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Winter 2001
Volume 6, Number 2
AASFE and RTNDA Adopt New Codes of Ethics
In the autumn of 2000, both the American Association of Sunday and Feature Editors and the Radio Television News Directors Association adopted new codes of ethics at their respective annual meetings. Efforts by George Lucas to control timing of reviews and stories surrounding the release of his 1999 Star Wars: Episode 1- The Phantom Menace, helped spur the AASFE to adopt guidelines on editorial independence and ethics. The RTNDA updated and elaborated its previous code, dating from 1987.
The AASFE code encourages media organizations to put policies into place that guarantee editorial independence from outside influences. The code's essence is that news organizations should not let their journalistic decisions be guided by any kind of threat or promise concerning access. The AASFE encourages its members to enforce policies against accepting free meals, trips or products offered by organizations seeking coverage. The code that was passed unanimously in New York on September 27, 2000, also labels "fan-like" behavior, such as asking for autographs, as contrary to the highest standards of newsgathering.
The RTNDA's revised code, adopted in Minneapolis on September 14, 2000, is based on six principles: Public Trust, Truth, Fairness, Independence, Integrity and Accountability. Compared to its 1987 version, the new code addresses more issues, and addresses them in more detail. Whereas in the old code, truth and accuracy were the only issues that were elaborated upon, the new code addresses a broader range of ethical issues in a more balanced and exhaustive way. Some of the new guidelines in the code include children's privacy, editorial independence from management control and other outside influences (e.g. self-interest, peer pressure), surreptitious news gathering, use of confidential sources, ethical use of new technologies, and diversity and stereotyping. Unlike its predecessor, the new code also explicitly articulates an obligation to serve the public interest, stating that journalists should "fight to ensure that the public's business is conducted in public." The new code also states that journalists should resist any professional or governmental licensing initiatives. The RTNDA has members in over 30 countries, some from countries which have licensing systems for journalists.
By Bastiaan Vanacker
EU and US Reach Agreement on Safe Harbor Principles
After more than two years of negotiation, the European Commission approved a set of "Safe Harbor" principles proposed by the U.S. Department of Commerce on July 27, 2000. Stringent data protection legislation in Europe prohibits transfer of personal information concerning its citizens to countries, such as the United States, that do not meet the privacy standards applied within the European Union. This would have been an economic disaster for American airlines, hotel chains, human resource agencies, credit card companies or other businesses that rely on transborder flow of personal data from Europe for their day-to-day practices. The agreement may avert this economic disaster, by allowing U.S. companies wanting to transfer data across the Atlantic to comply with European standards by voluntarily signing on to the Safe Harbor principles.
Transatlantic discussion began shortly before October 1998, the effective date for the EU Directive 95/46/ED on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Some countries have yet to incorporate aspects of the Directive in their national law. The Directive was designed to harmonize the differences in existing privacy laws between the EU member countries, and to create a smooth transborder flow of information within the common market.
In Europe, privacy is considered a human right. It is mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms. This Directive reflects this profound concern for privacy.
The Directive is very broad in scope, and requires each of the member states to enact laws governing the processing of personal data: "information relating to an identified natural person ('data subject')." Processing of data is defined expansively as "any operation or set of operations which is performed upon personal data, whether or not by automatic means such as collection, recording, organization, storage, adaptations or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction." However, the Directive does provide a qualified exemption for data collected for journalistic purposes.
The Directive applies to public agencies as well as to private entities. It states that data collectors can use personal data only for the purpose for which they were originally collected, and may be kept no longer than necessary for that purpose. The data have to be kept up to date, accurate and must be accessible to the data subject. Furthermore, data can only be "processed" with the consent of the data subject. The processing of sensitive information such as race, ethnicity, political opinions or sexual orientation is subject to even more restrictions. The Directive sets a very high standard for data protection, and forbids the transfer of personal data to countries that do not provide an adequate level of protection.
