Journalists and the law

[triforcharity]

I'll second what theprestige has said. Using information from an illegal source (in this scenario, a federal crime) is most likely tainted evidence, and would not be allowed in court, and anything they learned and acted on, based on that first bit of tainted evidence, is most likely inadmissible. (IANAL, so....)

Allowing journalists to skirt the law, just to obtain evidence of a crime, is wrong for two reasons.

1- Journalists are not law enforcement officers. Allowing them to do the job of a LEO, but without the restrictions that LEO's have WRT: evidence and the constitution, is blatantly wrong.

2- Violating a person's rights, even criminals, is a very bad precedent to set.

 

[Sam.I.Am]

If your neighbor is showing politically incorrect behaviors it's your duty to sneak into their homes and find some incriminating evidence so that you can report them to the proper authorities so that they can be sent off to be re-educated Comrade.

That line of thinking (albeit taken to an extreme) is apparently what Nessie is in favor of.

 

[Carn]

That line of thinking (albeit taken to an extreme) is apparently what Nessie is in favor of.

No, he is in favor of being allowed to commit minor crimes to prevent more serious crimes or effects.

And in most countries such a thing is allowed, e.g. you see in your neighbors cellar someone chained and in bad shape, you go over, kick in the door and free the imprisoned. The "kick in the door" is on itself a crime, especially as your neighbor is unlikely to give consent (he probably wants to keep the person prisoner and preferably does not want anyone to know about that). Yet you are allowed to do, because kicking in the door is likely pretty minor to whatever crime your neighbor commited vs the prisoner in his cellar.

That is allowed for any citizen, even for journalists.

As gathering information might also avert crimes, normal journalistic activity might sometimes be similar, the journalist preventing some major crime by commiting some minor.

Of course this leads to the problem of using such evidence in court, but that does not change that journalists and anyone else is allowed to act that way.

Edit for better example:
I just realized the example above might still fall under defense, so this one:
Neighbor is away and his car is parked in front of your house, barbecue in front of house goes wrong, fire threatens to jump over to your house, a fire extinguisher is on backseat of neighbors car, you smash in window, grab fire extinguisher and extinguish the fire -> no crimnal charges (though your neighbor can sue you to pay for the damage), although it is no variation of self defense.

 

[anglolawyer]

No, he is in favor of being allowed to commit minor crimes to prevent more serious crimes or effects.

And in most countries such a thing is allowed, e.g. you see in your neighbors cellar someone chained and in bad shape, you go over, kick in the door and free the imprisoned. The "kick in the door" is on itself a crime, especially as your neighbor is unlikely to give consent (he probably wants to keep the person prisoner and preferably does not want anyone to know about that). Yet you are allowed to do, because kicking in the door is likely pretty minor to whatever crime your neighbor commited vs the prisoner in his cellar.

That is allowed for any citizen, even for journalists.

As gathering information might also avert crimes, normal journalistic activity might sometimes be similar, the journalist preventing some major crime by commiting some minor.

Of course this leads to the problem of using such evidence in court, but that does not change that journalists and anyone else is allowed to act that way.

Edit for better example:
I just realized the example above might still fall under defense, so this one:
Neighbor is away and his car is parked in front of your house, barbecue in front of house goes wrong, fire threatens to jump over to your house, a fire extinguisher is on backseat of neighbors car, you smash in window, grab fire extinguisher and extinguish the fire -> no crimnal charges (though your neighbor can sue you to pay for the damage), although it is no variation of self defense.

These are not good examples. The journalist hacking the emails does not know in advance what he will find. You can't enter your neighbour's home on the off chance there may be a fire in there. If it's on fire, fine. Scorch yourself if you want. You will not be committing burglary (under English law) nor criminal damage (reasonable excuse exception). You will be trespassing, not a crime, but the court could award the plaintiff contemptuous damages (a penny) and almost certainly make him pay your costs.

 

[Nessie]

Actually, there's a lot to complain about. Law enforcement officers--you know, the actual authorized agents of our government--need a court order to hack your email, and they face professional sanctions if they defy that requirement. They even risk blowing the enitre case, if they are found to have behaved improperly during the investigation.

