Police Shootings, Helicopter Crashes, and Bystanders with Cameras: Weighing the Rights of “Accidental Journalists”

Demonstrators carry a mock coffin at a march in Minneapolis condemning police killings of black men and women. Photo by Fibonacci Blue via Flickr (CC BY-2.0)

Demonstrators carry a mock coffin at a march in Minneapolis condemning police killings of black men and women. Photo by Fibonacci Blue via Flickr (CC BY-2.0)

On 4 April 2015, a white US police officer shot an unarmed black man named Walter Scott in the back. Officer Michael Slager had stopped Scott due to an alleged traffic violation. Scott abandoned his car and ran from the scene, with Slager first following behind. Then, Slager fired eight shots, hitting Scott repeatedly in the back. Slager put handcuffs on Scott’s body, retrieved an object from some distance away, and dropped the object near his body. He then radioed in the message, “[s]hots fired and subject is down. He took my Taser.”

With over 304 killings of black people by US police in 2014 alone, and only a small fraction of these episodes resulting in criminal charges, it is highly likely that this story would have gone unnoticed. The police officer’s call to the station may have been deemed sufficiently credible and the matter would have been closed after a brief internal investigation. However, this time a bystander filmed the event on his camera phone, providing authorities with documentary evidence of what actually occurred that day. The footage has been broadcast by news outlets worldwide and gone viral on social media, generating major waves in ongoing protest movements across the US demanding justice and accountability for police abuses against people of colour. It also contributed to the decision to prosecute Michael Slager, who has been charged with murder.

The Walter Scott incident is not an isolated example of footage or images produced by a person — who is not a journalist by profession — being picked up and used by the mainstream media. In the category of police brutality alone, two well-known recent examples are the shooting of Michael Brown in Ferguson, Missouri and the fatal choking of Eric Garner by police in New York.

The significance of eye-witness documentation in these cases raises many interesting questions concerning the rights of these “accidental journalists” and the public interest value of the work.

What is an “accidental journalist”?

I use the term “accidental journalist” in this context rather than the more mainstream notion of “citizen journalists” because I believe the two, while at times related, are distinct. A citizen journalist is someone who, while perhaps not trained and employed by a traditional news organization, sets out to report on an issue of public interest. The citizen journalist has the intent to report on something, while the “accidental journalist”, such as Feidin Santana who filmed the Walter Scott shooting, is a bystander who was in the right place at the right time and captured something newsworthy. Many situations could see overlap between these categories, but the distinction is clear.

So should an accidental journalist receive the same type of protection as a regular journalist when publishing their news or footage?

I would argue that the accidental journalist merits the same level of protection as the traditional journalist or established blogger, based on the inherent public interest in bringing news and information into circulation for broad public consumption. This principle is firmly established under international law and I believe its protective qualities can be extended to those who are not professional journalists or routine bloggers, but only a “journalist for a day.”

This sheds light on the ongoing expansion of norms protecting traditional media to other actors. For example, the increase in online publication has given rise to questions about the level of legal protection available to bloggers’ sources compared to those speaking with the traditional media. Various courts, especially in the US and Canada, have affirmed that so-called shield laws, which allow journalists to protect their sources, apply equally to bloggers. Other courts have ruled that the public has an interest in disclosure regardless of whether the material is published by traditional journalists or bloggers. In Grant v. Torstar Corp., for example, the Supreme Court of Canada wrote:

…the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.

Apart from sourcing, there are sometimes elements of personal risk involved in cases like these. In the cases of both Brown and Scott, the individuals who filmed these incidents of fatal police abuse took significant risks when they chose to document and publish this footage, leaving themselves vulnerable to official scrutiny, and placing them in the mainstream media spotlight.

Should eyewitness documentation be subject to copyright?

Reports surfaced in April 2015 that news outlets worldwide received cease-and-desist letters concerning the Walter Scott footage. The letters were sent by PR firm Markson Sparks on behalf of Feidin Santana, demanding the news outlets to pay a US $10,000 fee or to stop using Santana's footage. Markson Sparks claims that Santana owns the footage and, now that the initial newsworthy event has passed, is eligible to licence it. The firm is also considering charging news outlets retroactively for previous use of the footage without Santana's permission.