The United States, with its "patchwork quilt" of data protection legislation consisting of federal and state statutes that primarily regulate government use of personal data, does not meet this standard of "adequate" protection. But more than two years of transatlantic negotiating has led to an agreement that allows individual American companies to engage in data transfer activities as long as they join the voluntary, self-regulatory Safe Harbor regime. The Safe Harbor mechanism is a compromise between the strict rules of the EU and the self-regulatory approach favored by the United States. Organizations that want to invoke the Safe Harbor must follow seven principles:
The enforcement principle has been the primary source of disagreement between the EU and the United States. The EU did not have confidence that privacy seal programs and privacy policies would carry enough weight to ensure that businesses would abide by the data protection principles. The United States, however, was reluctant to monitor private businesses, continuing to favor the self-regulatory approach. Ultimately, an agreement was reached in which the Federal Trade Commission has stepped up as the privacy enforcer in the United States.
The solution that was reached is a mixture of the American and European approach: self-regulation with teeth. This approach tries to bridge the huge gap between the American system of self-regulation and the European legal privacy framework.
Organizations voluntarily sign up for the Safe Harbor. A list of all organizations which have joined will be maintained by the Department of Commerce. Enforcement will primarily be through alternative dispute resolution mechanisms such as TRUSTe or BBBOnline. If "harborites" fail to comply with the rulings of these bodies, the FTC will be notified. The commission can then take further steps against them under section 5 of the Federal Trade Commission Act. This act declares "unfair or deceptive acts or practices in or affecting commerce" to be illegal. In a number of letters to the EU, FTC chairman Robert Pitofsky convinced the EU that the agency had jurisdiction in this matter.
From the EU perspective, this agreement has been welcomed by Internal Market Commissioner Frits Bolkenstein as a package that "will facilitate trans-Atlantic information flows by providing legal certainty for operators and the safeguards consumers demand to protect their privacy." On this side of the Atlantic, however, the national Business Coalition on E-commerce and Privacy, a consortium of companies and associations representing diverse economic sectors, has expressed its concern that American businesses are forced to adopt costly European data protection principles, though no such laws exist in the United States.
Others have pointed out that the EU system is simply not a good model to follow because it was drafted in a time when centralized mainframe computers ruled, and data collection was time consuming and expensive. Whether this legal framework will be workable in the information age, where personal data can be collected much more easily and surreptitiously is unclear.
Privacy advocates, on the other hand, have seen in the Safe Harbor agreement a powerful rhetorical device to push for more legislation in the United States. Junkbuster's president, Dr. Jason Catlett, asked the National Governors' Association in the summer of 2000 why the United States government is "supporting privacy rights for foreigners and opposing those same privacy rights for its own people?"
The Safe Harbor became effective on November 1. It remains to be seen how this mixture of self-regulation and enforcement will work in reality. For American business, however, the immediate threat of having data transfer from Europe curtailed is suspended, at least for the time being. The EU has declared it will not "freeze" any data transfer at least until the middle of 2001.
By Bastiaan Vanacker
Name and Shame Campaign Sparks Controversy in the United Kingdom
A popular British tabloid's decision to publish the names, photographs and addresses of individuals previously convicted of sex offenses created a stir in the United Kingdom during the summer of 2000. An eruption of vigilantism followed the publication, arguably destroying several lives, leaving a newspaper with a tarnished reputation and - possibly - some lawsuits to deal with as well. However, no noteworthy change was made in Britain's laws on the "outing" of sex offenders.
