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Part I
The digital journalist
Making news
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1
Law Defining Journalists
Whoâs who in the age of digital media?
Jane Johnston and Anne Wallace
Like journalism, the law is a profession built around language. This chapter focuses on one critical example of how legal institutions and lawmakers globally are grappling with language as they quite literally redefine the terms âjournalistâ, âjournalismâ and ânews mediaâ. Where, not so long ago, journalists, and undoubtedly members of the public, could confidently assert âwe all know what a journalist is, and itâs silliness to argue about itâ (cited in Ugland and Henderson, 2007: 242), few journalists would argue this today. Certainly, the legal profession has moved beyond any simple understanding. Instead, as the New Zealand Law Commission (NZLC) has pointed out, law and policymakers (including judges, politicians, and public administrators) are being challenged to adequately and fairly summarize journalism and news media positioned within a âdigital ecosystem [in which] there is a growing symbiosis between new and old mediaâ (Law Commission, 2013: 54). As it explains (2013: 29):
In the pre-digital era identifying the target of media regulation and determining the boundaries of intervention were relatively straightforward matters. However, determining what to regulate and how to calibrate, target, and enforce that regulation has now become far more complex as bright line distinctions ⊠become increasingly blurred.
Within its remit, the NZLC was tasked with determining how to define ânews mediaâ for the purposes of the law. Other countries, including Australia, Canada, the United States, and Britain, have also been compelled to face the questions of who and what should be afforded privilege and responsibilities once provided to the more predictable institutions in newspaper, radio, television, and other âmainstreamâ news media and their employees. The complexity of determining clearly worded definitions and the rifts that have resulted are highlighted in the debate that surrounded the Free Flow of Information Act (2013) in the United States, which sought to ensure journalismâs claim to a free flow of information within federal law. This debate provides an example of the deep division surrounding the definition and its impact on the legal process. Central to the division is whether bloggers and new media users â as one scholar writes, âbloggers, dilettantes, and do-it-yourselfersâ (Ugland and Henderson, 2007: 241) â should be part of the definition; whether âA-listâ (Singer, 2007: 80) bloggers might be included; or, whether definitions should be limited to those who are in employed or paid work within a recognized media organization, have completed media training, and adhere to a professional code of ethics.
This chapter will examine the key arguments raised in relation to this vexed issue, drawing from legal and media scholarship as well as legal practice, political and policy environments, and case law. It will provide examples of new definitions and, importantly, the contexts in which they have been framed. For journalism practice, the issues and challenges faced by lawmakers and, ultimately, the definitions that emerge from their determinations will provide important sign-posting and some clarity for the future direction of the news media and its workers as definitions are adopted and enshrined in law and policy.
Approaches to deciding âWho is a journalist?â
The questions of âWho is a journalist?â and âWhat is the news media?â have been closely examined from a variety of perspectives by media and legal scholars who have sought to better understand how changing practices and media ecosystems translate into new definitions and clearer understanding (see, for example, Alonzo, 2005; Gleason, 2015; Johnson and Kaye, 2004; Johnston and Graham, 2013; Johnston and Wallace, 2017; Reese et al., 2007; Shennan, 2011; Singer, 2007; Ugland and Henderson, 2007; West, 2014). Many of these arguments will be examined in other chapters in this book, so we will focus our attention on the development of legal contexts and frameworks. Shennan (2011) has criticized a so-called divide in scholarship between the sociology of journalism on the one hand and the law on the other; a âdis-unitedâ approach that arguably has undermined a deeper understanding of the changing shape of journalism and the media. We see the inclusion of this chapter in a journalism collection as evidence of a more united approach, incorporating a diverse range of perspectives and literature.
Peters and Tandoc (2013: 39) identify the following indicators in determining who is and is not a journalist: medium, activities, output, employment, social roles, and intent. Ultimately, their analysis of journalism gives rise to the following definition:
A journalist is someone employed to regularly engage in gathering, processing, and disseminating (activities) news and information (output) to serve the public interest (social role).
(Peters and Tandoc, 2013: 61)
We agree that such a definition provides a strong conceptual base; however, it also presents significant inherent problems by incorporating elements that are themselves in need of definition â notably ânewsâ and âthe public interestâ. So, while the definition adds to the discursive examination of who is a journalist and what is media, it also raises questions and may be of limited application in practice. Alternately, the NZLCâs analysis provides a more pragmatic response to the question, proposing the following criteria for defining news media:
- a significant element of their publishing activities involves the generation and/or aggregation of news, information, and opinion of current value;
- they disseminate this information to a public audience;
- publication is regular and not occasional; and
- the publisher must be accountable to a code of ethics and to the NMSA.1
(2013: 16)
In calling for a uniform approach to all New Zealand statutes that provide privileges or exemptions relating to the news media, they note that most of the existing legislation of this type was drafted in the pre-digital era, when the inclusion of such definitions was not considered necessary (2013: 34). This observation speaks to the essence of why legal definitions have emerged as necessary in the past few decades and why they deserve close consideration. While journalism and the news media have, by necessity and due to their daily practice, become both highly informed and articulate about the changed media landscape, changes to legal statutes and policy and the language needed to drive this have followed more slowly, in part because it is not central to the day-to-day practice of the law. As a result, attention to definitions has only recently gained a foothold in legal literature, policy, and legislative development as an issue for policy-makers, regulators, and courts.
