Comments:Scottish Justice Secretary 'acutely aware of unusual publicity' in Kular case
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|UK & Commonwealth tradition v. US laws||18||18:59, 20 February 2014|
While journalists in the UK are subject to contempt laws as detailed in this article, we in the US are not. It is common here in the United States to see photos of people who have just been arrested and had charges filed against them. In rare cases, the trials of charged parties are moved to other venues where a jury can hear the case without prejudice caused by a media sensation. When judges seal information, then it is out of bounds for a US journalists to publish that from the court as a source. I'm always a bit shocked at the lack of protections journalists have in the UK or the Commonwealth traditions. But my question is this: 1) Wikinews servers are based in the US, true or false? If they are, couldn't we publish that information from here on your behalf? We have libel tourism laws in the United States that prevent people using the UK easier laws to go after US journalists. My question doesn't just apply to the UK. 2) Shouldn't Wikinews publish information that is banned in other countries by the government or other forces. I'm thinking here about how difficult it is for Mexican journalists to publish information about the drug cartels. Shouldn't Wikinews publish that kind of news for the Mexican people? The global nature of Wikinews gives it a kind of power here that other national identified media do not have. 3) But is it using this power effectively? (So pardon, but I have three questions above.) Very informative piece!
The reporter for this article is in Scotland, which is relevant both to their legal liability and to their ability to know to write these articles. For other nuances of the legal situation I'd defer to the reporter (who, as they put it in the reporter's notes for the earlier article, is related to a Scots lawyer and has access to hot and cold running legal advice). But I'd also note, if the point of the law here is to avoid messing up the course of justice, and there is no public good to be served by publishing the arrestee's name and picture, why would we go out of our way to do so?
One of the core principles of journalism is that the world benefits from more transparency and more checks to the system. There are already plenty of examples on Wikinews of articles that publish information on arrests and charges, such as California teacher arrested after photos indicated lewd acts on children. I was not shocked about the publication of this story because it has news value. Normally, these situations are about issues or problems in the community that citizens need to know about, the legal system also benefits from operating through transparency and not from operating behind closed doors, as well as other benefits including motivating people to solve problems. Would the Roman Catholic Church have benefited from more transparency? The Church did itself a great disservice and to its adherents from its opacity. Again I'm reading the article through the eyes of an American, and I know that we could publish it online in the US and everybody in the UK could then have access to it. Who would be legally liable? As long as no UK citizen worked on the article, it seems to me that nothing could be done by the authorities in the UK.
Re legal liability, as opposed to moral responsibility. Repeating the first sentence of my earlier remark: The reporter for this article is in Scotland, which is relevant both to their legal liability and to their ability to write these articles. I meant by that, the article was not and, as a practical matter, likely could not have been written by people entirely outside Scotland.
I see no similarity to the Roman Catholic Church's opacity. This isn't about covering things up, it's about respecting a reasonable request (in the form of legislation) not to prematurely publish specific details that could sabotage the ability of the courts to function well. Setting aside the legal definition of "contempt of court" in favor of the actual meaning of the words, premature publication of the arrestee's identity in this case seems like disrespecting the court process.
Let's hit those questions in-order:
1. Wikinews servers are based in the United States, and the Netherlands.
2. Answering a question with a question: Why should Wikinews publish information that could prejudice the course of a trial?
- This isn't about the government banning publication, rather a case of allowing the court to do their job. In Scotland a great deal of weight in a trial hangs upon any available eye-witness reports. The widespread publication of the accused photo means someone seeing her taking "what looked like a body" into the wooded area where the body was found is useless. The defence merely needs to ask if such witnesses own a television, or read any newspapers.
3. I think, with this particular article, Wikinews is using its power effectively. By highlighting the significant differences in how courts operate, and what might be considered contempt. The irony here is the mainstream press have made themselves the subject of the report. In the BBC's case, in apparent conflict with their own editorial guidelines.
The Mexican drug cartels is a challenging problem, but very far-removed from being an appropriate analogy here. Dealing with that might-well involve setting up a whistleblowing/anonymous reporting infrastructure. I'd be even-less popular with the WMF if we set up our own mini-Wikileaks. ;-)
Well I wrote this, so I'm going to give my take on the issue.
1) My understanding of libel tourism laws in the US is that it applies to civil law, not criminal. In any event they are a direct attempt to circumvent the laws of other sovereign nations, which raises a can of worms if opposing jurisdictions get into a war with no prospect of an end. If nobody from the UK touched this article, we'd have the legal ability to publish; see my next point.
2) I doubt very highly we'd be having this conversation about naming a rape victim if that were legal in the states. Catholic secrecy means we still get revelations going back decades. UK contempt legislation means we wait until after a trial. To my European mind, the trial-by-media available throughout the States can, in the case of a jury trial, come nowhere close to a fair trial. Wikinews has had ethics debates in the past and the appetite is generally to apply what we in the UK might call "the public interest test" (I use quote marks because the exact phrase is actually used in other, irrelevant, legislation). Can there be any public interest in tainting a jury pool? How hard is it to wait for a trial? This isn't a nation where trials take place many years later.
3) Not really. Well. We have done in the past;
Syrian citizen journalists risk death, targeted; city of Homs facing starvation
Here we have an article where the person we talked to could have been extra-judicially killed just for speaking to us. That's a fairer parallel to a Mexican cartel investigation.