On July 24, 2000, following a search of more than two weeks that had captivated the nation, the body of eight-year-old Sarah Payne from Brighton was found. The child had been sexually assaulted. In the wake of these events, News of the World began its "Name and Shame" campaign: the weekly publication of released sex offenders' names, addresses, phone numbers and photographs. The first 96 names appeared one week after Payne's body was found. The Sunday tabloid claimed that it wanted to galvanize public opinion, develop a debate on an important issue, and support the victim's family in their lobbying efforts to adopt what was dubbed as "Sarah's Law" in Britain. "Sarah's Law" would have been modeled on the American "Megan's Law." "Megan's Law," signed in 1996 by President Clinton, requires law enforcement agencies to notify the public when a sex offender moves into the community. It followed a national campaign spearheaded by the parents of Megan Kanka, a seven year old who was murdered and raped by a released sex offender who had been living anonymously in her neighborhood.
Since 1997 there has been a sex offenders register in the United Kingdom, but it is closed to the public. Only head teachers, doctors, youth leaders, sports club managers, and other community leaders are informed, on a confidential basis, of the existence of a sex offender in their community.
Though the situation in the United Kingdom was superficially similar to the one in the United States after Megan's death, the outcome has been different. Not only was the Rupert Murdoch-owned newspaper subjected to an onslaught of criticism by the mainstream media, it also lacked the support of important organizations like The National Society for the Prevention of Cruelty to Children and The Association of Chief Police Officers. Rather than a "galvanized public debate," a chain of violent incidents followed the publication. Two men who had been "outed" by the paper committed suicide, and a number of innocent people, mistaken for sex offenders, were chased out of their homes, harassed and suffered property damage by an aggressive mob. After two weeks and the publication of only 84 of the 110,000 names the paper had pledged to publish, the campaign ended. Despite these setbacks, the newspaper vowed to keep pushing for "Sarah's Law."
On September 16, 2000, however, home secretary Jack Straw rejected "Sarah's Law," despite a 700,000-strong petition backing it. Information on released sex offenders will remain closed to the general public in the United Kingdom. Instead, the Blair government adopted a package of measures aimed at providing safeguards for children, including informing communities about the number of sex offenders in their area, and of the measures being taken to protect children. These policies comport with the recommendations of police and child protection organizations that had spoken out against a UK version of Megan's law, contending it might drive pedophiles underground. Some lawyers also had argued that such a law could be challenged as a breach of the right to privacy guaranteed by the European Convention on Human Rights.
The whole episode might have a bitter ending for the newspaper. Rebekah Wade, the tabloid's editor, was expected to be called before a Home Affairs Select Committee to justify the campaign, much to the dismay of press freedom campaigners. The newspaper may also be facing some defamation suits.
One man is already considering suing the paper. His troubles began when his name, telephone number and address erroneously appeared on the tabloid's list. Even though the accompanying picture was of an actual pedophile with the same name, his lawyer said that it was unclear that his client was not same person as the pedophile in the publication.
According to Amber Melville-Brown, a leading British libel lawyer, the newspaper should have been more careful in identifying the actual pedophiles so there could be no confusion between them and the innocent individuals. People who have been "shunned" by the public as a result of the publication, even if the newspaper did not make any factual mistakes in its list, may file suit for defamation, because in the United Kingdom, the effect on the injured party, and not the intention of the speaker, is the legal standard.
By contrast, in the United States, the qualified privilege for accurate reports of official documents as well as opinions, acts as a defense against libel suits. An American journalist can be sued for printing false information with reckless disregard for the truth, but harm resulting from the publication of information that is in the public interest is not actionable.
On September 11, 2000, the constitutionality of Megan's Law was upheld by U.S. Court of Appeals (3d Cir.) in New Jersey, Paul P. v. Farmer , 227 F. 3d 98 (3d. Circ. 2000). A released sex offender, referred to as "Paul P." in court documents, contended that community notification of a released sex offender's address violated his right to privacy. The court disagreed, finding that there are sufficient safeguards to prevent unauthorized disclosure of information. Information about a sex offender's residence is given only to people who sign a "Megan's Law Rules of Conduct," which bars them from sharing this information with others not authorized to receive it. Because the information is given only to people who have a particular need for it, the court argued, the plaintiff's privacy right is trumped by the state's interest in disclosure.
