SHOULD PRESS BE LIABLE OR NOT?
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
ee 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:
1) 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
comple- teness, 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 high- quality 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
ways 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.