Journalistic Privileges and Regulation of Blogs

(This post has been co authored with Gopika)

The Internet, especially blogs, has become a powerful force in the distribution of information. This new medium challenges the way traditional media distributes and deals with information and news. Reminiscent of the bustling coffee houses, blogs are often centers of vigorous conversation and providecitizens with a platform to question and debate legal, social, economic and cultural events.

In retaliation to transparency and effective distribution of news and information by blogs, corporate giants (see eg. here and here) and the government have constantly threatened and attacked this community. In addition to subterranean censorship, a newer concern for the blogosphere is State regulation that can have a serious chilling effect.

Recently in the US, a bill ironically the “Free Flow of Information Act of 2013” has been passed by the Senate Judiciary Committee and is likely to be passed by the Senate this year. The bill seeks to shield certain “covered journalists”from potential prosecution by the government which insists on disclosure of confidential sources. This protection, however, is granted only to favoured forms of media which is the “legitimate press”. This threatens other forms of press such as watchdog groups, independent journalists and blogs.

Opponents in the US have argued that the freedom of the press does not discriminate amongst groups or individuals and is applicable to all citizens. Moreover, the bill brings in a form of licensing which goes against the notion of ‘freedom’ as it allows the State to selectively decide and extend the freedom of press to some ‘worthy journalists’ leaving out others.

This brings us to the fundamental question of whether bloggers should be considered as journalists to the extent that it allows them ‘privilege’, which is recognized as a special right for a select group of people to the exclusion of others. Unlike other groups such as lawyers or doctors who derive the benefit of privilege, there are no objective criteria to ascertain whether someone is a journalist. The argument against bringing bloggers within the ambit of journalists is simply that any Tom, Dick or Harry with access to the Internet could claim journalistic privilege. In fact, the US Supreme Court in Branzburg v. Hayes, had denied journalists the constitutional privilege to not disclose their confidential sources on the ground that journalists had a civic duty to testify as other citizens. The USSC had also cited the difficulty lower court judges would face while determining precisely who would be protected by privilege as a reason for their decision. Therefore, even though Branzburg appeared to hold that the First Amendment did not provide a constitutional privilege to journalists, post-Branzburg, many states in the US have enacted shield laws to protect the journalists in their states. Moreover, federal courts in the US appear to have recognized a qualified privilege for journalists on a case-by-case basis post-Branzburg as well. The test used by the federal courts and one supported by us is the ‘purpose, process, product ’test.[1]This test mandates that if the purpose is newsgathering with an intention to disseminate to the public, the process must be that of investigative reporting and the final product must be news. This test is more favourable to non-traditional newsgatherers because it is not dependent on their chosen medium or mode of communication. Therefore, this test would aid in weeding out some bloggers who are not “legitimate journalists” while being inclusive to those who carry out the functions of a journalist on a more informal setting and thereby, strengthening the freedom of speech and expression.

Regulation

Such laws bring out a larger question: what is the best way to regulate blogs? Regulation of blogs must be balanced against the cost of deterring speech by bloggers, who usually have weaker incentives to speak. Since the incentive to blog is more often than not personal, over regulation could have a chilling effect and could deter the expression of diverse views and the dissemination of specialized information.

A model of self-regulation from within the blogging community including readers and bloggers may be the most viable model of regulation. First, given the heterogeneity of the blogosphere, with blogs ranging from personal diaries to legal blogs, a uniform State imposed regulation may be unreasonable since content on different kinds of blogs differs. Self regulation takes into account this heterogeneity and enables the blogging community as well as the readers to regulate content as per the nature and purpose of each blog.

Secondly, reputed blogs (which are invariably most read and followed), regardless of what kind of blog they maybe, are under constant scrutiny by viewers and no mistake goes unchecked. So this internal mechanism of regulating content by readers makes content on the blog acceptable. Moreover, if views on a blog are not acceptable, readers are free to put forth their views. Also, if corrections are ignored, reputation of the blog reduces and consequently the number of people following the blog also reduces. This could be understood as a form of editorializing which is considered one of the main attributes of “legitimate press.”

Thirdly, laws such as defamation, sedition, inciting offenses, national security, obscenity etc. already apply to speech on the Internet. Imposing new laws, specifically related to blogs, would adversely impact this alternate media.

However, if a federal shield law is the envisaged solution, then it is equally significant that non-traditional journalists are also included within the ambit of “covered persons” and be granted journalistic privilege. It is important to note that while we criticize the ‘Free Flow of Information Act’ for restricting journalistic privilege to only the traditional press, we are not advocating opening the floodgates to include everyone who writes on the Internet within its ambit. In a way, we are also seeking to restrict it to ‘legitimate press’ It is just that our definition of legitimate does not equate to traditional.