Assessing+public+interest

=Assessing the public interest in a story =

Anna Piszczkiewicz, October 2010
 In an effort to further extend freedom of expression to communications media, the Supreme Court of Canada created a new libel defence that gives publishers greater protection for responsibly reporting stories on matters of public interest. The new defence is dubbed the defence of responsible communication on matters of public interest. What does this mean?

 “To be protected by the defence of responsible communication, the publication must be on a matter of public interest,” (Grant v. Torstar Corp, 2009, ¶ 99) said Chief Justice Beverley McLachlin. Second, the defendant must show that s/he held himself to the highest journalistic standards when reporting the facts, as set out in the landmark judgement Grant v. Torstar., 2009 (Grant v. Torstar Corp, 2009, ¶ 95). McLachlin said that the “public interest is not synonymous with what interests the public” (Grant v. Torstar Corp, 2009, ¶ 102). This begs the question, what is deemed as being in the “public interest,” exactly?

 The court established a broad definition of the public interest; it is not limited to politics or national security, and can apply to stories that have either a wide or limited audience, as long as the subject is of public importance.

 “To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure (Grant v. Torstar Corp, 2009, ¶ 101).”

 While a judge determines whether a publication covers a matter of public interest, it is the jury that decides, based on evidence and factors detailed under the responsible communication defence (Grant v. Torstar Corp, 2009, ¶ 109), whether what was published was indeed fair and responsible.

 But long before the judge determines whether a topic is of public interest, the same question must be answered by at least one, and usually more than one, journalist. Is this matter of interest to at least a segment of the population? Chief Justice Beverley McLachlin said that while guidance on the meaning of this legal concept is available by looking at jurisprudence on the longer-established libel defence of "fair comment," “the authorities offer no single 'test' for public interest, nor a static list of topics falling within the public interest” (Grant v. Torstar Corp, 2009, ¶ 103). In both cases, it seems, the individuals rely on a sweeping - vague, really - definition of the public interest.

 Essentially, public interest is open to interpretation and making an independent judgment on what is important to a group of people puts that journalist in a powerful position. But with that position also comes a huge responsibility. In effect, journalists themselves decide what is news, and present to democratic life the stories that should be followed. In the daily life of the newsroom, that decision depends is taken quickly and by a very few people.

 Some members of society are more primed than others to make such judgment calls and it may be argued that journalists are trained to weigh, say, the public’s need to have access to certain information with an individual’s desire for privacy. Journalists understand their legal limits, abide by the rule of law but as a practical matter, look to their ethical standards (Foreman, 2010, p.231) when discerning the difference between what is right and what is wrong, when balancing compassion with information that needs to get out there.

 Gene Foreman, in The Ethical Journalist writes, “Law sets forth minimal standards of conduct. Law states what a person is required to do; ethics suggests what a person ought to do” (Foreman, 2010, p.19). The latter, this "ought to do," points to standards of conduct, which journalists voluntarily choose to abide b. They seek to make justifiable decisions on what is in the public interest, and, in so doing, decide what is reportable.

Special ethics

 In a wrap-up lecture to the Standards of Journalists’ Care course at Ryerson University in October 2010, Professor Ivor Shapiro, who chairs the ethics advisory committee of the Canadian Association of Journalists, and is ethics editor of the Canadian Journalism Project, made a case for the distinct role of the journalist in society. The journalist is bound by a special ethics that sometimes overrides ordinary morality or citizens who have an ordinary legal or moral duty.

 Society expects human beings to do certain things, whether they are police officers, lawyers or journalists said Shapiro, but society also sometimes expects some of these human beings to do things which may not be universally liked, but are okayed by virtue of their special roles or particular duties in society (personal communication, October 22, 1010). For example, police officers are allowed to lie to get information—not always but some lies are justifiable. Although it is agreed that people shouldn’t kill one another, soldiers are encouraged to kill under certain circumstances and so on.

 Some of these people with particular duties get a moral skin or moral muscle, said Shapiro. So who are journalists and what is the special social role of a journalist? And does that special social role imply a special ethic under some circumstances? he said.