Historically, as Shennan notes, the rise of mass communication resulted in âa concept of journalism, however definedâ that was to claim distinction from other forms of communication (2011: 134). However, in time, â[t]he gradual accumulation of legal rights attaching to journalists [âŠ] left unanswered the question of who can call himself or herself a journalistâ (Shennan, 2011: 135). And, as the necessity to answer that question became more pressing, with digital media channels increasingly enabling most anyone to publish online, lawmakers have been forced to consider more closely who and what practices should be protected and privileged. As Shennan further observed (2011: 134), the evolving definition of journalist in Europe is therefore a recent trend, emerging in cases where legal protection has been in question. We now move to some of the specific legal domains in which this has occurred, both in Europe and elsewhere.
Legal domains and definitions
As we have previously noted (Johnston and Wallace, 2017), there are two principal ways in which journalists, however defined, come into contact with the legal process. The first of these occurs when a journalist is part of the process, most commonly as a defendant or other actor in a legal case â for example, seeking shield law protection for confidential sources; the second type of contact occurs when a journalist is observing or reporting on the process, performing a court-reporting role. This chapter builds on these two intersections, expanding earlier work to consider other contexts in the first category, where the law is considering how to define journalists in cases of national security and privacy laws. We find that the question of defining journalism â and its inherent challenges â has become a major focus for politicians, law and policymakers, judges, and legal commentators in many countries. We examine examples, drawn from several countries, that are intended to provide contextualized understanding of the issue. These are in no way intended to suggest uniform debate or legislative change; rather, they are to provide insights into the complex and varied discussion and debate that surround the issue of defining journalist and news media.
Journalists as participant
Shield laws
In the United States, where shield laws (or similar protections) exist in 49 states (Johnston and Wallace, 2017), it has been said that they provide âalmost absolute protection from prosecution for contempt in situations where an individual refuses to disclose their confidential sources, documents or other information that could identify those sourcesâ (Shennan, 2011: 133). In fact, the degree of protection varies; some states confer an absolute privilege, in some it is qualified, and other shield laws contain exceptions that remove the shield in certain circumstances (Reporters Committee for Freedom of the Press, n.d.). Other countries â New Zealand, Britain, and some Australian jurisdictions â also have shield protections. Our particular interest in shield laws rests with the intersection these laws bring to definitions, and the way changing media practices have impacted within this space.
The debate around the U.S. Free Flow of Information Act (2013) is instructive for the breadth of analysis on this issue. First proposed in 2009 as a federal shield law to provide journalists with a right to refuse to testify in criminal proceedings about confidential sources (Peters and Tandoc, 2013), the bill was negotiated between a coalition of 60 media organizations and the U.S. federal government. In its original form, it defined a journalist as someone entitled to invoke legal protection, with:
âprimary intent to investigate events and procure materialâ, to inform the public by âregularlyâ gathering information through interviews and observations, and then disseminating that information to the public. In addition, the person must intend to disseminate the information at the start of the newsgathering process.
(Peters and Tandoc, 2013: 37)
However, the legislation stalled at the definitional stage (Johnston and Wallace, 2017; Durity, 2006; Greene, 2013). On one hand, the draft form of the legislation was said to grant a special privilege to people who were not âreal reportersâ and had no professional qualifications; on the other hand, it was argued that a more inclusive definition was needed to encompass new media workers, people âwho do real journalism in different waysâ (Peters and Tandoc, 2013: 38). A compromise was sought, with an amendment defining a journalist as a person employed by, or in contract with, a news organization for a designated period of time; who had substantially contributed to a publication as an author, editor, photographer, or producer; or was a journalism student (Free Flow of Information Act, 2013). However, this has yet to be enacted. Thus, the question of definition was a fundamental component of the lengthy discussion and debate and ultimately became a stumbling block for the legislation itself; a conceptual issue that called for a pragmatic determination was not resolved.
Canada, possibly the most recent country to move to implement shield laws and journalistic definitions, did not have the same difficult in determining a definition. Bill 231, the Journalist Sources Protection Act, was introduced to Federal Parliament in late 2016 in the wake of revelations that the Montreal police and the Sûreté du Québec had been conducting surveillance operations on various journalists and media organizations (Bellavance, 2017). The Canadian Senate adopted the amendment in April 2017 prior to the bill going to the House of Commons, where it was passed in October 2017.
During the consultation process the news media strongly supported the proposed changes, arguing that they were long overdue, listing those countries with shield laws in place, including the United States at state level.
This privilege is [âŠ] explicitly recognized by specific laws in Australia, Argentina, Germany, Belgium, El Salvador, France, Great Britain, Mexico, Norway, New Zealand, Sweden, and Switzerland, to name but a few. Privilege even exists in the legislation of countries known to have a more tense relationship with the media, such as Russia.
(Cooke in Bellavance, 2017: 5)
A report tabled to the Senate Committee by the Canadian Media Coalition went to great lengths to examine the definition of journalist for the purposes of this protection, opting for a broad definition in the following terms, which was adopted by the drafters of the legislation:
journalist means a person who, in connection with his or her primary paid occupation, contributes or contributed directly and regularly or occasionally, to the collection, writing or production of information, editorials or columns for dissemination to the public by the media, or anyone who assists such a person.
(2017: 7)
The coalition rejected the idea that a broad definition of journalist could be used to shelter from prosecution people who used social media or websites occasionally, noting t...
