For about 500 years — from the European discovery of printing until the turn of the second millennium — the practice of journalism was reserved for those who had access to a printing press, a radio microphone or a television camera. Very few people enjoyed this access, and so it was a privilege, what might be called the privilege of the platform.
Digital technology now extends the privilege of the platform to anyone with a computer and the skills of basic literacy.
However, the privilege of the platform is but one of the privileges that the practice of journalism confers.
There are, in addition, privileges of access to people and places, and certain protections at law.
These privileges are granted in recognition of the fact that the journalistic function is essential to the functioning of democracy.
As matters stand, however, this recognition extends, for the most part, only to people who work as journalists for established media organisations.
. . . what matters in deciding the question of legitimacy is how we define ‘journalism’, because the term itself conveys key implicit promises to the public. The public will be the victim of deception if merely like-seeming activities are allowed to masquerade as journalism. This is not just about semantics.
It is they who are able to obtain accreditation for access to the press galleries of parliament, or the press benches of courts or media boxes at sporting venues. The basis for this recognition of the legitimacy of their journalistic function is that they belong to the staff of established media organisations.
However, as increasingly large numbers of people claim to be acting as journalists and publishing outside the established media organisations, often on their own Internet sites, this old basis for recognising legitimacy is no longer adequate. This confronts society and its institutions with having to reconsider the basis for recognising journalistic legitimacy. How might this be done?
Let us start with first principles.
To begin with, legitimacy of function in a democratic society rests partly on rights or necessity or some combination of the two: what rights does the function contribute to fulfilling? What necessities does the function meet?
Journalism gives practical effect to the right of free speech, and to meeting the necessity of the public for information in order to participate in political, economic and social life, without which a capitalist democracy cannot function.
The next question is, who should be recognised by a democratic society as entitled to have their practising of journalism considered legitimate?
The standard procedure in a society like ours is the establishment of some system of registration based on formal qualifications and membership of a recognised professional body. This is usually accompanied by some formal system of accountability, which may include the power to discipline someone or place them under professional supervision.
Here we run into a well-recognised conundrum: if part of the legitimacy of journalism is that it gives practical effect to the right of free speech, how can someone be made subject to a system of registration without abrogating that very right?
We have reached a dead end.
I propose that a way out of this dead end is to set aside the question of who is a journalist and concentrate instead on the question, what is journalism?
As Tom Rosenstiel wrote in 2004: ‘Anyone can be a journalist . . . The question is whether their work constitutes journalism.’
In other words, what matters in deciding the question of legitimacy is how we define ‘journalism’, because the term itself conveys key implicit promises to the public.
The public will be the victim of deception if merely like-seeming activities are allowed to masquerade as journalism. This is not just about semantics. An early entrant into the ranks of Australia’s first bloggers was the writer and commentator Tim Dunlop, who understood the distinction perfectly. In an early post on his website, Dunlop wrote:
Let’s just say the idea here is to pick apart the issues of the day in the way that normal human beings talk about such things. This is less about journalism than it is about citizenship, the idea that all of us have a say in how the country is run and that participation is a good thing in its own right.
To engage in journalism, by contrast, is to become party to an implicit contractual relationship with the community. This relationship is built upon expectations arising from longstanding standards about factual and contextual reliability, impartiality, and separation of factual information from comment or opinion, among other things.
If these standards are breached, the community is robbed of something essential to the healthy functioning of democracy: a bedrock of trustworthy information needed for people to make informed choices as voters, consumers and participants in social life.
And this is only the half of it — think of it as the ‘audience’ half. The remainder is what could be thought of as the ‘subject’ half — how journalism practitioners treat people in gathering information, how they portray them, how they use the information given to them.
If someone presents themselves as a person seeking information for the purposes of journalism, they are making some implicit promises to their subjects. These are promises about truth-telling, portraying them fairly, treating them decently, being respectful of them as human beings, and keeping their secrets.
