Rights and Responsibilities of

Journalists

Damian Tambini LSE

About Damian Tambini

• Policy and governance – academic and think

tanks and the LSE Media Policy Project and blog

• Open Society Foundation ‘Mapping Digital

Media’ project

• POLIS Journalism and Society

• LSE masters programme Media Governance

• Research based on case studies at the

intersection of Law, Policy, Media Ethics and

professional self regulation

truth

regulators

institutions

The market owners

editors

readers

source

subject

News Values

Ethical codes

Responsible for what and

whom?

Overview of this lecture

• Some theory: what are journalists for?

• Research case studies:

• Financial/ business journalism in London,

New York, HK and Shanghai

• Reflections on Wikileaks

• Discussion of current policy debates about

law and regulation of journalism

Siebert et al (1957)

“Four Theories of the Press”

• Authoritarian

• Libertarian

• Soviet Communist

• Social Responsibility

Social Responsibility

• Without a free marketplace the press must

be responsible

• Everyone should have access to press

(letters, opinion)

• Controlled by community opinion, ethics

• Can’t violate people’s rights

• Press should be free, comprehensive and

objective

Public Trust Theory

• Public interest theory is prevailing western concept of the press

• Role of watchdog, beyond market relationships

Developing Public Trust Theory

• Rights granted to journalists in law: journalists privilege

• Also other forms of privilege – e.g. access, tax regime, protection of sources, defamation liability protection

• Journalists offer professional duties in return

• Legal debate about ‘institutional first amendment’, and role of regulation (Pickard).

• There is genuine conditionality between rights and responsibilities at micro and macro level

• Journalism as a self-regulating profession: ‘professional values’ (Donsbach). ‘Professionalisation’ (Hallin and Mancini).

Rights and Duties

Privileges

• Freedom of the Press

• Freedom of speech

(e.g. protection of

sources)

• Access to information,

people, spaces

• Access to gateways

and distribution

• Journalism ‘privilege’

Responsibilities

• Observe ethical

codes

• Respect rights of

others

• Serve a watchdog

role?

• Provide information

for the public

• Journalism ethics

contemporary questions

•If journalism is defined in terms of its social

function and social responsibility, and law,

policy and journalism ethics institutionalise

this, how are these institutions responding to

technological and market challenges?

•The case of financial and business

journalism

“Why did nobody tell us?”

The Queen asks about the financial crisis; November 5th 2008.

Didn’t they?

Robert Peston BBC Gillian Tett Financial Times

Jim Cramer CNBC

CNBC Mad Money March 11, 2008

Viewer: "Should I be worried about Bear

Stearns in terms of liquidity and get my

money out of there?"

Cramer: "No! No! No! Bear Stearns is

not in trouble. If anything, they're more

likely to be taken over. Don't move your

money from Bear”

On March 14, 2008, Bear Stearns stock

fell 92% on news of a Fed bailout and

$2/share takeover by JPMorgan

Business Journalist

• R The journalist, they may have a very close relationship with the director of a certain company. During the interview, the director may tell him (that) we are going to list a stock or something next week. So during these few days, you can buy our stock. So next week, you can gain a lot of profits. So it is very easy (…)

• INT The Newspaper does not have rules to prevent this

• R No we don’t have any rules.

Why does any of this matter?

• Some pressing questions:

Should privileges be extended to citizen journalists? Or is there something about ‘professional journalists’ that makes them deserving of socially granted privileges?

Mode of delivery is now less effective in defining journalism as a profession: do certain genres of journalism (reflecting private interests) not in fact deserve the privileges they are granted under free press guarantees and the ‘public trust’?

Reflexivity and media effects on

market behaviour: implications for ethics

Financial journalists can have an immediate impact on the market:

-reflected in ethics and regulation on ramping and other forms of market abuse

-measured in an evolving economic literature focusing on effect of volume/ type of media coverage on price, trading volumes,

-the actual effects are not so clear: partly because as soon as it was, the market would respond to this information

-macro effects – on sentiment and overall stability have been commented upon much less. Until recently.

Business Week 1997:

‘Best’ and ‘Worst’ Boards

Source: Johnson, Ellstrand and Dalton 2005

Press Complaints Commission

CODE • i) Even where the law does not prohibit it, journalists

must not use for their own profit financial information they receive in advance of its general publication, nor should they pass such information to others.

• ii) They must not write about shares or securities in whose performance they know that they or their close families have a significant financial interest without disclosing the interest to the editor or financial editor.

• iii) They must not buy or sell, either directly or through nominees or agents, shares or securities about which they have written recently or about which they intend to write in the near future.

Responsibilities

Legal framework covers Market Abuses/ Conflicts

of interest. (EC Market Abuse Directive 2002)

• Share Ramping

• Non-Disclosure of interest

Codes of Conduct

• Press Complaints Commission Code

A Social Compact

• Protection of sources

• ‘Journalist Privilege’

• Access

• Other (e.g. FSA rules)

• A role in corporate

governance

• Respect for law and

• Codes of conduct

Privileges reflect role of financial and business journalists, responsibilities focus on market reflexivity (impact) and micro conflicts of interest/ disclosure

Rights: Protection of sources

• UK Contempt of Court Act 1981

• Disclosure can be forced: in the interests

of national security, in the interests of

justice or for the prevention of crime

• Interbrew Case (Guardian/ FT/ Reuters)

• WSJ/ Overstock.com (SEC Policy

Document SEC 34-53638)

• Also: Qualified privilege, access, …

Findings: Regulatory Framework

• Broad similarity of approaches to market abuse in HK, UK, US.

• Privileges for journalists: a ‘free press carve-out’ from regulations governing investment recommendation

• Subtleties concerning roles of journalists, editors, analysts, printing of rumours.

