Our First Responsibility is Still to Rights Press Freedom in the post-9/11 World

“Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”

– Thomas Jefferson, Letter to Colonel Edward Carrington, 1787

 

I.

The world faces a dilemma. In the decade since the InterAction Council first presented its draft for a Universal Declaration of Human Responsibilities the need for responsible human behavior has only become more pressing. Global problems from terrorism to climate change to food shortages have grown in number and scope while an ever-more heterogeneous web of state and non-state actors is required to cooperate in order to tackle those problems.

But if the case for human responsibility has strengthened, the case for a charter stating specific responsibilities has dramatically weakened. Since 1997, and particularly since the Sept. 11 terrorist attacks in 2001, a number of rights enshrined in the UN’s 1948 Universal Declaration of Human Rights have been eroded in some of the world’s most mature democracies. In the name of national security, people have been subject to torture and detention without charge. Journalists have come under increasing pressure to testify, disclose their sources and share information with the authorities, jeopardizing their future access to sources and in some case their security.

In this context, drawing up a second document is doubly unhelpful. It would distract from the task of reversing the slippage on human rights. And it would provide potential cover to governments seeking to further curtail those rights.

One area where this risk is acute is the media. Article 14 of the Council’s proposed declaration, demanding “responsibility and discretion” from journalists, could all too easily be evoked by governments as a means to justify censorship.

This paper is going to argue that media organizations should adhere to ethical standards but that those standards should be up to them to define. The best way governments can help to foster journalistic responsibility is by legislating to protect the secrecy of sources – and by refraining from manipulating journalists themselves.

II.

Western societies pride themselves on protecting the freedom of expression and the right to publish. But they are much less categorical when it comes to protecting the reporting process. The number of journalists asked to reveal their sources, testify in courts or yield reporting material to investigators – all in the name of responsibility and civic duty – is on the rise in western countries, particularly since the Sept. 11 attacks.

In America, the Supreme Court opened the way a quarter century ago when it ruled in the 1972 Branzburg case that the First Amendment of the constitution did not protect journalists when they are summoned before a Grand Jury.

This ruling has been used several times against journalists refusing to reveal their sources. One of the more prominent cases began in 2005 when the wife of a former diplomat and Bush administration critic, Valerie Plame, was outed as a CIA spy. Almost a dozen journalists were forced to testify in the subsequent trial of White House aide Lewis “Scooter” Libby, most of them against their will. New York Times reporter Judith Miller, who refused to talk, spent 85 days in jail until Libby relieved her of confidentiality.

In Europe, the phenomenon is more recent. In 2002, in perhaps the first such case on the Continent, two Belgian journalists had to pay a fine for not revealing their sources. In Germany, in March 2003, the constitutional court ruled that in “grave cases” investigating judges could authorize the police to access telephone conversations of journalists. In France, parliament is currently debating a law that would limit the right of silence of journalists in cases that are of “imperative interest.” The right to protect sources, the draft law states, can be overruled in “exceptional” circumstances, “when the nature and particular gravity of a crime” as well as “the needs of the investigations justify it.”

By including such dangerously vague language in legislation supposedly safeguarding the right of journalists to protect their sources, governments leave themselves the option to evoke exceptional circumstances in any number of situations.

Journalists are also particularly vulnerable to tougher anti-terror legislation, which in several countries has broadened the scope of wiretapping and eased the access to confidential telephone and email communication.

Under European Union law, for example, Internet and telephone service providers are obliged to save data for between six and 24 months. Investigators can access that information with a court order.

In Britain, 52 police forces and a dozen government agencies, including the security services and the Home Office, can intercept phone and email traffic without the authorization of a judge. In 2006, the latest figures available, ministers handed out warrants for such intercepts at the rate of about 160 a month, the Financial Times reported. There is no information on how many intercept requests were turned down.

In Australia, the authorities have gone even further: anyone with information deemed to be of any value in a terrorist investigation can be detained without charge on rolling seven-day periods for not testifying. Journalists can easily fall into that category.

III.

Governments argue that if a piece of information held by a journalist can solve a crime or even save lives, it would be irresponsible to withhold that piece of information. It is hard to argue with that.

It is also getting harder to defend journalists at a time when many of them do act irresponsibly. Even respected media outlets have suffered embarrassing lapses these past years. The reputation of the New York Times was tainted by the Jayson Blair affair, in which one of its reporters was caught plagiarizing and even inventing content in 2003. Newsweek had to apologize for an article claiming that the Koran was being flushed down a lavatory at Guantanamo Bay in 2005. And CNN compared the Place de la Republique in Paris to Tiananmen Square after a demonstration turned mildly violent two years ago.

Iraq was probably the greatest failure of America’s media establishment: most news organizations dutifully reported that there were weapons of mass destruction when in fact there were not, helping the Bush administration to make its case for war in 2003. The New York Times’ ombudsman later described the paper’s coverage of Iraq as “breathless stories built on unsubstantiated revelations that, in many instances, are the anonymity-cloaked assertions of people with vested interests.”