Activists are calling for greater accountability for police, including by filming them. Source: Flickr user Timothy Krause

Activists are calling for greater accountability for police, including by filming them. Source: Flickr user Timothy Krause

Copyright is a double-edged sword when it comes to free speech. It is intended as an incentive to put valuable ideas and images onto the market, but it restricts their dissemination. An exception to the right to claim copyright lies in the concept of “fair use”, which allows media organizations to use limited amounts of copyrighted material as part of news reporting.

Feidin Santana's decision to pursue fees for his video footage begs the question: can something that qualifies as news at one point cease to constitute news at a later time, allowing the producer of the material to assert a copyright claim?

English courts addressed this question in the case of Ashdown v. Telegraph Newspapers, in which the Sunday Telegraph published excerpts  from the personal diary of Parliamentarian Paddy Ashdown which described a conversation about cabinet appointments between the Ashdown and now former Prime Minister Tony Blair. The Court found that the case fell within the defence of “fair dealing for the purpose of reporting current events” and focused mainly on the fact that the matters discussed in the article were still relevant to public interest. The Court stated that the meeting “was undoubtedly an event” and while, two years later, it was not current “in the sense of recent in time”, it was still a matter of current interest to the public. The Sunday Telegraph was therefore free to use the material.

A US court recently warned about the threat that is posed to freedom of expression when decisions on copyright infringement are made too hastily. In May, the Appeals Court of the Ninth Circuit reversed its decision in Garcia v. Google to order the removal of the Innocence of Muslims video from YouTube, following a copyright claim by an actress in the film. In a separate opinion one of the judges reasoned:

…[b]y refusing to immediately rehear this case en banc, we condoned censorship of political speech of the highest First Amendment magnitude. Although amateurish, offensive, and banned in many undemocratic countries, Innocence of Muslims is a film of enormous political, social, and religious interests…. The censorship of Innocence of Muslims by our court violated the public’s First Amendment right to view a film of immense significance and public interest.

It is also important to note that copyright is an effective tool to suppress free speech online. Last year, it was revealed that Ecuadorean President Rafael Correa had attempted to stifle critical speech about his policies by issuing copyright violation notices to critics who used government-made footage of the president when reporting on his policies. Some months later, Serbian Vice President Aleksandr Vucic pursued a similar tactic in an effort to censor a satirical online video that included footage taken by a State-run news outlet. These cases are by no means exceptional. Without question, copyright can indeed serve as a convenient excuse for censoring politically sensitive content online.

Public interest as a guiding principle

Perhaps “public interest” should be the guiding principle when answering the copyright question. The underlying logic of copyright protection is that it fuels a system through which the wider public gets increased access to newsworthy items. It encourages the war photographer to go to great lengths to provide us with accurate reporting on what really goes on in a war zone. The accidental journalist has not made a similar investment as the traditional journalist in being able to capture the news – they did not invest in reporting equipment or conduct background research. There must still be an incentive for them to bring the news into circulation. We cannot expect everyone to act with complete altruism in these situations, can we?

Aftermath of the Vauxhall helicopter crash. Source: Flickr user EG Focus

Aftermath of the Vauxhall helicopter crash. Source: Flickr user EG Focus

Or can we? There is a fine line to be walked here. Once we accept that the accidental journalist has a right to claim, this also means they will be able to exercise control rights that may prevent others from publishing their work and effectively limit the circulation of the newsworthy materials rather than enhance it.

In contrast to the case of Walter Scott and the claims of Feidin Santana, there is the case of Nic Walker, a bystander who photographed a 2013 helicopter crash outside London's Vauxhall. Walker’s photos of the crash, which he posted online, were picked up by news outlets. Though some commenters encouraged him to seek compensation for the use of his content, Walker stated that he did not want to profit from the crash.

Some news outlets, such as the Guardian, maintain a policy under which they seek, when possible, to get permission and pay for the use of images taken from social media. Such practices may be crucial in ensuring that accidental journalists continue to share their “lucky reporting” with the wider public and feel duly acknowledged (and compensated) for doing so. Otherwise, it may only be a matter of time before stumbling upon an event of importance and capturing it means contacting a publicity agent rather than the press. It is hard to imagine that would be of benefit to the wider public’s interest.

The main question, then, is where the line should be drawn. Should there be specific guidelines for accidental journalists, providing sufficient incentive to increase the free flow of information without at the same time restricting it precisely by creating an incentive scheme? Or can we rely on these standards to work themselves out in practice? The question, for now, remains unanswered.

What are your views on this emerging issue? Share your thoughts in the comments section below.

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