Web Difference? Digital Media, Culture and the Law

Thomas Sullivan

Web Difference? Digital Media, Culture and the Law

Prof. John Palfrey & Dr. David Weinberger

No Need for Gatekeepers but a Need for Ethics

Before the age of the web, the media had a monopoly over the spread of information. Through voluntary ethical codes, they agreed on general guidelines that balancing reporting the news and minimizing harm. With the emergence of the internet and the democratization of reporting, these guidelines have become threatened, with some commentators arguing they are an arcane relic of a less enlightened age. Bloggers and other internet media creators are rightly suspicious of any attempt to impose an ethical code on the web, but the old codes contain key principles that can help these new voices finding their ethical footing. Traditional media[1] companies can lead the way by keeping up their high standards as they adjust to being read on computer screens instead of newsprint.

While some foreign countries have official codes for journalists, in the United States, thanks to the First Amendment, the media regulates itself on a purely voluntary basis. Journalists wrote their first major ethics code in response to critics who argued that the newspapers were “catering to a depraved public taste” and slanting their coverage of business to please the papers’ owners.[2] Since then, various professionaljournalism organizations have proposed and repeatedly revised their own versions, including the Society of Professional Journalists,[3] the American Society of Newspaper Editors,[4] and the Radio-Television News Directors Association,[5] but, while the guiding principles are largely consistent, there is no one code all journalists follow. Many news organizations have more specific codes for their own employees, such as those of the New York Times and National Public Radio.[6]

The codes recognize reporters’ duty to both, as the one by the Society of Professional Journalists(SPJ) puts it, “Seek Truth and Report It” and “Minimize Harm.”[7] In some cases, this means restricting the news these organizations put out, or the way they gather it. For example, the SPJ’s code tells reporters to “[b]e sensitive when seeking or using interviews or photographs of those affected by tragedy or grief,” avoid naming victims of sexual assault or child victims of any crime, and not intrude into non-public figures’ privacy unless there is a public need.[8] As this language and the two competing headings above indicate, the codes are more guidelines to help reporters make their own judgments than explicit dos and don’ts. The Times’s code perhaps makes this point best: “Sometimes the answer is self-evident: simply wondering whether a course of action might damage the reputation of our journalism is often enough to gauge whether the action is appropriate.”[9]

The codes certainly are not perfect or some sort of magic cure-all. In recent years, journalists have been caught accepting money to promote certain policies in their broadcasts,[10] committing plagiarism,[11] and fabricating stories entirely.[12] Many of the codes contain limited information about exactly how they should be enforced.[13] The American Society of Newspaper editors recognized this limitation in 1923 when they expounded a predecessor of the modern codes: “Lacking authority to enforce its canons the journalism here represented can but express the hope that deliberate pandering to vicious instincts will encounter effective public disapproval or yield to the influence of a preponderant professional condemnation.”[14]

With the arrival of the web there has been the democratization of the media landscape. Instead of a relative handful of media organizations dominating the news landscape, anyone with a computer and an internet connection can talk to the world at very little cost.[15] Not all or perhaps even very many of these bloggers consider themselves journalists, at least in the traditional sense, but regardless, as NYU professor and blogger Jay Rosen has put it, traditional journalism’s “sovereignty” over news gathering and distribution is in decline.[16]

This is a serious threat to the power of the codes. The codes only really work if the majority of journalists observe their principles and a violation truly leads to “preponderant professional condemnation.”[17] However, the rise of bloggers has at least in part been sparked by dislike and distrust of the very values the codes stand for. Almost every code speaks about objectivity as a hallmark of the newsperson’s profession. Reporting and commentary are supposed to be clearly distinguished. Many bloggers seek just the opposite, stressing the power of authentic, real, opinionated voices.[18] To some former traditional journalists now operating online, the old media is “hopelessly hobbled by some of its own outdated conventions and frameworks.”[19] Many bloggers are starting on a clean slate, having not yet determined what their ethical standards are.[20]

I understand bloggers’ frequent criticism of some common practices in traditional journalism. Take objectivity. It is true that reporters for traditional media outlets too often assume they have done their jobs when they describe the “debate” over an issue, giving full credence to both sides, when one side is just wrong or at least in the clear minority. A journalist should not report that there is disagreement about the color of the sky just because one person is willing to say it is green. But objective reporting, when done correctly, is an immensely valuable public service.[21] More importantly, even if bloggers want to disregard some conventions of traditional journalism, exploring the freedom of the online space and enjoying the ability to tell the news in new styles, they should be careful not to throw out the baby with the bath water. The principles contained in traditional journalists’ ethics codes are still relevant in the digital sphere. Ethics are ethics, regardless of the medium.

