Senate to re-open Bloggers versus Journalists

That tired “bloggers are not journalists” debate looks like it’ll surface in Australia’s Senate soon, thanks to The Greens. It’ll be annoying. But it’ll be a Good Thing.

At the end of October the House of Representatives passed the Evidence Amendment (Journalists’ Privilege) Bill 2010, which is all about protecting the confidentiality of journalists’ sources. In the usual jargon, it’s a “journalist shield law”.

Australia was apparently the only major democracy without such a law in place or in progress, so it’s welcome. And, in the words of the new Greens MP for Melbourne, Adam Bandt, “this bill is a good example of how all parties can collaborate on a worthwhile initiative in a way that would not have happened without the currently composed parliament.”

Bandt continued:

To facilitate its passage, the Greens will support the bill in its current form in the House, but I indicate now that we will seek minor amendments to it in the Senate. In particular, we believe that it should be made explicit that the bill covers bloggers, citizen journalists and documentary filmmakers, and that the privileges provided by the bill cover anyone engaged in the process of journalism, no matter who they are or in what medium they publish.

Well I reckon it’s great that the new law might cover more people, not just those who work as employee-journalists in the industrial media factories. It’s great that it might be technology- and medium-neutral. But…

What the heck is a “blogger” or a “citizen journalist”?

As the bill currently stands, the definitions of “journalist” and “news medium” are already quite broad. In Schedule 1, section 126G:

informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium

journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium

news medium means a medium for the dissemination to the public or a section of the public of news and observations on news

My understanding is that “observations on news” is meant to cover the analysis and opinion (“op-ed”) that typically appears in newspapers and current affairs programs. But many blog posts would also fit that description.

Heck, you could even argue that my Twitter stream is a news medium because it contains news (of what me and others are doing) and observations thereupon, conveyed to “a section of the public”.

What I don’t know is whether “in the normal course of that person’s work” implies that a journalist has to be paid. Any media lawyers want to have a go at that?

In my view, “journalism” and “blogging” are two activities amongst many that end up producing certain kinds of media outputs. Whether you’re paid or not is a separate issue.

As I’ve expounded at length before, journalism is the job of producing the media objects needed by industrial-age media factories. That’s why I love John E McIntyre’s description of his work at The Baltimore Sun as sub-editor — “copy editor” in his American English — as “a shift at the paragraph factory”. On his blog.

Blogging evolved in a different environment. It produces a more fluid kind of media output — one that involves the readers in discussion. Indeed, I’m one of the people who thinks that the dialog is what makes it blogging — as opposed to an essay or a polemic.

There are other definitions, of course. I won’t list them all here except one. The idea that a proper capital-J journalist is a member of their professional association. In Australia that’s the Media and Entertainment Arts Alliance. Like most professions it has a Code of Ethics.

Is a Code of Ethics what turns writing about current events into “journalism”?

Labor MP Graham Perrett supported the bill but was concerned about extending protection to those unruly bloggers:

I do support this bill and I support shield laws which provide a presumption in favour of journalists privilege. However, I believe that this bill could be improved by providing an expanded definition for ‘journalist’ or ‘reporter’… As an additional safeguard, this definition enshrined in legislation would ensure that rogues — who do not uphold the journalists’ code of ethics — are not able to hide their shonky reporting behind shield laws. In terms of the modern day, it is easy to see people like [veteran political journalist] Laurie Oakes and the others who sit up in the journalists gallery as journalists, but there is then quite a continuum down to the perhaps aggrieved blogger who puts out something every week…

I would suggest to the Senate that the definition of journalist include some additional words. If we go to the 126G definition where journalist is defined, I would suggest that it also include ‘a person who ascribes to the journalist code of ethics as published and codified by Media, Entertainment and Arts Alliance’. This would be a narrower definition that would still cover the intent of the member for Denison’s legislation.

Perrett isn’t necessarily suggesting every blogger become a member of the MEAA. But I make two observations for now.

  1. The MEAA’s codification of journalistic ethics is not necessarily the only view of how things should work. I’ve nothing against the MEAA. Far from it! But I wouldn’t like to see them enshrined in legislation as the only view of how the media should operate.
  2. There are plenty of MEAA members who fail to live up to this high ethical standard. Witness any episode of ABC TV’s Media Watch. This test for ethical behaviour fails in practice.

When the recent changes were made to Australia’s Freedom of Information laws, it was proposed to grant journalists the first five hours of decision-making time free of charge. But as the new Information Commissioner, Professor John McMillan told iTnews.com.au:

There was a debate about whether someone was a journalist or not for the purposes of the Act. They resolved that by giving everybody FOI free for the first 5 hours.

The can of worms was not opened on that occasion. But it looks like it’s going to be this time. This will be an interesting can of worms to open. Good luck, Senators.

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16 comments

  1. Gumby Roffo’s avatar

    Ouch.
    A very interesting read. I would never put my self in the place of a qualified “J” just as much as I would not expect a “J” to fix a TV/DVD. I have one skill and they another. But I respect a good “J” as a source of informed debate and information. Where as I look to a blogger as a feel for his/her community mood or opinion in the subject matter. One presents the ( and I bloody well hope) the researched facts as that is their ballywick. The other twists it to their slant of mood or opinion to entice further discussion.
    Also my typing/grammar skills suck. I’ll go back to fixing stuff thank you very much.

