication of controversial
material. As a U.S. Supreme
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Court justice wrote, in a case striking
down a Florida state right-of-reply statute,
“A newspaper or magazine is not a public
utility subject to ‘reasonable’ governmental
regulation in matters affecting
the exercise of journalistic judgment as
to what should be printed.”
Ironically, the Internet, which empowers
anyone with access to be a publisher,
has nevertheless encouraged right-of-reply
measures directed at bloggers and other
digital journalists. In 2006, the European
Parliament adopted a Council of Europe
recommendation that a right of reply be
imposed on the online media. The council
argued that the physical limitations
of space and time that exist in conventional
forms of media like newspapers or
television do not apply in cyberspace,
lowering drastically the cost of affording
a reply privilege. In 2009, the Philippine
legislature was considering bills requiring
anyone who speaks on the Internet,
including bloggers and posters on socialnetworking
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 censorship
is that at first glance it can seem
justifiable, or reasonable.
􀂼 Why shouldn’t a government authority
have the power to stop a
news organization from publishing
classified material in the name of
protecting national security?
􀂼 Why shouldn’t a court be allowed
to prohibit a journalist from reporting
the prior criminal history of a
defendant facing a murder charge?
􀂼 Why shouldn’t an individual have
the right to demand that a broadcaster
refrain from airing footage
that would reveal intimate personal
information, such as the identity of a
child who has been sexually abused?
􀂼 Why shouldn’t a licensing board
have the authority to stop the distribution
of a book or film that it deems
contrary to public morality?
􀂼 Why shouldn’t laws proscribing
racist or “hate” speech be upheld?
Regardless of how a society resolves
these hard questions, the danger is that,
all too frequently, these seemingly reasonable
restrictions are utilized as a means of
restricting press freedoms and ultimately
to restrict the dissemination of unpopular
opinions and ideas. This is not to suggest
that freedom of the press will, or should,
inevitably trump other fundamental values.
The challenge is to strike a balance
between legitimate competing interests.
This is not an easy task.
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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.
Willia m Blackston e
English judge, jurist, and professor
1723–1780
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A Framework
for a Free Press
useful starting point as we set out to create a framework
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
tailored restrictions on indecent or obscene speech.
No prior restraint
The 18th-century English jurist William
Blackstone argued, “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.”
Blackstone’s was an important distinction.
The English government’s power to
license, to control both who could operate
a press and what he could publish,
was the quintessential abridgement of
free expression. By stopping speech even
before it is uttered, government stifles
discussion and dissent.
But in Blackstone’s view, the publisher
would properly bear the responsibility for
whatever he chose to disseminate. Blackstone
would prohibit government from
censoring speech, but he would still allow
sanctions to be imposed after publication.
Only rarely does a country go so far
as Blackstone advocated by absolutely
outlawing any and all previous restraints
on the press. We will examine here a
number of types of restraints that are
recognized as lawful in many countries.
Below are the circumstances under
which a prior restraint might be considered
proper:
􀂼 A compelling interest should be
identified.
􀂼 The order should be narrowly
tailored and no broader in scope
than necessary to address the
compelling interest adequately.
􀂼 The order should be precise in
its terms and as limited in duration
as possible.
􀂼 It should be demonstrated that
the order will actually advance
the compelling interest asserted
or avert the identified harm.
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Above: (from the right)Reporter Neil Sheehan, Managing Editor A. M. Rosenthal, and Foreign News Editor James L. Greenfield formed part of the New
York Times team responsible for publishing the Pentagon Papers, excerpts of classified U.S. government documents about American involvement
in the Vietnam War.
􀂼 Notice of the order and an opportunity
to be heard to contest it should
be provided prior to imposition.
What types of interests might be sufficiently
compelling to justify a prior restraint?
Such interests could include,
among others:
􀂼 confidential or proprietary business
information;
􀂼 highly intimate personal information;
􀂼 copyrighted material;
􀂼 information pertaining to an
on-going criminal investigation
or prosecution;
􀂼 obscene or immoral material.
But probably the most frequently invoked
justification is national security.
This poses a genuine dilemma for journalists.
On the one hand, no journalist
wants to undermine national security
by disseminating information that poses
a genuine threat. On the other hand,
government officials can be tempted to
invoke national security to justify expansive
censorship.
The Supreme Court of the United
States considered this issue in New York
Times Co. v. United States (1971), often
referred to as the Pentagon Papers case.
After the New York Times began publishing
excerpts of classified documents
about the American involvement in Vietnam,
the administration of President
Richard M. Nixon sought a judicial restraining
order to stop further publication.
The Supreme Court ruled against
the government. “Any system of prior
restraints comes to this Court bearing a
heavy presumption against its constitu[
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[ M e d i a L a w | H a n d b o o k ]
tional validity,” the Court noted and
concluded that in this case the government
had failed to meet the “heavy burden
of showing justification for the
imposition of such a restraint.”
The brief opinion provided little insight
into the Court’s reasoning. It is difficult to
discern what conditions, if any, might in a
future case justify a prior restraint. We
only know that the government did not
meet its burden in this case. The Court did
not say that it never could.
Practically speaking, the case of the
Pentagon Papers has created a virtually
insurmountable barrier to governmentimposed
censorship on national security
grounds in the United States. Never
since has the Supreme Court upheld a
prior restraint on the media’s ability to
publish national security information,
not even in the post-9/11 environment.
Given the limits of territorial jurisdiction,
it has always been challenging for the
government of a particular country to impose
a restraint that will be truly effective
worldwide. In the late 1980s, the British
government’s attempts to restrict the publication
of Spycatcher, a former MI5 agent’s
memoirs, were ultimately futile. While an
English court did ban publication, the book
circulated widely in Australia, and even in
Scotland, a part of Great Britain not covered
by the writ of the English court. Copies
poured into England from these and
other jurisdictions. Eventually the English
courts were forced to lift their ban on the
grounds that publication elsewhere meant
there no longer were any secrets left to
preserve. At the height of the controversy,
British editions of The Economist magazine
ran a blank page with this notation:
“In all but one country, our readers have
on this page a review of ‘Spycatcher,’ a
book by an ex-M.I.5 man, Peter Wright.
The exception is Britain, where the book,
and comment on it, have been banned. For
our 420,000 readers there, this page is
blank—and the law is an ass.”
The Spycatcher case predated the
growth of the Internet. Today, the burgeoning
new media pose a significant obstacle
to the effective imposition of a prior
restraint. An example is the Wikileaks
case. In February 2008, a federal judge in
California issued a permanent injunction
on Wikileaks, a Web site that claims to
have been founded by “Chinese dissidents,
journalists, mathematicians and…technologists,
from the U.S., Taiwan, Europe,
Australia and South Africa,” whose selfproclaimed
mission was to “reveal unethical
behavior in…governments and corporations.”
Wikileaks allowed users to
publish anonymously a wide variety of
documents, such as rules of engagement
for American troops, operating manuals
for Guantanamo Bay prison, and confidential
Swiss bank account information.
The site claimed it was not responsible
for the content of materials that users
posted on its site.
The injunction ordered Dynadot, the
California company that had registered
Wikileaks’s domain name, immediately
to lock and disable the domain name and
to block access to the documents. But
the New York Times reported that even
after Dynadot placed restrictions on the
site, users worldwide could still reach it
and read the documents by accessing
mirror sites registered in Belgium, Germany,
and the Christmas Islands. Two
weeks after the initial injunction had
been issued, the same federal judge lifted
it. “It is clear that in all but the most
exceptional circumstances, an injunction
restricting speech is impermissible,”
Judge Jeffrey White wrote. He also observed
that his initial order had not only
been ineffective but “had exactly the opposite
effect as was intended” because
the press coverage of the injunction had
only increased public attention to the
Wikileaks materials.
Other types of gag orders, injunctions,
and restraining orders will be discussed
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in more detail in the appropriate sections
below.
Protection from Compelled
Disclosure of Information
The right of a journalist to protect confidential
sources and unpublished information
from disclosure is essential to
promoting both the free flow of information
and the public’s right to know. Reporters
must be able to assure their
sources that their identities will remain
secret in order to encourage them to
speak freely. They must also be able to
protect the fruits of their news gathering
from scrutiny by government or private
entities in order to maintain their editorial
independence. Without these privileges,
the ability of the press to scrutinize
government and to uncover corruption
would be severely compromised.
Most media codes of ethics require
that journalists protect the confidentiality
of their sources. For a reporter, this
is both a matter of honor and a pragmatic
necessity. A journalist who violates a
promise of confidentiality will not be
trusted by other sources in the future.
For this reason, journalists will protect
their sources, even if it means facing
contempt of court.
The rationale for recognizing a reporter’s
privilege was persuasively set
forth by the European Court of Human
Rights (ECtHR) in Goodwin v. United
Kingdom (1996). The case involved reporter
William Goodwin, who had received
a company’s confidential financial
information from a source whose identity
he had agreed to keep secret. The
company claimed that the material had
been stolen and obtained an injunction
restraining publication of the information,
as well as an order under the Contempt
of Court Act to compel Goodwin
to reveal his source’s identity “in the interests
of justice” so that it could take
legal action against the source.
After the Court of Appeal and the
House of Lords upheld the order, Goodwin
appealed to the ECtHR, where he
argued that under Article 10 of the European
Convention on Human Rights
(ECHR), only exceptional circumstances
could justify compelling him to testify.
For its part, the British government contended
that no compelling public interest
justified recognizing the privilege in
this situation, especially given that the
source had, at worst, acted irresponsibly
in providing the proprietary business information
to Goodwin.
The court ruled in favor of Goodwin,
finding that the company’s interest in
pursuing the source was not sufficient to
outweigh the public’s interest in protecting
the right of journalists to keep sources
confidential:
Protection of journalistic sources is
one of the basic conditions for press
freedom. …Without such protection,
sources may be deterred from assisting
the press in informing the
public on matters of public interest.
As a result, the vital public-watchdog
role of the press may be undermined
and the ability of the press to provide
accurate and reliable information
may be adversely affected. Having
regard to the importance of the
protection of journalistic sources
for press freedom in a democratic
society and the potentially chilling
effect an order of source disclosure
has on the exercise of that freedom,
such a measure cannot be
compatible with Article 10 of the
Convention unless it is justified by
an overriding requirement in the
public interest.
All countries that are parties to
ECHR are bound by the Goodwin decision,
but the decision has been influential
even outside the European Union.
Other international and regional bodies,
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including the Inter-American Commission
on Human Rights and the African
Commission on Human and People’s
Rights, have issued declarations recognizing
the right of journalists to maintain
the confidentiality of their sources
and unpublished information.
In some countries, the journalist’s
privilege is included in the constitution.
For example, the Constitution of Palau
says, “No bona fide reporter may be required
by the government to divulge or
be jailed for refusal to divulge information
obtained in the course of a professional
investigation.” Sweden’s Freedom
of the Press Act, which is part of the national
constitution, provides an expansive
privilege for journalists, subject only
to a limited number of exceptions, such
as if the source is suspected of espionage
or treason, or if an accused person demonstrates
that the information sought is
essential for her defense in a criminal
case. The law also provides that a journalist
who reveals a source without consent
may be prosecuted.
In other countries, courts have ruled
that the journalist’s privilege may be derived
from constitutional provisions. In
2006 in Japan, for example, the Supreme
Court found that Article 21 of the constitution,
which guarantees freedom of expression,
also protects “the freedom of
gathering news,” as well as the reporting
of news. In Canada in 2008, the Ontario
Court of Appeal struck down a finding of
contempt against a reporter who refused
to disclose the source of leaked confidential
municipal investigative reports concerning
a nonprofit nursing home. It ruled
that the right to protect confidential
sources is an essential part of freedom of
expression as recognized under the Canadian
Charter of Rights and Freedoms.
“The likely effect of revealing a journalist’s
confidential source,” the court said,
“would be to discourage from coming forward
other potential sources who, for
whatever reason, need to conceal their
identity.” Although it declined to find an
absolute privilege governing all confidential
communications obtained in the
course of reporting, the court nevertheless
recognized that the contempt power
should be used only as a last resort, mindful
of the competing rights at stake.
Some other nations have by statute
granted journalists a privilege to avoid
testifying under specified circumstances.
About 20 countries have adopted legislation
giving journalists absolute rights to
protect their sources, among them Mexico,
Indonesia, Mozambique, and Turkey.
More common are national laws that recognize
a qualified privilege, which may
be overcome under certain situations.
Armenia, for example, grants the privilege
but withdraws it in cases where the
information sought is directly related to
a heinous criminal case when the public
interest in disclosure is strong. In some
countries, including Germany and the
United States, statutory protection has
been left to the individual states. Like
the national laws, these statutes can be
either absolute or qualified in scope.
In the United States, although 39
states, plus the District of Columbia,
have enacted journalists’ shield laws,
Congress has considered, but has failed
to pass (as of summer 2010), federal legislation
recognizing a reporter’s privilege.
This means that state shield laws
apply in some state court proceedings
but not in the federal court system. (For
further information on the roles of federal
and state laws and court systems,
see Outline of the U.S. Legal System,
http://www.america.gov/publications/
books/outline-of-u.s.-legal-system.)
Although each society will work out
the precise contours of a journalistic
privilege against compelled disclosure
of information, an effective privilege
would supply broad answers to the following
questions:
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􀂼 To whom does it apply? A broad
privilege would apply to anyone
who is practicing journalism—
meaning anyone involved in the
process of gathering, writing,
editing, or publishing news or
information for dissemination
to the public, whether for compensation
or not.
􀂼 Is it limited by media platform? The
most effective privilege would not
be limited to those in the print and
broadcast mainstream media. It
would include book authors, as well
as bloggers and others who disseminate
their work on the Internet.
􀂼 Which sources does it protect?
A comprehensive privilege would
cover not only the identity of
sources but also unpublished information
and documentary materials,
such as photographs, notes,
tapes, drafts, and other unpublished
journalistic work product.