1) There are two big principles of journalism at work here: a) Transparency: Journalism is the watchdog for not only executive and legislative branches but also the legal branch, including law enforcement and the courts. b) Public's right to know: All parts of a government must operate in full view of the public. The US is far from perfect in allowing for journalism to fully exercise these principles, as is on full display in Cablegate and NSF program, but apart from national security disagreements, it works pretty well on a day to day system. Our brothers and sisters in the UK need to claim their rights and fight against overly restrictive contempt and libel laws. The Commonwealth tradition, too. I also support any libel tourism laws that protects US citizens and their basic right to freedom of expression from legal encroachments from abroad.
2) I don't believe some of the assertions I'm seeing above are proven. Namely, that because photos of arrested/charged people are published in the press, people standing trial in the US can't receive a fair trial or that such publication will prejudice a trial. No country in the world has a perfect legal system, and I would be the first to criticize the US courts' racial biases that are borne out in results. However, the US system affords a person a presumption of innocence, which is key, and also with enough protections against self-incrimination, which is not as strongly protected in the UK. Those so-called "media trials" are really journalists reporting information that is publicly on display in the courtroom. And those juries are instructed to ignore any external information. The number of cases that succeed in moving venue because of pre-trial publicity is low. If anybody has evidence that you can't get a fair trial in the US because of journalism, I would love to see it here. That would be news!
3) The principles of transparency and the public's right to know both support public interest. People around the world are starving for information that their systems will
now (I meant not) allow. Mexico desperately needs information about drug cartel violence. I personally am grateful for The Guardian (U.K.) for leading on the NSA disclosures in the US. Sometimes we need outsiders to take the lead for us because we can't. If anybody from the UK wants information for a story to be published, I'll be glad to work with them. My main point, in case it was missed, was that Wikinews is global and well-situated to make a contribution in this area.
With all due respect to UK citizens,
This case is about postponing publication of the identity of an arrestee, in a case where there does not appear to be a public good to be achieved by spreading it around; and the relation of that to a Scottish law concerning sitautions in which there may be a public good in not publishing that identity. That's a specialized situation, a very limited degree of discretion, and concern over a potential problem rather than some claim that a problem will always arise. The salient features of the situation seem to me to be all nuanced, and I'm seeing that in the comments made about them. These salient nuances appear to be lacking in the situations you're comparing it to, and also lacking from the assertions you say you're seeing — which I do not see.
Ok, let me make my position clear: I agree with the BBC and other named organizations from the previous article who went ahead and published a photo and/or identity of the charged and I don't believe journalists should wait for a conviction to publish public records. I certainly don't believe that journalists should be convicted for libel if a person is declared innocent because all the journalists did was to publish public record. Why should journalists be held accountable for law enforcement's incorrect or shoddy decision making? Charge the police with libel if you want to hold somebody responsible. Ah but they are protected! Journalists deserve equal protection unless they published falsehoods or were careless or had actual malice against the party.
The Scottish law as I understand it from your published article is a violation of freedom of expression under Article 19 of the Universal Declaration of Human Rights and most media rights groups worldwide would downgrade the UK system for its weak contempt and libel standards that are used to prosecute journalists or media organizations for serving a necessary role in society and furthering transparency. This is why the US has libel tourism laws to protect US journalists from the UK system. I would support any Wikinews publication of the person's photo and/or identity in this case, I think Wikinews should use its global position to make information available.
The excuse of public interest on the courts' behalf is weak and unproven. The same issue of claiming public trust is made in many different situations, such as the government's conduct of foreign affairs, national security, and war that allows for abuses of power. Preventing the abuse of power is especially important to all citizens in day-to-day operations of law enforcement and the courts. Those entities in particular should not be exempt from such standards of openness, to which we hold the executive or legislative branches. The public has the right to know about what is being done on its behalf and that function is the responsibility of any government and also journalists, including Wikinews. If the system cares about the rights of the accused, then it should make the standards for burden of proof of prosecution as strong as possible and not limit the rights of expression, which is not proven to have an effect and not ineffective and unrelated to delivering justice (determining guilt or innocence). Preventing such publication merely contributes to public ignorance and complacency when rights are violated.
From my position, the article is informative, but I would be interested in interviews with those organizations about their decision-making process. If they are violating Scottish laws, ask why. To Wikinews, I say, why aren't you publishing this information and doing your job as citizen journalists!
Just a couple of remarks.
You say: "I don't believe journalists should wait for a conviction to publish public records." This is a complete nonsequitur, with no bearing on anything under discussion here.
You say "To Wikinews, I say, why aren't you publishing this information and doing your job as citizen journalists!" This is a double nonsequitur, as (1) we don't have a job here, we're volunteers, and (2) since we're an open wiki, the question could just as well be why you aren't writing the articles you apparently think we should be writing.
"I don't believe some of the assertions I'm seeing above are proven. Namely, that because photos of arrested/charged people are published in the press, people standing trial in the US can't receive a fair trial or that such publication will prejudice a trial."
If that's how my words are being interpreted I see no point in even reading the rest of this thread, I'm afraid. Read the article (and the one preceding). It's a peculiarity of Scots process catching out publications used to applying the same standards to a different system south of the border.
Anyway, I thought the article was thought provoking, and it was a very good follow up to the previous one. Another article could be written about all those people now being cited for making inappropriate comments in social media and elsewhere, but that would incite a whole other free speech debate here!!!
It's an... alright follow-up. I struggled to get suitable explanations of this fairly complex story into inverse pyramid form, and I think it shows.
Social media contempt is not-unknown, but tends to follow things like naming of rape victims. In terms of prejudicial comments, official policy is to usually turn a blind eye; the comparison made is to a conversation in the pub about one's opinions on the news.