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Legal and Ethical Issues for News Librarians |
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By Timothy Coggins, Director of the Law Library at the
University of Alabama. Information Access in the Electronic World In The Electronic Media and the Transformation of Law, M. Ethan Katsh discusses the changes in access to information for attorneys and the public.22 His perceptions and analysis can be transferred easily to the news media. Katsh asserts that traditional notions of what the rule of law is, which cases and concepts are the most important and controlling ones, and other historical notions of the law are changing due to access to information in electronic format. No longer are judges, attorneys, citizens, librarians and others merely relying on the information in the print format; they use information in all formats. The implications are that all types of information must be considered; it is no longer necessary, or possible, to rely exclusively on the printed word, such as the printed reports of cases.23 The obligations and rights of the media and private citizens are clouded by the electronic information dissemination. Electronic formatted information is more difficult to control, and it is disseminated more widely to more people and potentially to persons who might want the information for less-than-admirable reasons. Use of the computer to access various files can make finding information for journalists easier because it provides many access points. For example, it is relatively easy for reporters and other journalists to search online versions of standard publications such as the Marquis Who's Who titles and request results arranged in many ways, such as all individuals with certain common characteristics. One recent example was an analysis of a file that established which individuals were members of an all white country club. Other illustrations might be for the electronic resource to provide the names of all who are attorneys or journalists. Electronic access makes the manipulation of data easier, but it also carries an obligation to use the services effectively and ethically. Privacy law, long considered an important part of American society, is an area that can be changed drastically because of access to information in electronic formats. Katsh argues that "large parts of privacy law punish the communication of information in print or on television but impose no restriction when the same information is transmitted" in other ways, such as orally and via electronic communications.24 Privacy law then becomes dependent somewhat on the publication of the information in the newspaper or magazine, and a violation is more difficult to prove when information is transferred electronically where it can be used and manipulated, but then deleted or removed. In a recent Taking Sides issue paper, "Can Privacy Be Protected in the Information Age?" the authors argue that the information age has created substantial problems for Americans. The selling of individuals' names, addresses, phone numbers and other data to companies who wish to market their products or to target a specific group is commonplace.25 The conclusion is that American society must create sophisticated encoding devices that restrict unauthorized individuals from misusing the information that has been stored to ensure privacy rights.26 The authors outline some difficult political and ethical questions raised by computerized databanks, including the almost-impossible task of controlling the flow of personal information that they contain and the persons who have access to the information.27 The other side of the issue, however, is that some information should be available to journalists and media personnel. "Unlike some early predictions in the news trade literature, journalists do not have unlimited access to electronic technologies," conclude the authors of a study concerning the use of computers and electronic information resources by news organizations.28 They report that the newspapers in their study allow journalists access to their own newspaper's electronic library, but most do not provide journalists with unlimited access to commercial information systems. Thus the news librarians become the crucial players in this environment. They must play the role of gatekeeper or mediator when it comes to access to electronic database information.29 The librarians' roles in the dissemination of information entails not only an information-distribution role, but also an ethical role in determining whether the journalist is a permitted user of the system, whether the information in the system should be provided to outsiders, and whether the data is "dirty" or ready for interpretation and use.30 Relationship of Legal and Ethical Issues News librarians face both legal and ethical issues daily. On the one hand, they must operate within an environment of the newspaper or other news agency where a commitment to the First Amendment is vibrant and strong and where there is a strong sense that information must be made available to the public. Most librarians strongly feel this same commitment to the First Amendment. But, on the other hand, they must be knowledgeable about certain issues, such as libel, copyright and confidentiality, to be an effective members of the news agency. Their obligations go beyond the legal and into the moral arena. The question becomes what is the ethically correct behavior as well as what is the expected behavior? A later section outlines more information about the ethical issues facing news librarians. An illustration of this dilemma is the obligation to assist with the correction of mistakes and wrongly reported information. Homer E. Martin, Jr., in his chapter of Guidelines for Newspaper Libraries, entitled "Libel & Corrections," details the relationship between the two issues. He notes that "the library must make certain that anyone referring to this erroneous material in the files*clippings, photos, cuts, negatives, microfilm or bound volumes*be made aware of its defective character."31 