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10 April 2008

Ethics and Law

Basic responsibility of a journalist is to practice ethical journalism

(The following article is taken from the U.S. Department of State publication, Handbook of Independent Journalism.)

Ethics and Law
By Deborah Potter

A free press has tremendous power, if power is defined as the capacity to influence others.  The news media in a democracy generally have the right to report information without prior government approval.  Many countries provide legal protections to journalists so they can exercise that right.  But with rights come responsibilities.  For journalists, the most basic responsibility in a free society is to report the news accurately and fairly: to practice ethical journalism.

Ethics is a system of principles that guides action. While the law establishes what you can and cannot do in a given situation, ethics tells you what you should do.  It is based on values – personal, professional, social, and moral – and springs from reasoning.  Ethical decision-making simply means applying these values in your daily work.

The Declaration of Chapultepec, approved by countries in the Americas in 1994 as a counter to pressures on freedom of expression throughout the hemisphere, makes clear that ethical journalism is essential to the long-term success of the news media:

The credibility of the press is linked to its commitment to truth, to the pursuit of accuracy, fairness, and objectivity and to the clear distinction between news and advertising. The attainment of these goals and the respect for ethical and professional values may not be imposed. These are the exclusive responsibility of journalists and the media. In a free society, it is public opinion that rewards or punishes.

Ethical lapses do occur in journalism. Reporters have invented information. Editors have accepted payments from sources. News organizations have published advertisements in the guise of news. When this happens, the public has a right to question everything that appears in the news media. All journalists, and all news organizations, suffer when journalists behave unethically because that behavior calls the profession’s credibility into question.  When credibility suffers, so does a news organization’s ability to survive economically.

Ethical Principles

“There is one sacred rule of journalism,” said the late reporter and prize-winning novelist John Hersey, who covered the aftermath of the atomic bomb attack on Hiroshima.  “The writer must not invent. The legend on the license must read: NONE OF THIS WAS MADE UP.”  Ethical journalists do not put words in people’s mouths or pretend to have been somewhere they have not.  And they do not pass off the work of others as their own.  Fabrication and plagiarism are violations of basic journalistic standards the world over.  But not all transgressions are so clear.

Journalists face ethical dilemmas every day, under pressure from owners, competitors, advertisers, and the public.  They need a process to resolve these dilemmas, so that the journalism they produce is ethical.  They need a way of thinking about ethical issues that will help them make good decisions, even on deadline.

This way of thinking is grounded in the principles journalists rely on.  These are the basic principles of the U.S. Society of Professional Journalists, a voluntary journalism organization:

• Seek truth and report it.  Journalists should be honest, fair, and courageous in gathering, reporting, and interpreting information.

• Minimize harm.  Ethical journalists treat sources, subjects, and colleagues as human beings deserving of respect.

• Act independently.  Journalists should be free of obligation to any interest other than the public's right to know.

• Be accountable.  Journalists are accountable to their readers, listeners, viewers, and each other.

On the surface, it may seem easy enough to abide by these principles.  Of course, journalists should seek the truth and treat their sources with respect.  But oftentimes, the principles themselves are in conflict.  Journalists who seek the truth may discover information that will be hurtful to the family of a person involved in wrongdoing.  A reporter’s membership in a non-governmental organization may allow her to learn more about a story the group is involved with, but her association with the group may also compromise her independence and be difficult to justify to the audience.  In many cases, making an ethical decision means choosing not between right and wrong but between right and right.

How, then, can journalists possibly make good ethical decisions?  Some situations are best dealt with by avoiding them in the first place. For example, reporters may choose not to belong to any outside groups, or they may disqualify themselves from covering stories involving any groups they do belong to.  In other cases, a journalist must seek the best possible balance between conflicting principles, always keeping in mind the primary importance of seeking the truth and serving the public.

Ethical Decision-Making

Some newsrooms deal with ethical quandaries from the top down.  Whenever an issue or dilemma arises, a senior manager decides what to do.  This approach has the advantage of being quick, but it can be arbitrary.  It does nothing to help journalists make good decisions when they are out in the field or when the manager is unavailable.  For that reason, many newsrooms have adopted an ethical decision-making process that is more inclusive and that helps all journalists make good decisions under a variety of circumstances.

The first step in the process is to define the dilemma.  Most people recognize when they are facing an ethical quandary.  An internal alarm goes off.  Something does not feel quite right about a situation.  When that happens, it’s important to spell out what’s bothering you.  What are the values that may be compromised?  What journalistic issues are at stake?  Often there is tension between a journalistic goal and an ethical stand.  The reporter who has an exclusive story may want to rush it into print before any one else gets it, but he also needs to consider the possible consequences.  What if the story turns out to be wrong?  Journalists should not sacrifice their ethical values to achieve other objectives, such as beating the competition.

