Confronting digital media conundrums: Preserving the public record while balancing the right to an individual’s privacy

Note: A version of this piece first appeared in the Summer edition of our member newsletter. Please consider subscribing to it here.
These past few weeks, the administration and directors of the National NewsMedia Council have been wrestling with a growing conundrum in our business. The conundrum comes with a whole bunch of names: “unpublishing”, deindexing, right to privacy, right to be forgotten, and probably a half dozen other labels. At the root are two seemingly incompatible issues: the crucial responsibility of the news media to report and retain the public record set against a growing public sense in the digital age that innocent people caught out either by legal proceedings or a particular political situation need a means to recover their good names.
Why has this become more urgent in the past few years? Simple. The digital age.
In an earlier era (like barely two decades ago), if a person was charged with a criminal offence but subsequently exonerated, a newspaper would have printed a story saying so and the entire saga — from accusation and indictment to hearing or trial and final verdict — would end up in a newspaper’s sleepy clipping file and ultimately largely forgotten. But it would nevertheless have been retained and the principle of an unsullied public record would not have been broken.
Now, thanks to the internet and powerful search engines that can travel faster than a speeding bullet, the situation is dramatically changed. Let’s say, for example, someone is charged with a sexual abuse crime, is tried and found not guilty, that initial story has now become immutable regardless of a verdict of “not guilty.” We are not talking Jian Ghomeshi here. A public figure in a hugely and notoriously covered trial, such as the former CBC radio host was involved in, is stuck with the consequences regardless of a verdict.
On the other hand, we may well be talking about Julie Payette. The Governor General-designate is, at the time of writing, dealing with two incidents in her past in which she was (a) cleared of the charge of second degree assault in Maryland in 2011 (and which the record was subsequently expunged); and (b) found faultless in a tragic accident which resulted in the death of pedestrian a few months earlier. At the time of writing, she seems an almost outsized example of how difficult it is to change public perception once any sort of trouble is out on the Rialto and, who knows at this point, it may even cost her her new job.
This column, however, is mostly about ordinary people caught out by either bad luck or coincidence or both. Back with this imaginary case cited above, suppose that the person lost employment in the whole messy and lengthy business of trying to prove innocence and then, fresh verdict in hand, tried to get the old job back or just find a new one.
These days, prospective employers go straight to the internet, and in this imaginary case, the whole saga would emerge once the name of the candidate is entered into the search engine.
For a moment: put yourself in the shoes of that employer. You need a short list of three good candidates, and just guess which is the first application to be eliminated? You might even have accepted that indeed the person is innocent, but you don’t really feel up to taking chances on an employee traumatized by the ordeal of proving innocence, or run afoul of public pressure about a “labelled” employee, although you would never say so out loud because such discrimination is against the prospective employee’s human rights. But who would ever know the reason?
There are variations on this theme which I trust I don’t need to enumerate. The dilemma has been around for a while. The public editor at the Toronto Star, for example, the estimable Kathy English, did a study of the issue in 2009, and the Star — to its credit — continues to examine the issue.
“Deindexing” a story is another possible solution, wherein a story is retained within on news media’s website but does not show up with a general search engine inquiry. Deindexing is an imperfect remedy that stops a step short of unpublishing, although the equally estimable public editor of The Globe and Mail, Sylvia Stead, doesn’t really see the difference.
At the NNC, journalistic standards and ethics are our main concern. We also realize most news platforms, print or digital, do not have the luxury of public editors. Our job is to look at each and every complaint that comes in on an individual basis: What is the specific human story involved? What is the particular issue? What would be the immediate effect of a council decision on a publishing institution, either digital or print?
The NNC has already dealt with a case in which an innocent person was identified as an abuser. The flawed story that so harmfully misidentified him turned out a combination of less than thorough reporting and inadequate editing. The complainant just wanted his good name back and removed from the internet trail leading to this story. The newspaper, in this case, agreed. It knew the law of libel even better than the complainant and was grateful for a chance to fix a problem in a non-litigious fashion.
A more recent case brought before the NNC was different but just as fraught. At the root was an innocent complainant unable, so he claimed, to find work and asking that articles about his case be deindexed. In this case, NNC directors did not have consensus on a decision. This was unsatisfactory to almost everyone involved in the matter: the administration of the NNC, various council members and –not surprisingly, the complainant himself. This has led us to feel that we need to consult our large membership in as thorough a way as we can. Consequently, we are in the process of (a) creating a short survey request of all our members (now cresting at around 800, and in every province), and (b) struggling towards some sort of “Good Practices” concept that can guide us all in future cases.
The one thing we can’t do is hide from the challenge of the elongated life of online news. It clearly causes heated concern on all sides and there has to be a better guide than is currently available. Of course, the NNC is not advocating opening the floodgates to unpublishing or deindexing. Rather, we are acknowledging the increasing pressure news media face and are looking for journalistically sound and ethical ways to examine the rare cases where a complaint may reasonably be considered.
The European Union has already established Right to be Forgotten legislation in response to public demand for control over internet content. In Canada, the complaints will keep coming because this is exactly the challenge the internet poses to the news media business. It won’t go away, and as much as the NNC’s predecessor press councils were established to forestall legislation over the media, we had best forthrightly tackle the issue — and be seen to do so — with a certain sense of urgency. With that said, we hope you will respond to the questionnaire when it comes your way and don’t hesitate to let us know your views.
The NNC is here for both the news media business and the public. This issue is one that troubles both sides intensely. If we work away forthrightly, we have a chance to get ahead of the game on this issue.
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John Fraser is the President and CEO of the National NewsMedia Council of Canada
This story was edited by: Brent Jolly, editor, Acts of Journalism. He can be reached at: bjolly@mediacouncil.ca
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