The question that no-one dares to answer

New guidelines to prosecutors on whether to charge journalists with criminal offences committed in the course of their work raise a crucial question that just won’t go away.

That question – yet again – is: who, or what, is a journalist?

The guidelines were published by the director of public prosecutions Kier Starmer last week.

Starmer said at the time: “Journalists, and those who work with them, are not afforded special status under the criminal law, but the public interest served by their actions is a relevant factor in deciding whether they should be prosecuted in an individual case.”

But who does he mean by ‘journalists’?

Someone who carries a press card?

Someone who makes their living by writing for the media, but who holds no qualifications – and no press card?

An enthusiast who turns in great copy for a community news website?

A blogger? Or a citizen journalist?A student journalist who turns in great exclusives? Or who?

I discussed this issue in an earlier post when an ‘investigative blogger’ in Oregon, USA, was sued for defaming an investment firm.

In Oregon, ‘real’ journalists receive special immunity for libel actions. But the judge ruled that the defendant wasn’t a journalist.

Since then, our own Lord Chief Justice has ruled that only a journalist or legal commentator may Tweet from court without consent. The ‘others’ – citizen journalists etc – have to ask.

And in Quebec, Canada, there have been moves to pass a law creating the status of ‘professional journalism’, to separate these from ‘amateur bloggers’. In effect, that would allow the government to decide who is a journalist and who isn’t.

Top American journalism blogger Dave Winer finds a journalist easy enough to define

He says: ‘I get an idea for a story or someone gives me one. Do a little searching on the web, call a few people. Take notes on what I hear. Call some other people or send them emails. Write up the notes on my computer. Organize them into a sequence.

‘Then, I optionally offer it for review to other people to get their opinions and they possibly rewrite it, or I incorporate their feedback and make changes. This is called editing. This process iterates a few times. Then the story is published, usually on a website, and possibly at some later time on paper.

‘If you do this then you’re doing journalism. If you do something else, it’s something else. It’s not good or bad. But this is what we call journalism.

In which case … there could be a long queue of people trying to persuade the Crown Prosecution Service that they’re journalists when they’re done for possessing drugs, phone hacking, falsifying their CVs etc …!

In the meantime, I’m getting ready for the Spanish Grand Prix. After all, I drive fast. So I must be a racing driver.

Cleland Thom is a consultant and trainer in media law

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