In the absence of an absolute privilege,
one who seeks to compel a journalist
to reveal confidential sources and
information should be required to show
good cause. Nations have devised different
standards, but the more common
factors include:
􀂼 The information is unobtainable
from any other nonjournalistic
source after all reasonable alternatives
have been exhausted.
􀂼 The information sought is material,
or absolutely essential, to the
disposition of the underlying case
(such as exonerating evidence for
an accused criminal).
􀂼 A judge must find that the public
interest in disclosure outweighs
the public interest in the free flow
of information.
The final element is the most problematic.
When does another interest outweigh
the fundamental right to press
freedom? In cases involving national security,
for example, government authorities
often argue that preserving public
safety outweighs protecting editorial independence.
In the United States, federal
efforts to enact a journalists’ shield
law have been stymied for years, in part,
because of fears that terrorists might
use it to protect their communications
from law enforcement scrutiny.
War correspondents face many special
challenges. Maintaining source confidentiality
can be essential to protecting these
journalists’ safety. But what happens when
the journalist is an eyewitness to atrocities
and is summoned before a war crimes
tribunal to give evidence?
In 1993, Washington Post reporter
Jonathan C. Randal interviewed Radoslav
Brdjanin, a Serbian nationalist,
whom he quoted in an article on ethnic
cleansing. Years later, after Randal had
retired from journalism, Brdjanin was
charged with genocide. Prosecutors
wanted to introduce Randal’s article as
evidence in the trial before the U.N. International
Criminal Tribunal for Yugoslavia
(ICTY). When the defense insisted
on the right to cross-examine Randal,
the former reporter was subpoenaed to
appear before the court. Randal resisted,
arguing that being compelled to testify
would compromise his ability to gather
news in war zones and could endanger
his personal safety were sources to perceive
him as a potential witness.
In December 2002, the Appeals
Chamber recognized a qualified testimonial
privilege for war correspondents,
even where their sources are not confidential
and their information has already
been published. It defined war
correspondents as “individuals, who for
any period of time, report (or investigate
for the purposes of reporting) from a
conflict zone on issues relating to the
conflict.” The court acknowledged that
to do their jobs, “War correspondents
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must be perceived as independent observers
rather than as potential witnesses
for the Prosecution. Otherwise, they
may face more frequent and grievous
threats to their safety and the safety of
their sources.” The tribunal ruled, ”The
amount of protection [recognized] is directly
proportional to the harm that it
may cause to the newsgathering function.”
To compel testimony, it held, the
subpoenaing party must show that the
evidence is of “direct and important value
in determining a core issue in the
case” and that the evidence cannot reasonably
be obtained elsewhere.
Randal’s case was a controversial one.
Although more than 30 international
news organizations supported his appeal,
Ed Vulliamy, a British journalist
who also covered the war in Bosnia and
voluntarily testified at the trial of Milan
Kovacevic, argued that Randal’s position
was wrong. “At the root of the Washington
Post’s objection is the supposed
bedrock of the journalists’ profession:
neutrality,” he wrote. “I believe that there
are times in history…that neutrality is
not neutral but complicit in the crime. …
The court needs reporters to stand by
their stories on oath.”
A related issue involves the power of
governmental authorities to search media
offices. Zurcher v. Stanford Daily
(1978) was a U.S. Supreme Court case
challenging the power of police officers
to enter the office of a university student
newspaper and to seize unpublished photographs
of a violent confrontation between
police officers and demonstrators
who had seized and occupied the Stanford
University hospital. Although the
student newspaper argued that the First
Amendment protected it from law enforcement
searches of its premises, the
majority opinion by Justice Byron White
ruled that news organizations enjoy no
special status under the First Amendment,
although they would be protected
by the Fourth Amendment, as any other
entity would be, from “unreasonable
searches and seizures.”
In dissent, Justice Potter Stewart
wrote:
It seems to me self-evident that
police searches of newspaper offices
burden the freedom of the press.
The most immediate and obvious…
injury…is physical disruption of the
newspaper. …But there is another
and more serious burden…imposed
by an unannounced police search of
a newspaper office: the possibility of
disclosure of information received
from confidential sources, or of the
identity of the sources themselves.
In response to the majority ruling, the
U.S. Congress enacted the Privacy Protection
Act of 1980. This statute forbids
both federal and local law enforcement
authorities from seizing documentary, or
work product, materials in the possession
of persons intending to disseminate them
to the public (i.e., journalists). Exceptions
include materials necessary to prevent
death or serious injury, or child pornography.
Similarly, in 1995, the New Zealand
Court of Appeals ruled searches of journalists’
workplaces appropriate only in
exceptional cases when essential to promoting
the interests of justice and, even
then, not to be executed in a way that
would impair the dissemination of news.
But in other parts of the world, newsroom
searches occur frequently. For example,
in 2004, the Independent Commission
Against Corruption in Hong Kong obtained
14 warrants to search newspaper offices
and journalists’ homes. The commission
sought the identity of an individual who
had provided a witness’s name to the news
organization. The Court of Appeal ruled
these searches justified.
Although the European Court of Human
Rights holds that newsroom searches
violate Article 10 of the European
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Convention on Human Rights, many
European countries still permit them.
Austria and Germany are two exceptions,
with the German Constitutional
Court ruling in February 2007 that
these searches violate constitutional
freedom of speech protections.
Antiterrorism laws adopted in much
of the world since 2001 have expanded
law enforcement and intelligence authority
to intercept communications
through wiretapping and similar means.
These laws typically afford journalists
no less, but also no more, protection than
other citizens. However, a few countries
do grant the news media special protection.
In Georgia, intercepting journalists’
communications for the purpose of
uncovering professional secrets is a
crime. And in Belgium, the Law on Protection
of Journalists’ Sources imposes
the same restrictions on surveillance as
on an attempt to compel disclosure of a
confidential source.
In short, there is broad recognition
that protecting journalists’ confidentiality
is essential to maintaining their
independence.
The Right of Access to
Government Information
and Proceedings
Why is the right of access to government
proceedings and information
important?
􀂼 Access helps keep government
accountable to its citizens. As a
U.S. Supreme Court justice once
wrote, freedom of information laws
allow citizens to find out “what the
government is up to” in the present,
and also what it did in the
past. By helping to check improper
conduct, access serves as a valuable
anticorruption tool and helps
build public trust.
􀂼 Access allows the public to tap
into the vast quantities of government-
collected and -maintained
information, information paid for
by the public’s tax dollars.
􀂼 When journalists can obtain public
records, they need not rely on the
whims of a government source to report
on government actions and activities,
and they can better disclose
how tax dollars are spent and how
policies are made and implemented.
In short, journalists’ access to government
information is an essential tool for
building and maintaining democracy.
Many international agreements embrace
and promote transparency:
􀂼 Article 19 of both the Universal
Declaration of Human Rights and
the International Covenant on
Civil and Political Rights guarantees
the right to seek, receive, and
impart information. This phrase
has been construed to include a
right of freedom of information.
􀂼 Article 9 of the African Union (AU)
Convention on Preventing and Combating
Corruption, a treaty signed
by 40 of the 53 members of the AU,
says, “Each State Party shall adopt
such legislation and other measures
to give effect to the right of access
to any information that is required
to assist in the fight against corruption
and related offenses.”
􀂼 The Organization of American
States, the Arab Charter on
Human Rights, and many other
treaties, conventions, agreements,
and declarations recognize freedom
of information as a fundamental
human right.
But the reality often falls short of the
rhetoric. Individual nations decide whether
and how they will implement these
lofty principles. The journalist who sets
out to exercise her right to know may find
the experience a challenging one.
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Freedom of information is a constitutional
right in about 80 countries. Sweden’s
1766 press law, often considered
the first freedom of information act, is
part of its constitution, and some older
constitutions have been amended to include
a right to know. Many developing
democracies in Central and Eastern Europe
and Latin America include access
provisions in their new constitutions.
Even when the constitution contains no
explicit language, the highest courts in
some countries, including Korea, Japan,
and Israel, have found a right of access
to information implicit in the right of
freedom of the press or expression.
More than 70 additional countries have
enacted freedom of information statutes.
These are well established in Europe and
the Americas, less so in Asia, the Middle
East, and Africa. But the trend is definitely
toward greater transparency in government
around the world.
Freedom of Information Laws
Most freedom of information laws
share common principles and characteristics.
Many recent examples were
influenced by the U.S. federal Freedom
of Information Act (FOIA), so we will
use that statute as an example.
President Lyndon B. Johnson signed
FOIA into law on July 4, 1966. Despite
its name, the statute does not actually
create a right of access to information.
Rather, it establishes a presumptive right
of access to existing records, in paper or
digital form, held by executive branch
agencies, departments, regulatory commissions,
and government-controlled
corporations. These include, for example,
the Departments of State, Defense, and
Justice, as well as the Federal Bureau
of Investigation and the Central Intelligence
Agency, among many others. Unlike
laws in countries like Ireland, FOIA
does not list covered agencies by name,
nor does it categorically exclude bodies
that handle intelligence and security, as
in the United Kingdom. But the U.S.
FOIA covers neither the legislative nor
judicial branches of government. Access
to state and local executive branch agency
records are covered by state opengovernment
laws.
In the United States, as in most countries,
anyone can make a FOIA request.
Neither U.S. citizenship nor residency is
required, and access is open to all, not
just journalists. Requesters are encouraged
to utilize government reading
rooms, either brick-and-mortar or virtual,
to gain free access to records already
released under so-called E-FOIA initiatives
or disclosed in response to an earlier
FOIA request. They are also invited to
contact the agency FOIA officer to discuss
informally what types of records
may be available before filing a formal access
request. In the United States, no
special form is necessary to file a FOIA
request—just a simple letter, addressed
to the pertinent FOIA officer, reasonably
describing the records sought. Most agencies
are prepared to accept requests in
writing or electronically.
Despite the presumption of openness,
however, nearly every freedom of information
law includes exemptions—categories
of records an agency can withhold. The
U.S. FOIA has nine exemptions, which,
under the terms of the statute and based
on guidance from the Department of Justice,
should be narrowly construed:
􀂼 national security;
􀂼 internal agency rules/practices;
􀂼 internal agency memoranda (such
as working papers, reports, and studies
prepared as part of the agency’s
decision-making process);
􀂼 trade secrets;
􀂼 records made secret by another
federal statute;
􀂼 some law enforcement records;
􀂼 bank records;
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􀂼 oil and gas well data;
􀂼 records containing information
that, if revealed, would constitute
an unwarranted invasion of
personal privacy.
Most of these exemptions are not mandatory.
Agencies may release records if
they conclude that the public interest in
disclosure outweighs any harm. They
must be prepared to justify any exemption
and to withhold only the exempt portion of
any record while releasing the balance.
The necessity of withholding a particular
record may evolve over time. In the case of
classified records, requesters have the option
to appeal to a special review board
that will determine whether a previously
classified record can now be made public.
In some countries, although not in the
United States, access laws include specific
prohibitions on withholding certain categories
of information.
Although the United States does not
have an official secrets act of the type
found in many other countries, records
properly classified in accordance with a
presidential executive order can be withheld.
In the post-9/11 environment, the
practice of classifying information has
increased in much of the world. This imposes
new obstacles to citizens seeking
both intelligence and law enforcement
records. And as governments collect
more personally identifiable information,
agencies frequently invoke the privacy
exemptions as grounds to withhold
many government records. These exemptions
are sometimes vague and difficult
to interpret, and the tendency for
most records custodians is to withhold
the record if there is any doubt.
A requester denied access to a record
has a right to appeal. Under FOIA, and in
most countries, she begins by seeking an
internal review within the agency. This
tactic sometimes, but not always, results
in release of the records. The next step is
to submit the appeal for external review.
In the United States, that means filing a
lawsuit in a federal district court, with
subsequent appeals as necessary through
the federal appellate courts and even to
the Supreme Court. In other countries,
and in some of the individual states in the
United States, the requester may appeal
to a freedom of information ombudsman,
or to an independent tribunal 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 attorney’s
fees, as well. In some U.S. states,
and in many countries, courts can impose
sanctions on government agencies
and employees who willfully withhold
records in violation of the law. These
Above: U.S. President Barack Obama signed five executive orders on
January 21, 2009, requiring staffers to comply with strict new rules
on the Freedom of Information Act. In a memo released that day,
President Obama wrote: “The Government should not keep information
confidential merely because public officials might be embarrassed
by disclosure, because errors and failures might be revealed,
or because of speculative or abstract fears.”
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sanctions can include monetary fines
and, in rare cases, even a jail sentence if
the violation is particularly egregious.
Even where the law requires disclosure,
administrative backlogs, lack of resources,
or inefficiency may result in
delays. Most freedom of information laws
set short deadlines for initial responses
but allow additional time to handle complex
requests. In the United States, the
National Security Archive, a private organization
that conducts research on access
policy, reported in 2007 that the
oldest pending FOIA request was 20
years old, although many others are processed
far more quickly. Under certain
circumstances, as where a journalist
demonstrates compelling public interest
in immediate release, a requester may be
entitled to expedited processing.
Agencies may be authorized to recoup
costs from requesters, even if they do
not fulfill the entire request. Some countries
(although not the United States)
assess a filing fee, regardless of the size
or scope of the request. Others demand
payment for administrative costs, including
search time, redaction of exempt
information, and copying. Under the
U.S. FOIA, certain categories of requesters,
including the general public and the
press, are entitled to full or partial fee
waivers, but commercial requesters (not
including the news media) are required
to pay all applicable costs, which are determined
by the agency according to a
fee schedule.
Freedom of information laws create a
presumption of public access. FOIA disclosures
have empowered journalists to write
thousands of stories, some embarrassing
to the U.S. government. These range from
the revelation of the 1968 massacre at My
Lai in Viet Nam to unsanitary conditions
Above: U.S. American 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.
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in food-processing plants; from cost overruns
by defense contractors to the most
dangerous places to work in the United
States. Even features about unidentified
flying objects (UFOs) are based on information
obtained under the FOIA. All
that is required is the persistence to
make use of it.