But you'd set aside all the regulation, all the oversight, for anybody who goes to j-school and joins the Investigative Reporters' Club.

You're basically setting up journalists as a special, extra-judicial, extra-governmental class, that in practice answers to nobody but themselves, and knows no law but "because we can".

Journalists are citizens, plain and simple. They can--and should!--enjoy all the same rights of investigating and reporting as any other citizen. They should not be elevated to a special class of citizen, just because they chose to make a career of it.

Your whole claim is based on nothing regulates or could happen to the journalist in the courts if they hacked into an e-mail and uncovered a gun smuggling operation. In fact between press regulations, code of conduct, editorial and the courts, there is a lot to regulate and could happen to a journalist who cannot show due cause for what they did. Just like the police.

 

[Carn]

The journalist hacking the emails does not know in advance what he will find.

But journalist do not investigate based on chance, a journalist might have reason to suspect that there is criminal activity. And if he has good reason to believe so, actions he commits in investigation, might (!!!!!) be excused.

I am convinced that much of what is going on in investigative journalism is criminal, but that does not change that a small part might not be criminal, due to sufficient excuse.

 

[Nessie]

I'll second what theprestige has said. Using information from an illegal source (in this scenario, a federal crime) is most likely tainted evidence, and would not be allowed in court, and anything they learned and acted on, based on that first bit of tainted evidence, is most likely inadmissible. (IANAL, so....)

Allowing journalists to skirt the law, just to obtain evidence of a crime, is wrong for two reasons.

1- Journalists are not law enforcement officers. Allowing them to do the job of a LEO, but without the restrictions that LEO's have WRT: evidence and the constitution, is blatantly wrong.

2- Violating a person's rights, even criminals, is a very bad precedent to set.

They are not doing the job of the LEO.

EU human rights takes into account criminal activity. For example the right to property

http://en.wikipedia.org/wiki/Right_to_property#Regional_human_rights_instruments

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (2) The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

So a journalist here can rightly say property that is being illegally handled or is stolen does not come with the protections lawful possession does.

 

[Nessie]

If your neighbor is showing politically incorrect behaviors it's your duty to sneak into their homes and find some incriminating evidence so that you can report them to the proper authorities so that they can be sent off to be re-educated Comrade.

That line of thinking (albeit taken to an extreme) is apparently what Nessie is in favor of.

Need any more straw?

I am saying that a private citizen in such a situation has no powers or authority to start investigations and they should report an suspected criminal activity to the police. If a journalist is acting under proper editorial controls and press code of conduct then they have more leeway to investigate criminal activity and finally it is the police's job to fully investigate and report such activity.

What you describe is not criminal activity and is unjustifiable behaviour by private citizens.

 

[Nessie]

These are not good examples. The journalist hacking the emails does not know in advance what he will find. You can't enter your neighbour's home on the off chance there may be a fire in there. If it's on fire, fine. Scorch yourself if you want. You will not be committing burglary (under English law) nor criminal damage (reasonable excuse exception). You will be trespassing, not a crime, but the court could award the plaintiff contemptuous damages (a penny) and almost certainly make him pay your costs.

Rubbish, they are excellent examples. A journalist who hacks e-mails in the knowledge that there is information in them which would uncover crime is doing their job. You have described a fishing trip, which is wrong. No one is saying entering a neighbours house to see if it is on fire or not when there is nothing to say it is on fire is right. You are again describing a fishing trip to see what can be found which is wrong.

A citizen who breaks into a house to rescue a hostage they have seen tied up and in danger would be due an award, not a conviction.

 

[anglolawyer]

Rubbish, they are excellent examples. A journalist who hacks e-mails in the knowledge that there is information in them which would uncover crime is doing their job. You have described a fishing trip, which is wrong. No one is saying entering a neighbours house to see if it is on fire or not when there is nothing to say it is on fire is right. You are again describing a fishing trip to see what can be found which is wrong.

A citizen who breaks into a house to rescue a hostage they have seen tied up and in danger would be due an award, not a conviction.

