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SHOULD PRESS BE LIABLE OR NOT?
Recent years have increased legalaccountability of producers and
advertisers for providing SAFE products andRELIABLE information to
customers. A government influences a wide range of market
operations from licensing requirements to contract actions. That
control announces and enforces determinednorms of quality.
Each of these regulations is designed to protect consumers from
being hurt or CHEATED by defects in thegoods 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 market has an ability of selfregulation.
But it also shows another unbelievablefeature: consumers are both
incapable of rationally assessing risks and unaware of their own
ignorance.
Companies and corporations all over theworld are systematically
inclined to SHIRK on quality and that without the threat oflegal
liability may subject their customers orother people to serious risk
of harm from their products if it couldsave money by doing so.
According to this point of view, for most goods and services,
consumers are POWERLESS to get producers tosatisfy their demand for
safe, high-quality products! The unregulated market lets unfair
producers to pass on others the costs oftheir mistakes.
Legal liability is ready to correct these «market failures» by
creating a special mechanism (feedback), regulating relations
between producers and customers. Unfairproducers should be punished
and their exposure is increasing.
One market,however, has completelyESCAPED the imposition of legal
liability. The market for political information remains genuinely
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free of legally imposed quality obligations. 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 no legalobligation to warrant its
truthfulness, to guarantee its relevance, to assure its
completeness.
The thing is: Should the politicalinformation 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 theprivacy of an
individual or destroy without justification an individual's
reputation — again, the cost will not beborne by producer of it.
This side of «activity»of producers of harmful or defective
information (goods, services, etc) practically is notacknowledged.
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 standardsof liability is seen as
PROCOMSUMER. Proposing holding the press to any standard of
liability for political information is seenas ANTIDEMOCRATIC. The
press is constitutionally obligated tocheck on the government.
Most of policymakers justify legalliability 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 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 truepreferences.
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Lack of liability for defective or harmful politicalinformation
can be predicated only on a different kindof supposed market failure
— not a failure of the market to SUPPLY the LEVEL of safetythat
customers want but its failure tosupply 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 informationis a public good and it has
many characteristics of a public good. Thatis a product that many
people value and use but only few will pay for. Factual(real)
information cannot easily be restricted todirect 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 analystsconsider that the market also
fails because of low demand. Even ifsuppliers could «earn all their
money", they wouldn't provide the socially optimalamount of info!
Private demand for political info willnever be the same as social
demand. And it will never reflect its fullsocial 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 generoussibsidies — 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 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 role in theinternalizing process. In
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effect, the sale of advertising at a price that varies according to
the number of recipients permits information producers to
appropriate the benefits of providinga product that many people
value but few would pay for directly. Advertising has an effect of
transforming information from a public intoa private good. It makes
possible for information providers to makeprofits by satisfying the
tastes of large audiences for whosedesire to consume information
they are unable to charge directly.
Thus, customer of goods or services andcitizen 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 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 be true,that political information
market is blocked by an ongoing problem of undersupply, the
conventional justification for granting thepress broad freedom from
legal liability for the harms it causesmust give away! It does not
necessarily mean that the economic case forlegal sanctions has been
made. Although it seems the market could be relied upon tosupply
«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 thebenefits 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 intwo quite different cases:
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1) The first occasion has to do with themarket's responsiveness to
the demands of consumers. The failureoccurs when customers are
unable to detect defects before purchaseor to protect themselves
by taking appropriate precautions after purchase, when they are
unable to translate theirwillingness 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 touting therelative merits of their own.
2) The second kind of market failure is aninability to internalize
harm to bystanders — third parties who have no dealings with the
producers but who just happen to be inthe wrong place at the
wrong time when a productmalfunctions. 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, relevanceand
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 ofany 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 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 tobe careless
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about truth. These realities create incentives forjournalists not
to make mistakes.
Moreover, the investment that mainstreampublishers and broadcas-
ters make in their reputations forthoroughness and accuracy attests
to the market's perceived ability to detect and reward suppliers of
consistently high- qualityinformation. Information suppliers that
cater to more specialized tastes play a significant role. These
alternative ways of getting info are oftenprobe apparent realities
more deeply, interprete events with greater sophistication and
analyse data more thoroughly than themainstream 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 mainstreammedia's
ability to portray falsehood as truthor 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 andcomplete. Or perhaps it
would be slightly more precise to say that the market unfortunately
does not appear systematically to rewardproducers 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 read as anasserting that the reason
the market for political information works well is that it provides
just the right kind and quality ofinformation to each individual
citizen and that each individual citizenhas identical preferences
for info about government. Indeed, the premise of this argument is
that the market works because citizens (or customers) do nothave
identical preferences and producersexploit that fact by finding
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ways to cater to and profit from the varying demands of adiverse
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 informationit generates is uniformly
edifying and never distorted. As you knowmany 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 qualityand quantity
thatmet their own needs as they themselves defined than does the
competition in the marketplace of ideasthat we presently enjoy.
This analysis suggests that the workings of the market create
situation in which consumers of politicalinformation 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 incentives are notalways adequate to protect
NONCONSUMER victims from the harm ofdefective information. Innocent
bystanders, such as pedestrians hit bydefective motorcycles, are
sometimes hurt by products over whoseproducers 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 might serve wellthe public interest in
being informed about the police efforts or criminal justice system.
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But the victim's name is NOT NECESSARY to its purpose and its
publication both invades her privacy andbroke 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 externalize particularizedharms? Why should not the
press, like other business entities, beliable when defects in its
products cause particularized harm to individual third parties who
have few means of self-protection at theirdisposal?
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 twoobjections, why the press
shouldn't be responsible for the harm ofsuch kind: accountability
to a more demanding legal standard would compromise itsfinancial
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 harmsinnocent third parties than it
is when other manufacturers' malfunctioning products harm
bystanders. As press doesn't underproduce information, thus
«freedom» from liability can't bedefended 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 lurkbehind 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 beginning of theend of our cherished press
freedom.
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Asking whether the press should be morelegally accountable than
it is now for publishing defamatory falsehoods about individuals or
revealing rape victims' names touches anumber of difficult, highly
discussed questions. In spite of the fact,by recasting a portion of
the debate over legal accountability andby 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 andpossibly
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 tobe amiss to suggest that
when neither the threat of increasing asupposed undersupply nor the
looming shadow of government censorship isimplicated, the massmedia
should be liable for egregious errors.