There is also an implicit promise to use the access gained for the purposes of journalism, and not for anything else. Delivering on these promises, both to audiences and subjects, is a further element in journalism’s legitimacy.
In summary, then, journalism’s legitimacy rests on the indispensability of its function and on the keeping of implicit contracts with its subjects and its public.
This idea of a contract has no practical meaning, however, in the absence of any requirement for accountability.
If legitimacy brings privileges, it also brings accountability. Already in Australia it is becoming apparent from the way some legal privileges for journalism are being framed, that entitlement to privileges is conditional on the practitioner’s signing up to a recognised code of ethics backed by some mechanism of public accountability.
A recent example can be found in the so-called ‘shield’ laws that provide some protection for the confidentiality of journalism’s sources. This gives us a convenient case study.
The shield laws are contained in amendments to the Evidence Acts of the Commonwealth, the ACT and three of the States: New South Wales, Victoria and Western Australia. They contain what the legislation calls a privilege against non-disclosure but which is, in effect, a discretion of the court with a presumption against disclosure, depending on a rather complex set of public-interest tests. For simplicity, I will call it a privilege here.
The shield laws of the Commonwealth and the ACT extend this privilege to anyone engaged in the dissemination of news and information to the public. Exactly who can claim the privilege has not been tested in court yet, but the terms of the legislation suggest that it will include bloggers and other online providers of news and information, however large or small. If this turns out to be true, then it is journalism that is given the right to claim the privilege, not journalists necessarily.
The State laws, by contrast, extend the privilege only to employees of media organisations that are signed up to accountability institutions such as the Australian Press Council. Thus, the State laws create a nexus between privilege and accountability.
However, Australia’s media accountability institutional arrangements have not caught up with this. The Australian Press Council is a self-regulatory agency of accountability for newspaper publishers. The Australian Communications and Media Authority (ACMA) is a statutory agency of accountability for radio and television licence-holders. Neither the Press Council nor ACMA is an agency of accountability for individuals practising journalism.
It follows that if all those who practise journalism, regardless of their employment status, are to be able to claim the privileges that flow from the legitimacy of journalism (such as the shield laws), a mechanism of public accountability needs to be created to which all can sign up, thus providing a basis for their being able to claim the privileges.
My argument, then, is that there is a way out of the dead end created by the question, who is a journalist?
The way out is via recognition of the legitimacy of journalism, regardless of who performs it. This recognition of legitimacy opens up the possibility of access to the privileges needed to perform the function effectively, conditional upon a practitioner’s willingness to sign up to a public mechanism of accountability. Such an arrangement would give practical expression to the implicit contract that journalism has made with the society it serves.
The first step in making accountability work is to create an ethical framework that provides a set of professional norms. Such norms are essential to credible and defensible professional decision-making; otherwise, we have a situation where what is ethical is what any one practitioner thinks is the right thing to do at the time. This kind of relativism helps no-one. Professional norms provide a standard, independent of the individual, that can guide an individual’s professional ethical decisions, and against which they can be held to account.
As matters stand, however, there is no agreed ethical framework or set of norms. The Press Council has a Statement of General Principles, a Statement of Privacy Principles and some guidance notes. The ACMA standards are contained in the codes of practice for radio and television produced by those industries and ratified by the ACMA.
Self-regulation is what we have at the moment, but the current structures offer nothing for individuals practising journalism. This gap has resulted in limitations on the institutional and legal recognition of the legitimacy of journalism practitioners outside the main media organisations.
The Media Entertainment and Arts Alliance’s code of ethics is Australia’s only national code for journalism, but the Alliance has no effective accountability mechanism to go with it. For many decades it has had ethics panels to which complaints can be made, but for structural, legal and resourcing reasons, they have been largely ineffectual.
The Alliance offers what it calls a Freelance Pro service which includes professional indemnity and public liability insurance, contract advice, a media access card, and accredited training in its code of ethics and media law, all of which entitles a person to place a ‘Freelance Pro’ trustmark on their website. However, there is no recognition of this in the shield laws.
