In spite of the relatively short period in which the Internet has grown, there is already discussion about a third wave of development of consumers of online journalism (Pryor, 2002) and/or about a third generation of online journalism (Lemos, 2007). Yet media law is not adapted to the digital environment. In particular, the definition of the journalistic profession in the new media is not clear. This is not a new issue - the definition in the offline world remains different in many countries. Europe-wide, although the European Court of Human Rights has never provided for a clear-cut definition of a journalist as such, it has on several occasions applied the same reasoning used for journalists to extend journalistic privileges and defences to non-journalists. The criteria used by the Court were the exercise of a public watchdog role of organisations, or the expression of individuals regarding matters of public interest (Cafaggi and Casarosa, 2012).
The key question is to define the role of non-professional activities (i.e. blogs) and the legal status of bloggers. Already in 2008,6 the European Parliament’s Culture Committee discussed a report on the regulation of user-generated content and blogs, which advocated ‘clarifying’ the status of blogs and the establishment of a ‘right to reply’. This is increasingly an important policy issue since in some countries there is a blogosphere critical of the mainstream news media. Among the Mediadem countries,
6 See http://www.europarl.europa.eu/sides/getDoc.do?language=en&type=IM-PRESS&reference=
20080605STO30955. The European Parliament then adopted a non-binding resolution on this topic in September 2008. See: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-0459&language=EN (date accessed 11/07/2012).
the United Kingdom and Germany enjoy a lively blogosphere scene with a relevant number of blogs devoted to media criticism, while technology and media industry trends attract more attention in the blogosphere of Finland (Heikkilä et al., 2012: 63).
Interestingly, while a number of blogs view themselves as ‘new news sources’, few bloggers see themselves as journalists (Fenton, 2009: 144-145). Nevertheless, examples from some countries (to some degree Croatia, Belgium, Germany, Spain, but especially Slovakia and Turkey) show a considerable impact of bloggers on local or national politics. Perhaps in anticipation of this trend, some countries (e.g.
Denmark) have established voluntary registration of blogs and online media, if they wish to qualify as professional journalists. In Denmark the purpose of the rule is to make it easy for bloggers to achieve the same privileges as other media and to make them responsible in accordance with the Media Liability Act.
Among the Mediadem countries, three main problems merit attention. The first one concerns the identification of the author(s) of a blog and other new media outlets. This identification influences the ability to establish liability for content and comments. It also reduces the chances of leaks, anonymous comments or disclosure of secrets. A major case in the UK regarding the anonymity of bloggers (The Author of A Blog v. Times Newspapers) already occurred in 2009. A policeman wrote an anonymous blog about his job and requested an injunction against the Times Newspaper, which was threatening to publish his real identity. The court rejected the request, ruling that ‘blogging is essentially a public rather than a private activity’, rendering the use of the blog in this case as ‘analogous’ to journalism.7
Secondly, recognising the professional status of the blogger entails that the blogger must comply with the rules, registration and establishment of a professional relationship with sources. Also, professional status may require compliance with the general ethical standards for professional journalists. For example, in Germany, the fulfilment of the basic journalistic standards of reporting includes ‘delineation of reporting and opinion, accuracy in research and checking and assessment of sources’
(Müller and Gusy, 2011: 32), which the blogger has to comply with if the blogs are to be comparable to traditional news media (or in the words of the law: journalistic-editorial). The German Interstate Broadcasting Treaty provides for accuracy as a reporting requirement for journalistic editorial online content, especially online news websites, politically relevant online magazines or blogs. In Denmark, bloggers are required to register at the Press Council to obtain legal status of protection. According to the Danish Media Liability Act, the protection may include electronic storage of research data or protection of sources. In Finland, registration allows access to collective contracts (and other advantages for professionals) in exchange for accepting a set of editorial duties. In Slovakia, the Press Law does not grant special rights to bloggers yet the Press Code is binding for online journalists and even bloggers. To make this even more puzzling, the Press Council only began considering extension of its activities in the online world in 2011 and in the first half of 2012. In other countries, there is a liberal interpretation of the blogosphere and online activities are not seen as related to professional journalism. It is true that in many countries (e.g.
