SHOULD PRESS BELIABLE OR NOT?
Recent years have increased legalaccountability of producers and
advertisers for providing SAFEproducts and RELIABLE information to
customers. A government influences a wide range of market
operations from licensingrequirements to contract actions. That
control announces and enforcesdetermined norms of quality.
Each of these regulations is designed to protect consumers from
being hurt or CHEATED by defects inthe goods and services they buy.
This matter, when producers look to the law rather than to the
market to establish and maintain newstandards of quality (of their
goods), shows, that modern markethas an ability of selfregulation.
But it also shows anotherunbelievable feature: consumers are both
incapable of rationally assessing risks and unaware of their own
ignorance.
Companies and corporations allover the world are systematically
inclined to SHIRK on quality andthat without the threat of legal
liability may subject theircustomers or other people to serious risk
of harm from their products if itcould save money by doing so.
According to this point of view, for most goods and services,
consumers are POWERLESS to getproducers to satisfy their demand for
safe, high-quality products! The unregulated market lets unfair
producers to pass on others thecosts of their mistakes.
Legal liability is ready tocorrect 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, hascompletely ESCAPED the imposition of legal
liability. The market for politicalinformation remains genuinely
ee of legally imposed qualityobligations. The electronic mass
media are subject to more extensivegovernment 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 nolegal obligation to warrant its
truthfulness, to guarantee its relevance, to assure its
completeness.
The thing is: Should thepolitical information they provide fail,
for example, to be truthful, relevant, or complete, the costs of
this failure will not be paid bypress. Instead they will be borne
by the citizens. Should theinformation intrude the privacy of an
individual or destroy without justification an individual's
reputation — again, the cost willnot 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 andservices are considered worlds APART
from the press in kind, not justin degree. Holding producers in
ordinary markets to ever higherstandards of liability is seen as
PROCOMSUMER. Proposing holding the press to any standard of
liability for political informationis seen as ANTIDEMOCRATIC. The
press is constitutionally obligatedto check on the government.
Most of policymakers justifylegal liability for harms, caused by
goods and services and quite limitedliability for harms, caused by
information. Liability for defectiveconsumer products is PREDICATED
on a market failure. As for«unfair» producers, power of possible
profits PREVENT consumers fromtranslating their true preferences
for safety and quality into effective demand. So, customer
preferences remain outside thesafety and quality decision-making
process of producers. Today, it'llbe a new mechanism to force
producers to follow customers truepreferences.
Lack of liability for defectiveor harmful political information
can be predicated only on adifferent kind of supposed market failure
— not a failure of the market toSUPPLY the LEVEL of safety that
customers want but its failure tosupply the amount of political
information that society shouldhave. Some experts say, that free
market has tendency to produce«too little» correct information,
especially political information.
The thing is: politicalinformation is a public good and it has
many characteristics of a publicgood. That is a product that many
people value and use but only few will pay for. Factual(real)
information cannot easily berestricted to direct purchasers. Many
people benefit who do not pay forit because the market cannot find
the way to charge them. As you can see, providers of political
information try to get as muchprofit as possible spreading it, so
they HAVE TO supply «toolittle» info. Otherwise — the market FAILS!
Here is another reason. Someanalysts consider that the market also
fails because of low demand. Even ifsuppliers could «earn all their
money», they wouldn't providethe socially optimal amount of info!
Private demand for political infowill never be the same as social
demand. And it will never reflectits 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 justifygenerous sibsidies — in the form of
freedom from liability for theharms they cuase — for information
providers. But a proper look atmodern market shows that producers
of political information have developed a wide range of strategies
for increasing the benefits of theirefforts 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 rolein the internalizing process. In
effect, the sale of advertising ata price that varies according to
the number of recipients permits information producers to
appropriate the benefits ofproviding a product that many people
value but few would pay fordirectly. Advertising has an effect of
transforming information from apublic into a private good. It makes
possible for information providersto make profits by satisfying the
tastes of large audiences for whosedesire to consume information
they are unable to charge directly.
Thus, customer of goods orservices and citizen of any country -
are in the same conditions. Likecustomers — 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 voteintelligently 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 betrue, that political information
market is blocked by an ongoing problem of undersupply, the
conventional justification forgranting the press broad freedom from
legal liability for the harms itcauses must give away! It does not
necessarily mean that the economiccase for legal sanctions has been
made. Although it seems themarket could be relied upon to supply
«enough» information. Sothat subsidies in the form of protection
from legal liability are notneeded. Personal responsibility and
legal accountability would be 100% if the information market could
internalize to producers not onlythe benefits but also the costs of
their activities & failures. Asfor victims, they'll get one more
chance to avoid the harms happenedfrom 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 failureoccurs in two quite different cases:
1) The first occasion has to do withthe market's responsiveness to
the demands of consumers. Thefailure occurs when customers are
unable to detect defects beforepurchase or to protect themselves
by taking appropriateprecautions 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 whensuppliers are unable to gain any
competitive ad- vantage either by exposing defects in their
rivals' products or by toutingthe relative merits of their own.
