Journalists and the law

[Nessie]

I think I misunderstood your original question.

To be clear: I have no problem with any citizen reporting on military carelessness with secret files. You find that happening, tell the world about it. I won't complain.

I do, however, have a problem with any citizen reporting on the contents of the files. I also have a problem with any citizen needlessly disseminating the contents.

Find the files, realize what they are, return them, report the breach. The end.

You want to discuss how the military should be punished when the mishandle classified documents, or the level of openness in military operations, start a thread.

But I will say this: if your concept of civilian oversight of your military depends on careless generals leaving classified documents unattended on trains, you've got really serious problems in your society, that go waaay beyond special privileges for some citizens.

This idea of special privileges is odd. Your argument is based on a journalist being exactly the same as a citizen. But since all citizens who work have particular powers not shared by others, from being able to drive a bus, to teach in class to prescribe medicine, you have failed to understand that jobs do come with special privileges needed to do them.

 

[Nessie]

The journalist should respect the same law as everybody.

I see no reason to have people more equal than others. It invites for abuse.

What about the concept of public interest? What about the law being used to protect wrong doers?

 

[Nessie]

Obviously what is being advocated here is allowing anyone and everyone to break the law if their reason is to discover someone else breaking the law. And if it turns out a badder violation of the law is discovered than the law which was broken to discover it, the discoverer should be off the hook. Equal opportunity leeway. It's not just about journalists. It's about a free-for-all...

Misrepresentation, strawman, dishonesty.

As for free for all, anyone can help enforce the law. For example by turning in criminals or being prepared to give witness statements to the police or making their own basic enquiries such as checking pawn shops for their stolen property.

What only the police can do is further powers such as arrest, detain, interview under caution, search under warrant and report cases to the prosecutors.

To that extent journalists only have the powers of "anyone" and not the police. But what they do do is a greater degree of investigating, research and fact checking than your average person, which is more a training based skill than a power invested in them.

 

[Nessie]

These are the arguments for the "public interest defence" in South Africa. http://mg.co.za/article/2011-08-31-the-info-bill-is-antidemocratic

AGAINST:

"ANC MP Luwellyn Landers rejected the argument that allowing somebody who revealed a state secret to argue in court that he had done so for the public good would protect whistleblowers, promote transparency and fight corruption.

Instead, he said, the proposal plainly sought to protect the media from being sent to prison for publishing classified information.

After a heated debate, ANC members said a Democratic Alliance proposal to protect publication if the information was classified to conceal wrongdoing was tantamount to legalising theft."

FOR:

"The Mail & Guardian‘s editor-in-chief Nic Dawes said a public interest defence would protect not just journalists, but anyone who exposed serious misconduct such human rights violations, corruption and mismanagement.

DA MP Dene Smuts retorted: “We are talking about stealing. Theft and corruption is a big problem in our country and it is the duty of any democrat to expose it.”

She said that a public interest defence did not amount to legalising the exposure of legitimate state secrets.

“It is just a defence. If they get it wrong they still go to jail.”


The Inkatha Freedom Party’s Mario Oriani-Ambrosini urged the ANC to allow the defence and to trust the country’s judges to decide whether it applied.

“A judge is competent to weigh whether the public interest is better served through disclosure or through secrecy.”"

Given the state of affairs in Southern Africa, I am inclined to support the public interest defence in South Africa.

A cracking post which sadly will go over the heads of many here who have no understanding of journalism and freedom of the press.

 

[triforcharity]

Everyone can help enforce the law without having to be a police officer.

Not in the way that you want journalists to. It bypasses the law and basically would give them free reign.

 

[triforcharity]

This idea of special privileges is odd. Your argument is based on a journalist being exactly the same as a citizen. But since all citizens who work have particular powers not shared by others, from being able to drive a bus, to teach in class to prescribe medicine, you have failed to understand that jobs do come with special privileges needed to do them.

And how many them get free reign to break the law with impunity??