 “A journalist is a purveyor of truths,” said Shapiro. With emphasis on the plural. And as such a purveyor the journalist fulfills a role guided by certain journalistic standards. In producing a piece of journalism, the author goes through the following five stages: discovery (hunting for information), examination (verifying facts and testing their coherence), interpretation (analyzing and drawing conclusions), style (language used), and presentation (how is the product delivered) (Shapiro, 2010, p.152-154). These five principles were set out by Shapiro in his paper Evaluating Journalism: Towards an assessment framework fort the practice of journalism. And it is this process that is an example of the special care journalists take in preparing a piece of journalism.

<span style="font-family: Arial,Helvetica,sans-serif;"> It’s in the interest of society that journalists develop this so-called moral muscle. This muscle serves journalists well when they do work that is important to society (personal communication, October 22, 1010), said Shapiro, such as investigating corruption in society. Journalists are expected to follow their curiosity, dig into it and if it’s good, pass on the information. In the end, journalists have jobs to do, to report on things, and make decisions honestly. Journalists regularly exercise ordinary morality but sometimes have to make uncomfortable decisions. Of course, someone may not agree. But by recognizing that there is such a thing as a special ethic, perhaps it becomes easier for the public to gain confidence in knowing how judgements are made?

<span style="font-family: Arial,Helvetica,sans-serif;"> There is a complexity to decision-making, said Shapiro. Journalists are always juggling two rights, the public’s right to know and the right of the victim, but there is a third right: a journalist’s duty to report the essence of the story (personal communication, October 22, 1010).

<span style="font-family: Arial,Helvetica,sans-serif;">The public’s right to know

<span style="font-family: Arial,Helvetica,sans-serif;"> When defining journalism in the public interest, this interest is often equated with the notion that the public has a right to know the truth. But what the public needs to know and has a right to know are two different things. Sissela Bok in her book Secrets: On the ethics of concealment and revelation gets at this difference:

<span style="font-family: Arial,Helvetica,sans-serif;"> “How can one lay claims to a right to know the truth when even partial knowledge is out of reach concerning most human affairs, and when bias and rationalization and denial skew and limit knowledge still further? And how can one claim a right even to all the limited insights that it might be possible to acquire? Even such limited knowledge can rarely be viewed as a matter of right; indeed, there are realms about which we recognize that we must claim no rights to knowledge: the personal letters others wish to keep private, for example, or their intimate relationships” (Sissela, 1989, p.254).

<span style="font-family: Arial,Helvetica,sans-serif;"> The press should satisfy the public’s legitimate interest in learning about matters that affect its welfare, writes Bok, and should not always agree to requests of privacy, confidentiality, or trade, scientific, administrative and military secrecy (Sissela, 1989, p.258). However, there is no such thing as a "right to know," not even a right to have access to knowledge or truth, but at best access to information, but not all information (Sissela, 1989, p.258). That is the mandate, writes Bok. Therefore, doing journalism in the public interest means providing the greatest amount of access to matters of significance and relevance to the audience. And certain moral principles are needed to choose what to publish. And that is part of the duty of the journalist.

<span style="font-family: Arial,Helvetica,sans-serif;">Obligation to the public interest

<span style="font-family: Arial,Helvetica,sans-serif;"> Is anything more important to the journalist than serving the public interest? Bill Kovach and Tom Rosenstiel in The Elements of Journalism write that the principles and purpose of journalism are defined by the function news plays in the lives of people (Kovach & Rosenstiel, 2001, p.11): “The primary purpose of journalism is to provide citizens with the information they need to be free and self-governing” (Kovach & Rosenstiel, 2001, p.12). The authors asked journalists, in collaboration with the Pew Research Centre for the People and the Press, what they thought the distinguishing feature of journalism is. The answer was, unsurprisingly, offering information to the public.

<span style="font-family: Arial,Helvetica,sans-serif;"> Journalism’s first loyalty is to its citizens. That’s one of the elements of journalism. And this loyalty or social obligation creates journalistic independence. Newsmakers work to raise the public conscience and to serve as watchdogs, to be in the places where a citizen can’t be and to report on matters that the public should know about. This commitment to informing the public is a tenet that speaks to the unique moral duty of the journalist, no matter the solitary nature of the judgement call that is made when deciding when a story serves the public interest.