Access to Court Proceedings
The official activities of the judiciary
have a tremendous impact on and are
of great interest to the public. And yet,
when journalists set out to report on
court cases, it may result in an adversarial
relationship. Simply put, journalists
frequently want to publicize information
attorneys and the judge would prefer to
keep secret.
Most countries at least tacitly acknowledge
that court proceedings should
be presumed open to the press and the
public, subject to certain limitations. Article
6 of the European Convention on
Human Rights provides, in part:
In the determination of his civil
rights and obligations or of any
criminal charge against him,
everyone is entitled to a fair and
public hearing within a reasonable
time by an independent and impartial
tribunal established by law.
Judgment shall be pronounced
publicly but the press and public
may be excluded from all or part
of the trial in the interest of morals,
public order or national security
in a democratic society, where
the interests of juveniles or the
protection of the private life of the
parties so require, or the extent
strictly necessary in the opinion of
the court in special circumstances
where publicity would prejudice the
interests of justice.
In common law countries, the Anglo-
Saxon tradition since Magna Carta
(1297) has presumed that trials would
be open in order to protect the rights of
the accused and to ensure accountability.
In the United States particularly, a
line of Supreme Court cases beginning
in 1980 has construed broadly both a
criminal defendant’s Sixth Amendment
right to a fair and public trial and the
right of press and public under the First
Amendment to attend that trial. Many
courts recognize a presumed right of access
to court documents, as well.
But the Supreme Court also has ruled
that a specifically identified state interest
can outweigh the presumption of
openness. This could include a substantial
threat to the criminal defendant’s
right to a fair trial or a compelling need
to protect the privacy of a particular witness
or victim during testimony. However,
before closing the courtroom, the
presiding judge is required to consider
whether any alternative will avert the
threat and must also establish that closure
will be effective. In addition, any
closure must be narrowly tailored—as
brief in scope and duration as possible.
Some countries, such as Spain and Sweden,
among many others, afford similar
constitutional guarantees that the administration
of justice is to take place in public.
However, a separate issue arises concerning
limitations on what journalists may
report about a pending or ongoing case.
Prior Restraints and Gag Orders
In the United States, the strong tradition
against prior restraints makes it
almost impossible to persuade a court to
issue a gag order on the press. For the
most part, restraining orders are limited
to court officials and trial participants.
The courts have ruled almost uniformly
that dissemination of information pertaining
to a case that has been obtained
legally by the press cannot be restricted,
whether it originated in or out of the
courtroom. The Supreme Court ruled in
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1976 that a gag order would be permissible
only if publication would pose a
“clear and present danger” to the conduct
of the trial, if the order actually
would be effective to alleviate the harm,
and if no less drastic means would address
the problem. For this reason, journalists
in the United States are almost
never subjected to gag orders, and they
nearly always succeed in challenging
those that are imposed.
A rare exception occurred in 2003.
Professional basketball player Kobe Bryant
was charged with rape and faced trial
in Colorado. A court clerk accidentally emailed
the transcript of a closed pretrial
hearing to seven media organizations.
The transcript included the name of the
alleged victim, information that was secret
under the Colorado rape shield law.
Upon discovering the mistake, the
presiding judge ordered news organizations
to “delete and destroy any copies
and not reveal any contents thereof, or be
subject to contempt of Court.” Although
some U.S. legal authority suggests that
journalists may defy transparently unconstitutional
gag orders, in this case
the news organizations immediately appealed
the order to the state’s highest
court. The Colorado Supreme Court ruled
that protecting the accuser’s privacy and
preserving the ability to prosecute future
sexual assault cases constituted
significant state interests justifying the
order. The dissenting justices, noting
that the news organizations had broken
no law, observed, “It is the responsibility
of the government, not the media, to
protect information that lies within its
control.” Ironically, within a short time,
even more information, including the alleged
victim’s last name, was posted on
the Internet. The judge released most of
the transcripts, and the media dropped
their appeal to the U.S. Supreme Court.
By contrast, judges in the United Kingdom
and Canada enjoy broad authority
to enjoin publication of material that
could create a “substantial risk that the
course of justice…will be seriously impeded
or prejudiced,” and to hold in contempt
anyone who engages in conduct
that tends to “interfere with the course
of justice…regardless of intent to do so.”
As a consequence, from the time a suspect
is arrested or charged until sentencing,
journalists in these nations
may attend the proceedings but are limited
in what they may report. In other
countries, provisions in either the civil
or criminal code specify what types of
information may or may not be reported.
Common restrictions include the
identity of crime victims, familial details
in divorce or child custody proceedings,
or details about an accused person’s
past criminal record. In some nations
like Sweden, where the law is silent, the
journalists’ own code of conduct specifies
that defendants should not be identified
unless “an obvious public interest
requires it.”
Cameras in the Courtroom
Courtroom cameras provide greater public
access, but they remain a contentious
issue in many nations. Coverage of
the notorious O.J. Simpson murder trial
in 1995 in California continues to influence
judges and policymakers around the
world. They cite the perceived excesses of
that case as proof that cameras undermine
the right to a fair trial—even though
Simpson was acquitted. Concerns that
cameras will disrupt the proceedings, intimidate
witnesses, and encourage lawyers
to act inappropriately are just a few
of the justifications offered to keep electronic
media from covering court cases.
Nevertheless, cameras continue to be allowed
in many U.S. state trial courts and
in the highest appeals courts in a variety
of countries—though not, as yet, the Supreme
Court of the United States. In
2000, a report commissioned by the Inter[
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[ A F r amewo r k f o r a F r e e P r e s s ]
national Criminal Tribunal for Yugoslavia
concluded that cameras in the court
did not significantly affect the participants’
behavior and helped to provide a
full and accurate court record. It noted
further that cameras can inform the international
community about tribunal
workings and encourage a transparent
and fair system of justice. It suggested
that other international judicial proceedings
should follow suit.
The Right to Criticize
Government Officials and
Public Figures
Journalists report on the activities of
government officials and public figures.
But, ironically, the more prominent
and powerful the individual, the more she
may object to criticism. During the course
of their careers, many reporters find themselves
facing a lawsuit, accusing them of
having falsely defamed an individual.
Libel is broadly defined as a false and
defamatory statement made to a third
party about another individual, with the
potential to harm the subject’s reputation.
In most jurisdictions, an action for
libel is a civil case, brought by the individual
as a means of recovering monetary
damages.
Because the right to reputation is regarded
as an important, though not necessarily
fundamental, right, international
conventions and treaties generally do not
reject libel suits as necessarily violating
the right of freedom of expression and the
public’s right to know. Article 19 of the
International Covenant on Civil and Political
Rights, for example, provides that:
The exercise of rights...carries
with it special duties and responsibilities.
It may therefore be subject
to certain restrictions, but these
shall only be such as are provided
by law and are necessary…for
respect of the rights or reputations
of others [emphasis added].
The U.S. Supreme Court first grappled
with the question of whether the
First Amendment to the Constitution applied
in libel cases in New York Times v.
Sullivan (1964). The case arose after the
newspaper published a paid editorial advertisement
protesting the treatment
of civil rights activists by law enforcement
personnel in Montgomery, Alabama.
Although he was not named in the
advertisement, L.B. Sullivan, a city commissioner
who supervised the local police,
sued, claiming that the advertisement
included erroneous statements and that
it had defamed him. He was awarded
$500,000 in damages.
The U.S. Supreme Court reversed the
decision. In the majority opinion by Justice
William Brennan, the Court observed,
“Debate on public issues should be uninhibited,
robust and wide-open,” recognizing
for the first time that, paradoxically,
the First Amendment must protect some
false statements in order to encourage
truthful speech about matters of public
importance. Henceforth, no public official
could prevail in a libel case without proving
actual malice—that the statement
was published “with knowledge that it
was false or with reckless disregard of
whether it was false or not.” In subsequent
cases, the Court extended the actual malice
test to include libel suits brought by
public figures as well.
In cases involving private individuals
(not public officials or public figures), the
Court permits each state to establish the
requisite standard. It acknowledges a legitimate
government interest in affording
individuals the opportunity to be compensated
when published falsehoods harm
their reputations. But even then, the Supreme
Court requires at a minimum that
a plaintiff prove publisher negligence, a
standard that affords journalists some leeway
for good-faith errors.
Journalists possess a variety of privileges
and defenses against libel claims,
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even those of non-public figures. Truth,
of course, is an absolute defense to libel.
The fair report privilege permits reporters
to republish without liability government
documents, including court filings,
that contain libelous allegations, as long
as the report of their contents is accurate.
Fair comment permits good-faith
criticism of individuals involved in matters
of public concern, provided it is
based on facts that are truthfully stated
or otherwise privileged. And, as a matter
of First Amendment law, the Court
has held that pure opinion—statement
that can neither be proven true nor
false—is absolutely protected.
The laws of many nations—Canada,
Australia, Japan, Thailand, Brazil, and
Poland, among them—include variations
on these privileges and defenses. Many
countries make no distinction between
public and private figures, although they
may impose stricter standards of proof on
plaintiffs who are also government officials.
Some countries permit corporations
to sue for libel, but many limit those actions
to statements damaging to the company’s
trade or business reputation. Many
countries have abolished seditious libel
and prohibit government entities from
suing for defamatory statements, even
though individual officials may be permitted
to do so.
Assuming that a plaintiff both pleads
and proves the elements of libel, she then
typically will seek monetary damages.
Although harm to reputation will be
presumed in some circumstances, such
as when a statement falsely accuses an
individual of a crime, in most instances,
the plaintiff will be obliged to prove that
she actually suffered damage as result
of the publication. Many countries allow
plaintiffs to recover damages to compensate
them for actual out-of-pocket monetary
losses, as well as impairment of
reputation, loss of standing in the community
or profession, or personal humiliation.
In addition, where the journalist’s
conduct is considered outrageous, courts
may award punitive damages, designed
not to compensate the plaintiff but to
punish the media defendant.
In some countries, media defendants
may mitigate or reduce their damages by
demonstrating that they promptly published
a full and fair retraction of the false
and defamatory material. In a number of
nations, a defendant’s offer of amends—a
claim that the libel was published innocently—
will either nullify the libel action
or act as a defense in a subsequent suit.
An alternative to monetary damages
is an injunction prohibiting publication
of the allegedly libelous material. Courts
in the United States and Canada have rejected
injunctions as a remedy for libel,
finding them to be incompatible with freeexpression
principles. But many other
countries permit them. Courts in India,
for example, will sometimes issue prepublication
injunctions, but only if the
statement complained of is demonstrably
false and only if the plaintiff can demonstrate
that immediate injury to person
or property is likely to occur. In Italy, not
only can prior restraints be obtained, but
under Article 321 of the Italian Criminal
Code, a court can order the seizure
of a defamatory publication.
In many countries, a state prosecutor
can bring a criminal libel suit. Many
scholars view criminal libel as outdated
(its original purpose was to protect the
monarchy or aristocracy from criticism
or insults). One rationale was to provide a
legal alternative for those who might otherwise
turn to dueling or vigilantism to
seek satisfaction for affronts to their honor
or dignity. However unrealistic these
threats may be today, even some mature
democracies, including the United States,
retain criminal libel statutes on their
books, although they are rarely used.
In Germany, criminal defamation laws
have been defended as necessary to pro[
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[ A F r amewo r k f o r a F r e e P r e s s ]
tect the individual’s right to dignity under
the Basic Law. Portugal has argued
that the state has the duty to protect an
individual’s reputation. Article 443 of the
Belgian Criminal Code permits prosecution
for libel, defined as “viciously and
publicly attributing to a given person fact,
the legal proof of which may not or cannot
be established and which is likely to
harm that person’s honor or to expose
that person to public contempt.”
However, the European Court of Human
Rights has overturned criminal
defamation convictions based on Article
10 of the European Convention. In Lingens
v. Austria, for example, it ruled that
a politician who “inevitably and knowingly”
opens himself to scrutiny by journalists
and the public must be prepared
to accept harsh criticism. The court noted
that criminal libel convictions have
“a chilling effect” on the press and discourage
the media from practicing their
role as public watchdog. Nevertheless,
criminal libel laws have been justified as
necessary to protect nascent democracies
from damaging criticism. Azerbaijan
and the Maldives are just two countries
that, in the summer of 2009, prosecuted
journalists for defamation.
Some nations apply much looser standards
that are less compatible with press
freedom. Some jail reporters for erroneously
reporting falsehoods about individuals.
In many others, desacato laws
permit criminal prosecution of journalists
for insulting or offending the dignity
of public officials or institutions. Turkey,
for example, has 11 separate insult laws,
including one to protect the memory of
Mustafa Kemal Ataturk. Expressions of
contempt for the president, vice president,
or a foreign head of state are punishable
by one to five years imprisonment,
and/or a fine in Cameroon. A journalist
who “dishonors or discredits” another
individual can be fined or imprisoned in
Argentina. And even France retains the
Law of July 29, 1881, on its statute books,
permitting the press to be punished for
insulting the president, the senate, foreign
dignitaries, and the national flag.
By contrast, in the United States, the
Supreme Court has said, “There is no
such thing as a false idea.” In Gertz v.
Robert Welch (1974), Justice Lewis Powell
observed, “However pernicious an opinion
may be, we depend for its correction
not on the conscience of judges and juries
but on the competition of other ideas.” In
1988, the Court categorically rejected a
cause of action for infliction of emotional
distress brought against Larry Flynt’s
Hustler magazine by the Rev. Jerry Falwell.
The magazine had published an
“advertising parody” depicting the clergyman
purportedly describing his first
sexual encounter with his mother in an
outhouse while both were intoxicated.
The publication included a disclaimer
that the parody was fiction, “not to be
taken seriously.”