It is true that confidential sources always involve the danger of manipulation by people with an agenda. And the question whether journalists, as employees of commercially driven and increasingly competitive news organizations, are best-placed to make responsible  judgment calls about what sources to give a platform to and what angle to take on sensitive stories is a fair one. Many journalists are tempted by sensationalism, by what sells and by getting the story out before competitors, leaving them less time to cross-check information and get the information confirmed elsewhere.

Still, in the long-term the cost of allowing governments to force journalists to reveal their sources is greater than the cost of some journalists abusing their privilege to protect sources.

Legislation limiting that privilege potentially compromises the security of journalists investigating sensitive matters. It also compromises their access to sources – and therefore their ability to do their job.

The European Court of Human Rights has repeatedly warned that any watering-down of journalists’ right to protect their sources was a threat to democracy. “The secrecy of sources,” the court said in a 2003 ruling, “is the corner stone of press freedom.”

IV.

Governments share their part of the blame for “irresponsible” journalists. Many politicians enjoy getting cozy with the press and advertently or inadvertently  use those relationships to instrumentalize the media.

Many demand to read back on interviews and reserve the right to amend quotes. In France, where I currently report from, this is standard practice. When President Nicolas Sarkozy could not get himself to apologize in a newspaper interview for blowing up at a man who refused to shake his hands at the Paris farm fair, Sarkozy’s advisers later inserted an apology in the transcript. The newspaper, Le Parisien, went on to print it as if he had made the apology. Asked about this incident the day of publication, the interviewer just shrugged her shoulders. “At least they just edited the answers, under Mitterrand even the questions were rewritten…”

I had my own unsavory experience with this habit. In February 2007, I interviewed Jacques Chirac, Sarkozy’s predecessor, with my colleague Elaine Sciolino. We spoke about a host of issues including Iran’s nuclear program. With two tape recorders running before him on the table, Chirac said that an Iran that possessed one or two nuclear weapons would not pose much of a danger, adding that if Iran were ever to launch a nuclear weapon against a country like Israel, it would lead to the immediate destruction of Tehran.

As soon as the interview was over and the president gone, his spokesman, Jerome Bonnafont, told us that the comments on Iran had been off the record. We pointed out that the interview had been arranged to be on the record and that the president had been quite aware of being taped.

Bonnafont then proceeded to send us a doctored transcript of the interview, in which the quotation in question was replaced by a non-descript sentence that had never been uttered. Publishing our version, he said, would be “irresponsible.”

Of course we published our – the real – version anyway. That day, the Elysee invited French journalists to a briefing in which they alleged that the comments had been off the record and that “these Americans” did not respect the rules.

It was my most extreme experience of the arsenal democratic western governments are prepared to deploy against journalists to get what they want. But almost every week involves a small-scale struggle with some form of authority insisting on having a story covered a certain way.

In an economically difficult environment for the media, many journalists find it hard to do the ethical and responsible thing and resist such pressures.

V.

So how can a sense of responsibility be instilled in the journalist profession without compromising its independence?

The best – if imperfect – solution is that news organizations adhere to internal standards of ethics and responsibility. Drawing from my own experience as a writer for the International Herald Tribune and New York Times, those standards should include the following:

·      Never use anonymous pejoratives

·      When using anonymous sources, share the name with at least one editor and cross-check the information

·      Cover news as impartially as possible, “without fear or favor”

·      Always pay your way, never accept gifts

·      Correct errors when they occur

·      Do not pay sources for interviews

·      Always identify yourself as a reporter when reporting

·      Employ and ombudsman

Such standards should be drawn up internally and their application scrutinized by the ombudsman. Governments should not be part of this process. However, they can help by creating an environment in which responsibility is more likely to flourish:

·      Require news organizations to employ an ombudsman

·      Refrain from re-reading and amending quotations after interviews

·      Be clear prior to an interview about whether it is on or off the record

·      Legislate unambiguously to protect anonymous sources as well as any material that could lead to the identification of those sources

·      Make a special dispensation for journalists in anti-terror legislation to protect their communications with sources

VI.

There will always be irresponsible journalists. And responsible journalists will always be called irresponsible by those who feel targeted by their reporting.

One can always construct scenarios in which it would be absurd not to force journalists to reveal their sources: If the journalist has vital information about a dirty bomb attack that could kill thousands, of course he or she should pass that information to the police – and probably would.

But most such scenarios are mercifully artificial. They are constructed to support a dangerous argument – an argument that could just as easily be made in favor of torture.

            There is no easy or reliable disciplining mechanism that does not at the same time also compromise journalists’ independence. Internal standards are the best option there is – along with the hope that readers, listeners and spectators will reward independent and high-quality reporting in the long-term.

            This issue is not going to go away. Indeed, with amateur journalists springing up everywhere in the form of bloggers, video-bloggers and ordinary people filming with their mobile phones, questions of ethics and responsibility in the media are only getting trickier. Soon we may no longer be asking what privileges reporters should enjoy, but who exactly qualifies as a reporter.

Either way, I believe governments are not the best-placed to define standards of responsibility.  Our best shot at building an international consensus on ethics – in journalism and other spheres – is to renew our commitment to the Universal Declaration of Human Rights rather than blur the issue with a new document on responsibilities. The day those rights are truly safeguarded, we can turn our attention to responsibilities.