  2. David Jackmanson’s avatar

    It’s not so much a question of whether blogging is journalism – most of the time it’s not, in my opinion, but then nor is most opinion-writing in commercial media outlets either.

    It’s a question of whether information is easy to spread around, or hard. I think it should be easy, which would help to break down the bureaucratic attitudes that dominate government, despite lip-service to ideas of openness and transparency.

    So I think anyone publishing any sort of information should be covered under shield laws. If this happened (yes, it’s very unlikely) then “rogues” would certainly hide behind the laws. Vexnews springs to mind immediately. But that’s the price of openness.

    Graham Perrett’s comment shows he want to talk about openness while restricting protection to a tiny group of “official” journalists who have hardly covered themselves in glory this year when it comes to giving us information from the bureaucracy we need to know, as opposed to tittle-tattle about Cabinet committees.

  3. fitzroyalty’s avatar

    A citizen may not qualify as a journalist if their publication is a hobby, and hence is not ‘work’ as such. Being paid is a lazy way of determining whether it is ‘work’.

    A freelance may do work on a story but not sell it, so does that negate the work involved?

    Equally, if the labour of researching, investigating and reporting on local news is carried out as a voluntary community activity, is it any less worthy of being called ‘work’?

  4. Kevin Rennie’s avatar

    When I was teaching Year 12 Work Education, the definition of ‘work’ included both the paid and unpaid stuff. I’d be happy to be paid for some of my citizen journalism.

    It’s a no-brainer that not all blogging is journalism cf. Bolt. Nor are all bloggers amateurs cf. most of the Punch and Drum contributors.

    Given the legions of lifestyle writers and reporters, the dividing line is hard to define.

    I’d be happy to consider a bloggers code of ethics. It would have to be different from the journos’. We could always badge ourselves, a bit like a Creative Commons license.

    I would protect my sources as laid down by the law for journalists, whether we’re covered or not. It’s an ethical thing I suppose.

  5. Stilgherrian’s avatar

    Thank you, folks.

    About an hour ago Jay Rosen, who teaches journalism at New York University and directs the Studio 20 program, said on Twitter:

    Australia has no shield law. But it’s debating one. So it’s “bloggers vs. journalists” time. http://jr.ly/74cy But there’s a way out! The way out, @stilgherrian, is to drop “who is a journalist?” and focus on protecting acts of journalism, regardless of who does them.

    His blog Pressthink is always worth a read.

    This idea of an official list of journalists is particularly problematic, yes. And I think Jay’s got the right angle. Focus on the activity, now the status or credentials or supposed authority of who’s doing it.

    1. Sylmobile’s avatar

      I have a sudden urge to contact my insurance broker to ensure that I’m insured against acts of journalism… ;-p

      The definition of Informant in the Bill, “informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium,” gives ‘an act of journalism’ the added dimension of the perception of the informant of the person to whom they are disclosing…

      Informants, I imagine, have an intent that seems to be embedded within the second part of, “This Bill is intended to foster freedom of the press and better access to information for the Australian public.” – Explanatory Memoranda. It will be interesting to see how much of the debate focuses upon that…

    2. yewenyi’s avatar

      sounds like a good idea that there be a debate. I know that the police and secruity people can be very hostile to people who take photos and then post them online.

    3. AequoEtBono’s avatar

      Paragraph 8 of the EM answers your question about “work”, although I suspect that “engaged” would have been a better word to use than “employed” because “engaged” is more apt to capture freelance journalism than “employed” which may be construed as requiring a contract of service rather than a contract for services.

    4. Stilgherrian’s avatar

      @AequoEtBono: You’re quite right, and somehow I’d missed that. The paragraph of the explanatory memorandum [PDF] is:

      It is also significant to note that the journalist should be operating in the course of their work. This means that the journalist should be employed as such for the privilege to operate, and private individuals who make postings on the internet or produce non-professional news publications, where this is not their job, will not be covered by section 126H.

      In my opinion this is completely wrong. The test should not be whether the act of journalism happens as part of someone’s paid employment or not. If someone is publishing information obtained from a whistleblower, but happens to have posted that online of their own volition rather than because they’re a wage-slave at a media factory, they should still be offered the same legislative protections.

    5. AequoEtBono’s avatar

      In order to get the result you suggest (and I’m not arguing the toss on what the best policy is, just dealing with the legislative construction issue) you would effectively have to ignore (or delete) the words “in the normal course of that person’s work”. Those words operate as a “control test” to limit the class of persons who are “journalists” for the purpose of accessing the protection”.

      It may be that “in the expectation that the information may be published in a news medium is a sufficient control test – for example, if you tell me (a non-journalist) some information socially, you wouldn’t have the necessary expectation, and thus I’m not protected. However, I think you do need some limiting factor – the question is how limited it should be.

