Should press be liable or not?. Доклад. Другое.
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Recent years have increased
legal accountability of producers and advertisers for providing SAFE products
and RELIABLE information to customers. A government influences a wide range of
market operations from licensing requirements to contract actions. That control
announces and enforces determined norms of quality.
Each of these regulations is
designed to protect consumers from being hurt or CHEATED by defects in the
goods and services they buy. This matter, when producers look to the law rather
than to the market to establish and maintain new standards of quality (of their
goods), shows, that modern market has an ability of selfregulation. But it also
shows another unbelievable feature: consumers are both incapable of rationally
assessing risks and unaware of their own ignorance.
Companies and corporations all
over the world are systematically inclined to SHIRK on quality and that without
the threat of legal liability may subject their customers or other people to
serious risk of harm from their products if it could save money by doing so.
According to this point of
view, for most goods and services, consumers are POWERLESS to get producers to
satisfy their demand for safe, high-quality products! The unregulated market
lets unfair producers to pass on others the costs of their mistakes.
Legal liability is ready to
correct these "market failures" by creating a special mechanism
(feedback), regulating relations 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 remains genuinely 2 free of
legally imposed quality obligations. The electronic mass media are subject to
more extensive government regulation than paid media, but in their role as
suppliers of political information, nothing is required to meet any externally
established quality standards.
In fact, those, who gather and
report the 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 privacy of an
individual or destroy without justification an individual's reputation again,
the cost will not be borne by producer of it.
This side of
"activity" of producers of harmful or defective information (goods,
services, etc) practically is not acknowledged. Producers of most goods and
services are considered worlds APART from the press in kind, not just in
degree. Holding producers in ordinary markets to ever higher standards of
liability is seen as PROCOMSUMER. Proposing holding the press to any standard
of liability for political information is seen as ANTIDEMOCRATIC. 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 PREVENT consumers from translating their
true preferences for safety and quality into effective demand. So, customer
preferences remain outside the safety and quality decision-making process of
producers. Today, it'll be a new mechanism to force producers to follow
customers true preferences.
Lack of liability for
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 supply the amount of
political information that society should have. Some experts say, that free
market has tendency to produce "too little" correct information,
especially political information.
The thing is: political
information is a public good and it has many characteristics of a public good.
That is a product that many people value and use but only few will pay for.
Factual(real) information cannot easily be restricted to direct purchasers.
Many people benefit who do not pay for it because the market cannot find the
way to charge them. As you can see, providers of political 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 of info! Private demand for political info will never
be the same as social demand. And it will never reflect its full social value.
If it were true, that
political information was regularly underproduced by the market, there would be
cause for serious concern that might well justify generous sibsidies in the
form of freedom from liability for the harms they cuase for information
providers. But a proper look at modern market shows that producers of political
information have developed a wide range of strategies for increasing the
benefits of their efforts to solve the public good problem.
The most obvious example of a
spontaneously generated market solution to the public good problem is
ADVERTISING. By providing revenue in proportion to the relative size of the
audience (for radio & TV) or the readership (for magazines &
newspapers), advertisers play a SIGNIFICANT role in the internalizing process.
In effect, the sale of advertising at a
price that varies according to the number of recipients permits information
producers to appropriate the benefits of providing a product that many people
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 desire to consume 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) different preferences for political
information, but citizens do not value information about politics only because
it contributes to their ability to vote intelligently and customers do. Like
customers citizens' tastes differ in many ways and that generate wide
variations in the intensity of their demand for political information.
Since it does not appear to be
true, that political information market is blocked by an ongoing problem of
undersupply, 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.
Although it seems the market could be relied upon to supply "enough"
information. So that subsidies in the form of protection from legal liability
are not needed. Personal responsibility and legal accountability would be 100%
if the information market could internalize to producers not only the benefits
but also the costs of their activities & failures. As for victims, they'll
get one more chance to avoid the harms happened from the production of
defective information.
Legal accountability for harm
is desirable in a market that systematically fails to punish "unfair"
producers for defective products. This kind of failure occurs in two quite
different cases:
) The first occasion has to do
with the market's responsiveness to 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 willingness to pay for nondefective products into
a demand that some producers will satisfy and profit from. It also occurs when
suppliers are unable to gain any competitive ad vantage either by exposing
defects in their rivals' products or by touting the relative merits of their
own. 2) The second kind of market failure is an inability to internalize harm
to bystanders third parties who have no dealings with the producers but who
just happen to be in the wrong place at the wrong time when a product
malfunctions. Even when these kinds of failures occur, legal accountability is
problematic if it in turn entails inevitable error in application or requires
the taking of such costly precautions that they cover up all benefits.