He outlines three guidelines for the news librarian to consider: (1) the nature and importance of the error; (2) whether a published correction was made; and (3) relevance to the file. Martin also outlines suggestions for the news librarian to follow when attempting to deal with these three guidelines. Clearly, the news library may not be charged legally with correcting its file, but ethical considerations require that the librarian go further. He or she must try to prevent any inaccurate information from being disseminated so that the next journalist who uses the file will not be misled.32 News Libraries Collections Privacy Protection The privacy of work products of news operations' employees is specifically mentioned in chapter 21A of Title 42 of the United States Code.33 Although this chapter has never been applied to a fact situation involving a news librarian and although it is directly related to criminal investigations, there is no reason that it could not protect the librarian's research work and the files that the librarian maintains in the library. The chapter states that "it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication."34 The chapter does, however, have many exceptions, and news librarians should make certain that they are knowledgeable about the protections and exceptions. News librarians should review this U.S. Code chapter and also should make certain that they are aware of applicable state laws. It also seems incumbent upon news librarians to forward information about these issues to the editors and journalists within their organizations. Reporters and journalists in other countries face the same and even more intrusions into their professional work. For example, the media in Great Britain faced a very difficult situation several years ago when the London police wanted newspapers and broadcasters to hand over all published and unpublished photographs and film materials after a poll tax riot.35 The media refused to comply until a court compelled compliance through a court order. Editors and journalists argued that they had two fears regarding access to their information. First, reporters and photographers should not be viewed in any way as police informers and agents. Compelling the media to turn over material that they observe or record compromises their position, and they cannot fulfill their responsibilities to the public. The second fear deals primarily with the purpose of journalism: it is the duty of journalist to observe events impartially and to record them for public information. If their files are available to the police, their job cannot be done. "Untrammelled access to newspaper libraries and photographers' negatives would soon see the whale of prosecution swallowing the Jonah of honest reporting."36 Government access to reporters and their files also raises the issue of confidentiality of information sources. Sources of information expect confidentiality, and news employees have gone to prison to preserve this right to confidentiality. When sources speak to a journalist, they assume that they are not speaking to a policeperson, but rather that their names will be withheld and protected if possible. This assumption is becoming more difficult to protect. The legal environment in the United States has grown hostile toward the press and press rights. The U.S. Supreme Court has indicated that it will not protect the reporters' privilege, the "legal doctrine that First Amendment lawyers have relied upon for twenty years to protect journalists from being forced to disclose sources."37 Editors of responsible news organizations, according to another author, have grown increasingly wary in recent years about the use of secret sources. They cite several overriding considerations. Editors are concerned that the source of the information might be using the news organization. There also is the possibility that the news organization might lose some credibility if readers and viewers are not given specific sources of important information. Finally, the concern over libel law actions is always present. This is especially evident when judges might refuse to consider as proof of the accuracy of disputed stories facts that are based on sources the media refuse to identify.38 Access to Collections and Policies of Parent Entities Nearly all news libraries have similar policies regarding who are authorized users and what are authorized purposes of the library. The policies typically restrict the use of the library to persons employed by the news operation, except when the user is admitted based on an exception by the librarian and/or a supervisor of the librarian. There does appear, however, to be some interest in making the information collected by news libraries more accessible (at a price) to others. Several news libraries are already selling information to companies, attorneys, government agencies and other buyers. This issue is reviewed in the section on ethical standards for librarians. News librarians must be very involved in policy decisions regarding the use of the library and should have some authority to grant exceptions to the stated policy. Quite often, however, access to the library is merely a part of a more comprehensive policy of the parent entity. Admissibility of Library Materials Courts follow very specific rules regarding what can be presented in the courtroom as evidence and what can be obtained by the parties in a court action through the official discovery procedures. One early rule, "best evidence," which first appeared in 1700,39 states that a person must present the best evidence available; second best simply will not do.40 The rule continues to be debated today. Some commentators believe that the only requirement of the best evidence rule today is the production of the original writing.41 The "original document rule" can be defined easily and precisely. To prove the "terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent."42 Thus it is obvious that the "original writing" is the document that the courts want presented as evidence. There are, however, some questions regarding