Falwell sued Flynt for libel, invasion of
privacy, and intentional infliction of emotional
distress. Although Falwell lost on
the first two claims, the jury ruled in his
favor on the third. An appellate court upheld
this verdict, but a unanimous Supreme
Court reversed. Citing the long
American tradition of robust and caustic
political commentary, Supreme Court
Chief Justice William Rehnquist rejected
Falwell’s attempt to impose an “outrageousness”
standard that would permit
recovery. He wrote, “‘Outrageousness’ in
the area of political and social discourse
has an inherent subjectiveness about it
which would allow a jury to impose liability
on the basis of the jurors’ tastes or
views, or…their dislike of a particular expression.”
Absent a showing that a false
statement of fact was made with actual
malice, Rehnquist wrote, a public figure
must tolerate such attacks, in order to give
adequate “breathing space” to the freedoms
protected by the First Amendment.
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The Right to Gather and
Publish Newsworthy Information
About Individuals
In 1890, two Boston lawyers, Louis
Brandeis and Samuel Warren, published
an article in the Harvard Law
Review entitled “The Right to Privacy.”
They observed that:
The press is overstepping in every
direction the obvious bounds of
propriety and decency. Gossip is no
longer the resource of the idle and vicious,
but has become a trade, which
is pursued with industry as well as
effrontery. To satisfy a prurient taste
the details of sexual relations are
spread broadcast on the columns of
the daily papers. To occupy the
indolent, column upon column is
filled with idle gossip, which can only
be procured by intrusion upon the
domestic circle. …When personal
gossip attains the dignity of print,
and crowds the space available for
matters of real interest to the community,
what wonder that the
ignorant and thoughtless mistake
its relative importance.
The lawyers’ prescient observations
eventually led to the recognition of a common
law right to privacy in the United
States. Their concerns seem remarkably
timely more than 100 years later.
Privacy rights are enshrined in a number
of international legal documents. Article
17 of the International Covenant on
Civil and Political Rights says, “No one
shall be subjected to arbitrary or unlawful
interference with privacy, family,
home or correspondence,” and Article 8(1)
of the European Convention similarly
guarantees “the right to respect for his
private and family life, his home and his
correspondence.”
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 Cour t where Chief Justice William Rehnquist wrote that Falwell, as a public figure, must tolerate such attacks
in order to give sufficient “breathing space” to the freedoms protected by the First Amendment.
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On the national level, privacy rights
may be guaranteed by the constitution, by
statute, or by common law. Article 5 of the
Constitution of Brazil, for example, declares,
“The private life of an individual is
natural and inviolable.” The Danish Criminal
Code guarantees the right to privacy
by making it an offense to trespass into
private homes, to access private papers, to
use mechanical devices to eavesdrop, to
photograph or spy on individuals when on
private property, to communicate someone
else’s private facts to another person, or to
intrude on another’s solitude after having
been warned to leave him alone. Germany
guarantees “the right of personality” in its
Basic Law. And the right of privacy is guaranteed
in South Africa both in Section 14
of the constitution and by common law.
Courts in the United States, however,
were slow to recognize a right to privacy.
Although the Supreme Court has interpreted
the Fourth Amendment of the U.S.
Constitution to protect individuals from
unreasonable searches and seizures, as
well as other unwarranted intrusions by
government agents, the amendment applies
to the government and not to actions
by other individuals. With the exception
of a handful of federal statutes that prohibit
certain types of electronic interception
of private communications, U.S.
privacy law is almost exclusively the province
of the 50 states.
By 1960, the American legal scholar
William Prosser had identified four distinct
privacy torts:
􀂼 intrusion on seclusion;
􀂼 publication of private facts;
􀂼 depiction of another in a false light;
􀂼 misappropriation or commercial use
of another’s name or image.
Some arise from common law. Others
are statutory. Not every jurisdiction recognizes
all four torts. But each is designed
to provide a remedy to an individual
based not on his external reputation, as
in libel, but on his own sense of violation
of self. Many countries recognize some
or all of them.
Intrusion on seclusion most commonly
arises in the context of news gathering.
It includes not only physical trespass
into another’s private space but also
eavesdropping, tape recording, or otherwise
intercepting private conversations
without permission. Although the Supreme
Court once observed, “Without
some protection for seeking out the news,
freedom of the press would be eviscerated,”
the high court has never exempted
journalists from generally applicable
laws that prohibit intrusion. The use of
hidden cameras, for example, is unlawful
in some states, and the Supreme
Court let stand a Florida ruling that
statutes prohibiting the use of concealed
tape recorders do not violate the First
Amendment rights of the press.
In most, but not all, jurisdictions,
journalists are free to record or photograph
anything they can observe in a
public place. However, there are exceptions.
Scottish author J. K. Rowling, of
Harry Potter fame, successfully sued for
invasion of privacy on behalf of her
young son after she was photographed
on an Edinburgh street while pushing
him in a stroller. A young Canadian
woman recovered damages from a Montreal
magazine that had photographed
her sitting on a door stoop after, she
claimed, her friends made fun of her.
Even though she was in public at the
time the picture was taken, the Supreme
Court of Canada found that her right to
control the use of her image in the media
was guaranteed by the privacy clause in
the Quebec human rights charter.
The publication of private facts tort
presents a free-expression dilemma because
it permits legal action to be brought
against journalists who have published
the truth. Nevertheless, many countries
recognize some version of this tort. The
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United States construes it narrowly,
limiting actions to publication of intimate
facts highly offensive to a reasonable
person and of no legitimate public
concern. A public figure or public official
will probably be held to have a diminished
expectation of privacy.
The challenge for any journalist is to
determine whether a court would deem
a particular fact newsworthy. A news organization’s
decision to publish information
does not necessarily mean that it is
of public concern. One also must distinguish
between issues that are of legitimate
public interest and connecting
those issues with individuals. For example,
when the British tabloid newspaper
The Daily Mirror published photographs
of Naomi Campbell leaving a Narcotics
Anonymous meeting, the supermodel
was able to recover damages for invasion
of privacy. The House of Lords concluded
that although the general topic of substance
abuse was a matter of public concern,
Campbell’s addiction and treatment
were not.
A more extreme example involved
Princess Caroline von Hannover of Monaco,
who claimed that publication of
photographs depicting her going about
ordinary activities, including horseback
riding, shopping, and skiing, violated
her privacy under German law. The German
courts rejected her claims, but in
2004, the European Court of Human
Rights upheld them, finding that her
rights as guaranteed by Article 8 of the
European Convention on Human Rights
had been violated. The court acknowledged
that Von Hannover is a public figure
but ruled the photographs involved
no matter of general concern:
A fundamental distinction must be
made between reporting facts—
even controversial ones—capable of
contributing to a debate in a democratic
society relating to politicians
in the exercise of their functions, for
example, and reporting details of
the private life of an individual who,
moreover, as in this case, does not
exercise official functions. While in
the former case the press exercises
its vital role of “watchdog” in a
democracy by contributing to
impart[ing] information and ideas
on matters of public interest,…it
does not do so in the latter case.
Broadly speaking, however, information
that is in the public domain—for example,
details that can be obtained from
public records or proceedings—cannot
be the basis of an invasion of privacy suit
for publication of private facts. In 1989,
the U.S. Supreme Court ruled that the
victim of a sexual assault could not sue a
newspaper that included her name as
part of a criminal incident roundup. Even
though Florida, the state in which she resided,
prohibited news organizations
from publishing the names of rape victims,
the high court found that because
the newspaper had obtained the information
legally—from a police report form
that had been inadvertently made available
in the sheriff’s department press
room—it could not be held liable for accurately
reporting the information. Similarly,
individuals who consent to the
release of information, or who affirmatively
disclose it themselves, generally
cannot complain if it is published.
The tort of false-light invasion of privacy
is something of a legal anomaly and
is not universally embraced. A few countries,
such as Hungary and South Africa,
allow actions for publication of false and
misleading information, but only about
two-thirds of American states recognize
the tort. Similar to libel, false light allows
individuals to sue for depictions that
imply inaccurate, but not necessarily defamatory,
facts. These may arise in the
context of embellishment or fictionalization,
such as in a docudrama or other
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[ A F r amewo r k f o r a F r e e P r e s s ]
dramatization of a true story. But many
false-light cases arise from the publication
of photographs or videotape coupled
with misleading captions, headlines, or
stories. For example, in 2002, an actor
whose photograph appeared on the cover
of Playgirl successfully sued the magazine
in federal court in California by arguing
that the combination of the picture
and the headlines created the false impression
that nude photographs of him
appeared inside.
Appropriation of an individual’s name
or image for commercial purposes is regarded
in many jurisdictions as essentially
a proprietary right, comparable to
trademark or copyright. Others consider
it an extension of the right of personality.
As an Irish Law Reform Commission
report put it:
Where the person does not consent
to such use of the photograph, she
or he may feel offended and embarrassed
simply because they dislike
publicity or because they dislike
being associated with the product.
In such cases, the protected interest
is not necessarily proprietary or
commercial. It is human dignity.
China, Australia, Austria, Canada,
Germany, and France are among the
countries recognizing some variation of
this tort. In Italy, Article 41(2) of the constitution
permits individuals to commercially
exploit the image of another person,
as long as consent is first obtained. In the
United States, the tort is limited to unauthorized
uses in advertisements or product
endorsement. For example, the Texas
appropriation statute, (known as the
Buddy Holly Act because it was enacted
in response to exploitation of the deceased
singer’s name and image,) specifically exempts
any use in a play, book, film, radio
program, magazine or newspaper article,
political material, or work of art. Parodies
or satirical works are also protected.
Limits on Government
Licensing of Journalists and News
Organizations
Mandatory licensing of reporters has
been justified as a means of ensuring
that only qualified individuals engage
in journalism and of keeping
professional standards high. Some international
organizations have advocated
licensing to protect journalists from government
harassment or harm. But when
a government asserts authority to determine
who can and cannot cover the news,
it claims, says Leonard Sussman of Freedom
House, “a license to censor.” The
lack of a license can provide the pretext
for arresting journalists or expelling
them from a country, and regimes can
arbitrarily withhold licenses from reporters
whose work they wish to suppress. As
the 1980 International Commission for
the Study of Communication Problems,
also known as the MacBride Commission
report to UNESCO, concluded, “Licensing
schemes might well lead to restrictive
regulations governing the conduct of
journalists; in effect, protection would be
granted only to those journalists who
had earned official approval.” In 1985,
the Inter-American Court of Human
Rights ruled a Costa Rican journalistlicensing
statute contrary to the American
Convention on Human Rights and,
by extension, all human rights conventions,
“insofar as it denied some persons
access to the full use of the news media
as a means of expressing themselves or
imparting information.”
Mandatory membership, certification,
or educational requirements can prevent
individuals from gathering and disseminating
information and deprive others of
the opportunity to receive it. Principle 8
of the Declaration of Chapultepec draws
the logical conclusion: “The membership
of journalists in guilds, their affiliation
to professional and trade associations
and the affiliation of the media with
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business groups must be strictly voluntary.”
Mandatory licensing or affiliation
requirements for journalists remain in
place in many countries in Africa, Asia,
and the Middle East. Although in June
2009, the Supreme Court in Brazil abolished
a legal regulation requiring a university
degree and membership in a
union, nine Latin American countries
continue to impose some requirements.
And in Zimbabwe, journalists challenged
the establishment of a media accreditation
authority empowered to assess licensing
fees, which the journalists
claimed were grossly unreasonable and
restrictive of freedom of expression.
Licensing conditions news organization
operations upon government approval.
It affords another means of controlling
the press and promoting self-censorship.
Article 10 of the European Convention on
Human Rights guarantees freedom from
“interference by public authority” but
has never been interpreted to prohibit licensing
requirements. Nevertheless, licensing
requirements can, under some
circumstances, also be viewed as censorship
and, accordingly, as incompatible
with freedom of expression.
Additional Government
Regulation
In many jurisdictions, the government’s
power to regulate content differs between
print and broadcast media. In the
United States, the First Amendment is
held to prohibit any government licensing
of newspapers and magazines, but
the Federal Communications Commission
(FCC) has exclusive authority to
license use of the electromagnetic spectrum,
which is regarded as a scarce public
resource. As the Supreme Court
observed in 1969:
Where there are substantially more
individuals who want to broadcast
than there are frequencies to allocate,
it is idle to posit an unabridgeable
First Amendment right to
broadcast comparable to the right
of every individual to speak, write
or publish. …It would be strange if
the First Amendment, aimed at protecting
and furthering communications,
prevented the Government
from making radio communication
possible by requiring licenses to
broadcast and by limiting the
number of licenses so as not to
overcrowd the spectrum.
U.S. law authorizes FCC control over
some aspects of broadcast station ownership.
It may prohibit the concentration of
many outlets in the hands of a single entity
or limit cross-ownership, where one
company controls multiple media platforms
in a single market. Nevertheless,
the FCC’s jurisdiction over broadcasters’
content decisions is subject to the First
Amendment, and in recent years has
been limited primarily to regulating indecency
and to requiring broadcasters to
provide equal opportunities for opposing
candidates for public office to appear on
the airwaves during the period immediately
preceding an election.
The fairness doctrine, which required
broadcast licensees to report on controversial
issues of public importance in
their communities and to provide responsible
representatives of opposing
views a reasonable opportunity to reply,
was repealed by the FCC in 1987. At that
time, the commission concluded that because
of the explosion of new media outlets,
the doctrine was no longer necessary
to serve the public interest in receiving
“diverse and antagonistic sources of information.”
The commission added that:
The intrusion by government into
the content of programming occasioned
by the enforcement of doctrine
unnecessarily restricts the
journalistic freedom of broadcasters
…and actually inhibits the presen[
36 ]
[ A F r amewo r k f o r a F r e e P r e s s ]
tation of controversial issues of
public importance to the detriment
of the public and in degradation
of the editorial prerogatives of
broadcast journalists.
Taxation, too, presents issues. Tax
laws that apply to all for-profit corporations
are generally acceptable, while
those singling out the news media for
special obligations often are deemed unconstitutional
prior restraints on speech.
