Blog by John Miller

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Media fight back

The most important rule in newsrooms is this one: Don't break the law.

But one of the most difficult ethical questions news executives face is what should they do when their cameras capture evidence of someone else breaking the law?

Does it depend on the crime? If someone assassinates the prime minister, any reputable news organization would come under moral and legal pressure to do the right thing and help police solve the crime, including handing over unpublished pictures. But what about pictures that show smaller crimes, like looters smashing store windows during a riot? Or shots of people defying eviction orders at Occupy events?

Does it depend on who's asking? The decision to publish should be made in the newsroom. But what of evidence that is not published? What if a private citizen wants unaired video to use in a civil libel action? Would it be right for the media to hand it over? What if the request comes from police, who may want to identify people they intend to charge with crimes but all too often are on a fishing expedition for any evidence they might have missed? What if a court of law orders you to turn them over?

Whatever you decide, there are going to be gray areas.

These issues are being played out now in British Columbia, where six large media outlets are challenging court orders requiring them to turn over unpublished photos and video from Vancouver's Stanley Cup riot.  Lawyers for the Globe and Mail, CTV, CBC, Global Television, the Vancouver Sun and the Vancouver Province are arguing that the orders violate their journalistic integrity and put their reporters and photographers at risk.

I believe they are right to challenge it. Media lawyer Dan Burnett writes in a petition to B.C. Supreme Court to set the order aside: "When journalists' work product is treated as police evidence, their ability to operate as independent and impartial reporters is compromised and potentially their very safety is at stake. The more often such orders are granted, the more likely that rioters in explosive situations will look upon the journalists as evidence gatherers and react accordingly."

Now, do you tend to agree with that? Or do you support what the state is likely to say in response, that reporters and photographers have no more rights than private citizens to conceal evidence? Is the Supreme Court likely to be convinced by arguments advanced by the commercial media, which use pictures of wrongdoing to attract readers or viewers and generate profit, or is it more likely to support the administration of justice?

Certainly, the Vancouver police are in a bind. They were hopelessly unprepared to control the mobs of hockey fans who burned cars, smashed windows and looted stories in downtown Vancouver the night of June 15, shortly after the Vancouver Canucks lost the Stanley Cup final. To date, no one has been charged with rioting. Vancouver police handed over files to Crown counsel last month recommending 163 charges against 60 people, but those have yet to be approved.
Burnett's petition argues the police already have tens of thousands of photos and hundreds of hours of video shot by the public and published or broadcast by the media. He says the production order is too broad, asking for each and every image captured on the evening of June 15, regardless of whether they depict a crime. He says police should reapply for production orders once they have identified specific crimes for which they require additional photos and videos to solve.

I think there are stronger grounds than that to challenge the order. After all, the court will decide the matter by carefully weighing constitutional rights. Will the public be served best by letting the media enjoy freedom of expression, or will it gain more by giving police the means to investigate crimes?

The strongest argument for freedom of expression and of the press was one advanced recently in Europe by Statewatch, a civil liberties watchdog organization, after a series of similar instances of media being forced to hand over unpublished material to police. "Freedom of the press, a central tenet of any democracy, is being undermined," the group said. "The media's inability to function freely and independently leads to the centralization of information in the hands of the state. If access to sources and locations is mediated by police, courts and other institutions, there is a significant risk that journalists and photographers will become subservient to the very bodies that society requires them to scrutinize."

If police start letting media cover events only so they will later have more potential evidence if things go wrong, the independence of the media will be hopelessly compromised and unruly crowds will certainly attack the messengers, who they will see as arms of the state.

If the media challenge in British Columbia fails, news organizations may find themselves with no option but to destroy pictures and footage that is not used so they will not later have to compromise themselves by handing them over to a court. That would  seriously deplete the images that are now archived to preserve our history.

The job of the police is to preserve order and keep the peace. The job of the media is different, and it includes keeping an eye on those very same police.