Legal minds are looking at what the future might bring for Irish citizen media, at reshaping the law in a way that might support, but also complicate, reporting by citizen journalists.
Central to this is the issue of who should be able to rely on the defence of absolute privilege in court reporting.
A recent Law Reform Commission issue paper highlights problems around who current defamation laws serve. Anyone who thinks they were defamed can take an action. But the expensive legal process means it is not a “meaningful remedy for most private citizens”, it says.
A wider range of media should be regulated, it also says. That would reflect the realities of the digital news landscape with its hundreds of news blogs, vlogs and social-media pages with varying professional standards and accountability.
Currently, the law is that journalists and citizens covering courts have an absolute defence from defamation actions, provided what they published was a “fair and accurate report of proceedings”. It applies to any platform, from an established news website to Twitter.
A report can be anything from a few words or a summary to a detailed account. It applies to anyone publicly discussing an ongoing trial in Ireland, Northern Ireland and certain international courts. However, this may change.
The commission has been collecting views on whether the “fair and accurate” absolute privilege should remain a defence for both professional journalists and citizen journalists such as social-media users and bloggers. Or whether it “should be reformed to restrict absolute privilege to a limited group of prescribed persons”.
It also explores the idea of extending a qualified privilege to this prescribed group where there is a minor mistake that renders a report inaccurate and potentially exposed to a defamation action.
It hasn’t made recommendations, yet. It’s looking at options. But it raises the possibility that some citizen media may be able to rely on privileges, while others might not. Who then, aside from professional journalists, might count as “prescribed persons”?
One option is to develop a broad legal definition of citizen media that is not limited to a specific mediums or platforms. If, say, a big part of its publishing activities are about news, if it is public and updated regularly, if the publisher is accountable to a code of ethics.
But a legal definition might be problematic, says Eoin O’Dell, an associate professor in law at Trinity College Dublin . “If you have clear categories the court can ask, ‘Is x a journalist?’, with reasonable certainty.”
“The problem is that the categories can exclude too much,” he says. Some blogs, start-up publications, trainees, and freelancers not in National Union of Journalists might find themselves out in the cold.
A better approach looks at the substance of the publication, O’Dell says. “Whether it is public interest and fills a watchdog role.”
Another route would be to reform media regulation to draw in citizen journalism. Those who want to cover trials could agree to a code of conduct and accountability.
The Law Reform Commission asks if “fair and accurate absolute privilege […] be applied to all persons who subscribe to a specific set of standards that would be prescribed by a body”. If they are signed up to a press council, for example.
Some press councils elsewhere have tried to reform and regulate a wider group of digital media. The Alliance of Independent Press Councils Europe now covers at a range of digital publishers. Some press councils have incorporated news bloggers. Similar proposals are under consideration in New Zealand.
But it can be challenging to define which citizen news media are within and outside the remit of regulators. Citizen journalism is diverse. There is value in this.
Democracies benefit from non-traditional approaches, which bring information and insight from voices that might otherwise be silent. To wit: sourcing of video or photos that refute official narratives, and expert scrutiny of private and public institutions.
In developing guidelines for court reporting, or more generally, regulation needs to consider that often the core drive of this sector is doing and saying things differently to mainstream. The challenge will be how to codify such a diverse and alternative industry. If bloggers are incorporated into regulation, they should also have representation on governing boards.
Justice should be done in public and subject to scrutiny. The defence of absolute privilege makes this possible. Citizens engaging in open journalism, through reporting and commenting on the administration of justice, enables ordinary people to become more than just passive consumers of news about the justice system. They add a layer of accountability.
But media regulation must also reflect the realities of the digital landscape. It must also help citizens who have been wronged. Privilege under the law comes with responsibilities.
How then, can the state give space to citizen journalism to take different tacks, and provide counternarratives and challenge authorities, while imposing some accountability?
The Law Reform Commission is inviting submissions until 23rd November.