Slovakia, Spain, the United Kingdom) bloggers do not see themselves as journalists, but rather their interest in publishing online is primarily related to their wish to
7 See http://www.shrlg.org.uk/2009/06/18/the-author-of-a-blog-v-times-newspapers-ltd (date accessed 11/07/2012).
publicly express their professional expertise and other professional activities rather than to be part of traditional journalism.
The third issue stems from the responsibility of a blogger as an entrepreneur (and businessperson). If the blog is considered a media company, then liabilities are foreseeable. For instance, in the German law, the Interstate Broadcasting Treaty establishes that online media, especially political blogs, are free to publicise content with a clear bias, as long as journalistic standards are respected (i.e. delineation of fact and comment). The regulation of journalistic and editorial online content depends on the outlet. In contrast, in Greece blogs are not considered to be media companies.
Therefore, in case of defamation, responsibilities and compensation are lower.
Do bloggers have similar status to journalists?
Belgium Bulgaria Croatia Denmark Estonia Finland Germany Greece Italy Romania Slovakia Spain UK Turkey
Law yes no no yes
/ no
no yes yes / no
no yes /no
no no no yes no Code of
ethics
yes no no yes no no yes / no
no no no yes no no no
In the majority of the Mediadem countries, bloggers and similar quasi-journalists have no special protection either under the law or under the code of ethics. Only in Belgium, through the jurisprudence of the Constitutional Court (as regards the Act on the Protection of Journalistic Sources) and in Finland by means of the Act on Freedom of Expression in Mass Media, is full protection provided to ‘everybody who exercises an informative activity whether or not they are professional journalists’
without further conditions. In addition, both Belgian self-regulatory organisations for journalism ethics, the RVDJ and the CDJ, hold the opinion that journalistic ethics apply to all individuals who undertake journalistic activities.
Similarly, the courts in the UK have not sought to draw distinctions between professional journalists and private publishers. However, professional journalists tend to be subject to codes of ethics, whereas most private publishers are not (Craufurd Smith and Stolte, 2011: 40). Therefore, a blogger may be interested in being protected under the professional umbrella. As there is less control in online activity (e.g. ease of comments or tweets), bloggers can claim ‘responsible journalism’ principles such as good faith and an accurate factual basis.8
As previously mentioned, Denmark is a special case. If bloggers are affiliated with a newspaper website, they are seen as journalists. If not, no protection is given to them. Similar, but not legally binding, is the situation in Bulgaria. When a journalist has a blog, then it is seen as a journalist’s blog and as journalistic activity. Even more complicated is the position of online media in Germany. There is no unambiguous legal framework for online media. First, different terminology is used for online
8 See Reynolds v Tomes Newspapers Ltd [2001] 2 AC 127.
media in the Interstate Treaty on Broadcasting and Telemedia referring to journalistic-editorial content, and in the Penal Code of Procedure referring to journalists. Second, the legislation provides for certain obligations as well as rights for those online services that offer journalistic-editorial content. Those who fulfil the requirements of journalistic-editorial content (accuracy, impartial and balanced reporting) enjoy the same position as journalists. Third, it is not definitely decided how to interpret the notion of journalistic-editorial content. According to a recently established understanding, journalistic-editorial content requires the use of journalistic skills and methods by those working on the blog and providing information with the intention of shaping public opinion. This includes a basic structure of different people and a basic organisation working on the outlet.
In some countries (e.g. Estonia, Slovakia, or Romania) bloggers can de facto be seen as journalists. This can be confirmed by the fact that bloggers can be included in journalistic competitions or by their inclusion into self-regulatory mechanisms.
These cases also show that the absence of statutory regulation may bring different practical results. For example, in Estonia, blogging is an opportunity to enter the journalistic job market. In Slovakia and Romania, being seen as an online journalist does not mean having any extra privileges but rather, more responsibilities.
Finally, there are also specific situations such as in Italy where there is a status-based definition. A journalist is whoever is a member of the Journalists’
Association (Ordine dei giornalisti). In order to become a member a candidate must have a two year employment contract with a media outlet and pass a specific exam (provided by the Association) (Cafaggi and Casarosa, 2012).