Consider, for example, the most prominent reporters’ ethics code — the one created by the SPJ.[22] There are certainly elements of the code that many bloggers will not be able to agree with. Many bloggers do not “[d]istinguish between advocacy and news reporting,” for example, and it may not be realistically possible for them to get the other side of a story, even if they wanted to, since their calls may not get through as easily as do some journalists.[23] “Shun[ning] secondary employment [and] political involvement”[24] does not work for the majority of citizen journalists for whom their blog is itself a second job, if it makes them any money at all, and many political bloggers are of course actively involved in the realm which they cover. Still others may argue that the prohibition on headlines misrepresenting, oversimplifying, or highlighting incidents out of context[25] makes no sense in a world in which a catchy header on an RSS feed can make the difference between a feast of hits or a famine.

This seems to feed into the argument that David Weinberger, among others, has made that any “single code of conduct would need to drive down into specifics about which bloggers disagree.”[26] Dr. Weinberger argues that codes must be “very plural” in order to be effective, citing Lisa Stone’s example of the different codes that would be required for a parenting blog and one about the war in Iraq.[27] However, besides the objectivity requirements, most bloggers would probably agree with the SPJ code. Take the four large subheadings — Seek Truth and Report It, Minimize Harm, Act Independently, and Be Accountable.[28] Some bloggers may quibble with the goal of independence, arguing that as long as they disclose their connections, they are acting ethically, but it is difficult to argue with the other three main principles. The subheadings contain fairly specific guidelines that are hard to dispute: “[A]void inadvertent error. Deliberate distortion is never permissible,” “Label montages and photo illustrations,” “Never plagiarize,” “Admit mistakes and correct them promptly.”[29] All are equally applicable to the hypothetical parenting blog and one on the war. It is possible some bloggers could have problems with some of these points, I suppose. A satirist, for example, might have problems with the prohibitions against deliberate distortion. But this could likely be cleared up by just labeling it as satire somewhere on the site.

Some may respond by saying that a code like this with just a few specific provisions and a lot of lofty, idealistic language would do very little good. But the very existence of a code forces people to at least think about these issues. As two media ethicists noted when the SPJ revised their code, such sets of guidelines “inspire us about our unique roles and responsibilities; they make each of us custodians of our profession's values and behaviors, and inspire us to emulate the best of our profession; they promote front end, proactive decision-making, before our decisions ‘go public.’”[30]

Moreover, the existence of one broad code that most web journalists would aspire to follow would not preclude the existence of more specific guidelines for specific groups of bloggers or individuals, the “very plural” codes Dr. Weinberger contends are necessary. In the traditional media context, smaller groups of reporters have their own codes expanding upon the broader principles of the general guidelines.[31] For example, the Society of American Business Editors and Writers’s code of ethics prohibits its members from actively trading stocks and requires them to keep information they obtain from people “who might use it for gain before it is disseminated to the public,”[32] both presumably to prevent market manipulation. These guidelines can get even more specific — the American Auto Racing Writers and Broadcasters Association’s ethics code tells reporters they should “[a]ccept the limitations of facilities” and recognize there may not be enough room in the pits on race day.[33] Other specific professional journalist groups have similar codes.[34] There is no reason there could not be one supplementary ethical code for parenting blogs and a separate one for blogs about the war. In this vein, as mentioned above, many individual media outlets have their own ethics codes which they publicize on their web sites.[35] Largebloggers might do the same.

When codes of ethics have been proposed for bloggers and other citizen journalists in the past, much of the blogosphere has rebelled. In 2007, in response to an incident in which blogger Kathy Sierra said she had been threatened by commentators on her own site and posts on some others,[36] Tim O’Reilly proposed an online “Code of Conduct.”[37] Using “civility” as an organizing principle, O’Reilly suggested that bloggers should agree to not post or link to “unacceptable content” (such as content that is abusive, libelous, or violates privacy), not say anything online that they would not say in person, try to resolve conflicts privately before taking them public, take action when someone is being treated unfairly, and not allow anonymous comments.[38] Blogs who agreed to follow these guidelines would be allowed to display a badge on their site indicating so.[39] The response was highly negative, with many on the web seeing the proposal as a kind of “speech code” or an infringement on the freedom of the internet. The idea of badges raised some special flags, since it implied that anyone who did not agree to place the badge on their site was against civility online.[40]