2) The second kind of market failureis an inability to internalize
harm to bystanders — thirdparties who have no dealings with the
producers but who just happen tobe in the wrong place at the
wrong time when a productmalfunctions. Even when these kinds of
failures occur, legalaccountability 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 ofpolitical information are not in a
strong position when it comes todetecting quality defects in the
political information they receive. Revelance may well be within
their ken, but since they are quiteunable to verify for themselves
either the accuracy or thecompleteness 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 particularsuppliers, consumers are not
inclined to punish information producers by avoiding future
patronage even when they commit anoccasional gross error.
Nevertheless, competition amongjournalists and publishers of
political information tends tocreate 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 ajournalist is revealed to be careless
about truth. These realities createincentives for journalists not
to make mistakes.
Moreover, the investment thatmainstream publishers and broadcas-
ters make in their reputations forthoroughness and accuracy attests
to the market's perceived abilityto detect and reward suppliers of
consistently high- qualityinformation. Information suppliers that
cater to more specialized tastesplay a significant role. These
alternative ways of getting info areoften probe apparent realities
more deeply, interprete events with greater sophistication and
analyse data more thoroughly thanthe mainstream media are inclined
to do.
In doing so, of course, theirprincipal motivation is to satisfy
their own customers. But whilepursuing this goal, they constrain
(even if they do not completelyeliminate) the mainstream media's
ability to portray falsehood astruth or to OMIT key facts from
otherwise apparently compeletepictures.
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 isaccurate and complete. Or perhaps it
would be slightly more precise tosay that the market unfortunately
does not appear systematically toreward producers of falsehood or
half-truth information yet, according to their activities. So that
consumers of political informationdon't need the club of legal
liability to force information providers to provide them with
quality information.
The analysts ought not to be readas an asserting that the reason
the market for politicalinformation works well is that it provides
just the right kind and quality ofinformation to each individual
citizen and that each individualcitizen has identical preferences
for info about government. Indeed, the premise of this argument is
that the market works becausecitizens (or customers) do not have
identical preferences and producersexploit that fact by finding
ways to cater to and profit fromthe 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 outhere.
The claim that the market in general «works» shouldn't be
understood as a claim that theinformation it generates is uniformly
edifying and never distorted. As youknow many information producers
pander to the public's appetite forscandal 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 theythemselves defined than does the
competition in the marketplace ofideas that we presently enjoy.
This analysis suggests that the workings of the market create
situation in which consumers ofpolitical information do not need
the threat of producer liability to guarantee that they are
systematically getting a TRUSTWORTHYproduct.
But consumers are not the only potential victims of defective
information and market incentivesare not always adequate to protect
NONCONSUMER victims from the harm ofdefective information. Innocent
bystanders, such as pedestrianshit by defective motorcycles, are
sometimes hurt by products overwhose producers they have no control
either as consumers or competitors.Persons, who find themselves the
unwitting subjects of defectiveinformation, stand in an analogous
position.
For example, a story about sexual assault might be very
interesting for public and mightserve well the public interest in
being informed about the policeefforts or criminal justice system.
But the victim's name is NOT NECESSARY to its purpose and its
publication both invades her privacyand broke her safety. In cases
like this, it's not so easy to haveconfidence 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 majorquestion: Should the press be
permitted to externalizeparticularized harms? Why should not the
press, like other businessentities, be liable when defects in its
products cause particularized harmto individual third parties who
have few means of self-protection attheir 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 notalways eager to give space to
claims that it has erred. Thereare two objections, why the press
shouldn't be responsible for theharm of such kind: accountability
to a more demanding legalstandard would compromise its financial
viability and undermine itsindependence.
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 harmsinnocent third parties than it
is when other manufacturers' malfunctioning products harm
bystanders. As press doesn't underproduce information, thus
«freedom» from liabilitycan'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 wouldlurk behind a rule that required
the press to compensete individuals. It is not obvious that
enforcing a rule that simply prohibitedpublishing the names of rape
victims would signal the beginningof the end of our cherished press
freedom.
Asking whether the press shouldbe more legally accountable than
it is now for publishing defamatoryfalsehoods about individuals or
revealing rape victims' namestouches a number of difficult, highly
discussed questions. In spite of thefact, by recasting a portion of
the debate over legal accountabilityand 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, withrespect 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 oughtnot to be amiss to suggest that
when neither the threat ofincreasing a supposed undersupply nor the
looming shadow of governmentcensorship is implicated, the massmedia
should be liable for egregiouserrors.