<span style="font-family: Arial,Helvetica,sans-serif;">Honourable intentions

<span style="font-family: Arial,Helvetica,sans-serif;"> Sometimes journalistic duties outweigh civilian laws. During his tenure as editor-in-chief and associate publisher of The Hamilton Spectator, Kirk LaPointe, made a weighty decision. He ignored the penalties for breaching a ban on identifying young persons when a 19-year-old with over 60 Young Offenders convictions was out in the community (R. v. Kirk LaPointe, 2001). As Dean Jobb describes the case in Media Law for Canadian Journalists:

<span style="font-family: Arial,Helvetica,sans-serif;"> “In a high-profile prosecution under the Young Offenders Act, the editor-in-chief of The Hamilton Spectator, Kirk LaPointe, was granted an absolute discharge in 2001 for publishing the name, photograph, and youth court criminal record of a violent suspect. The breach was intentional; LaPointe wrote an editorial to accompany the coverage and argued that the law should no longer shield the man, who was 19 and the subject of a police manhunt. LaPointe maintained that he broke the law out of concern for public safety, and the judge, in granting the discharge, made reference to his “very honourable intentions” (Jobb, 2006, p.188).

<span style="font-family: Arial,Helvetica,sans-serif;"> In an October 15, 2010 Skype chat with the students in the Standards of Journalists’ Care class, LaPointe talked about the decision he made to publish the information and risk fines and incarceration. He cited his moral responsibility to the readers, not to the newsroom or any other special interest group, and to making sure the public did not come into harms way. “The ultimate loyalty was to the audience,” said LaPointe via Skype (personal communication, October 15, 1010).

<span style="font-family: Arial,Helvetica,sans-serif;"> Despite the urgency of the matter, the decision was still carefully weighed. The editor could not possibly canvass the community to verify whether this was a matter of public interest and arguably, should not have to. One of the principal skills of a journalist is understanding what is in the public interest.

<span style="font-family: Arial,Helvetica,sans-serif;"> That day the law did not work the way the journalist wanted it to work and there was a moral obligation to do something about it (personal communication, October 15, 1010). LaPointe made a calculation based on the harm the lack of certain information could make to the community. It was a classic dilemma between two of the principles set out in the Society of Professional Journalists’ Ethics Code: "minimize harm" and "seek truth and report it" (Foreman, 2010, p.88). In adhering to the code, he risked a criminal record. So yes, making a judgement about what story is in the public interest is subjective, but rest assured, the editor is selective.

<span style="font-family: Arial,Helvetica,sans-serif;"> On October 21, 2010 Kirk LaPointe made it official that he will be leaving his post as Managing Editor of The Vancouver Sun and taking on the role of Ombudsman of the CBC. In a post on his website, he wrote that he will withdraw from the U.S.-based Online News Association, where he was nominated to be on the board this year, as well as from his involvement in the ethics committee of the Canadian Association of Journalists. His reasoning: “A direct association with a journalism organization complicates my position's need to represent the public interest. I want to avoid any appearance of a conflict in my new duties and provide the best possible service to the CBC by providing the best possible service to the public” (LaPointe, 2010).

<span style="font-family: Arial,Helvetica,sans-serif;">The public interest test

<span style="font-family: Arial,Helvetica,sans-serif;"> Bob Eggington, a journalist who has worked with the BBC for over 30 years in roles that included Editor of the General News Service, Managing Editor of Political Programmes, and Project Director responsible for launching the BBC News web site writes that “the key question is always whether society will benefit more from the publication of the story than it will be damaged by irregular journalistic behaviour” (Eggington, 2010). This is when a journalist applies what he calls “the public interest test.” This test is an example of applying the utilitarian rule, measuring pleasure versus pain, wherein the action that causes the greatest happiness for the greatest number of people is the justifiable action. Eggington even provides a list of reasons why a story may be run:


 * <span style="font-family: Arial,Helvetica,sans-serif;">Correct a significant wrong
 * <span style="font-family: Arial,Helvetica,sans-serif;">Bring to light information affecting public well-being and safety
 * <span style="font-family: Arial,Helvetica,sans-serif;">Improve the public’s understanding of, and participation in, the debate about a big issue of the day
 * <span style="font-family: Arial,Helvetica,sans-serif;">Lead to greater accountability and transparency in public life (Eggington, 2010)

<span style="font-family: Arial,Helvetica,sans-serif;"> Is this really a public interest test? Perhaps. And perhaps guidelines set out by various publishers, like policies on journalistic standards and practices, can assist the journalist in deciding whether a story is of public interest. Guidelines may include: “Promoting accountability and transparency (and presenting information to enable public scrutiny of government and those with authority or influence over audiences' lives), informing public debate (gathering, providing and testing information on key issues to help the public understand and debate decisions made on their behalf), preventing deception, fraud and corruption (providing audiences with the means to avert being misled by some statement or action, especially when public money is involved), crime and anti-social behaviour (exposing crime and anti-social behaviour, particularly by public figures), the world (reporting from parts of the world where there are conflicts, where issues of major significance (e.g. climate change, human rights) require understanding, or where the policies of the UK and its allies are having significant effects)” (Introducing the Public Interest, 2010).

<span style="font-family: Arial,Helvetica,sans-serif;"> When all is said and done, the decision on whether a story is of public interest relies on moral muscle, a special ethical duty, which is exercised on a case by case basis considering the public interest, the individual’s right to privacy and the duty to report the essence of the story.

<span style="font-family: Arial,Helvetica,sans-serif;">WORKS CITED

<span style="font-family: Arial,Helvetica,sans-serif;"> Bok, Sissela. (1989). Secrets: On the Ethics of Concealment and Revelation. Vintage.

<span style="font-family: Arial,Helvetica,sans-serif;"> Eggington, B. Applying the public interest test to journalism. Retrieved October 24, 2010, from http://www.mediahelpingmedia.org/training-resources/journalism-basics/360-applying-the-public-interest-test-to-journalism

<span style="font-family: Arial,Helvetica,sans-serif;"> Foreman, G. (2010). The Ethical Journalist: Making Responsible Decisions in the Pursuit of News. Wiley-Blackwell Publishing.

<span style="font-family: Arial,Helvetica,sans-serif;"> Grant v. Torstar Corp., 2009 SCC 61. (December 22, 2009)

<span style="font-family: Arial,Helvetica,sans-serif;">Introducing the Public Interest. Retrieved October 24, 2010, from College of Journalism, part of the BBC Academy website: http://webcache.googleusercontent.com/search?q=cache:GAn2ZIZ8nK8J:www.bbc.co.uk/journalism/ethics-and-values/public-interest/+bbc+guidelines+informing+public+debate+%28gathering,+providing+and+testing+information+on+key+issues+to+help+the+public+understand+and+debate+decisions+made+on+their+behalf%29,+preventing+deception&cd=1&hl=en&ct=clnk&gl=ca&client=firefox-a

<span style="font-family: Arial,Helvetica,sans-serif;"> Jobb, D. (2006). Media Law for Canadian Journalists. Toronto: Edmond Montgomery Publications.

<span style="font-family: Arial,Helvetica,sans-serif;"> Kovach, B., & Rosenstiel, T. (2001). The Elements of Journalism: What Newspeople Should Know and the Public Should Expect. New York: Three Rivers Press.

<span style="font-family: Arial,Helvetica,sans-serif;"> LaPointe, K. (2010, October 21). My new job. Retrieved October 22, 2010, from http://www.themediamanager.com/3/post/2010/10/my-new-job.html

<span style="font-family: Arial,Helvetica,sans-serif;"> R. v. Kirk LaPointe. Agreed Statement of Facts. (February 21, 2001)

<span style="font-family: Arial,Helvetica,sans-serif;"> Shapiro, I. (2010). Evaluating Journalism. Journalism Practice, 4: 2, 143 — 162, First published on: 27 October 2009 (iFirst)

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