 

[Nessie]

Not in the way that you want journalists to. It bypasses the law and basically would give them free reign.

And how many them get free reign to break the law with impunity??

There is no "free reign" or "impunity". If the journalist has abided by the Code Of Conduct and can show public interest as defined by the Code

http://www.pcc.org.uk/cop/practice.html

"1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in freedom of expression itself."

then I say journalists should have a degree of protection from prosecution. A journalist breaking into someone's house to get a story about a pet dog's new trick is not in the public interest. A journalist who breaches the Data Protection Act to publish a story of police incompetence and a cover up over the death of someone in custody would be in the public interest. There is no "free reign" nor "impunity" there.

 

[triforcharity]

I'm glad our journalists actually have to abide by the law. Journalist impunity is just not smart.

 

[GeeMack]

Misrepresentation, strawman, dishonesty.

The personal attack is, as always, irrelevant.

As for free for all, anyone can help enforce the law. For example by turning in criminals or being prepared to give witness statements to the police or making their own basic enquiries such as checking pawn shops for their stolen property.

What only the police can do is further powers such as arrest, detain, interview under caution, search under warrant and report cases to the prosecutors.

If discussing the law in the US, there are several things incorrect there.

To that extent journalists only have the powers of "anyone" and not the police. But what they do do is , which is more a training based skill than a power invested in them.

In the United States a journalist has the same legal authority as an electronics engineer, a school teacher, a car rental agent, a garbage man, and even a heroin dealer. There are no special powers endowed because of "a greater degree of investigating, research, and fact checking than your average person". I am not currently a journalist in a professional capacity, but it is fairly certain that I do "a greater degree of investigating, research, and fact checking than your average person", and likely a greater degree than many professional journalists. I know librarians, tractor designers, dentists, and a ballet instructor who meet those criteria.

To suggest a journalist should be afforded some kind of legal leeway based on that subjective criteria is simply ludicrous. It is, of course, an argument based on the fallacy of special pleading, which means it fails.

 

[theprestige]

There is no "free reign" or "impunity". If the journalist has abided by the Code Of Conduct and can show public interest as defined by the Code

http://www.pcc.org.uk/cop/practice.html

"1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in freedom of expression itself."

then I say journalists should have a degree of protection from prosecution. A journalist breaking into someone's house to get a story about a pet dog's new trick is not in the public interest. A journalist who breaches the Data Protection Act to publish a story of police incompetence and a cover up over the death of someone in custody would be in the public interest. There is no "free reign" nor "impunity" there.

Why not apply this to all citizens? Do you not think any citizen that abides by the code and can show public interest should have the same freedom?

 

[Kahalachan]

Here's an easy solution.

A journalist tells law enforcement they are doing an undercover story and they have to bypass certain laws. Law enforcement has to approve.

This shows us that the journalist wasn't just trying to break the law cause they fully divulged all their plans to law enforcement. No one who really wanted to break the law would detail every single method that would allow them to get caught and busted.

This shows journalists being accountable to the law but also allowing them to get the stories that require them to break the law.

 

[Skwinty]

To suggest a journalist should be afforded some kind of legal leeway based on that subjective criteria is simply ludicrous. It is, of course, an argument based on the fallacy of special pleading, which means it fails.

From the link in http://www.internationalskeptics.com/forums/showpost.php?p=9090704&postcount=69


Do these shield laws, be they qualified or absolute apply to ordinary citizens?

It seems that these laws enable a journalist to break the law when gathering information and as long as they are not caught in the act then journalistic privilege allows them to get away with it.

