By MARK PEARSON Follow @Journlaw
A short section of my new book – Blogging and Tweeting Without Getting Sued – has the heading ‘Who carries the can?’.
There, I write:
“Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. If you write for a larger organisation you share that responsibility with your employer or client. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger.
“In the 20th century, large media organisations would usually pay the legal costs and damages awards against their journalists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream reporter or columnist thinking of going solo with your blog you might weigh this up first. Another advantage of writing for a large media group is that your work will be checked by editors with some legal knowledge and perhaps even vetted by the company’s lawyers before being published. Either way, you might investigate insuring yourself against civil damages, although even in countries where this is available premiums are rising with each new Internet lawsuit. Another option is to scout for liability insurance policies offered by authors’ and bloggers’ associations. Search to check your options.”
The issue has come into sharp focus with journalists’ own tweeting under their personal handles in recent times. My recent piece in The Australian, reproduced below, looked at the question of journalists’ standards of independence and fairness on Twitter compared with the expectations placed upon them in their ‘day jobs’.
Organisations have started to develop social media policies for their reporters’ and social media editors’ use. But a huge grey area is the question of personal liability for individuals.
If a journalist (or any other employee, for that matter) claims in their Twitter profile that the views expressed are private not those of their employer (a standard disclaimer) where does that place them if someone sues them personally over their tweets?
It would take a particularly generous proprietor to cover the legal expenses of their employee who has distanced their private comments so clearly from their work role. It would likely leave them high and dry, with their own house and savings on the line, defending a legal action over a tweet, blog or other posting.
Despite my long experience as a journalist and academic, I made a serious error in this very story commissioned by The Australian. It was only noticed by an astute sub-editor (copy editor) at the eleventh hour – saving the newspaper and myself significant embarrassment at the very least. Thank God for subs!
But the fact is that our private blogs and tweets do not have the expert eye of a copy editor scanning them pre-publication – which can leave us personally liable for our words.
That’s something worth pondering very carefully before we press that ‘Send’ button.
The Weekend Australian, April 28, 2012, p. 12
THERE was a virtual sideshow alley to the circus of Rupert Murdoch’s appearance at the Leveson media inquiry in London – coverage of the event on Twitter.
The topic #rupertmurdoch trended briefly at 7th place worldwide on the social media network, remarkable given discussion was also running at #leveson, #NOTW and #hacking.
It augurs well for a future for journalism that the appearance of an important public figure at a judicial inquiry could hold its own in the Twittersphere with the rapper 2 Chainz, a reality program on teenage pregnancy and the hashtag #APictureOfMeWhenIWas.
The Twitter feed offered a warts-and-all view of the medium as a source of information and informed opinion on news and current affairs.
It also raises issues of relevance to the self-regulation of journalists’ ethical behaviour when democratic governments are proposing statutory media controls in the converged environment.
Frequent Twitter users are accustomed to the extremities of opinion expressed in 140 characters on controversial issues.
The very “social” nature of the medium means that the streaming commentary is not dissimilar to what you would hear from a crowd gathered around a pub television watching a major sports event or a breaking news event.
You get a smorgasbord of views, quips, snide remarks, venom, puns, one-liners and references to a whole lot more, often in the form of links or photos.
With retweets you can then get the “Chinese whispers” effect, as facts are massaged or adapted to fit the character count down the grapevine.
Journalists are supposed to offer audiences some meaning in the midst of this mess.
For journalism and media organisations to stand out from the crowd they need to be the source of reliable, verified and concise information and opinion based on proven facts – something we used to call “truth”.
This week’s coverage of the Murdoch appearance demonstrated that some prominent journalists seem to have formed the view that Twitter is so different a medium that they have licence to ignore some of the foundation stones of their ethical codes.
Murdoch’s appearance elicited a blood sports style of sarcasm from critics from rival organisations, most notably at the ABC and Crikey.
Crikey’s Stephen Mayne might argue that readers would expect his Twitter feed to reflect his years of confronting Murdoch at News Corporation annual general meetings. Fair enough.
But does that excuse his tweet suggesting counsel assisting Leveson ask Murdoch about his marriages and fidelity “to test whether he really agrees that proprietors deserve extra scrutiny”?
Surely it was that kind of tabloid privacy intrusion that prompted the whole sorry saga. Which was Mayne’s point, I guess, in “an eye for an eye” kind of way.
Of course, News Limited journalists are not ethical saints in their use of Twitter, but on this issue they were in defensive mode.
Many prominent News columnists do not have active Twitter accounts, but even The Australian’s Media team chose not to engage on this important international media issue.
The Daily Telegraph’s Joe Hildebrand showed that, in the Twittersphere, sarcasm is often the preferred line of defence: “Can’t wait until Rupert Murdoch resumes speaking at the Leveson inquiry. I haven’t known what to write for 10 minutes.”
News journalists can hardly look to their boss for leadership in seeking to be unbiased in their Twitter commentary.
Murdoch himself posted to his @rupertmurdoch handle on March 30: “Proof you can’t trust anything in Australian Fairfax papers, unless you are just another crazy.”
Amid the snipes and counterattacks there is a whole lot of banter too – journalists doing the virtual equivalent of talking in the pub after work.
It might be gratifying, clubby and intellectually stimulating, but is a very public media space the place to be doing it?
What message does this send the audiences who follow these journalists on Twitter because of their connection to their respective masthead?
Most offer the standard “views expressed here are my own” rider on their Twitter profiles.
But is that really enough, when beside that they trumpet their journalistic position and employer organisation?
It is symptomatic of a broader problem of corporate social media risk exposure that has triggered an industry of social media policy writing, in the wake of the harsh lessons for McDonald’s and Qantas when hostile customers converted their promotional hashtags to #bashtags in public relations disasters.
But in journalism it’s more complex, because reporters are encouraged to use social media for establishing and maintaining contacts, sourcing stories and engaging with their audiences.
Journalism should be all about transparency, so many would argue it does no harm for readers to know what a reporter really thinks about an issue, particularly in a converged postmodern world where objectivity is supposedly dead.
It might well be, but the ethical codes still speak of fairness, accuracy and respect for the rights of others.
And those very codes are meant to be followed by journalists and their organisations in their mainstream reporting.
Sadly, they might soon face a statutory tribunal and penalties for their unethical actions.
They can’t have it both ways. News organisations cannot sell themselves to readers as impartial, authoritative sources of news and informed commentary when on Twitter their journalists are either breaking their codes or staying mute about an important international news event involving their boss.
The citizenry deserves better if we are to rebuild its confidence in journalism as an important democratic institution.
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.