The next step after defining the problem is to collect more information to help you make a good decision.  Consult newsroom policies and guidelines, if any exist, and talk to others about the dilemma.  Begin with colleagues and supervisors in the newsroom, but don’t stop there.  It’s often useful to include other voices, people who are not directly involved in the story but who are knowledgeable about the circumstances.

It’s important to note that journalists, unlike doctors, are not expected to promise to do no harm.  Many truthful and important stories will hurt people’s feelings or reputations.  It’s inevitable.  But journalists do try to minimize the harm by not putting people at unnecessary risk.  Bob Steele, who teaches journalism ethics at the Poynter Institute, likes to ask: “What if the roles were reversed?  How would I feel?”

Let’s say a reporter has discovered a factory where boys under the age of 12 work 10 hours a day, six days a week, and are paid less than half the country's minimum wage.  The country’s constitution prohibits employers from hiring anyone under 14 and it is illegal for anyone to work more than 45 hours a week.  Finding the factory means the reporter has proof of child exploitation, but what more does he need to know before publishing or broadcasting the story?

Telling the truth about the factory would certainly have consequences, and some of them could be hurtful. When faced with this kind of story, it can be helpful to create a list of people and institutions that might be affected by the story and to consider the impact the story might have.  The story about the factory would affect the boys directly, of course, but it would also affect their families and the factory owner. Knowing the possible consequences, journalists can begin to look at alternatives for presenting the information so the story remains truthful but does not cause as much harm.  In the case of the factory, the journalist might decide to use photos of the children but not to name them, in an effort to limit the potential harm the story could cause.

That’s just one example of a journalistic decision that can have ethical consequences.  Others include the type and placement of the coverage, as well as its tone.  The impact of a front-page story with a banner headline and a large photograph is considerably greater than a smaller story that runs on an inside page.  A television story that is promoted multiple times before it airs would have more impact, and therefore greater ethical consequences, than a story told once in the middle of a newscast.

Going through a process to make good ethical decisions puts journalists and news organizations in a position to justify their actions clearly.  By explaining what was done and why, journalists are able to bolster their credibility and justify the public’s trust in them.

Newsrooms that value ethical decision-making make sure these kinds of issues are discussed, and not just when a dilemma occurs.  Some newsrooms hold regular meetings to discuss what they would do in hypothetical situations.  Journalists who practice listening with an open mind and who keep their emotions in check and avoid becoming inflexible about their positions are able to put these skills to work when facing a real ethical concern.

Ethics Codes

Journalism associations and federations around the world have established codes of ethics to guide the work of member journalists.  Ethics codes can cover everything from plagiarism to privacy and from corrections to confidentiality.  Some are brief and vaguely worded, while others are lengthy and quite explicit.  Claude-Jean Bertrand, who is a professor at the University of Paris’s French Press Institute and has examined ethics codes from many countries, says that most include these three basic elements:

• Fundamental values, including respect for life and human solidarity;

• Fundamental prohibitions, including not to lie, cause needless harm, or appropriate someone else’s property;

• Journalistic principles, including accuracy, fairness, and independence.

These codes are sometimes voluntary in nature, with no clear consequences for violators.  But the expectation is that peers and employers will hold journalists who behave unethically accountable.   In some countries, press councils hear complaints against journalists and can recommend action to correct mistakes.  Journalism review magazines also serve a corrective function by exposing the behavior of unethical journalists.  Some news organizations have a staff person, commonly called an “ombudsman,” who watches out for errors and ethical lapses and serves as the public’s representative inside the newsroom.

In countries where journalists are required to belong to a union or association, ethics codes often include an enforcement provision.  For example, the Australian Journalists Association has judiciary committees that investigate charges of unethical behavior brought against journalists.  A journalist found in violation can be rebuked, fined, or expelled from the group.

Codes of Conduct

In addition to national and regional codes of ethics, many news organizations have their own codes of conduct or standards of practice that they expect their journalists to follow.  These codes may spell out specific actions or activities that are either encouraged or prohibited, or that require the approval of a manager.

Many news organizations limit what journalists can do both on and off the job.  The main reason for these limitations is to protect the credibility of news organizations.  Reporters and photographers may be told explicitly that they cannot manipulate or “stage” the news by asking people to do something for a story that they would not do ordinarily.  Reporters may not be allowed to conceal their identities to get a story, unless there is a clear and compelling public interest in the information and it cannot be obtained any other way.  A television station may explicitly forbid the use of hidden cameras or surreptitious recording in gathering the news, unless a manager approves it for public-interest reasons.

With the advent of digital photography, new standards have been added to prohibit altering photographs or video in a way that could mislead the audience.  Several high-profile incidents contributed to these new policies, including a photograph on the cover of National Geographic magazine in the 1980s that digitally moved the famous Pyramids of Giza in Egypt closer together.

Many of the regulations in newsroom codes of conduct address issues of journalistic independence.  To avoid even the appearance of a conflict of interest, reporters may be forbidden to own stock or have a personal interest in companies they cover.  Journalists may not be allowed to take a public position on a political issue or openly support a candidate for office.  The news organization may prohibit journalists from having a business relationship with any news source, or from doing any outside work for pay unless approved by a manager.