By Bastiaan Vanacker
Librarians File EEOC Compaint in Minneapolis
On May 3, 2000, the controversial issue of mandatory filtering software on publicly-accessible computers took a novel twist when seven librarians from the Minneapolis Public Library filed a complaint with the Equal Employment Opportunity Commission. They contend that they have been repeatedly exposed to sexually explicit images since the library installed computers with Internet access more than three years ago. They claim that some patrons have used the computers to surf the Internet for pornography, leaving the images on the screens and on printouts. According to the librarians, the pictures are highly offensive, some depicting child pornography and bestiality.
This "steady stream of sexually explicit, undeniably pornographic images" has, according to the complaint, created an unsafe and hostile working environment, subjecting the librarians to sexual harassment. The complaint, filed by attorney Bob Halagan, further claims that the library has failed to address the issue, even after being made aware of the problems. Instead of fulfilling its statutory obligations to protect its employees, Halagan argues, the library administration has chosen "to rely on ill-founded notions of 'free speech' and misapprehensions as to the true scope and breadth of the First Amendment."
In the past, library director Mary Lawson has objected to Internet filters, citing First Amendment concerns. Although the librarians have not explicitly requested the installation of filtering software, this conflict is part of a larger national debate concerning restricting online access to pornographic materials in publicly-funded libraries and schools by means of blocking software.
The crux of this issue has been whether minors should be 'protected' from obscene materials. In its 1997 ruling in Reno v. ACLU, the Supreme Court struck down the Communications Decency Act that would have required libraries to install filtering software, finding that restrictive and overreaching programs might also restrict access to socially valuable speech. Courts have not yet been presented with the question of how to balance free speech with the right to a "safe work environment" in this context.
If the library board and the librarians can find a resolution for this conflict, the courts might not have to do so in this case, either. After a complaint is filed with the EEOC, the plaintiff cannot file a lawsuit for six months, a period during which mediation can take place. Mediation meetings were held in July and November, 2000, but were not successful. No lawsuit has yet been filed, nor has the complaint been withdrawn.
On May 17, the library board adopted guidelines for Internet use at the library. Since then, the situation at the MPL has "greatly improved," according to Wendy Adamson, one of the plaintiffs, but some issues still remain unresolved. According to Halagan, the issues are not limited to addressing the librarians current situation, but also how to compensate the librarians who have had to work for a number of years in an "unsafe working environment."
Meanwhile, on December 15, right before going into recess, Congress approved a mandate that would require libraries and schools to use filtering software in order to receive federal funding. The ACLU plans to challenge the law in court because it is a "mandated censorship system by the federal government." Critics also argue that filtering software is still not refined enough. They cite a recent study by free speech group Peacefire that found that several popular Internet filters block websites of human rights organizations.
By Bastiaan Vanacker
Award Winning Cartoonist Delivers 15th Annual Silha Lecture
Less than a week before the divisive 2000 National Election, the Silha Center's 15th Annual Lecture hosted Chip Bok, award-winning political cartoonist for the Akron Beacon Journal. Bok's work has appeared in Reason magazine, The Washington Post, The New York Times, Time and Newsweek. For the first time, the Lecture moved off the University of Minnesota campus to the Fitzgerald Theater in downtown St. Paul, for an evening program on November 2, 2000.
As Silha Center Director Jane Kirtley reminded the audience, Minneapolis Star Tribune Editorial page editor Susan Albright has said, "Cartoons represent, sometimes all at once and sometimes by turns, biting opinions, gentle ribbing, excruciating truths, shared grief, a belly laugh of recognition, a societal relief valve, a Mr. Hyde to our Dr. Jekyll, our outrageous cousin - the one we love, but whose audacity scares us." Chip Bok's cartoons embody all those elements.