• Source protection

• Self regulation of press ethics weaker in HK/SH

• Weaker disclosure requirements in SH

HK Rules: Insider Trading

• “(e) when a person who has information which he knows is relevant information in relation to the corporation and which he received, directly or indirectly, from a person whom he knows is connected with the corporation and whom he knows or has reasonable cause to believe held the information as a result of being connected with the corporation-

• (i) deals in the listed securities of the corporation or their derivatives, or in the listed securities of a related corporation of the corporation or their derivatives; or (ii) counsels or procures another person to deal in such listed securities or derivatives;

Or …

• (f) when a person having received, directly or indirectly, from a person whom he knows or has reasonable cause to believe is contemplating or is no longer contemplating making a take-over offer for the corporation, information to that effect which he knows is relevant information in relation to the corporation-

• (i) deals in the listed securities of the corporation or their derivatives, or in the listed securities of a related corporation of the corporation or their derivatives; or (ii) counsels or procures another person to deal in such listed securities or derivatives.”

(Securities and Futures Ordinance 2003; sections 270 E-F).

The Carve Out: rules on investment

recommendations do not apply:

• to persons who “give such advice or issue such

analyses or reports through – (a) a newspaper,

magazine, book or other publication which is

made available to the public; or (b) television

broadcast or radio broadcast for reception by the

public, whether on subscription or otherwise.” [i]

•

[i] Hong Kong Securities and Futures Ordinance

section 277 ix (a-b).

Hong Kong Press Council

• 5. Journalists should avoid conflict of interest. Under no circumstance should they be influenced by political, economic and other interests related to themselves, their families or their employers.

• 5.1. Journalists should not seek monetary or other advantages from information that they have obtained in the course of discharging their duties; nor should journalists pass the information to others so that the journalists might obtain an indirect advantage.

• 5.2. Journalists should not distort facts to appease advertisers or for any other consideration.

• 5.3. Journalists should not write or comment on business or other organizational matters in which they have a stake. Journalists should declare their interest should they be assigned to report or comment on matters in which they have an interest.

• 5.4. Journalists should not be influenced by external pressure or economic considerations in their reports and commentaries.

Findings 2 Journalistic Practices

• Open culture of trading

• Non-enforcement of disclosure

• Conflicts of interest

• INT what about trading in securities? Do you trade?

• R 4. Yes. Everyone does

• INT which kind of shares?

• R 4. Various kinds? Insurance. Some stocks. I can’t remember the English name. … and some others.

• INT and what happens if you have to write about these companies you have shares in?

• R 4. If I have shares .. actually I would just write on what is relevant for investors to be aware of.. even .. in some kind of IPO you might see some kind of financial data maybe.. not as good as the management are saying like you might have some kind of margin level that is already declining but they might say there is a good future. I would write about that.

• INT. I don’t understand . If you have to write about a company you own shares in, would that effect the way you write about them, and your journalism.

• (prompt in Chinese. Bias?)

• R 4. I don’t think I would have a bias even if I hold those shares. Because actually, what you are going to write is based on news and also on what your supervisor asks you to do. Even if my supervisor has got that stock as well, and we see that there is a drastic change for a stock. We need to write it. Because other newspapers will cover that story too. If we missed it we will look bad tomorrow.

• INT But I guess you are lucky because you can trade before you publish the story.

• R 4. I would say … we don’t have so much insider information as people guess… so even if we think that news is not that good for a stock. Other people will ask that news as well. (Interviewee 4).

Summary on Business

Journalism

• Part of the ‘social responsibility’ compact

• Privileges enjoyed include carve outs from

market abuse regulations and general journalist

privilege

• Question of effectiveness of self-regulation?

• Huge global disparities (e.g. China).

• Also: current challenges of all journalism: speed,

complexity, sustainability, PR pressure

(churnalism) undermine responsible journalism

Wikileaks: A Structural Shift?

•Escapes Jurisdiction ? Globalisation

•Protection of sources – by software code (encryption) not ethical code. Technology

•Understanding Wikileaks as a model, not an institution

truth

regulators

institutions

The market owners

editors

readers

source

subject

News Values

Ethical codes

Responsible for what and

whom? To what extent are

privileges enjoyed?

The Phases

1. Automatic publication/ wiki structure with user-editing 2006-2007

2. Strategic/ idiosyncratic editorial selection 2007-2010

3. Editorial selection and redaction based on public interest, with limited ethical application and media partnership 2010-

3.a. Global Media Partnership

4. Irresponsible Dumping? August 2011-

5. Post the cables. Post Assange?

Some difficult cases for Wikileaks

on the Diplomatic cables

• Revealing sources of US intelligence may

put them at risk

• Revealing key strategic information about

‘national security’ might put lives at risk

Johannesburg Principles on

national security and freedom of

expression • “any restriction on expression …that a government seeks to justify on

grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.”

• “In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions or to entrench a particular ideology or suppress industrial unrest”

• The Johannesburg Principles on National Security, Freedom of Expression and Access to

Information. The ARTICLE 19 International Standards Series. London 1996

• “Appealing to national traditions of fair play

in the conduct of news reporting

misunderstands what Wikileaks is about: the

release of information without regard for

national interest. In media history up to now,

the press is free to report on what the

powerful wish to keep secret because the

laws of a given nation protect it. But

Wikileaks is able to report on what the

powerful wish to keep secret because the

logic of the Internet permits it.” (Shirky,

2010).

Rights and Responsibilities

• TO understand current challenges for

journalism we need to understand that:

• Journalism is not just a set of market

relationships but is an institutionalised set

of rules, codes and ethical practices

• These are undermined by current

changes, and institutions like Wikileaks

are looking for new ethics

http://blogs.lse.ac.uk/mediapolicyproject/