“Citizen Journalism” and Privacy
posted by:Teresa Scassa // 11:59 PM // January 30, 2007 // ID TRAIL MIX
It is increasingly commonplace for video of events, captured by ordinary individuals, to make the news. With the ubiquity of camera phones, the likelihood that someone will be on hand to record incidents otherwise lost to the news media increases significantly. To give an illustration, in the first week of January, a Nova Scotia cabinet minister was forced to resign when the media broadcast images from a cell phone video which showed him leaving the scene of an accident. The video was captured by a witness to the accident.
Examples like this are only one variety of so-called citizen journalism, which can take many forms. In some cases, citizens capture video, or provide commentary on news stories to major media outlets which report and communicate these contributions alongside their professionally prepared content. In other instances, individuals or collectives become the news intermediaries by creating alternative web sites to disseminate news or information on the theme or topic of their choice. Individuals may also dispense with intermediaries entirely, and create their own blogs, or post video footage or verbal commentary on their own website or on a content-sharing forum such as YouTube. These phenomena have given rise to a lively debate about the very nature of journalism.
Citizen journalism raises interesting privacy issues. Online video footage, photographs and even written commentary can feel extremely invasive of one’s private sphere. This is particularly the case where one has no expectation that one’s activities are being recorded. Yet in Canada, for example, legislation such as the federal Personal Information Protection and Electronic Documents Act (PIPEDA), the Personal Information Protection Act (PIPA) in each of B.C. and Alberta, the B.C. Privacy Act, (to give a few examples), contain exceptions for information collected, used or disclosed for journalistic purposes. These exceptions from basic privacy norms recognize that the public interest in news events will tend to outweigh individual privacy interests.
What is news, then? And what is journalism? Is it anything that takes place that someone considers worth reporting or worth reading about? Or is news defined in terms of either who gathers it (journalists) or who reports it (established media). To a large extent, the legislated exceptions from privacy legislation mentioned above seem premised on a particular understanding of journalism – one that involves an executive editorial control that acts as a filter for inappropriate content, and that follows accepted norms for news reporting. Yet there is a push in some quarters to recognize ordinary citizens acting as news intermediaries as being engaged in journalism. (See, for example, the discussion by Michael Geist in “We are all Journalists Now”, http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=1280)
Where citizens send their cell phone videos to news outlets to be broadcast as part of television news programs, the result can be characterized as traditional media outlets expanding the scope of sources on which they rely for news footage. The screening mechanisms, quality control, verification measures and so forth, presumably remain in effect. Thus it is likely that cell phone footage broadcast over television networks will benefit from journalism exceptions in privacy legislation.
The situation is less straightforward, however, when so-called citizen journalists avoid the intermediation of professional news outlets and offer their footage online by posting it on private, non-professional news sites, on content-sharing sites such as YouTube, or on their own personal websites. Absent the formal infrastructure, do their activities constitute journalism? To put it another way, do the exceptions protect an industry, or a particular kind of activity? And if it is the activity, then is there a basis for distinguishing between activity that merits the label ‘journalism’ and that which falls below the unarticulated standard? (And here again, a journalist might be defined in terms of the acceptance of their work by an established media industry). It is interesting to note that in a recent decision from the U.S. District Court of South Carolina, a judge, in considering whether a blogger’s comments were ‘journalism’ proposed a functional analysis “which examines the content of the material, not the format, to determine whether it is journalism.” (BidZirk, LLC v. Smith, April 10, 2006).
Of course, with a statute such as PIPEDA, which only applies to the collection, use or disclosure of personal information in the course of commercial activity, making one’s cell phone video footage freely available to all interested parties does not trigger the application of the Act in the first place. B.C’s PIPA does not apply to a person acting in a “personal capacity”, whatever that might mean. (If someone is not acting in a “personal capacity” when they post video footage of events online, then in what capacity are they acting? Is it necessarily journalistic?) It also does not apply where the collection, use or disclosure is for journalistic purposes “and for no other purpose” (Query: what is a journalistic purpose? Is it just to see something in print, or does it include a desire to right a wrong, see justice done, fight crime, fight pollution, etc.? If these goals are part of the purpose for posting footage, for example, then is this a journalistic purpose alone, or a journalistic purpose combined with some other purpose?) B.C.’s Privacy Act, which creates a cause of action for a violation of an individual’s privacy rights, provides that a publication of material does not violate privacy if “the matter published was of public interest”.
