‘Journalists’ and the law in the digital era by Ian Cram

The facility that many of us now can be authors and disseminators to the world at large of our own thoughts and opinions is a truly distinguishing feature of modern times. In terms of the potential to liberate public discourse from the confined news agenda and narratives on offer from corporate news organisation, there are clear gains to a self-governing democracy, Ian Cram explains more.

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Speakers and viewpoints marginalised by mainstream outlets can now at least air matters neglected or under-reported elsewhere (whether and by whom these speakers and viewpoints are actually heard is of course another matter). The disembodied, asynchronous nature of online speech also means that a ‘conversation’ can occur between persons who do not share the physical or temporal space as the speaker. Furthermore, the fact that the latter may choose to conceal his or her real identity can be seen to offer free speech benefits. Speakers may be more forthcoming about public interest matters that they would not otherwise have disclosed on account of an anticipated adverse reaction from colleagues, neighbours or even family members. For their part, recipients unable to identify the speaker (and thus prevented from engaging in ad hominem responses) are more likely to focus upon the content of the communication when posting a reply.

Constitutional protection for new speakers

Recognising the important role played by traditional media in facilitating informed political debate, liberal democratic constitutions have typically conferred specific protection (or privileges) upon ‘the press’ or ‘journalists’ whether in a formal constitutional document or ordinary statute law. These protections exist above and beyond rights to free speech/freedom of expression that are available to all citizens. Thus for example a number of legal systems confer a qualified degree of immunity on journalists from having to disclose their sources or having to hand over their notes and other work materials. Significantly, exceptions from data protection and privacy laws also exist for those holding personal data for ‘journalistic purposes’.

For present purposes what is significant is that these provisions pre-date the Web 2.0 era and were never envisaged by lawmakers to be invoked by non-traditional speakers such as bloggers and those who post comments on websites. How should courts respond to claims for legal protection from this new set of speakers who range from professionally trained journalists at one end of the spectrum to irregular, spontaneous commentators at the other who may offer opinions that have been formulated without going through the sort of fact-checking and verification processes associated with professional journalism? Two rival models may be identified that adopt either (i) an exclusive or (ii) an inclusive approach to this important question.

(i) The Exclusive Approach

One approach would be to deny legal protection to persons working outside mainstream news and media organisations unless the speaker is able to demonstrate that, over time, and on a regular basis, he/she has committed time and resources to the practice of web journalism and has developed to a point where his/her output has earned reputational trust. On this approach, some state authority (a court or other regulatory agency) would be tasked with the accreditation of a new ‘journalist’. This way lies some obvious dangers for those committed to a wide and diverse set of newer speakers. For content providers to have to satisfy a state body of their worthiness to practice journalism makes it more not less likely that aspiring ‘journalists’ will engage in anodyne coverage of political and public affairs, the less to offend the recognising authority. It may also be predicted that some producers of content would choose not to seek recognition in the first place with the result that these speakers would be ineligible for any of the ‘privileges’ recognised by the constitution. A consequence of this ineligibility would be that the such speakers could be more easily compelled by the police and other investigative authorities to assist in criminal investigations to the detriment of their own future journalistic activity and the broader public interest in securing the flow of information into the public domain.

(ii) The Inclusive Approach

This rival account is designedly less elitist than its exclusive counterpart. An inclusive approach to the conferring of legal privileges hitherto enjoyed by members of mainstream media organisations would appear to facilitate a more diverse and thus politically vibrant set of exchanges in public discourse. Issues neglected by the vested interests of corporately-owned established media organisations could thus be brought into the public arena by anyone wishing to speak. This ‘everyone a pamphleteer’ approach looks a more natural fit with the broader normative commitment to active, self-governing democratic structures of political power.   It is not however without its problematic aspects. How can electorates make informed judgments about those in power if, jostling alongside serious, well-researched analyses of public affairs, there sit poorly-researched, factually unverified accounts? How, in short, do irresponsible forms of ‘journalism’ ever assist in making public office holders truly accountable?

A way forward?

In seeking to apply legal norms developed in pre-internet and pre-Web 2.0 eras to instances of newer, non-traditional speakers, courts in a number of jurisdictions have tended to confine existing protections for the ‘press’ and ‘journalists’ to persons/groups whose news production and comment practices resemble older, traditional forms of media (and even then with some questionable assertions about the ‘independent’ and ‘balanced’ nature of journalism encountered in traditional news outlets). This tendency is unfortunate. There is an argument to be made for an extension of privileges previously enjoyed by members of the mainstream media to a much broader range of commentator. The argument for extension rests upon a functional analysis of the speaker’s conduct. Wherever a speaker makes a contribution to a discussion to a matter of public interest (broadly conceived) whether in a dry, factual manner or in a more entertaining and amusing style using irony and parody, then regardless of any official assessment of the quality of the contribution or the publishing record of the speaker, the interests of the audience in being given an opportunity to decide for themselves how much credibility to attach to the speaker’s position constitutes a strong democratic argument in favour of an extended class of beneficiaries of journalistic privilege.

Ian Cram is Professor of Comparative Constitutional Law at The University of Leeds, UK.

The first chapter of Ian’s new book Citizen Journalists: Newer Media, Republican Moments and the Constitution can be downloaded for free on Elgaronline.