Should be press liable or not
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| Язык | Английский |
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SHOULD PRESS BE LIABLE OR NOT?
Recent years have increased legal accountability of producers and
advertisers for providing SAFE products and RELIABLE informationto
customers. Agovernmentinfluences a widerangeof market
operations from licensing requirementsto contractactions.That
control announces and enforces determined norms of quality.
Each of these regulations isdesigned to protect consumers from
being hurt or CHEATED by defects in the goods and services they buy.
This matter,whenproducers looktothe law rather than to the
market to establish and maintain new standards of quality (oftheir
goods), shows, that modern market has an ability of selfregulation.
But it also shows another unbelievable feature:consumers areboth
incapable ofrationallyassessing risks and unaware of their own
ignorance.
Companies and corporations all over the world aresystematically
inclined toSHIRKon quality and that without the threat of legal
liability may subject their customers or other people to seriousrisk
of harm from their products if it could save money by doing so.
According to this point ofview, formostgoods and services,
consumers are POWERLESS to get producers to satisfy their demand for
safe, high-qualityproducts!The unregulatedmarket lets unfair
producers to pass on others the costs of their mistakes.
Legal liability is ready to correctthese "marketfailures"by
creating aspecialmechanism (feedback),regulatingrelations
between producers and customers. Unfair producers should be punished
and their exposure is increasing.
One market,however, has completely ESCAPED the imposition of legal
liability. The market for political information remainsgenuinely
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free oflegallyimposed quality obligations.The electronic mass
media are subject to more extensive government regulation thanpaid
media, butintheir roleassuppliers of political information,
nothing is requiredto meetany externally establishedquality
standards.
In fact, those, who gatherand reportthe news,have no legal
obligations to be competent,thorough or disinterested.And those,
who publish or broadcast it, have no legal obligation to warrant its
truthfulness,to guarantee its relevance, to assure its
completeness.
The thing is: Should the political information they provide fail,
for example,to be truthful,relevant, or complete,the costs of
this failure will not be paid by press. Instead they will be borne
by the citizens.Should the information intrude the privacyofan
individual or destroy without justificationanindividual's
reputation - again, the cost will not be borne by producer of it.
This side of "activity" ofproducersof harmfulordefective
information (goods,services, etc) practically is not acknowledged.
Producers of most goods and servicesare consideredworldsAPART
from thepress in kind,not just in degree.Holding producers in
ordinary markets to ever higher standards of liabilityisseen as
PROCOMSUMER. Proposing holdingthepress toanystandard of
liability for political information is seen asANTIDEMOCRATIC.The
press is constitutionally obligated to check on the government.
Most of policymakers justify legal liability for harms, caused by
goods and services and quite limited liability for harms,caused by
information. Liability for defective consumer products is PREDICATED
on a market failure.As for "unfair" producers,power of possible
profits PREVENTconsumersfrom translating their true preferences
for safetyandquality intoeffectivedemand. So, customer
preferences remainoutsidethe safety and quality decision-making
process of producers.Today, it'll be anewmechanism toforce
producers to follow customers true preferences.
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Lack of liabilityfor defective or harmful political information
can be predicated only on a different kind of supposed market failure
- not a failure of the market to SUPPLY the LEVEL of safety that
customers want but its failure to supplytheamount ofpolitical
information that society should have.Some experts say,that free
market has tendency to produce "toolittle"correct information,
especially political information.
The thing is: political information isa public good and it has
many characteristics of a public good. That is a productthatmany
people valueanduse butonlyfew will pay for.Factual(real)
information cannot easily be restricted to directpurchasers.Many
people benefit who do not pay for it because the market cannot find
the way to charge them.As you cansee,providers ofpolitical
information try to get as much profit as possible spreading it,so
they HAVE TO supply "too little" info. Otherwise - the market FAILS!
Here is another reason. Some analysts consider that the market also
fails because of low demand. Even if suppliers could "earn all their
money",they wouldn't provide the socially optimal amount ofinfo!
Private demandfor political info will never be the same as social
demand. And it will never reflect its full social value.
If it weretrue,that politicalinformationwas regularly
underproducedby themarket,there wouldbecause for serious
concern that might well justify generous sibsidies - in the formof
freedom fromliabilityfor the harms they cuase - for information
providers. But a proper look at modern market shows thatproducers
of political informationhave developed a wide range of strategies
for increasing the benefits of their effortstosolve thepublic
good problem.