Bok defines his work as "a six-days-a-week, 52-weeks-a-year negative ad campaign," and a form of "rough justice for politicians." He says that if a political cartoon causes anger, laughter, or, best of all, thought, it has accomplished its goal. Political cartooning, he said, requires the cartoonist to find something that's happening, draw it to make a point, and then hope the reader "gets it" within seven seconds.
Bok displayed a collection of some of his most provocative cartoons, including one of a photographer claiming not to be the paparazzi, but the media. Bok drew the cartoon soon after the death of Princess Diana, with the goal of showing that if a photojournalist wanted to take a picture, he should be able to take that picture, and it shouldn't matter who the subject is. Another cartoon, drawn in reaction to the trademark dispute over the word "Ohio" between Ohio State University and Ohio University, depicted a police car pulling up to a football field to arrest a marching band as it formed the word "Ohio." Another cartoon - depicting a man waiting for execution in an electric chair, the results of a poll regarding his guilt posted behind him - was drawn in reaction to the 2000 Presidential campaign's focus on both poll results and the death penalty.
Has Bok ever been ashamed of any of his political cartoons? Not ashamed, he said, but he admitted that there are some that he has not been proud of. For example, immediately after the Russian submarine Kursk disaster, Bok thought the plight of the submarine paralleled the plight of the Gore campaign. He drew a cartoon of Gore tapping out his acceptance speech from a sunken submarine labeled "Democrats." The cartoon was drawn before the enormity of the Kursk tragedy was fully known, but appeared after the extent of the tragedy hit the news.
Another cartoon depicted a nun smacking a student with a ruler, spinning him head over heels and knocking his AK 47 automatic weapon out of his hand. Bok titled the cartoon, "Why there's no gun violence in parochial schools." He received letters of complaint about the cartoon, but had difficulty understanding why some people would find the cartoon offensive. "I even thought it was favorable to the nuns, who are fully capable [of maintaining discipline]," he said.
Bok posits that he is able to do his job well because there is something inside of him, which will remain perpetually 12 years old. He feels this is a necessary trait for all political cartoonists and humorists, and illustrated his point with a story about the time he and several fellow cartoonists crashed a party at the Democratic National Convention by posing as the security detail for Los Angeles mayor, complete with phone cords from their hotel phones stuck in their ears.
Bok was asked why political cartoonists no longer "dehumanize" their subjects as they did in the 1930s and 40s, such as drawing Hitler as a rat. Bok replied that dehumanizing the subject reflects a lack of creativity. A cartoonist should seek to capture the person's personality, to see how a "victim," moves and how he behaves, he said. In illustrating his point, Bok turned to his easel and drew former President George Bush. He depicted Bush with a bony face, and with all the accoutrements of a frantic, manic life. Bok's caricature gradually assumed the demeanor of Daffy Duck. "See?" Bok asked his audience. "Why do I have to dehumanize something like that?" Then, stepping back thoughtfully from his easel, he studied his work a moment, then commented, "Oh. Maybe I have."
Political cartoons, Jane Kirtley concluded, greatly enrich the conversations that take place in a democracy. She quoted Supreme Court Chief Justice William Rehnquist who wrote in Hustler Magazine v. Falwell, "Despite their sometimes caustic nature, graphic depictions and satirical cartoons have played a prominent role in public and political debate. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them."
In addition to the Silha Lecture, Bok also gave a presentation to students and faculty of the School of Journalism and Mass Communication, appeared on Minnesota Public Radio's Midmorning with Katherine Lanpher, WCCO radio, KMSP television and KSTP television. He also spoke at a pre-Lecture dinner hosted by Mrs. Otto Silha, attended by members of the Twin Cities media and law community as well as members of the Silha family.
Stephen Silha, the son of the late Otto Silha and Mrs. Silha, presented Silha Center Director Jane Kirtley with a framed original editorial cartoon, drawn in 1964 by Roy Justus of the Minneapolis Star, to be displayed in the Silha Center.
By Elaine Hargrove-Simon
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