While the O’Reilly plan did not succeed, it does not indicate that any attempt to have a code of ethics for online journalists would be a failure. There were serious problems with O’Reilly’s proposal. First, it was poorly planned and did not allow for sufficient community input before it was unveiled. O’Reilly, who admits he was rushed in putting up the code,[41] did note that the version he posted online was only a draft and he created a wiki where people could comment on it.[42] However, at least some bloggers saw the code as something being imposed upon them. As one responded, “All I want to know is why the man has taken it upon himself to try to tell me what to do.”[43] In contrast, the SPJ code was adopted at a national convention of members, “after months of study and debate among the Society's members.”[44] The name O’Reilly chose, “Code of Conduct,” probably did not help. It seems more mandatory, more like something handed down from above than “Code of Ethics.” It also fails to hearken back to the long-established journalism codes, which are almost always described as codes of ethics.

Second, O’Reilly focused on the wrong central theme — civility. There is far more to ethical publication than civility. You can be civil and still plagiarize, have a conflict of interest, and fail to seek out all sides of a story. In some ways, civility is anathema to good journalism, since a lot of major stories are going to ruffle a few feathers and “afflict the comfortable,” to paraphrase the old journalism motto. Too often civility can be used as a sword to silence unpopular speech. Far better is the SPJ’s call to balance seeking truth and avoiding harm, acting independently, and being accountable.

Third, some of the clauses just seemed completely incompatible with everyday practices of both journalists and bloggers. Take, for example, the suggestion to resolve conflicts privately before posting about them: “When we encounter conflicts and misrepresentation in the blogosphere, we make every effort to talk privately and directly to the person(s) involved--or find an intermediary who can do so--before we publish any posts or comments about the issue.”[45] In some cases, I assume, this could reduce the heat of exchanges, help iron out confusion, and make everyone’s commentingmore valuable. But there’s value in spirited debate as well, and having things out in the open. If implemented by the traditional media, this proposal would result in a lot of blank space on the nation’s op-ed pages and dead air on primetime cable news shows.

Fourth, the code suggests the wrong enforcement mechanism: “When someone who [sic] is publishing comments or blog postings that are offensive, we'll tell them so (privately, if possible--see above) and ask them to publicly make amends. If those published comments could be construed as a threat, and the perpetrator doesn't withdraw them and apologize, we will cooperate with law enforcement to protect the target of the threat.”[46] It seems strange to essentially argue for sweeping things under the rug (albeit with a public apology). The code of the SPJ calls for the exact opposite, “[e]xposing unethical practices of journalists.[47]” Also, the line about law enforcement does not help. I suppose this is because the O’Reilly code is a response to the Sierra incident, where a law enforcement response was obviously required. But stating it so specifically brings home the fact that this is more about punishing offenders than appealing to high ideals.

Finally, the badges present a serious problem, as O’Reilly himself at least partially recognized,[48] since it seems to make the code a sort of ‘with us or against us’ proposition. Traditional media members do not post a badge next to their banner or before each television broadcast proclaiming their membership in the SPJ, the American Society of Newspaper Editors, or anything else. The idea of a badge of approval seems too close to censorship, even if “voluntarily” adhered to.[49]

In contrast, a code based upon the traditional journalism codes, such as that of the SPJ would have a number of advantages. First, these are codes that have been hammered out over time, dating back to the 1920s and frequently revised since then. They are what most people think of when they think of media ethics. As I mentioned earlier, there could be some resistance by those who think some of these ideals, like objectivity, are outdated, but the vast majority of the principles in the code are basic, uncontroversial, and have withstood the test of time. Second, the traditional journalism codes have advising mechanisms already in place. In many cases, an ethical violation could be avoided if a blogger or other citizen journalist just had someone to ask about it. Organizations like the SPJ have hotlines for help with difficult ethical issues,[50] and they seem to be interested in working with bloggers.[51] Finally, while the codes themselves do not directly speak of online media, the code is already adhered to by a number of the largest news producers operating online — traditional media companies who have expanded their output to include web venues. They can act at least in some way as guides for bloggers.[52] Of course, as I will discuss below, in order for this to work, it requires the traditional media companies to use the same standards when operating online and for media watchdogs to impose the same level of scrutiny.

One of the best ways to promote the development of online journalism ethics codes is to keep pressure on traditional media companies to continue to uphold the highest values of the traditional journalism codes as they begin to operate more extensively online. Three guidelines should be followed. First, traditional media companies should not deploy different ethical principles on the internet than in any other medium. Second, ethical principles should be consistent across companies owned by the same conglomerate. Finally, when these principles are breached, media watchdogs should call attention to the breach and condemn it, in the same way they would if it happened on paper or television.