The most obviousexampleof aspontaneously generated market
solution to the public good problemis ADVERTISING.Byproviding
revenue inproportiontotherelative size of the audience (for
radio &TV)or thereadership(for magazines&newspapers),
advertisers play a SIGNIFICANT role in the internalizing process. In
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effect, the sale of advertising at a price that varies according to
the number of recipients permits informationproducers to
appropriate the benefits of providing aproductthat manypeople
value but few would pay for directly. Advertising has an effect of
transforming information from a public into a private good. It makes
possible for information providers to make profits by satisfying the
tastes of large audiences for whose desiretoconsume information
they are unable to charge directly.
Thus, customer of goods or services and citizen of any country -
are in the same conditions. Like customers - citizens may have (and
they have) differentpreferencesfor political information,but
citizens do not valueinformation aboutpolitics only because it
contributes to their ability to vote intelligently and customers do.
Like customers - citizens'tastes differinmany ways and that
generate widevariations intheintensity oftheir demand for
political information.
Since it does not appear to be true, thatpoliticalinformation
market isblockedby anongoingproblem ofundersupply,the
conventional justification for granting the press broad freedom from
legal liability for the harms it causes must give away!It does not
necessarily mean that the economic case for legal sanctions has been
made. Althoughitseems the market could be relied upon to supply
"enough" information.So that subsidies in the formof protection
from legalliabilityare not needed.Personal responsibility and
legal accountability would be 100%if the information marketcould
internalize to producers not only the benefits but also the costs of
their activities & failures.As for victims,they'll get onemore
chance to avoid the harms happened from the production of defective
information.
Legal accountability for harm isdesirable inamarket that
systematicallyfails topunish"unfair"producers for defective
products. This kind of failure occurs in two quite different cases:
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1) The first occasion has to do with the market's responsivenessto
the demands of consumers.The failure occurs when customers are
unable to detect defects before purchase or to protect themselves
by taking appropriate precautions after purchase,when they are
unable to translate their willingnesstopay fornondefective
products intoademand thatsomeproducers will satisfy and
profit from. It also occurs when suppliers are unable to gain any
competitivead- vantageeitherby exposingdefects in their
rivals' products or by touting the relative merits of their own.
2) The second kind of market failure is an inability tointernalize
harm to bystanders - third parties who have no dealings with the
producers but who just happen to be in thewrongplace atthe
wrong time when a product malfunctions.Even when these kinds of
failures occur,legal accountability is problematicif itin
turn entailsinevitableerror inapplication or requires the
taking ofsuchcostly precautionsthatthey coverupall
benefits.
Conceiving of quality asa functionof accuracy, relevance and
comple- teness,consumers of political informationare notina
strong positionwhenit comes to detecting quality defects in the
political information they receive.Revelance may wellbewithin
their ken, but since they are quite unable to verify for themselves
either the accuracy or the completeness of any particular account of
political events.In addition, since political information usually
comes bundledwith otherentertainmentand newsfeaturesthat
sustain theirloyality to particular suppliers,consumers are not
inclined topunishinformation producersby avoiding future
patronage even when they commit an occasional gross error.
Nevertheless, competitionamong journalistsand publishersof
political information tends to createan environmentthatisin
general moreconductiveto accuracy than to lies or half-truths.
Journalistic careers can be made byexposing others'errors,and
they canberuined whena journalist is revealed to be careless
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about truth.These realities create incentives for journalistsnot
to make mistakes.
Moreover, the investment that mainstream publishers and broadcas-
ters make in their reputations for thoroughness and accuracy attests
to the market's perceived ability to detect and reward suppliers of
consistently high- quality information.Information suppliersthat
cater tomorespecialized tastes play a significant role. These
alternative ways of getting info are often probe apparentrealities
more deeply,interpreteevents withgreatersophistication and
analyse data more thoroughly than the mainstream media areinclined
to do.
In doing so, of course,their principal motivation is to satisfy
their own customers.But while pursuing this goal,they constrain
(even iftheydo not completely eliminate) the mainstream media's
ability to portray falsehood as truth orto OMITkeyfacts from
otherwise apparently compelete pictures.
The arrayof incentiveswithrespect to at least the general
quality of political information,with which themarket confronts
information providerscreatessystematic tendenciesfor them to
provide political info that is accurate and complete.Or perhaps it
would be slightly more precise to say that the market unfortunately
does not appear systematically to reward producers offalsehoodor
half-truth information yet,according to their activities.So that
consumers of political information don'tneedthe cluboflegal
liability toforceinformation providerstoprovide them with
quality information.