    6. Kathryn’s avatar

      Hmmm. There are lots of people who are members of the MEAA that aren’t journalists, and lots of journalists who aren’t members of the union. As the MEAA is a trade union, not a true professional association charged with setting professional standards (as opposed to the CPA for example), I would have enormous difficulty with any suggestion or requirement that the legal protection for journalists be in any way tied to membership of the MEAA or adherance to any particular standard they put forward for their members.

      Further, I’m pretty sure each medium (through bodies like Free TV Australia and Commercial Radio Australia) have their own code of conduct… as you rightly point out there is more than one way of seeing the world. Who is right? No one knows.

    7. Stilgherrian’s avatar

      @AequoEtBono: Yes, thank you, that does start moving the test from being a question of “What is a journalist”? to “What is an act of journalism?” The aim overall is presumably to protect whistleblowers. If a whistleblower gives some information to an unpaid writer who then publishes it in a small-circulation newsletter or on a low-traffic website, and then the story is picked up by other media outlets, it strikes me that the original source should be protected regardless.

      This is similar to how the act of publication is defined, as I understand it. It’s process of making information public — even if the audience is one person.

      @Kathryn: The MEAA does have many non-journalists, including actors and musicians, but members choose which section they join.

      Our 30,000 members include people working in TV, radio, theatre & film, entertainment venues, recreation grounds, journalists, actors, dancers, sportspeople, cartoonists, photographers, orchestral & opera performers as well as people working in public relations, advertising, book publishing & website production.

      Widening the test to other organisations is good, but it still means people have to be a member of an organisation to be considered to have “done journalism”. I have trouble with the idea of having to be approved by someone or something before you’re allowed to write about public events and gain proper protection.

    8. LexMedia Australia’s avatar

      Great post Stig, very informative.

      It’s interesting to note that when the Senate first reviewed the potential need for shield laws in 1993 they chose not to define journalist. That was the same for the Committee review in 2009. Washington state has recently enacted shield laws that explicitly include bloggers and this position is mirrored in the proposed US federal legislation.

      It will be very interesting to see whether or not a court would apply the privilege in circumstances where a blogger is provided with financial benefits through advertising revenue on their site or other similar ‘non-tradtional’ mechanisms of remuneration.

      We love your blog — keep up the great work!

      We’ve written a bit on this lately:
      http://lexmediaau.blogspot.com/2010/11/journalistblogcom.html

    9. Julie Posetti’s avatar

      Hi Stil, thanks for this post. I am firmly in Rosen’s camp. It’s not about a war between journos and bloggers, it’s about redefinitions.

      The question is “What is journalism?”, not “Who is a journalist?”. Moreover, what acts of journalism can expect to attract the coverage of Wilkie’s shield law? I’d argue that any publicly presented information, fairly obtained and transparently offered, demonstrably ‘in the public interest’ (as distinct from simply being of interest to the public) should count.

      I also agree with Kathryn’s comment: while I’m an active MEAA member, registering journalists by virtue of their alignment with/membership of a union would be highly problematic and viewed as potentially dangerous in some parts of the world (cf the debates that rage in Africa as regimes attempt to register & restrict journalists). But the MEAA Code of Ethics is useful as a guide to appropriate conduct — as are many other codes internationally and the emerging codes of online conduct that value transparency and respect.

      Meantime, Oz journalism academics are engaged in an email discussion on the issue as some prepare to make submissions designed to expand definitions contained within the Bill.

      Cheers,

      Julie

    10. Stilgherrian’s avatar

      @LexMedia Australia and @Julie Posetti: Thanks very much for that. I haven’t very much to add except to say that categorising an act by who does it seems odd.

      Someone once took exception to something I’d written — I forget what it was now, but it was probably an angry rant about something — because “as a journalist” I shouldn’t be writing that way. Apparently because some of the writing I do can be categorised as journalism, I am therefore a journalist, I can only write journalism. I believe I called him an arsehat.

      That’s why I’ve preferred to describe myself as a writer. Sometimes I write journalism. Sometimes it’s an essay, or a polemic, or satire, or even fiction. And sometimes I do things other than writing. I swept the kitchen floor. Does that make me a cleaner?

      Boxes… neat little boxes… Sigh.

    11. Josie Lowery’s avatar

      @AequoEtBono: Yes, thank you, that does start moving the test from being a question of “What is a journalist”? to “What is an act of journalism?” The aim overall is presumably to protect whistleblowers. If a whistleblower gives some information to an unpaid writer who then publishes it in a small-circulation newsletter or on a low-traffic website, and then the story is picked up by other media outlets, it strikes me that the original source should be protected regardless. This is similar to how the act of publication is defined, as I understand it. It’s process of making information public — even if the audience is one person. @Kathryn: The MEAA does have many non-journalists, including actors and musicians, but members choose which section they join. Our 30,000 members include people working in TV, radio, theatre & film, entertainment venues, recreation grounds, journalists, actors, dancers, sportspeople, cartoonists, photographers, orchestral & opera performers as well as people working in public relations, advertising, book publishing & website production. Widening the test to other organisations is good, but it still means people have to be a member of an organisation to be considered to have “done journalism”. I have trouble with the idea of having to be approved by someone or something before you’re allowed to write about public events and gain proper protection.

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