By the same token, restrictions on the international
circulation of news media
products violate both Article 10 of the
European Convention on Human Rights
and Article 19 of the International Covenant
on Civil and Political Rights, which
guarantee the free flow of information
and ideas “regardless of frontiers.”
An extensive discussion of licensing
and regulatory schemes is beyond the
scope of this book. In general, it is legitimate
to require news organizations to
abide by corporate laws and regulations
of general applicability (such as registering
the names and addresses of those legally
responsible for the organization’s
operations). Any government regulation
of media operations or content decisions
should be transparent; subject to public
scrutiny, participation, and oversight;
and no more extensive than necessary to
promote identified public interests.
Only Narrow and Carefully
Tailored Restrictions on
Indecent or Obscene Speech
Probably the biggest challenge to evaluating
government controls on indecent
or obscene speech is defining the
terms “indecent” and “obscene.” The
United Kingdom’s Obscene Publications
Act of 1959 (as amended), for example,
provides that material shall be deemed
obscene if “the effect…is, if taken as a
whole, such as to tend to deprave and corrupt
persons who are likely, having regard
to all relevant circumstances, to
read, see or hear the matter contained or
embodied in it.” The late U.S. Supreme
Court Justice Potter Stewart, when asked
to define obscenity, famously observed, “I
know it when I see it.”
In most countries, publishing or distributing
obscene materials is a criminal
offense. Prior restraints on their distribution
are often considered constitutional.
Many laws seek to protect children from
both exploitation and exposure to pornographic
materials. However, national and
international freedom of expression guarantees
generally protect the access rights
of consenting adults, except for certain
specific categories. In Germany, the criminal
code prohibits distribution of pornography
that depicts abuse of children. In
Sweden, some images of sexual violence
can be banned. Child pornography, whether
or not legally obscene, enjoys no constitutional
protection in the United States.
Many countries forbid the sales of any pornography
to those under age 18.
In mature democracies, obscenity laws
usually raise no significant concerns for
mainstream news organizations. But in
some countries, outdated statutes still recognize
offenses like “conspiracy to corrupt
public morals” or “outraging public decency.”
Vaguely worded laws may proscribe
indecent or obscene material without defining
it, or they may lack qualifying language
like that adopted by the U.S.
Supreme Court in 1973, which limited obscenity
to those works that, “taken as a
whole, lack serious literary, artistic, political
or scientific value.” In these situations,
journalists may run afoul of the laws if
they publish sexually explicit, but newsworthy,
material. Or the obscenity laws
may be used as a pretext to censor other
material. For example, in Vietnam, the
government claims that it filters out Internet
access only to sexually explicit material.
Yet a 2007 report by the Internet
watchdog group OpenNet Initiative found
instead that pornography remains rela[
37 ]
[ M e d i a L a w | H a n d b o o k ]
tively unfettered, while religious and political
sites critical of the government
routinely are blocked.
Even in the United States, the Supreme
Court has upheld greater restrictions on
the broadcast of indecent material that
would be constitutionally protected speech
in the print media, on the ground that the
pervasive nature of the broadcast medium
makes its programming uniquely accessible
to children.
The best approach to regulating obscenity
is a focused one. Laws should define
with precision what is being banned.
That way, all parties are on notice of
what is impermissible. Laws should distinguish
materials that are offensive but
not demonstrably harmful. Content that
has redeeming social, political, scientific,
or artistic value should be protected.
Any government body authorized to
classify or restrict distribution of obscene
or indecent material or to impose
sanctions on publishers should operate
transparently and follow clearly articulated
standards.
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[ S e l f - Re g u l a t i o n I n L i e u o f L i t i g a t i o n ]
N o freeman shall be
arrested, or detained
in 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.
Magna Ca rta
Runnymede, England
June, 1215
Sel f-Regulat ion
In Lieu of Lit igat ion
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[ M e d i a L a w | H a n d b o o k ]
But lawsuits take time, cost money,
and often do not afford a plaintiff
satisfactory results. For example, in the
United States, constitutional protections
in libel cases are so strong that some trials
never reach the point of adjudicating
the underlying allegation’s truth. By
contrast, legal standards favoring libel
plaintiffs turned the United Kingdom
into the “libel capital of the world” in the
1990s and first years of the 21st century,
with individuals of many nationalities
filing suit in London against foreign
publications that they claimed defamed
them. But in May 2010, the newly elected
coalition government vowed to “review
and reform libel laws to protect
freedom of speech, reduce costs, and discourage
libel tourism.”
The right to free expression often
collides with other competing interests.
Sometimes there is no legal remedy for
types of journalistic misconduct that
can upset readers and viewers. A courtroom
is often not the best place to resolve
disputes about balance, fairness,
and accuracy. And there is always the
risk that harsh judicial remedies, even
those imposed when the underlying
case involves journalistic misconduct,
will inhibit the future free and open
publication of controversial views.
Self-regulatory mechanisms offer a
valuable alternative.
Ombudsmen
Also known as “readers’ representatives”
or “public editors,” ombudsmen
act as liaisons between a news
organization’s staff and the public. Typically,
they field complaints, investigating
alleged ethical breaches. They
encourage staff to respond to readers’
questions, and they explain how and
why news organizations make their decisions.
They may write a column, or
they may simply handle complaints on
an individual basis. Even though ombudsmen
are generally paid by the news
organization, they should be assured
autonomy and independence.
Press Councils
Press councils, which typically operate
as tribunals that consider
and adjudicate complaints about media
conduct, can take many forms.
Some are legislatively mandated.
Many are funded by the news media.
Others are underwritten by charitable
ournalists and news organizations make mistakes.
Courts offer aggrieved individuals remedies. Lawsuits
for libel, invasion of privacy, breach of confidence,
copyright violation, and infliction of emotional
distress are just a few types of civil action one can bring
against the press.
Sel f-Regulat ion
In Lieu of Lit igat ion
[ S e l f - Re g u l a t i o n I n L i e u o f L i t i g a t i o n ]
[ 40 ]
foundations or nongovernmental organizations,
multilateral organizations such
as UNESCO, or even voluntary contributions
from the public. Still others are
affiliated with universities. A few receive
support from governmental entities but
operate independently.
Press councils can have national, regional,
or local jurisdiction. The members
of the tribunal usually include representatives
of the press and of the public, including
academics, and, sometimes, of
the government. Those who choose to
submit their complaints to a press council
for resolution are usually obliged to
waive any right to pursue a law suit.
Council staff screens complaints and submits
those of potential merit for adjudication
under council procedures. A typical
model features an open hearing before
the tribunal. Both the complainant and
the news organization have the right to
appear. After the presentations, questions,
and deliberations, the tribunal issues
a ruling. Some news councils require
member news organizations to publish
the rulings involving them; for others,
publication is voluntary.
Codes of Ethics
Most associations of journalists, and
many individual news organizations,
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 voluntary
association of U.S. news reporters and
editors. Its code encourages journalists
to abide by four core principles:
􀂼 Seek truth and report it: Journalists
should be honest, fair and
courageous in gathering, reporting
and interpreting information.
􀂼 Minimize harm: Ethical journalists
treat sources, subjects and
colleagues as human beings
deserving of respect.
􀂼 Act independently: Journalists
should be free of obligation to any
interest other than the public’s
right to know.
􀂼 Be accountable: Journalists are
accountable to their readers,
listeners, viewers and each other.
By its own terms, the SPJ code is a voluntary
guide to ethical behavior. It states:
“The code is intended not as a set of ‘rules’
but as a guide for ethical decision-making.
It is not—nor can it be under the First
Amendment—legally enforceable.”
The SPJ has a National Ethics Committee,
consisting of members from
throughout the United States with a
special interest and expertise in ethics.
Although the committee does not adjudicate
specific complaints, it does provide
guidance and opinions to journalists and
members of the public.
[ M e d i a L a w | H a n d b o o k ]
[ 41 ]
[ 42 ]
[ T h e Re s p o n s i b i l i t i e s o f J o u r n a l i s t s ]
Chief Justice Wa r r en Bu rger
Supreme Court of the United States
Miami Herald Publishing Co. v. Tornillo 418 U.S. 241 (1974)
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.
[ 43 ]
[ M e d i a L a w | H a n d b o o k ]
Taking the photographs was legal under
Argentine law. But the judge cited a
2005 media code drawn up by the Royal
House with the assistance of the Netherlands
Government Information Service
(RVD), requiring the Dutch news media to
refrain from photographing them except
during official functions or designated
“media moments.” Although she acknowledged
that the code “cannot be regarded
as a binding agreement,” the judge nevertheless
invoked it as the basis to threaten
AP with a fine of up to 50,000 euros for
any future distribution of the photos.
The AP had argued that royalty’s public
actions are of public concern. It predicted
the ruling “would have the unfortunate
effect of unduly restraining the
exercise of freedom of information globally.”
Reporters Sans Frontières (Reporters
Without Borders) denounced both the
ruling and the media code, contending
that the system established by the code
“reduces the media to PR agencies.” But
the judge concluded that publication of
the photos served no public interest and
that, in this particular case, “The right
to respect the personal sphere weighs
more heavily than the right to freedom
of expression.”
This story represents the responsible
journalist’s worst nightmare. A nonbinding
journalistic code of conduct became
the basis to stop an international news
agency from publishing photographs of
public figures that had been taken legally.
It does not always happen that way, of
course. Many individual media organizations
and journalists’ associations voluntarily
adopt codes or standards of practice.
These serve not as grounds to restrict
press freedom but, instead, as guideposts
to help journalists determine the best
way to do their jobs. As the preamble to
the Code of Ethics of the U.S.-based Society
of Professional Journalists says,
“Professional integrity is the cornerstone
of a journalist’s credibility.”.
Is Journalism a “Profession”?
The term “code” is usually associated
with a profession. But whether journ
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 prohibited
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.
The Responsibil it ies
of Journal ists
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[ T h e Re s p o n s i b i l i t i e s o f J o u r n a l i s t s ]
nalism is a profession is a hotly contested
question. In many countries, the answer
is “no.” Traditionally, a profession is an
occupation with formal qualifications, requiring
specialized training and licensing,
and subject to a regulatory body with
the authority to admit and discipline
members. Lawyers, physicians, and members
of the clergy are regarded as professionals
throughout the world. So are
architects, engineers, dentists, pharmacists,
and accountants.
Journalists are sometimes subjected to
similar requirements. Some countries require
reporters to complete a particular
training or university program. Others
mandate their guild or union membership
or compel them to hold a government-
issued license.
Most free-expression advocates oppose
mandatory credentialing schemes. However
well-intentioned, they argue, these
impose barriers to participation and can
exclude individuals who represent unpopular
or minority viewpoints. Licensing
circumscribes freedom of expression and
undermines the public’s right to receive
information from diverse sources.
Ideally, then, journalism codes of ethics
will be aspirational rather than legally
enforceable by the state. The former
might allow a member news organization
to discharge an individual reporter who
violates the code. But even then, nothing
would stop that reporter from seeking
another job elsewhere or prevent another
organization from hiring her. No court
or licensing board could rule that reporter
ineligible to practice journalism.
Ethics and Standards:
More Questions Than Answers
Ethics codes aim not to impose legally
enforceable standards but, instead,
to offer journalists a framework to help
them decide what to report and how to
report it. No code of ethics can answer
every question, and good ones probably
raise more questions than they answer.
Reasonable people, even journalists them-
Above: Was privacy a more impor tant right than freedom of the press? A cour t 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.
[ 45 ]
[ M e d i a L a w | H a n d b o o k ]
selves, may disagree about how a specific
ethical standard should apply in a particular
situation.
􀂼 For example, should a journalist
lampoon a name or image sacred
to a particular ethnic or religious
group? This is perfectly legal in
many countries. But does it contribute
to robust public discussion
or, instead, foment hatred and
promote conflict?
􀂼 Should the press publish classified
information, especially where
government claims that doing
so will damage its efforts to
protect the public? Would this
be the act of an independent
government watchdog or of one
needlessly endangering public
health and safety?
􀂼 Should a television station air
graphic footage of military conflict,
including scenes of violence
and death? Would this convey to
the public the reality of war? Or,
instead, undermine morale and
needlessly distress surviving
family members?
Readers and viewers may not agree
with every choice a news organization
makes. But ethical standards and guidelines
can offer guidance toward thoughtful
and defensible solutions.
Seeking Truth: The First Principle
Most journalism codes emphasize that
telling the truth—being accurate—
is essential. “Seek truth and report it” is
the first core principle of the Society of
Professional Journalists Code of Ethics.
The British Editors’ Code of Practice also
lists accuracy as its first principle and
states, “The press must take care not to
publish inaccurate, misleading or distorted
information, including pictures.” The
one universal ethical principle may be
simply this: A journalist never knowingly
publishes a falsehood.
This is not always an easy standard to
uphold. Of course, a journalist should
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 Cour t ruled that constitutional guarantees of a free press overrode other considerations, and allowed fur ther publication.
[ 46 ]
[ T h e Re s p o n s i b i l i t i e s o f J o u r n a l i s t s ]
make every effort to verify a story before
reporting it. But facts that alter original
perceptions may only be learned over time,
after publication. Here, a responsible news
organization publishes a correction or
clarification as quickly as possible.
News organizations should take great
care to assure that headlines, teasers,
sound bites, or quotations are not only
accurate but do not oversimplify the
facts or take them out of context. Photographs,
audio, and video may need to be
cropped or edited to address considerations
of space or time but not in a way
that misleads or misrepresents. The staging
of photos or reenactments of news
events should be avoided or, where absolutely
necessary, clearly labeled.
Obviously journalists should not fabricate
the news, nor should they plagiarize—
that is, copy without attribution—another
person’s work. They should not make up
quotations, nor reprint a news story prepared
by someone else without first obtaining
permission to do so.
Sources
Areporter, it is said, is only as good as
her sources. Knowledgeable ones enhance
a journalist’s news-gathering ability
and help her publish more information.