4.3 United States

In Branzburg v Hayes a majority of the U.S. Supreme Court held that the First Amendment – which guarantees freedom of speech – did not give journalists any special privilege to escape disclosing the identity of a source under subpoena. The case, however, applied only to grand jury proceedings, and to circumstances where the journalists were direct witnesses of the crime being investigated. The ruling therefore has not set a legally binding precedent for other types of proceedings (Berger, 2004).
In Branzburg, Justice Stewart argued for a qualified privilege, and his interpretation, known as the “Stewart principles”, is now widely accepted in U.S. state jurisprudence. Stewart asserted that journalists should be exempted from subpoenas to disclose the identity of sources unless the body seeking to compel the disclosure can demonstrate that

• the information sought is relevant to a legal proceeding about a specific, probable violation of law;
• the information cannot be obtained elsewhere, in a way that is less prejudicial of First Amendment rights; and
• there is a compelling and overriding interest in obtaining the information.

Since Branzburg, 31 U.S. states and the District of Columbia have adopted so-called “shield laws” giving journalists protection against subpoenas, while courts in 18 other states have set precedents giving journalists some form of protection, usually based on the Stewart principles (Penrod, 2005). While two states – Alabama and Pennsylvania – provide absolute privilege, the other shield laws provide a qualified privilege, sometimes including materials and sources, sometimes sources only, and in some cases providing for in-camera disclosure to allow the court to determine whether to grant an exemption or not (Berger, 2004).
The U.S. attorney-general has adopted guidelines to ensure that prosecutors act with sensitivity to the special role of the media. The “Attorney-General’s guidelines for subpoenaing members of the news media” establishes a process to be followed before journalists are subpoenaed, including a negotiation stage. Subpoenas may not be issued without authorisation from the Attorney-General, and must generally be limited to verification of published information (Berger, 2004).

 

[Skwinty]

Here's an easy solution.

A journalist tells law enforcement they are doing an undercover story and they have to bypass certain laws. Law enforcement has to approve.

I don't see this approach working in South Africa considering that the state and it's organs are the subject of investigative journalism.

If any one has carte blanche to break the law it would be the state and it's organs.

 

[anglolawyer]

I don't see this approach working in South Africa considering that the state and it's organs are the subject of investigative journalism.

If any one has carte blanche to break the law it would be the state and it's organs.

Hey Skwint! What are you doing moonlighting over here? Get back to where you belong on the Pistorius thread and give us the latest, willya?

 

[Skwinty]

Hey Skwint! What are you doing moonlighting over here? Get back to where you belong on the Pistorius thread and give us the latest, willya?

This thursday his bail application will be heard.

His brothers case resumes this wednesday.

 

[Damien Evans]

Fortunately in the US that isn't true. It's also fortunate that it will never become true based on the subjective opinion of people who don't have the slightest understanding of how the law works in the US.

Why do Americans in these sort of threads assume we're talking about them?

Nessie is describing the situation in the UK, and saying what he thinks should be the case.

 

[GeeMack]

Why do Americans in these sort of threads assume we're talking about them?

Nessie is describing the situation in the UK, and saying what he thinks should be the case.

Yes, it's interesting the assumptions Americans might make when a discussion is about a situation which occurred here. The thread at this link may be a helpful place to start. Maybe there wouldn't be so many incorrect assumptions if only this post was linked somewhere more conspicuous.

 

[GeeMack]

It seems that these laws enable a journalist to break the law when gathering information and as long as they are not caught in the act then journalistic privilege allows them to get away with it.

[* Irrelevant material about confidentiality of sources snipped. *]

Nothing there supports the notion that "these laws enable a journalist to break the law when gathering information".

 

[Skwinty]

Nothing there supports the notion that "these laws enable a journalist to break the law when gathering information".

So the journalist hacks some ones email, doesn't get caught, publishes the story and doesn't have to reveal his source.

 

[GeeMack]

So the journalist hacks some ones email, doesn't get caught, publishes the story and doesn't have to reveal his source.

Nothing in the material posted suggests that anything other than the identity of the source is protected. Hacking email would be a method of obtaining information, same as tapping a phone or planting a bug in someone's office. In the US the journalist would be violating the law, and the person whose email was hacked would be protected by the Fourth Amendment.