Conceiving of quality as a
function of accuracy, relevance and completeness, consumers of political
information are not in a strong position when it comes to detecting quality
defects in the political information they receive. Revelance may well be within
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 bundled with other
entertainment and news features that sustain their loyality to particular
suppliers, consumers are not inclined to punish information producers by
avoiding future patronage even when they commit an occasional gross error.
Nevertheless, competition
among journalists and publishers of political information tends to create an
environment that is in general more conductive to accuracy than to lies or
half-truths. Journalistic careers can be made by exposing others' errors, and they
can be ruined when a journalist is revealed to be careless about truth. These realities create
incentives for journalists not 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 highquality information. Information suppliers that
cater to more specialized tastes play a significant role. These alternative
ways of getting info are often probe apparent realities more deeply, interprete
events with greater sophistication and analyse data more thoroughly than the
mainstream media are inclined to do.
In doing so, of course, their
principal motivation is to satisfy their own customers. But while pursuing this
goal, they constrain (even if they do not completely eliminate) the mainstream
media's ability to portray falsehood as truth or to OMIT key facts from
otherwise apparently compelete pictures.
The array of incentives with
respect to at least the general quality of political information, with which
the market confronts information providers creates systematic tendencies for
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 of falsehood or half-truth
information yet, according to their activities. So that consumers of political
information don't need the club of legal liability to force information
providers to provide 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 information to each
individual citizen and that each individual citizen has identical preferences
for info about government. Indeed, the premise of this argument is that the
market works because citizens (or customers) do not have identical preferences
and producers exploit that fact by finding
to cater to 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 claim that the market in
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 not warrant the conclusion that the
market doesn't work.
More significantly, it seems
inconceivable that any system of government regulation including a system in
which information producers are liable for "defective" information
could in fact systematically generate a flow of political information that
consistently provided more citizens with the quality and quantity that met
their own needs as they themselves defined than does the competition in the
marketplace of ideas that we presently enjoy.
This analysis suggests that
the workings of the market create situation in which consumers of political
information do not need the threat of producer liability to guarantee that they
are systematically getting a TRUSTWORTHY product.
But consumers are not the only
potential victims of defective information and market incentives are not always
adequate to protect NONCONSUMER victims from the harm of defective information.
Innocent bystanders, such as 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 an analogous position.
For example, a story about
sexual assault might be very interesting for public and might serve well the
public interest in being informed about the police efforts or criminal justice
system.
But the victim's name is NOT
NECESSARY to its purpose and 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 harm from the defect is highly concentrated on the single
defamed or exposed individual.
Now, it's time to ask the
major question: Should the press be permitted to externalize 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 or rape victims should have access to massmedia for
rebuttal. As for everyday practice, the press is not always eager to give space
to claims that it has erred. There are two objections, why the press shouldn't
be responsible for the harm of such kind: accountability to a more demanding
legal standard would compromise its financial viability and undermine its
independence.
These objections are too
SELF-SERVING to be taken completely seriously: The financial viability argument
is no more persuasive when the product of the press harms innocent third
parties than it is when other manufacturers' malfunctioning products harm
bystanders. As press doesn't underproduce information, thus "freedom"
from liability can't be defended as necessary subsidy. The "financial
viability" objection points toward the imposition of liability for harm.
The need to maintain the
press's independence from government does provide support for the press's
objection that liability threatens them unduly. But it's hard to sustain the
claim that government's censorious hand would lurk behind a rule that required
the press to compensete individuals. It is not obvious that enforcing a rule
that simply prohibited publishing the names of rape victims would signal the
beginning of the end of our cherished press freedom.
Asking whether the press
should be more legally accountable than 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 by focusing attention on
the disparity of legal treatment between producers in the information market
and those in other markets for goods and services, it does seem possible to
gain some fresh and possibly useful insight.
The reality seems to be that,
with respect to the quality and quantity of political information, free
competition in the marketplace of ideas performs admirably, with inventive ways
of overcoming market failure and with flexibility 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.
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