But journalists must be cautious and
determine that a source is credible. This
includes ascertaining a source’s point of
view or what his “agenda” might be. Ideally,
reporters should consult multiple
sources to obtain diverse perspectives
on a subject. And they should make every
effort to verify the accuracy of a
source’s information whenever possible.
What about anonymous sourcing, the
practice of attributing a fact to an unnamed
source? It is preferable that all
sources be “on the record” and that facts
not be linked to “administration sources”
or some other imprecise formulation.
Sources who stand behind their word are
more likely to tell the truth. Attributing
information to a named source also helps
the reader or viewer evaluate independently
the credibility of the source.
But sometimes a source has valid reasons
to request, or demand, that his identity
be kept secret. When possible, a journalist
should resist making this promise.
But it won’t always be possible. Some
news organizations require that an editor
approve any promise of confidentiality.
Although this can frustrate a reporter,
the policy makes sense. When an
unattributed piece of information is published,
the news organization’s reputation
is at stake along with that of the individual
reporter.
Reporters should be very clear about
their promises. Phrases like “off the record”
and “on background” mean different
things to different people. Journalist
and source should agree on the terms
governing the news organization’s use
of information.
Once a promise is made, it must be
kept. As the British Code of Practice
says, “Journalists have a moral obligation
to protect confidential sources of information.”
Should the journalist be
called to testify in court about her information,
keeping that promise can put the
journalist at risk of being held in contempt
in nations that do not recognize a
legal privilege for journalists. Any reporter
must be clear with the source exactly
how far he is prepared to go to keep
that promise.
Surreptitious and Undercover
Reporting Techniques
Journalists should avoid deceptive reporting
techniques, like using hidden
cameras, tape recorders, and microphones,
or assuming a false identity. In
some jurisdictions, they are illegal. But
equally important, they can undermine
credibility. Readers and viewers often
won’t believe that a reporter who essentially
lied in order to get a story will tell
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the truth when he reports it. Generally
speaking, a journalist should identify
herself as a member of the news media
and make clear that she may use whatever
she learns in a story.
Nevertheless, there are times when
a story can be obtained only through
subterfuge. Journalists and their news
organizations should reserve these techniques
for the rare occasion when conventional
methods will not work and, only
then, when a compelling public interest
demands it. News media should then explain
their methods when the story is
published or broadcast.
Objectivity in the News
Journalists in the United States strive to
achieve objectivity. This model has been
criticized in recent years. Some question
whether objectivity is desirable. They suggest
that true objectivity essentially has no
moral compass and treats all facts and all
viewpoints as equally deserving of respect.
Professor Michael Bugeja, director of
the School of Journalism at Iowa State
University, disagrees. “Objectivity is not
a synonym for truth,” he writes, “but
the process through which we seek to
attain it.” No one approaches any story
with complete objectivity. As a reporter
begins researching, it is likely that she
will have a definite bias toward at least
some aspects of the story. But the goal
is to set aside those presumptions and
prejudices and to move forward with a
healthy skepticism.
Suppose a suspect has been arrested
and charged with a crime. In many countries,
an accused person enjoys a presumption
of innocence until tried and
convicted. Yet law enforcement personnel
often want to convince the public
that the person in custody really is the
perpetrator of a crime and will encourage
news media reporting of information
that strengthens their case. The objective
journalist will, of course, report what the
authorities say. But, to the extent the law
permits, she also should seek independently
to verify the accuracy of the information
and to search for credible conflicting
information from other reliable
sources. She should resist simply parroting
the theories of the authorities as if
they are proven fact.
Encouraging Diversity of Views
In many countries, a partisan press is the
norm. Readers and viewers in these nations
may expect that a news organization
will approach topics from its own particular
point of view and select the subjects that it
covers accordingly. They also know that
competing news organizations may advocate
different perspectives. This can be consistent
with journalism ethics but only if the
news organization distinguishes between
advocacy and reporting. Opinion columns
and editorial commentary should be clearly
labeled and should neither distort nor falsify
the facts that underlie the opinion.
Journalists should seek out diverse
voices and afford competing and, even unpopular,
views an opportunity to be heard.
They should support freedom of speech
for all. News organizations should provide
a forum for robust debate on issues
vital to their community. Letters to the
editor and online readers’ comments are
two ways to encourage public participation.
But news organizations also should
make every effort to keep the discussion
civil and to discourage the dissemination
of falsehoods or pejorative attacks
on others.
Respect for the Individual
The second tenet of the SPJ Code of Ethics
is to “Minimize harm…treat sources,
subjects and colleagues as human
beings deserving of respect.” This principle
recognizes that a responsible journalist
sometimes unavoidably will harm someone
but requires her to make every effort to
minimize that damage. The SPJ code, like
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many similar codes, exhorts the journalist
to show compassion for those who will be
affected by news coverage, especially when
they become the subject of attention
through no fault of their own.
Crime victims, the relatives of public
figures and celebrities, children, and other
vulnerable individuals should be treated
with sensitivity. Journalists should consider
carefully whether there is a genuinely
newsworthy reason to report on them
at all.
Intrusive news-gathering techniques
can cause harm. Persistence is appropriate,
but aggressive tactics will not be
justified in every case. Although they
may be legal, making repeated telephone
calls, following a person on the street,
taking multiple photographs, or remaining
on private property after having
been asked to leave may cause distress.
Even the most public person is entitled
to some zone of privacy, and only an
overriding public interest justifies intrusion
into individuals’ private lives.
On the other hand, there can be good
and valid reasons to report information
that a news subject would prefer to keep
secret. A public official may wish to keep
secret details of an extramarital affair.
But if public funds or other resources are
used to support the affair, they become
a matter of legitimate public interest.
Similarly, crime victims often prefer that
their identity remain confidential, and
a news organization may agree, at least
in the case of children or sexual assault
victims. But in many countries, a crime
victim plays the role of accuser in a criminal
prosecution. Although an alleged victim’s
credibility might be a legitimate
issue to explore—and one of some importance
to the criminal defendant—
journalists should not pander to prurient
tastes by publicizing sensational
facts that are not a matter of public interest.
The news media should balance
the rights and interests of both victims
and criminal defendants with the right
of the public to be informed.
Cultural Sensitivity
Journalists should not reinforce stereotypes.
The practice is intellectually lazy
and can lead to misperceptions and inaccuracy.
They should consider carefully
whether it is necessary to identify an individual
by race, religion, sexual orientation,
or similar characteristic. Gender-neutral
language is often appropriate.
Reporters should remember and be
sensitive to different cultural traditions.
For example, adherents of some religions
forbid or strongly discourage photographing
individuals. Journalists should respect
their preferences, unless there is a
compelling reason to do otherwise.
On the other hand, “cultural values”
sometimes is a cloak for censorship. Repressive
regimes may cite social values
when their real intent is to restrict freedom
of expression and to silence dissenting
views. The ethical journalist should
challenge attempts to suppress the truth,
whatever justification is offered.
The Independent Journalist
The journalist’s highest loyalty should
be to the public. This means avoiding
conflicts of interest that could compromise
her ability to act independently and
to inform the public free from other influences
and considerations.
Journalists should avoid accepting gifts,
fees, tickets, travel, or other goods or services
from news sources. Review copies of
books, music, or movies should be donated
to charity unless there is a journalistic
reason to retain them as a resource for
future reporting. Be wary of travel junkets
that are little more than thinly disguised
attempts to persuade reporters to write
enthusiastically about a particular destination
or subject. News organizations
should pay their own way when sending
staff to cover sporting or cultural events.
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If this is not possible, a disclaimer should
be included in the story.
Journalists should not endorse products
in return for compensation, and they
should keep separate the editorial and advertising
sides of the news business. Advertisers
must not influence favorable coverage
or suppress negative reporting. Any
advertisement should be clearly labeled so
there is no possibility of confusing an ad
with news reporting or commentary.
Memberships in clubs, associations, political
parties, or religious organizations
can create a conflict of interest for a journalist.
Some news organizations prohibit
certain kinds of political or philanthropic
activities, such as running for political office
or volunteering with an advocacy
group. Most forbid journalists to report on
organizations with which they, or close
family members, are affiliated. Although
an editor at the Washington Post even abstained
from voting in elections, individuals
obviously do not surrender their civil
rights when they choose to become journalists.
But it is important to remember
that affiliations can be interpreted as bias.
If a conflict of interest is unavoidable, it
should be disclosed.
Many news organizations have special
rules for reporters and commentators who
cover business and financial topics. Laws
forbidding insider trading (buying and
selling stocks and other equities when one
possesses nonpublic knowledge that may
affect the stock price) may apply. Journalists
should not write about companies in
which they own stock or have some other
financial interest, particularly if their reporting
might influence the market and
benefit them personally. They should disclose
to their editors the financial instruments
they and their families own and
refrain from trading stocks within a short
time of writing about them.
Just as journalists should not take
payments intended to influence news coverage,
they should not offer bribes or payments
to news subjects. To the outside observer,
news that has been “bought and
paid for” is suspect. In certain situations,
such as when a source is asked to travel to
a particular location to appear on a radio
or television program, it may be appropriate
to reimburse her reasonable expenses,
including meals, travel, and lodging. But
“checkbook journalism” and bidding for
news should be avoided.
Ethical Issues When
Covering Government
Reporting on government raises particularly
difficult challenges. The public
generally expects journalists to act as watchdogs,
guarding against improper government
behavior. But what about when law enforcement
officials ask reporters not to report the
details of an ongoing hostage situation, for
example? Should journalists cooperate? If
they do not, lives may be endangered. But if
they do, they may compromise their own
ability to hold government accountable.
During war, crisis, or emergency, journalists
may feel conflicting loyalties. The
pressure to be patriotic can be great. Or a
newly elected government may claim that
it cannot afford a completely free press and
will urge journalists to write favorably as a
way to help solidify a fragile and emerging
democracy. Sometimes journalists are
asked to report propaganda as truth in the
interest of protecting “national security.”
When editorial decisions conflict with
government wishes, news organizations
can be criticized for substituting their own
judgment for that of elected officials. This
can arise when the government claims
that there is a compelling need for secrecy
about intelligence and law enforcement
matters. On the other hand, journalists
may also be condemned for withholding
information or accused of delaying publication
for partisan reasons.
These are difficult calls. The answers
are not always easy. One guiding principle
is that a journalist’s loyalty is to the public,
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not to a particular government or regime.
No journalist wants to harm his community
or country. But governments may be
tempted to suppress critical reporting by
claiming it could damage public safety or
national security. Reporters can respect
these claims, but they should also be skeptical.
They can give government officials
an opportunity to explain why a particular
story might endanger lives or a specific national
interest. But journalists should scrutinize
those in power and hold them to account.
Sometimes, the most patriotic thing
a journalist can do is question authority.
Being Accountable to the Public
An important part of a journalist’s job
is to hold those in positions of authority
accountable to the public. News
organizations have a similar ethical obligation
of accountability.
The news media are more transparent
than many businesses because their work
product is constantly available for scrutiny.
Journalists regularly critique and
challenge each other’s work. And in most
countries, the consumer has many news
choices and can reject those whose standards
fall short.
That said, most news organizations
can do more to be accessible to the public.
If business or political affiliations influence
their editorial choices, they should
be disclosed. Did a merchant who advertises
heavily in a newspaper, for instance,
request favorable news coverage? Media
should explain how they make editorial
decisions, especially controversial ones.
Deviations from usual ethical standards
should be explained. News organizations
should invite readers to comment and encourage
them to raise concerns and complaints.
Ideally, a dedicated, impartial staff
member should address these complaints.
All news organizations make mistakes.
They should strive to minimize these
by establishing fact-checking procedures
throughout the editorial process.
But when errors do occur, they should
be acknowledged promptly and corrected
prominently.
Special Ethics Issues Raised by
New Media and Citizen Journalism
Most, if not all, traditional media’s ethical
guidelines make sense for citizen
journalists, bloggers, and other new media
practitioners. But those who publish in
cyberspace face additional challenges.
Bloggers, unlike mainstream journalists,
often publish anonymously or use a
pseudonym. In some societies, those holding
controversial or dissenting views withhold
their identity as a matter of personal
safety. But those who speak anonymously
still have an ethical obligation to be truthful,
accurate, and as transparent as possible
about conflicts of interest.
Many bloggers encourage readers to
engage in the discussion and to add comments
to their sites. They may invite usergenerated
content and post it on their
blogs. They may link to external sites. And
they may excerpt others’ work for the purpose
of commentary and criticism.
All these techniques add vitality to a
blog. But bloggers should consider whether
they will attempt to verify links and to
moderate postings made by others, as well
as whether they will establish policies for
certain content types, such as sexually explicit
video or personal attacks. It is wise
to post these policies prominently and to
apply them consistently.
Using Social Media
Many journalists, both traditional and
new media practitioners, are turning
to social media, such as Facebook, Orkut,
and MySpace, or tapping into YouTube or
other sites that allow individuals to post content.
These media can provide story ideas and
useful leads. They can even allow a journalist
to interact with a community or to promote a
journalism “brand” by encouraging readers
to visit a news organization’s Web site.
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But social media pose new challenges
for the ethical journalist. Verifying postings
can be difficult. Reporters should
make clear when they utilize social media
sites as the basis for a story. They should
exercise special caution when using information
concerning minors, which could
damage someone’s reputation, or when using
information that someone else claims
to own—such as a trade secret. The laws
of libel, privacy, and copyright still apply
in cyberspace.
Some news organizations have adopted
ethics policies for their employees’ use
of social media. Dow Jones, publisher of
the Wall Street Journal, discourages its
reporters from expressing personal or
partisan viewpoints on their personal
Facebook pages or from discussing developing
stories that have not yet appeared
in the newspaper. Some organizations
recommend that a reporter maintain separate
professional and personal Facebook
pages. Journalists should remember that
friending a confidential source on Facebook
may reveal that source’s identity to
the world. They also should recall that
decisions to friend or to join a fan page
may be construed as evidence of bias.