The analysts ought not to be read as an asserting that the reason
the market for political information works well is that it provides
just the right kind and quality of informationtoeach individual
citizen andthat each individual citizen has identical preferences
for info about government.Indeed, the premise of this argument is
that themarketworks because citizens (or customers) do not have
identical preferences and producers exploitthatfact byfinding
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ways tocaterto and profit from the varying demands of a diverse
citizenry. An implicit assumption provides the normative
underpinnings for the analysis.Obviously, the full implications of
this assumption cannot be worked out here.
The claimthat themarketin general"works"shouldn't be
understood as a claim that the information it generates is uniformly
edifying and never distorted. As you know many information producers
pander to the public's appetite for scandal and still others see to
it. These facts do notwarrantthe conclusionthatthe market
doesn't work.
More significantly,it seemsinconceivablethat any system of
government regulation - includingasystemin whichinformation
producers areliablefor "defective" information - could in fact
systematicallygenerate aflowof politicalinformation that
consistentlyprovided morecitizens with the quality and quantity
that met their own needs as they themselves defined thandoesthe
competition in the marketplace of ideas that we presently enjoy.
This analysissuggests thattheworkings of the market create
situation in which consumers of political informationdonot need
the threatofproducer liabilitytoguarantee thattheyare
systematically getting a TRUSTWORTHY product.
But consumers are not the onlypotential victimsofdefective
information and market incentives are not always adequate to protect
NONCONSUMER victims from the harm of defective information. Innocent
bystanders, suchas pedestrians hit by defective motorcycles,are
sometimes hurt by products over whose producers they have no control
either as consumers or competitors. Persons, who find themselves the
unwitting subjects of defective information,stand in ananalogous
position.
For example, a storyaboutsexual assaultmightbevery
interesting for public and might serve well the publicinterestin
being informed about the police efforts or criminal justice system.
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But the victim's name isNOT NECESSARYtoitspurposeand its
publication both invades her privacy and broke her safety.In cases
like this, it's not so easy to have confidence in market incentives.
The harmfromthe defectishighly concentrated on the single
defamed or exposed individual.
Now, it's time to ask the major question:Shouldthe pressbe
permitted toexternalize particularized harms?Why should not the
press, like other business entities,be liable when defects in its
products cause particularized harm to individual third parties who
have few means of self-protection at their disposal?
According to the Constitution,defamed public officials orrape
victims shouldhaveaccess tomassmediafor rebuttal.As for
everyday practice,the press is not always eager to givespace to
claims that it has erred.There are two objections,why the press
shouldn't be responsible for the harm of suchkind:accountability
to amoredemanding legal standard would compromise its financial
viability and undermine its independence.
These objections are tooSELF-SERVING tobetaken completely
seriously: Thefinancialviability argument is no more persuasive
when the product of the press harms innocent third partiesthanit
is when other manufacturers' malfunctioning products harm
bystanders. Aspressdoesn't underproduce information, thus
"freedom" from liability can't be defended as necessary subsidy. The
"financial viability" objectionpointstoward theimpositionof
liability for harm.
The need tomaintainthe press's independence from government
does providesupport forthepress's objectionthatliability
threatens themunduly.But it'shardto sustain the claim that
government's censorious hand would lurk behind a rule thatrequired
the presstocompensete individuals.Itis notobviousthat
enforcing a rule that simply prohibited publishing the names of rape
victims would signal the beginning of the end of our cherished press
freedom.
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Asking whether the press should be more legally accountablethan
it is now for publishing defamatory falsehoods about individuals or
revealing rape victims' names touches a number of difficult,highly
discussed questions. In spite of the fact, by recasting a portion of
the debate over legal accountability and byfocusingattention on
the disparity of legal treatmentbetweenproducers inthe
information marketandthose inothermarkets forgoodsand
services, itdoesseem possibleto gain some fresh and possibly
useful insight.
The reality seems to be that,with respect tothe qualityand
quantity of political information, freecompetitioninthe
marketplace of ideas performsadmirably, withinventiveways of
overcoming marketfailureand withflexibility in adapting to a
countless consumers preferences.
In light of this reality it ought not to be amiss to suggest that
when neither the threat of increasing a supposed undersupply nor the
looming shadow of government censorship is implicated, the massmedia
should be liable for egregious errors.