Whose Media Is It?: How Police Requests for Unreleased Footage Blur the Line Between News and Evidence

Posted on May 31, 2012 by WITNESS

By Teresa Eggers

A near 6-month battle between British news broadcasters and the police has recently concluded: last December’s court decision that ordered television companies including BBC, ITN, and Sky News to surrender to police hours of unaired footage from the violent October 19th Dale Farm eviction, was thrown out. Journalists are now hailing the decision as a landmark victory in the fight for news neutrality and confidentiality.

The contested footage, which included that of a police officer apparently using a Taser at close range, was requested by law enforcement officials who argued that it might be used to identify and gather evidence against those who may have been involved in criminal acts during the eviction, such as assaults on officers.

Photo credit: snappybex http://www.flickr.com/photos/bexross/3213446414/

These “production requests,” as they are called, are protected in British law under the Police and Criminal Evidence Act 1984 and are somewhat standard procedure, but media companies have feared that a trend of far-reaching requests by police, such as this one, signal a growing tendency to use news media outlets as the “evidence-gathering arm of the law. Here’s an example they may have had in mind: Last September, Scotland Yard obtained a court order forcing news organizations to release hundreds of hours of unbroadcast footage from London’s August riots. Cases like these have drawn criticism from journalists, who argue that as their footage is increasingly co-opted for law enforcement purposes, their ability to report the news safely, as neutral observers, is endangered.

Cases In Other “Free Media” Countries

How widespread is this issue? The short answer is very. In 2008, law professor, RonNell Jones, published an empirical study surveying cases of subpoenas received by American news media in 2007 as compared to 2001 and found that subpoenas were issued with regularity and that there were some substantial increases in these numbers. This should be of particular concern to video journalists, as she noted that “television stations bear a significantly greater burden in terms of numbers of subpoenas received . . . In 2006, newspapers received an average of 0.9 subpoenas each, while the average number of subpoenas per television news operation was 10.2.” This is most likely because video, as a medium, has especially strong evidentiary potential.

News agencies have a right to resist these subpoenas by appealing to courts, but there have recently been some very high profile court losses. For example, back in January of this year, Canada’s The Vancouver Sun and The Province were forced to hand over hours of unaired footage to police following the Stanley Cup riots there. Like their fellow British journalist’s are now doing, The Vancouver Sun and The Province initially resisted turning over footage on the grounds that it violated innocent citizen’s right to privacy and as a practice endangered journalists, however they were eventually forced by the courts to comply with the police request.

How do these laws affect new media journalists?

Most state shield laws seek to protect “traditional journalists” – a term defined differently by each state. The idea is that not everyone with the ability to blog an opinion should have special protections, but rather that these protections should be granted to those who set out to report objective news to the public.

While guaranteeing protection only to those reporting “objective” news seems like a precarious enough caveat, the designation that protections are for those who “set out” to report is perhaps even more important. The reality is that today, many rights violations are caught on mobile phones by citizens who only happen to be there when something goes wrong, not necessarily situations that can be anticipated.  Should these acts not receive the same protections granted traditional journalists?

Journalists in the U.K. won a battle – who’s winning the war?

 It’s hard to say. There has been little research done into this topic and surveys detailing information about production requests in the UK – how many are received, how many are granted vs. denied on appeal and on what grounds – is virtually non-existent and big losses like were seen in the UK in September and Canada in January, deal a hard blow to the cause.

In America, however, court-ordered news footage hand overs have been less at issue for journalists than more fundamental disputes, such as the right to film at all when police are in your shot. In that arena, there has been a recent positive development: On May 14th, the Department of Justice published an open letter reiterating that journalists and citizens have a right to film police, have a right to not have their cameras’ contents seized or searched without a warrant, and that the destruction of recording devices or recordings by police was prohibited under all circumstances.

This letter was in response to a pending case, in which a Baltimore man, Christopher Sharp, had his camera phone seized by police and recordings deleted after he filmed the arrest of his friend. The fact that the DOJ has decided to intervene in this case on behalf of Sharp is significant, but there have been indications that this case will most likely settle out of court.

While journalists in the UK have been concerned with the public perceiving them as potential evidence-gatherers for police, journalists in America are finding the reverse to be equally debilitating: being viewed by police as evidence gatherers for the public. Reports of journalist-targeting at the Chicago NATO summit last week have included destruction of material, abuse from police, unlawful stop and searches, and arrests. Open letters can be affirming, but as journalists are experiencing in the UK, the buck stops at court decisions.

Who cares if the police request footage?

We all should. In my last article, I discussed privacy issues that are being raised by news photography in the age of facial recognition technology – publishing a protester’s face in the newspaper, for example, could have new unintended consequences. If the rationale is that journalists ultimately must be trusted with the ethical dilemma of whether or not to reveal the identities of those involved in the events they cover, if we accept them as neutral observers under this premise, then what does it mean when they are stripped of even this editorial responsibility? Imagine that everything their cameras sees, not just what is published or broadcast, could be forcibly given to the authorities. The potential for privacy invasion is startling.

Among the UK journalists who were represented in the May 17th court decision is Jason Parkinson, a freelance journalist who shot the Taser footage. Following the legal victory, Parkinson said:

“We are not there as evidence gatherers to fill police intelligence databases with hours of material on activists or protestors, we are journalists and we are there to report the news and keep the public informed.”

Today, more than ever, this is an essential line to maintain for citizens and journalists alike.

Teresa Eggers is a writer and filmmaker. She has studied Technocultural Studies at the University of California (Davis) and Global Studies at The New School (NYC).

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