If the journalist has knowledge of criminal activity he should report it to the police. Do you think journalists have some special legal status, somewhere between ordinary folk and the cops? They don't. By the way, what do we do with all the cases where they hack and find nothing?

 

[Nessie]

If the journalist has knowledge of criminal activity he should report it to the police. Do you think journalists have some special legal status, somewhere between ordinary folk and the cops? They don't. By the way, what do we do with all the cases where they hack and find nothing?

Having journalists and a free press as separate from the police and criminal justice system is an important check and balance to our freedoms. I am happy they work separately, but then come together when journalism has uncovered evidence of crime will report such to the police as well as doing their story. Examples being MPs expenses and even their own activities with the present hacking scandal.

Journalists who hack and find nothing then do nothing with any information they did find and no longer have a story. If they are found to have hacked and there is not good reason fro it at all, they go to prison, if they are just rubbish at investigating, they get sacked or other work punishment.

 

[anglolawyer]

Was hacking exposed by journalists? I thought it was a succession of legal cases and the breakthrough revelation about Millie Dowler, which emerged IIRC in the course of some legal proceeding. Nor did the journalists break any law to get info about MPs expenses. Somebody leaked a CD Rom with all the info after an ordinary member of the public had tried to access it using Freedom of Info legislation.

The vast majority of the hacking has had nothing to do with uncovering crime anyway. The greater part of it has been aimed at unearthing morsels of private material concerning so-called celebrities.

 

[Nessie]

MPs expenses is an example of the good journalism does which the police cannot as technically most MPs were not breaking the law. As you say it rare for journalists to break the law, they tend to push the boundaries and maybe break a minor law with a major good in mind.

Hacking is an example of when journalists broke the law and some went rogue and I am happy some have already gone to prison. Hopefully hacking will stop for tittle tattle, but not when there is crime or major wrong doing to be uncovered.

 

[anglolawyer]

I did not say it is rare for journalists to break the law. I said it was rare for journalists to go a-hacking to uncover such breaches.

 

[Sam.I.Am]

Need any more straw?

I am saying that a private citizen in such a situation has no powers or authority to start investigations and they should report an suspected criminal activity to the police. If a journalist is acting under proper editorial controls and press code of conduct then they have more leeway to investigate criminal activity and finally it is the police's job to fully investigate and report such activity.

What you describe is not criminal activity and is unjustifiable behaviour by private citizens.

A Journalist *IS* a private citizen. They have zero authority under law and are subject to the same laws as you or I. As I said it was an extreme example (so no straw there as I wasn't representing it as a current reality so much as a continuation of your logic to it's final conclusion).

Now then, who determines what is "Proper editorial controls" and "Press code of conduct" and what authority oversees them when they step out of those supposed limits? Finally, why should they, a private citizen, get more leeway than you or I when they suspect illegal activity?

 

[theprestige]

Your whole claim is based on nothing regulates or could happen to the journalist in the courts if they hacked into an e-mail and uncovered a gun smuggling operation.

In practice, your proposal is exactly this.

In fact between press regulations,

Which journalists should be able to ignore, for the greater good, right?

code of conduct,

Which journalists should be able to ignore, for the greater good, right?

editorial

Which journalists should be able to ignore, for the greater good, right?

and the courts,

And the courts? And the courts? And the courts? Really?

This entire thread is based on your contention that reporters should be exempted from judicial sanction, if they commit criminal acts for the greater good.

If you actually want journalists to be subjected to the same rule of law as everybody else, then apparently we agree, and this entire thread is irrelevant.

there is a lot to regulate and could happen to a journalist who cannot show due cause for what they did. Just like the police.

Why? What makes journalists more special than other citizens? Why can't any citizen investigate and publish, and be exempt from legal sanction if they can show "due cause" for breaking the law?

I guess the bottom line is that you believe that "press regulations", "code of conduct", and "editorial" are a sufficient basis for establishing a special extra-legal class of citizens, that are exempt from the rule of law in ways that no other citizen--even actual agents of your government--enjoy.

