Operating on the assumption that reporters should be protected against revealing sources (and/or identity), should consideration of bloggers (and anyone else using non-traditional channels) as reporters turn on functional analysis? I’ve been struggling with this for a while, and it just seems so tough… Focusing on the delivery doesn’t seem to make any sense, but looking at a person’s objective in publishing information seems like it could get equally squishy. This is especially true considering that a person’s stated objective could be significantly affected by a pending lawsuit.
Some cases would be clear, but it’s tougher if bloggers include general personal entries with others that focus on matters of “public concern.” What about posts that start off as a personal message but somehow morphs into a discussion implicating public matters as people begin commenting on the original post? Should the whole group be protected? Just those members that had the objective of moving the discussion from a personal one to one implicating the public? What if it’s a personal blog about how a matter of public concern affected a blogger’s private life? I’m just not sure how workable this “line” would or could be.
An easier solution might be to focus on the reasonableness of the blogger’s fact checking. Put simply, if the bloggers states certain “facts” in an online posting, maybe the protection should kick in only if the blogger can show that they reasonably relied on some other source…. Actual proof might be difficult here, but I think that wouldn’t actually be that difficult. Still, in the case of a whistleblower or some other independent source, I’d be worried that the only way to validate the story would be to reveal the source—exactly what we are trying to avoid. This doesn’t seem like that big of a problem now because most such sources would probably seek larger more established media outlets to break the story, but that might change in the future.
What worries me a little more is the case of the anonymous author. They could be held to the same standard, but to prove the “reasonableness” of their reliance on sources for the stated facts; they would necessarily have to come forward. All this could be done under seal in a court to ensure that the blogger stayed “anonymous,” but that isn’t exactly the anonymity that most such bloggers are seeking. Also, for highly publicized cases, the likelihood of avoiding a leak seems slim.
As you stated, it doesn't make sense for the definition of a journalist to hinge on the medium they choose to express themselves in. It also seems that saying that journalists must rely on their craft for "financial gain or livelihood" (i.e. the Free Flow of Information Act of 2006) doesn't make any sense either. If the purpose of allowing reporter's privilege is to serve the public interest, then whether the person chooses to monetize their work isn't relevant to whether or not they merit protection.
Gregg Leslie (from the Hudson article) says that the definition of a journalist should revolve around what the person is doing, not the medium they are publishing in.
For example, we accept that people who report news on the radio, in print newspapers, and on TV all fall under the definition of "journalist". On the other hand, people who host reality TV shows or write novels aren't usually considered journalists and don't merit reporter's privilege. Why should bloggers be any different? If a blogger, in the process of gathering information to be disseminated over the internet, interviews sources who request confidentiality, that anonymity should be respected in a court of law.
I'm unclear on how your example of a personal entry that morphs into a community discussion involves reporter's privilege. Reporter's privilege is about protecting the identity of anonymous sources, and information that might have been obtained or created in interactions with such sources. If one of the commenters posts something substantive that is backed by an anonymous source, then perhaps the commenter should have reporter's privilege.
Sidenote: In the Free Flow of Information Act (2006), confidentiality is a formal arrangement that must be explictly requested for reporter's privilege to kick in. Should this be the norm?
Posted by: Sophia Tu | February 28, 2007 at 02:22 AM