The wording of these various exceptions raises interesting questions about the scope and purpose of journalism exceptions in privacy legislation. Is the goal to allow an industry to continue to operate in its customary manner? Or do the exceptions serve a broader public interest objective? The B.C. Privacy Act (to use an example) focuses on the issue of the “public interest” in determining whether a publication is a violation of privacy rights. With cell phone footage posted online, therefore, the issue under might be whether disclosure of the footage served a “public interest”. One may wonder whether the choice by the drafters of such statutes as PIPEDA or PIPA to use “journalism” as the basis for the exception aims to capture more than simply the public interest. In other words, is it possible that those statutes focus on a more traditional concept of journalism which assumes the added protective layer of editorial choice and unwritten norms or conventions?
Some say citizen journalism will ultimately make politicians, police, public figures and corporations more accountable, as they can no longer assume that their conduct will remain largely insulated from public view. However, others raise concerns about the impact of some forms of citizen journalism on personal privacy. They note that the targets of such journalism may not just be public figures and institutions, but may be private citizens captured committing minor infractions in their course of their daily lives. For example, if municipal by-laws say that trash cannot be put on the curb until the morning of pick-up day to prevent animals from getting into the trash and making a nasty mess, does a person who puts their trash out the night before deserve to have their photograph posted on a website which denounces those who contribute to urban pollution? Perhaps they do. But the level of exposure may be more than is warranted by the public interest. It might expose that individual to a backlash that is out of proportion to the offence. It is also not particularly nuanced; it does not all for a consideration of the “other side”. Is there a difference between journalism and vigilanteism? In Oklahoma City, one man decided to post on his web site video footage of johns soliciting sex from prostitutes in his neighborhood in an effort to combat prostitution in his neighborhood. (http://showmenews.com/2006/Aug/20060817News023.asp) Is this citizen journalism or vigilanteism? Or a bit of both?
To side track for a moment, it is interesting to consider the debates that have arisen regarding the online publication of court decisions. The publication of court decisions has always been an important part of an open and transparent system of justice. However, the impact on individuals of the internet publication of sensitive personal information has required some modification of this general principle of openness. The Canadian Judicial Council (CJC) has developed a protocol for the drafting of reasons for judgment by judges which is intended to balance the principle of openness with the reasonable privacy interests of litigants. (http://www.cjc-ccm.gc.ca/article.asp?id=2814) Yet in the absence of a court-ordered publication ban, the CJC would only restrict the publication of personal information in court decisions in the most extreme circumstances:
. . . there may be exceptional cases where the presence of egregious or sensational facts justifies the omission of certain identifying information from reasons for judgment. However, such protection should only be resorted to where there may be harm to minor children or innocent third parties, or where the ends of justice may be subverted by disclosure or the information might be used for an improper purpose. (CJC, Recommended Protocol for the Use of Personal Information in Judgments, para 31)
Of course, the publication of judicial decisions is not citizen journalism. The motivation towards openness in the reporting of judicial decision-making is supported by both a strong sense of an underlying public interest that is being served, and confidence in a professional and accountable judiciary. To return again to the journalism exceptions in privacy legislation, perhaps it is a sense of the public interest served by the professional news media combined with a certain confidence (whether warranted or not) in the professionalism and accountability of the established news media that lies behind the legislated exceptions to privacy norms in the collection, use and disclosure of personal information. If this is the case, then citizen journalists should be wary.
Teresa Scassa is Associate Professor and Director of the Law and Technology Institute at the Dalhousie University Law School.