Finally, nothing on Facebook or similar
sites is really private. Once something
has been posted to the social media, there
is really no way to take it back or to stop
others from using it in whatever way
they choose.
Conclusion
Many journalists believe they should
not have to justify their role as government
watchdogs and as conduits of
public information. Surely, they think,
modern recognition that freedom of expression
is a fundamental right has already
settled all that. Therefore, some
journalists think that they must have
the legal right to be wrong—sometimes.
But journalists’ own ethical standards
can be more stringent than legal ones.
They encourage journalists to examine
their motivations, their methods, and their
work product. They encourage reporters
and editors to ask tough questions about
how they make decisions. And these ethical
precepts invite journalists both to
consider other perspectives and to contemplate
how their decisions affect others.
Adopting and applying ethics principles
can seem daunting. But they help
journalists do the best job possible. They
provide a mandate to act independently
—even courageously—when seeking and
pursuing truth.
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.
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Everyone 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 Chu rchill
British Prime Minister
Speech, House of Commons—1943
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Balancing Free Speech and
Competing Internet Interests
From the early days of popular use of
the Internet, the rallying cry was that
cyberspace was the new frontier, subject
to no law. But governments around the
world, shaken by the implications of the
new communication technology, have tried
to figure out how to harness and control
its use.
Gaining access to the Internet can be
the first hurdle. A 2007 report by the Internet
watchdog group OpenNet Initiative
showed that attempts to censor the Web
are spreading and growing more sophisticated.
Saudi Arabia, to offer one example,
uses filtering software to block everything
from sites classified as pornography or
gambling to religious conversion sites and
sites critical of the Saudi monarchy. China
has been criticized for a combination of
Internet control measures, including filtering
software, requiring users and Internet
cafes to purchase licenses, and banning
Internet cafes.
In the United States, Congress, state
legislatures, and the courts have struggled
to balance free speech on the Internet
against competing interests, like national
security, copyright protection, and
the right to reputation. In its landmark
Reno v. ACLU (American Civil Liberties
Union) decision (1997), the U.S. Supreme
Court extended to communications on the
World Wide Web the same First Amendment
protections covering newspapers or
other print media. Cyberspace, the Court
ruled, is neither a “scarce expressive
commodity,” like the broadcast spectrum
used by radio and television broadcasters,
nor an invasive one that enters “an individual’s
home or appears on one’s computer
screen unbidden.” With neither of
these historical justifications for government
licensing and control applicable,
Justice John Paul Stevens wrote for the
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 proliferating
on the Internet inhabit a world apart from the
sometimes-dreary realm of meticulously sourced and factchecked
traditional journalism. Bloggers are a law unto
themselves. Or are they?
New Media,
Cit izen Journal ists, and Bloggers
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majority, “The interest in encouraging
freedom of expression in a democratic society
outweighs any theoretical but unproven
benefit of censorship.”
The Reno decision means that Internetbased
communication receives the highest
level of constitutional protection, including
many judicial rulings defining
the scope of the First Amendment. Prior
restraints are presumed unconstitutional.
Successful libel suits require proof of
publisher fault, even if a plaintiff proves
the challenged statement false. Most invasion
of privacy suits will be rejected if
the publisher can demonstrate that the
subject of its story was newsworthy.
Copyright violations may be excused if
the publication constitutes fair use.
One need not be a recognized journalist
to invoke these protections. As far
back as 1972, the U.S. Supreme Court
said, “Liberty of the press is the right of
the lonely pamphleteer…as much as of
the large metropolitan publisher.”
So bloggers have First Amendment
protections. They may have statutory protection
as well. Existing laws protecting
reporters’ confidential sources might or
might not apply to a blogger, depending on
the language of the statute or the court
addressing the issue. Although some laws
limit coverage to full-time employees of
for-profit traditional news media, many
are expansive, covering anyone who engages
in gathering information and disseminating
it to a wide audience. A California
court ruled that the state shield law
protected the identities of bloggers who revealed
Apple Computer’s trade secrets.
Their publications, the court ruled, constituted
“news.” But shortly thereafter, a
federal court in the same state refused to
acknowledge that blogger and self-described
anarchist Josh Wolf was a journalist
because he was not “connected with or
employed by” a news organization.
U.S. courts have interpreted broadly
Section 230 of the Communications Decency
Act, which immunizes providers of
“interactive computer services” (ISPs)
from defamation claims arising from
third-party content. Courts have extended
this protection to those who operate
Web sites and listservs, even if they exercise
some editorial control over that material.
The same analysis logically would
apply to blogs.
Holding Bloggers Accountable
So does that mean that bloggers are
free to upload whatever they want,
with no fear of being sued?
Absolutely not. Whatever immunity
may exist for links to third-party sites
or to postings submitted by readers, a
blog publisher can still be sued for any
material he writes himself. During the
course of litigation, the blogger could
face a protracted examination of his
news-gathering techniques. Did he attempt
to verify the accuracy of the story,
or did he simply repeat an unsubstantiated
rumor? Did he rely on anonymous
sources? Did he, in other words, act negligently
or with reckless disregard for
the truth? If a court finds that he did, he
may lose the suit.
In most countries, libel suits can be
grounded only in false statements of fact.
No one can be sued for statements of
pure opinion that can be proven neither
true nor false. But many blogs are a robust
mixture of idiosyncratic opinion and
unsupported allegation. It can be hard to
distinguish between the two when invoking
an opinion privilege, which requires
showing that the underlying factual
statements on which the opinion is based
are true.
U.S. legal protections end at the border
but the Internet does not. A blogger in
the United States can brandish the First
Amendment and Section 230 all she
wants, but a foreign court has no obligation
to pay any attention. Those courts
will, for the most part, apply their own
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laws. Although traditional journalists
long have faced lawsuits and even criminal
prosecutions in other countries
where their work product is distributed,
it may surprise bloggers to learn they
are vulnerable to suit anywhere their
words are read.
The Australian High Court so ruled
in 2002, when it allowed “Diamond Joe”
Gutnick to file a libel suit. An Australian
national, Gutnick claimed that an
article published online by U.S.-based
Barron’s magazine defamed him. When
Gutnick showed that a handful of readers
in his hometown of Melbourne downloaded
the story, the court allowed him
to file a libel suit there. The chief justice
wrote, “[T]hose who post information on
the World Wide Web do so knowing that
[it] is available to all and sundry without
any geographic restriction.”
Libel lawsuits are not all that bloggers
need worry about. Statutes in many
countries make it an offense, or even a
crime, to “insult” or “offend the dignity”
of someone, even if the criticism is
absolutely true. For example, in 2008,
blogger Raja Petra Kamarudin, editor
of the Web site Malaysia Today, was arrested
and detained on charges of violating
Malaysia’s Internal Security Act
by criticizing Islam.
Many countries enforce mandatory
rights of reply, which compel publication
of responses by individuals and corporations
who claim they have been the subject
of inaccurate reports. In 2006, the
European Parliament adopted a Council of
Europe recommendation to extend these
rights of reply to online media, including
any “service available to the public containing
frequently updated and edited
Above: Australian philanthropist “Diamond Joe” Gutnick (left) sued U.S.-based Barron’s magazine in 2002 for defaming him in an article
posted online. Even though the alleged defaming ar ticle was published in the United States, the Australian High Cour t decided any ar ticle
available online can be considered published wherever it is read, thus granting Gutnick the right to sue in Melbourne.
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information of public interest.” That
sounds like a typical weblog.
Many bloggers already take these
steps. They update their blogs, often print
retractions or modifications to erroneous
postings, and freely publish responses
from disgruntled readers. They claim
that laws are not required to make them
act responsibly. But there is a big difference
between making an editorial choice
because you believe it enhances your
credibility and doing so under compulsion
of law.
In addition, many bloggers engage
anonymously in vituperative online commentary.
Under Section 230, an ISP can
be compelled to reveal an individual’s
identity if a judge concludes that a plaintiff
has made a valid libel claim. Here,
ISP includes newspapers and other media,
who could be forced to unmask readers
posting anonymous comments on
their Web sites, leaving the posters vulnerable
to retaliation or retribution.
Protecting Privacy and Copyright
Invasion of privacy presents special challenges
in cyberspace. Digital technology
facilitates news gathering. In theory,
digitizing government records should create
an unprecedented opportunity for citizen
access and oversight. But many judges
and legislators, driven by fear that access
will facilitate identity theft, employment
discrimination, or other illegal conduct,
instead curtail access to electronic files.
Judges also express discomfort at the
prospect of someone from a distant location,
with no legitimate interest in the
local community, surfing through court
or real estate records and publishing
them online. They fear that bloggers do
little except spread rumors, violate copyright
laws, and identify sexual assault
victims, all the while hiding behind the
anonymity that the Web permits. They
worry that citizen journalists with cellphone
cameras and recorders will invade
courtrooms and post trial footage online,
a practice they find both disruptive and
undignified. Gatekeepers often support
access to government records and proceedings
in the abstract; once access becomes
cheap and easy, they may question
its wisdom. Information, they think, is
too valuable, or dangerous, to be online.
For example, in September 2008, a
California trial judge forbade the Orange
County Register to report “by all means
and manner of communication, whether
in person, electronic, through audio or
video recording, or print medium” testimony
by any witness appearing in a class
action wage-and-hour suit brought by its
newspaper carriers. He concluded this
injunction was necessary to prevent future
witnesses from being influenced by
others’ testimony.
An appellate panel eventually overturned
this order. It ruled that the risk
that news reports might influence witnesses
was insufficient to justify censorship.
Other, less intrusive alternatives,
such as admonishing witnesses not to
read the paper, would accomplish the
same goal. But the pervasiveness of the
online media had convinced the trial
judge to overlook nearly 70 years of precedent
outlawing similar prior restraints.
Copyright law presents separate challenges.
The owners of intellectual property
have always possessed the legal right to
demand that violators “cease and desist”
publishing and distributing infringing
works. But the Internet makes copying
others’ work without permission easier
than ever before. Should the telephone
company or other ISP be liable when one
of its customers uses their connection illegally
to post a copy of an .mp3 file for
download? The U.S. Digital Millennium
Copyright Act (DMCA), enacted in 1998,
was designed to address this situation
without also stifling protected speech. The
statute’s “safe harbor” provision protects
ISPs from liability if, upon receiving no[
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tice that infringing material has been
posted, they “expeditiously” remove it.
The problem is that a prudent ISP will
choose to take down the content and leave
the subscriber and copyright owner to sort
out their respective rights. To facilitate
the process, the DMCA permits copyright
holders to use “administrative subpoenas”
to compel the ISP to disclose the subscriber’s
identity. Although these are supposed
to be issued only to curtail infringing activity,
the risk is that subpoenas might improperly
be used to circumvent the wellestablished
First Amendment principles
protecting the right to engage 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, regardless of
affiliation or platform.
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Willia m E. Bor a h
United States Senator
Speech in the Senate—April 19, 1917
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 dif ference
under what form of government you live,
you are a subject and not a citizen.
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“Freedom of the press” is not just a slogan.
Nor is it only for journalists. The right
to receive and impart information is a universal
one. But while a system of generally
applicable laws benefits everyone, specialinterest
legislation that singles out the
news media for protection or provides the
press with special rights is less desirable
because it invites de facto licensing of the
press. It can also create a false sense of
confidence. Protection a legislature grants
today can be withdrawn tomorrow.
And that’s the paradox. The “rule of
law,” however defined, protects everyone,
including the press. But, of course,
bad laws can also be enacted, and even
the best law can be repealed or struck
down. That’s one of the reasons why
some journalists are reluctant to lobby,
even for legislation that might benefit
them, like shield laws.
Governments change. But public support
for a free press should be constant
because citizens are the ultimate beneficiary.
A free press enhances the public’s
right to know by encouraging the free
exchange of information. Protecting it
requires a national commitment, by government
and the public alike. The result
is a stronger civil society for all.
Once strong legal protections are enacted,
an independent judiciary is essential
to ensure they are applied and enforced
equitably. No matter how clear the text of
the law, confusion and conflicts may occur.
When they do, the judicial branch’s
interpretation of the law can be decisive.
Judges who appreciate the importance of
a free press are the best assurance that it
will be protected.
Advocacy Resources
In this section, we consider some organizations
that work to strengthen and
enact laws that guarantee and strengthen
freedom of the press.
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 public
in the face of repressive governments and other significant
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 common law. However
formalized, the law should, at a minimum, protect
the news media from censorship and guarantee reporters
access to information.
Free Exchange of
Informat ion and Enhancing
Civ il Society
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Article XIX
http://www.article19.org
Established in 1986, this human rights
organization is named for the Universal
Declaration of Human Rights provision
that guarantees the rights of freedom
of expression and opinion. Article XIX is
based in London, England. It lobbies and
litigates internationally to promote these
universal rights.
This NGO develops networks to raise
awareness about and to improve monitoring
of threats to freedom of expression.
It provides legal training for other
organizations, journalists, and government
officials. It drafts model legislation,
including freedom of information laws,
and provides a searchable database of legal
opinions and other resources. Its periodic
reports call international attention
to laws and actions that restrict freedom
of information and expression. It denounces
attacks on individual journalists
and the institutional press alike. Among
its many accomplishments, Article XIX
convened the group of international law
and human rights experts who adopted
the Johannesburg Principles on National
Security, Freedom of Expression and Access
to Information in 1995.
Canadian Journalists for Free Expression
(CJFE)
http://www.cjfe.org/
Originally established as a project of the
Centre for Investigative Journalism
in Canada in 1981, CJFE advocates freedom
of expression throughout the world.
It conducts media training in developing
countries, including Indonesia and Thailand,
and has worked to rebuild key parts
of the media in Sierra Leone after the
conclusion of the civil war there.
CJFE manages the International
Freedom of Expression eXchange (IFEX)
Clearing House, a virtual network of 88
organizations that monitors the state of
free expression around the world and
transmits that information to more than
120 countries. IFEX provides daily Action
Alerts by country and region and a
weekly Communique.