Something new is needed in the form of an independent public accountability mechanism open to all who engage in journalism. What form might it take?
Here again we begin with a first principle. In a democracy, those who practise journalism owe their first accountability to the public, not to government. It follows that statutory regulation is unacceptable as a matter of principle, since this would place control of the accountability process in government hands.
Instead of statutory regulation, we have two options: self-regulation, where accountability is left to the profession and industry themselves to arrange, and statute-based self-regulation, where government establishes the minimum requirements but implementation is left to the profession and the industry.
Self-regulation is what we have at the moment, but the current structures offer nothing for individuals practising journalism. This gap has resulted in limitations on the institutional and legal recognition of the legitimacy of journalism practitioners outside the main media organisations. This means we, as a society, are not taking full advantage of the opportunity to strengthen the diversity of voices in our very concentrated media landscape, and at the same time to enlarge the possibilities for free speech.
The germ of a solution to this problem was to be found in the report of the Convergence Review in 2012: a single unified accountability mechanism for all engaged in journalism — print, electronic and online — grounded in statute but organised, financed and administered by the profession and the media industry, and controlled by a combination of professional, industry and public members, with the public members in the majority.
Something new is needed in the form of an independent public accountability mechanism open to all who engage in journalism. What form might it take?
It was one of the many misfortunes of the previous Federal Government that the reports of the Convergence Review and of the Finkelstein Inquiry became casualties of that Government’s leadership distractions. Those reports took us some way along the path of reform indicated here.
The significance of this lost opportunity is magnified by the fact that the digital revolution has confronted practitioners of journalism with a range of new ethical complexities, as well as new variants on some old ones. In particular, they affect the values of fairness, truth-telling, respect, responsibility and independence, all of which are central to any journalistic code of ethics.
On fairness: the technology of linking reports and sources online presents a new dimension to the test for impartiality: it may be considered a failure of impartiality if links are offered only to sites which contain material that suits the predispositions of the author or publisher.
On truth-telling: digital technology provides the means of rapidly correcting errors, but that does not excuse recklessness of the kind that has become commonplace as the pressure to be first trumps the responsibiloty to be right. As we have observed in recent weeks with the false story of 800 babies buried in a septic tank by nuns in Ireland, sheer fabrications hurtle around the world in a self-accelerating rush until even established media organisations become swept up in them.
On respect: one of the greatest of the new challenges concerns privacy and the use of social network content as source material for news stories. A primary issue is the question of consent on the part of the person who put the content up. I have heard it stated unequivocally in senior levels of editorial management at a major daily newspaper that this material is public and therefore is open to be used for any news purpose without the consent of the owner.
However, this conflicts with a fundamental privacy principle, enshrined in Australia’s privacy laws, that material provided for one purpose will not be used for another purpose without the consent of the provider. The ABC recognises this, and has developed some excellent guidelines for making judgments about it, taking consent, among other things, into account.
On responsibility: in the world of global sourcing and global reach made possible by digital technology, making assessments of possible harm arising from publication is infinitely more complex. The paradigm case is Wikileaks. The editors of The Guardian and New York Times have told us how they agonised over this and in the end had to make an educated guess.
On independence: in a cash-strapped environment even some established media companies are compromising on editorial independence, introducing deals such as “branded content” in which editorial content is sponsored in ways that are not always transparent to the audience. Resisting these pressures is a particular challenge for online start-ups.
In this turbulent operating environment, the absence of a single unified set of standards, a means for educating practitioners in them and an inclusive accountability mechanism which all practitioners have the opportunity to join, means that individual practitioners, especially those working alone in the online space, are left to their own devices to work through these and other legal and ethical dilemmas.
Not only does this make their job harder, but it derogates from the legitimacy of journalism, and perpetuates the current injustice in which the privileges offered by the law are available to some practitioners and not to others, dependent largely on their workforce status.
The time for reform has arrived.
*Adapted from Journalism Ethics for the Digital Age, by Denis Muller, published by Scribe Publications (2014).