And, having reviewed your body of work on this forum, I have no reason at all to think anything will ever shake this belief.

So, suffice to say that I strongly disagree with your proposal. I think that journalists, like every citizen, have the right to investigate and publish information to the fullest extent permissible by law. I think that they should have remedy in court if they are prevented from exercising that right. I think the state and their victims should have remedy in court if a journalist breaks the law, and I think that journalists should not have the power to hide from the law behind their press pass. Finally, I think that if special investigators are needed, they should be sanctioned by the state, and subject to far greater admission and oversight controls than are currently in place for press entities.

I think your fetish for investigative reporters is perverse and harmful.

 

[Skwinty]

So should the media have obeyed the laws during apartheid?

Should the media obey the currently proposed secrecy bill in South Africa today?

"The dismantling of formal apartheid and the 1994 transition to democracy promised to remove government censorship and as
a result, South Africa's 1996 Constitution protects media freedom as an explicit element of the freedom of expression. South
Africa currently has a relatively free media with very few laws limiting the activities of journalists and publishers.

But there are a number of very significant limitations and threats to media freedom in South Africa. These threats include the
intimidation and vilification of journalists by politicians, the Secrecy Bill that in its' current form criminalizes journalists for being in possession of classified information, as well as the ANC's proposal to establish a Media Appeals tribunal (MAT) that would likely see a statuary body (that reports to Parliament) evaluating the quality of editorial content and imposing sanctions on journalists. The MAT could in effect become a form of post-publication censorship that could discourage critical and investigative journalism that uncovered information or promoted opinion that threatened the government of the day. The threat of a MAT could also have the effect of pre-publication self-censorship, where journalists and editors are discouraged from publishing material which could land them in trouble with the statutory body, regardless that the story may be in the legitimate public interest."

 

[Nessie]

A Journalist *IS* a private citizen. They have zero authority under law and are subject to the same laws as you or I. As I said it was an extreme example (so no straw there as I wasn't representing it as a current reality so much as a continuation of your logic to it's final conclusion).

Now then, who determines what is "Proper editorial controls" and "Press code of conduct" and what authority oversees them when they step out of those supposed limits? Finally, why should they, a private citizen, get more leeway than you or I when they suspect illegal activity?

In the UK it is the Press Complaints Commission.

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

Note that whilst the Editors Code of Conduct says "The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent."

It goes on to say that exemptions can be had when "There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

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."

I think the press need to given more leeway as they are an important part of protection of our freedoms, particularly speech and from corruption, tyranny and malpractice, especially by the government and criminal justice systems. A private citizen comes under no code of conduct what-so-ever which further differentiates such from journalists.

 

[luchog]

If they do it within the law, sure, or with the FAA/TSA's support, sure.

However, I do not support journalists who work OUTSIDE of the law. Period. No ifs, ands, or buts about it. Do it within the law.

Problem is when these agencies are part of the coverup. For example, in the US, the powers that be have a vested interest in the public not finding out just how ineffective, and even counter-effective, that the TSA is. Journalists have been harassed by government agencies for pointing out just how bad TSA is.

When it's the law enforcement agencies themselves that you're blowing the whistle on, how likely are they going to give permissions to violate a few laws to demonstrate problems with said agencies?

 

[theprestige]

So should the media have obeyed the laws during apartheid?

Should the media obey the currently proposed secrecy bill in South Africa today?

Here's what I said at the beginning of the thread:

Journalists are just citizens. Or, more accurately: All citizens are also journalists, and enjoy all the rights and privileges of journalists.

So another way of asking the question, that doesn't imagine a special elevated class of citizens called "journalists", is, "how far should citizenns be allowed to go to report information?"

And the answer is, obviously, "as far as the law allows."

My take is that every citizen should go as far as their conscience demands, but if they go beyond what the law allows they should certainly accept and pay the consequences for doing so.

Skwinty, your questions imply that you, like Nessie, believe that "the media" should be a special extra-legal class of people.

My answer to your questions is this: We should break bad laws not because we are journalists, but because we are citizens.