Central European and
Eurasian Law Initiative (CEELI)
http://abarol.ge/about_ceeli.html
Aproject of the American Bar Association,
CEELI was founded in 1990. Its
mission is to provide technical legal assistance
to increase professionalism among
judges and lawyers in Central and Eastern
Europe and the former Soviet Union.
The group maintains a training institute
in Prague and a number of volunteer legal
liaisons.
Among its goals are promoting accountability
and increased awareness of
international human rights standards,
combating corruption, and increasing
public transparency and accountability.
Center for International Media
Assistance (CIMA)
http://cima.ned.org/
An initiative of the National Endowment
for Democracy, a private nonprofit
organization, CIMA supports programs
that assist the media throughout the
world. It convenes working groups, holds
events, maintains a database of media
assistance resources, and conducts research.
It has established a network of
media practitioners and experts through
the Global Forum for Media Development.
CIMA is funded through a grant from
the U.S. Department of State.
Chapultepec Project
http://www.declaraciondechapulte pec.org/
The Chapultepec Project began in 1994
as a special undertaking of the Inter-
American Press Association, a membership
organization of more than 1,300 newspapers
and magazines located throughout
the Americas. Although its original mission
was to increase public understand[
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ing of the importance of press freedom in
civil society, the project has expanded to
include sponsoring a series of international
conferences with representatives
of all three branches of government.
These conferences have been instrumental
in curtailing insult laws in several
countries. The Chapultepec Project has
submitted friend-of-the-court briefs before
the Inter-American Commission on
Human Rights on behalf of journalists in
three cases, and it has sent missions and
held emergency forums to protest legislation
that would curtail press freedom.
It published Press Freedom and the Law
(1999), the first comparative study of laws
related to press freedom in the Americas,
and is undertaking a new initiative on the
internal issues media organizations face
and the values that should guide them.
Citizen Media Law Project (CMLP)
http://www.citmedialaw.org
Based at the Berkman Center for
Internet & Society at Harvard Law
School in Cambridge, Massachusetts,
CMLP provides legal assistance, education,
and resources to individuals
involved in online and “citizen” media.
It also files friend-of-the-court
briefs in appellate cases. CMLP’s Web
site provides a variety of legal guides,
as well as a “threats database” that
outlines current and pending legal
cases involving online media.
CMLP has organized a network of lawyers
and academics interested in representing
individuals facing lawsuits arising
from online journalism activities. It
is affiliated with the Center for Citizen
Media at Arizona State University.
Committee to Protect Journalists (CPJ)
http://www.cpj.org
Agroup of foreign correspondents from
the United States created CPJ in 1981.
Based in New York, but with a network of
consultants in more than 120 countries,
this NGO conducts its own research into
press harassment. It publishes articles,
news releases, special reports, and Attacks
on the Press, an annual global survey of
press freedom. It intervenes when local or
foreign correspondents are threatened,
and it provides advice to journalists on
dangerous assignments.
CPJ’s campaigns have worked successfully
to secure the release of journalists
imprisoned in Iran, including Maziar Bahari,
Newsweek’s Tehran correspondent,
and freelancers Roxana Saberi and Iason
Athanasiadis.
Electronic Frontier Foundation (EFF)
http://www.eff.org
Anon-governmental organization, EFF
was founded in 1990 with offices in
Washington, D.C., and San Francisco. It
defends free speech, privacy, innovation,
and consumer rights online. It has litigated
many cases in U.S. courts and,
through its Action Center, educates the
public, mobilizes citizen responses to legislation,
and provides advice to policymakers.
Although much of its work is
domestic, EFF also fights for digital
rights around the world, and in July
2009, it published A Practical Guide to
Internet Technology for Political Activists
in Repressive Regimes.
Freedom House
www.freedomhouse.org
Eleanor Roosevelt and Wendell Willkie,
the 1940 U.S. presidential candidate,
were the first honorary co-chairs of Freedom
House, which was founded in 1941 and
is headquartered in Washington, D.C. It
publishes a wide variety of annual surveys,
including Freedom of the Press and
Freedom in the World, an annual report on
journalistic independence throughout
the world.
Freedom House advocates globally for
human rights and democracy. It works directly
with democratic reformers in Cen[
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tral Asia, Central and Eastern Europe,
the Middle East, Africa, Latin America,
and the former Soviet Union to provide
training, policy briefs, and support.
The World Press Freedom Committee
(WPFC) (http://www.wpfc.org), a consortium
of 44 press freedom groups from
throughout the world based in Northern
Virginia, merged with Freedom House in
2009. The WPFC has monitored press
freedom developments at international organizations,
such as UNESCO, and published
authoritative studies, particularly
on insult laws, for more than 30 years.
Freedom House Europe serves as Freedom
House’s primary European office. It
is based in Budapest, Hungary (http://
www.freedomhouse.hu/).
Index on Censorship
http://www.indexoncensorship.org
Originally founded as a magazine in
1972 by a group of London-based writers
and journalists, Index on Censorship is
an NGO that promotes freedom of expression.
It works with grassroots organizations
to facilitate and promote this goal.
In 2009, it launched projects in Tunisia,
Afghanistan, Pakistan, Iraq, and Burma.
It also supports the creation of new journalistic
and artistic works and is undertaking
a youth outreach program.
Index on Censorship’s Web site is a resource
for current worldwide news on
freedom of expression.
International Center for Journalists (ICFJ)
http://icfj.org/
Anon-profit organization based in Washington,
D.C., ICFJ provides hands-on
training to journalists in more than 176
countries through workshops, seminars,
fellowships, and international exchanges.
It operates the International Journalists’
Network, IJNet (http://www.ijnet.
org/), which connects journalists with
opportunities to obtain media training
and other assistance.
International Media Lawyers
Association (IMLA)
http://www.internationalmedialawyers.org
The IMLA is a worldwide network of
media lawyers that serves as a clearinghouse
for sharing information, strategies,
and expertise on media law and
press freedom. Based at Oxford University
in England, it facilitates communication
between public interest lawyers
around the world who work to promote
freedom of expression. IMLA also conducts
training sessions for media lawyers
and policymakers.
International Press Institute (IPI)
www.freemedia.at
This Vienna, Austria-based NGO traces
its history to 1950. It works to promote
and protect freedom of expression.
Its Death Watch publication tracks journalists
and media staff who have been
directly targeted for practicing journalism,
and IPI recounts the stories of individual
journalists through its Justice
Denied Campaign. IPI conducts independent
research into the state of press freedom
around the world, and its Watch List
monitors governments whose official actions
threaten media independence.
IPI has sent advocacy and fact-finding
missions to Bangladesh, Nepal, Sri Lanka,
and other countries.
International Senior Lawyers Project
(ISLP)
http://www.islp.org
Launched in June 2001, the organization
applies the skills of soon-to-be retired
or retired attorneys to the legal and
legislative issues in the developing world,
press freedom and access to information
among them. Based in New York, with
offices in Washington, D.C. and Paris,
ISLP’s volunteers have worked primarily
in Eastern Europe, Russia, and India,
but the group’s mandate is global.
Among many other projects, ISLP’s
lawyer volunteers have convened a con[
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ference that explored China’s role in establishing
global Internet norms and
standards, provided legal briefings arguing
that the Sierra Leone criminal libel
law violates that country’s constitution,
and worked with the Center for Journalism
in Extreme Situations to help that
group improve its advocacy on behalf of
journalists facing defamation and related
legal charges in the former Soviet Union.
In 2008 and 2009, ISLP provided advice
on draft freedom of information and
press laws in Yemen.
International Research & Exchanges Board
(IREX)
http://www.irex.org/
Founded in 1968, IREX is a Washington,
D.C.-based international NGO
that works to strengthen independent
media and improve the political environment
for journalists. Together with its
partner, IREX Europe, based in Lyon,
France (http://www.europe.irex.org),
IREX organizes media training programs
and provides expert consultation to local
partners that help support and advance
civil society development in more than
100 countries. For example, it empowered
local groups to lobby for change to
the media laws in Slovakia and in Bulgaria.
IREX’s Media Sustainability Index
evaluates and quantifies conditions
for independent media in 76 countries.
Open Society Institute
and Soros Foundations Network
http://www.soros.org
This New York-based private foundation
was established in 1993 by investor
and philanthropist George Soros. It
provides monetary grants designed to
strengthen civil society. Through the
Open Society Justice Initiative (OSJI), it
promotes legal reform and litigates a
range of human rights cases, including
freedom of information and expression. It
also conducts studies, including a notable
2006 survey of government responses to
freedom of information requests. This
study concluded that more recently adopted
laws actually work better than
those in some older democracies. The
OSJI cites its role as a “friend of the
court” in Claude v. Chile, a case argued
before the Inter-American Court of Human
Rights, as a factor that led to Chile’s
adoption of a freedom of information act
in April 2009 (http://www.soros.org/initiatives/
justice/litigation/chile).
Privacy International (PI)
http://www.privacyinternational.org
Established in 1990 by a coalition of
more than 100 privacy experts and human
rights organizations from 40 countries,
Privacy International conducts
research and sponsors programs on
threats to personal privacy. Based in London,
PI monitors government surveillance
activities and studies the implications of
cross-border information flows. This NGO
publishes a wide variety of books and reports,
including an annual international
Freedom of Information Survey. It reviews
proposed legislation, particularly in developing
democracies such as Albania, Moldova,
and Croatia, and has studied how
counterterrorism measures affect freedom
of the press and the rights of journalists
to protect their sources.
Radio Television Digital News Association
(RTDNA)
http://www.rtnda.org/
RTDNA (formerly the Radio Television
News Directors Association) is the
world’s largest professional association
exclusively serving the electronic news
profession. Founded in 1946, it promotes
ethics in reporting, freedom of information,
and press freedom. It advocates, lobbies,
and occasionally litigates on issues
affecting the electronic journalism industry
in the United States and abroad.
Through its foundation, RTDNA spon[
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sors workshops and training programs,
as well as the RIAS Journalist Exchange
in Germany.
Reporters Committee for Freedom
of the Press (RCFP)
http://www.rcfp.org
Founded in 1970, RCFP is an NGO located
in Arlington, Virginia, that
maintains a 24-hour hotline offering free
legal and research assistance to any journalist
working in the United States. It
lobbies and advocates for press freedom
and open government, files friend-of-thecourt
briefs, and initiates litigation.
RFCP also publishes a wide variety of legal
guidebooks and handbooks on media
and freedom of information law.
Reporters Without Borders
(Reporters Sans Frontières [RSF])
http://www.rsf.org/
Founded in 1985, RSF fights censorship
laws and works to improve the safety
of journalists, particularly in war zones.
It undertakes fact-finding missions and
defends reporters who have been imprisoned
or persecuted.
Among RSF’s many publications is an
annual January round-up of press freedom,
a “predators of press freedom” list
released on World Press Freedom Day
(May 3), and the Worldwide Press Freedom
Index each October.
This NGO has branches in nine countries,
as well as offices in Paris, New York,
Tokyo, and Washington, D.C., and a network
of more than 120 correspondents in
other countries.
Society of Professional Journalists (SPJ)
http://www.spj.org
The largest voluntary association of
working journalists in the United
States, SPJ lobbies and advocates for press
freedom. It files friend-of-the-court briefs,
initiates litigation, and speaks out on behalf
of endangered journalists in the United
States and elsewhere. Thousands of
journalists voluntarily embrace the SPJ
Code of Ethics, which is frequently cited
as the most authoritative statement of media
ethics in the United States.
Ujima Project
http://www.ujima-project.org
Acollection of databases, documents,
and other information launched in
September 2009, the Ujima Project attempts
to bring greater transparency to
the workings of governments in Africa,
particularly those that have no freedom of
information laws. It is supported by the
Great Lakes Media Institute (http://www.
greatlakesmedia.org/), an NGO whose
mission is to encourage professional and
ethical journalism in Sub-Saharan Africa.
Additional Resources
In addition to the organizations and
Web sites listed above, the following
resources offer a wide variety of publications
and other resources on media law
and ethics:
Online Resources
Center for International Media Ethics
http://www.cimethics.org/  A resource page for journalistic ethics.
The Center has an annual conference,
provides training and presentations,
and publishes a monthly newsletter
on ethics in journalism.
EthicNet
http://ethicnet.uta.fi/codes_by_country  Collection of codes of journalism
ethics organized by country.
Media Law Resource Center
http://www.medialaw.org  A non-profit information clearinghouse
supported by media organizations and
law firms to monitor developments and
promote First Amendment rights in the
libel, privacy, and related legal fields.
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Organization for Security
and Co-operation in Europe (OSCE)
http://www.osce.org/resources/  The OSCE resources web page including
links to materials on Freedom of
the Media.
Organization of News Ombudsmen
http://newsombudsmen.org/  A website devoted to the concept of the
independent, resident ombudsman, a
simple and yet effective way of selfregulation
for journalists.
Silha Center for the
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 journalistic
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 Libel
and Privacy Handbook, 2nd Edition.
New York, NY: Bloomberg Press, 2009.
The First Amendment Handbook. Arlington,
VA: The Reporters Committee
for Freedom of the Press, 2003. http://
www.rcfp.org/handbook/index.html
Kittross, John Michael. An Ethics Trajectory:
Visions of Media Past, Present
and Yet to Come. Urbana, IL: University
of Illinois/Institute of Communications
Research, 2008.
Sterling, Christopher H. Encyclopedia of
Journalism. Thousand Oaks, CA: Sage
Publications, Inc., 2009.
Vile, John R., David L. Hudson Jr. and
David Schulz (eds). Encyclopedia of the
First Amendment. Washington, DC: CQ
Press, 2009.
Weisenhaus, Doreen. Hong Kong Media
Law: A Guide for Journalists and Media
Professionals. Hong Kong: Hong Kong
University Press, 2007.
Wendell, Carolyn R. The Right to Offend,
Shock or Disturb. Reston, VA: World
Press Freedom Committee, 2009.
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