how broadly the term "writing" can be interpreted and how other types of materials, such as videocassettes, and photographs, fit into this rule. How do these evidentiary rules affect access to materials housed in a news organization library? Several decisions have looked at the issue of materials in the possession of the news organization and in the library, but the rulings of the courts have not been consistent. In 1991 the Supreme Court of Florida was faced with the following issue: Does a television journalist have a qualified privilege in a criminal proceeding to refuse to produce nontelevised videotapes depicting the defendant in the custody of the police, when the defendant requests the tapes in order to assist in the preparation of his defense?43 The court reviewed the facts of the case to determine if CBS should be compelled to turn over the tape. The court decided that the issue did not implicate the First Amendment as it focused on the trouble and expense of furnishing the video outtakes. "Neither CBS nor anyone else should be required to furnish photographs, videotapes, or similar tangible property acquired in the course of its business to a party with whom it is not in litigation without being reimbursed for reasonable expenses incurred in making such property available."44 The defendant in this case agreed in his subpoena to reimburse expenses; therefore, the court concluded that CBS had no reason to complain. The court acknowledged that it might be inconvenient for the station to produce the video outtakes but said that no First Amendment right was violated in requiring CBS to furnish the tapes. Two judges concurred with the decision of the court, but they focused on other issues. One judge looked at the qualified privilege of journalists. "When a party claims a work product privilege for tangible evidence . . . it is necessary that the party seeking the information show that the material is relevant and that there is no other way to obtain the information."45 No person's business activity should be interrupted or work product disclosed until such necessity is shown. A second judge dissented in part based on the following: "First amendment interests are implicated when members of the press act in their professional capacity on a news gathering mission, and a qualified privilege must be found or rejected only after balancing all of the interests."46 Libel Law and Its Relationship to News Libraries Definition Libel law is an issue that should concern everyone who works with a news organization, including the news librarian and the staff of the news library. Although librarians may not be involved directly, they need to be aware of the potential uses of the materials in their files should the news agency become involved in the defense of a libel action. Bruce W. Sanford in his excellent treatise, Libel and Privacy, defines libel as "a false statement of fact printed or broadcast about a person which tends to injure that person's reputation."47 He uses the term to cover both libel and slander because of the confusion over defamation on television, where some states determine whether a statement is libelous or slanderous according to whether the speaker is reading from a prepared text or talking extemporaneously.48 The key test in libel law is "whether the statement injures the subject's reputation by lowering the esteem, respect, goodwill or confidence in which he is viewed or whether it produces adverse, derogatory or unpleasant feelings or opinions about him."49 It is important that news operations not be hampered by the threat and concern over libel and slander. The press and everyone connected with the dissemination of news and information must be aware of the responsibility to the public to provide unrestricted access to the spoken and printed word. The effects of libel suits can be devastating.50 Sanford also discusses the ways that reporters and other news personnel should protect their notes, memos and files. He provides some direction regarding mistakes: "Memos on mistakes or potential litigation should obviously be drafted with particular care and should consist only of factual recitations devoid of commentary or opinion. Any personal assessments should be prepared only as a letter to counsel (with a copy to any editors or managers who need to be aware) so that they can be subject to the attorney client privilege."51 News librarians can follow the latest developments in libel law through many sources. A good source that outlines many well publicized libel cases is Rodney Smolla's Suing the Press.52 Smolla details the events surrounding famous cases involving personalities such as Lillian Hellman, Carol Burnett, Henry Kissinger and Jackie Onassis. U.S. Supreme Court latest developments can be followed through the Bureau of National Affairs' U.S. Law Week, which provides weekly updates.53 The Practising Law Institute publishes Libel Litigation annually as a portion of its Patents, Copyrights, Trademarks and Literary Property course handbook series. Law review articles are helpful to editors and journalists who are faced with libel and who might need some interpretation and explanatory information about this issue. The news librarian can find articles for news employees through the periodical indexes listed in the next section of this chapter.54 How does the libel issue affect news librarians? As previously stated, they must know the definition of libel law and should therefore be aware of what is filed in the library. News librarians should consider whether to file only published materials from the newspaper and/or reports that are broadcast through the news reporting and/or wire services, or whether they should file reporters' notes, reports, memoranda, and so on. Sanford warns against the filing and maintaining of anything that gives personal impressions and would only collect material that deals strictly with the facts. News librarians should also know where to find the latest developments in libel law. They should monitor this topic for their editors and journalists and forward relevant information. |