The ethics policy of the Detroit Free Press, an American newspaper in the state of Michigan, clearly spells out what the newspaper will and will not do.  It prohibits paying sources for news and says that sources will not be allowed to review material before publication.  The Canadian Broadcasting Company (CBC) has a lengthy standards manual that requires employees to refuse any gifts that may appear to influence a CBC decision; only modest gifts of goodwill or hospitality offered during the conduct of normal business may be accepted.  CBC employees may not accept offers of free travel or accommodations in order to cover a story.

It may not be possible to avoid every potential conflict, but journalists need to be aware that their conduct can reflect badly on the news organization.  When they sense that a conflict might arise, they should be expected to notify their supervisors.  A reporter with a personal connection to a story may ask that a different reporter take on the assignment.  Many news organizations have made it their practice to have reporters disclose relationships in their stories that could even suggest a conflict of interest, even if none exists.

Codes of conduct are typically internal documents, but more and more news organizations are posting them on their Web sites so the public knows what to expect and can hold the newspaper or station accountable if its standards are violated.

Community Standards

News organizations often face conflicts between newsworthiness and community standards, and resolving them requires the skilful practice of ethical decision-making.    Suppose an elected official has used a racial slur in discussing a member of the opposition party.  Some newspapers might print the exact words the official used.  Others could use a few letters followed by dashes to indicate what he said without spelling it out.  And some newspapers would likely report only that the official had used offensive language.  Newspaper editors choose different solutions depending on what they feel the readers would be willing to tolerate.  But sometimes they go ahead with a decision they are certain would offend some readers.  Editors face similar difficult choices when it comes to shocking photographs or video the audience may find distasteful, but that may be the most powerful way to tell an important story.

To minimize the harm such a choice might cause, many news managers now choose to explain why they made the decision they did, either in the text of the story or in a separate “editor’s note” alongside it.  For example, a photograph of a mother holding the emaciated body of her son who died of starvation would certainly be disturbing.  Instead of waiting for angry phone calls and responding to each individual complaint, the editor’s note might say that this picture of suffering tells the story of famine much more clearly than words alone.  By explaining their decisions to the public, journalists can live up to the guiding principle of accountability.

Legal Issues

The cornerstone of international standards on the news media is Article 19 of the United Nations Charter, which states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.

Countries that are members of the United Nations are committed to upholding the charter, including Article 19, but that hasn’t stopped some countries from suppressing their own news media and blocking access to international news.  In some cases, journalists have been killed, imprisoned, or exiled for trying to do their jobs.

Danilo Arbilla of the Inter American Press Association and Uruguay’s Búsqueda says the best press law is no law at all.  In the ideal world, he says, legislation governing press freedom would take up no more than a couple of pages, “containing clear and frankly worded clauses prohibiting any attempt to regulate … freedom of expression.”  Needless to say, the world is not an ideal place.  Press laws vary around the world to such an extent that it is not possible to summarize them all.  Some democratic countries have laws to ensure journalists’ access to public information, while others limit what information can be published or aired.  In some countries, it is illegal to name the victim of a sexual crime, or to identify juveniles accused of criminal activity.  Even within countries, there may be differing local laws covering issues such as whether a journalist can be forced to name a confidential source or provide reporting notes to a court of law, and under what circumstances. Suffice it to say that journalists need to be aware of the laws in the countries in which they work, as well as ongoing efforts to have restrictive laws lifted.

One of the most common kinds of legal issues journalists face is libel or defamation.  In the United States, defamation is a statement of fact that is substantially false about someone who can be identified and that tends to injure that person’s reputation.  Defamation is called “libel” when the statement is published and “slander” when it is broadcast, but the basic parameters are the same.  Generally speaking, if a statement is true, it cannot be defamatory.  Journalists therefore must confirm independently what their sources say, if those comments could defame another person.

As new technology changes the way journalists do their work, media laws are being reexamined.  At the forefront are questions such as:  Should online reporters be granted the same rights and protections as journalists working for established news organizations?  Should those same privileges extend to Internet bloggers?  These questions are likely to remain unresolved for some time.

Reporters obviously are subject to other laws that apply to individuals in a given country, such as laws governing privacy.  A journalist who wants access to information cannot enter private property, take documents without permission, or wiretap a telephone and expect to face no legal consequences.  A news organization might decide that some stories are so important they are worth the risk of legal sanctions, but that is a different matter to be decided jointly and carefully by editors, reporters, and management.

[Deborah Potter is executive director of NewsLab, an online resource center for journalists in Washington, D.C., that she founded in 1998.  She has taught journalism as a faculty member at The Poynter Institute and at American University, and spent more than 20 years in TV news, including 16 as a network correspondent for CBS News and CNN.]