Доклад: Should press de liable or not \english\

SHOULD PRESS BE LIABLE OR NOT?

Recent years have increased legal accountability of producers and

advertisers for providing SAFE products and RELIABLE information to

customers. A government influences a wide range of market

operations from licensing requirements to contract actions. That

control announces and enforces determined norms of quality.

Each of these regulations is designed to protect consumers from

being hurt or CHEATED by defects in the goods and services they buy.

This matter, when producers look to the law rather than to the

market to establish and maintain new standards of quality (of their

goods), shows, that modern market has an ability of selfregulation.

But it also shows another unbelievable feature: consumers are both

incapable of rationally assessing risks and unaware of their own

ignorance.

Companies and corporations all over the world are systematically

inclined to SHIRK on quality and that without the threat of legal

liability may subject their customers or other people to serious risk

of harm from their products if it could save money by doing so.

According to this point of view, for most goods and services,

consumers are POWERLESS to get producers to satisfy their demand for

safe, high-quality products! The unregulated market lets unfair

producers to pass on others the costs of their mistakes.

Legal liability is ready to correct 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, has completely ESCAPED the imposition of legal

liability. The market for political information remains genuinely

ee of legally imposed quality obligations. The electronic mass

media are subject to more extensive government 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 legal obligation to warrant its

truthfulness, to guarantee its relevance, to assure its

completeness.

The thing is: Should the political information 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 the privacy of an

individual or destroy without justification an individual's

reputation - again, the cost will not 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 and services are considered worlds APART

from the press in kind, not just in degree. Holding producers in

ordinary markets to ever higher standards of liability is seen as

PROCOMSUMER. Proposing holding the press to any standard of

liability for political information is seen as ANTIDEMOCRATIC. The

press is constitutionally obligated to check on the government.

Most of policymakers justify legal liability for harms, caused by

goods and services and quite limited liability for harms, caused by

information. Liability for defective consumer 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 true preferences.

Lack of liability for defective or harmful political information

can be predicated only on a different kind of supposed market failure

- not a failure of the market to SUPPLY the LEVEL of safety that

customers want but its failure to supply 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 information is a public good and it has

many characteristics of a public good. That is a product that many

people value and use but only few will pay for. Factual(real)

information cannot easily be restricted to direct 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 analysts consider that the market also

fails because of low demand. Even if suppliers could "earn all their

money", they wouldn't provide the socially optimal amount of info!

Private demand for political info will never be the same as social

demand. And it will never reflect its 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 justify generous sibsidies - 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 their efforts 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 the internalizing process. In

effect, the sale of advertising at a price that varies according to

the number of recipients permits information producers to

appropriate the benefits of providing a product that many people

value but few would pay for directly. Advertising has an effect of

transforming information from a public into a private good. It makes

possible for information providers to make profits by satisfying the

tastes of large audiences for whose desire to consume information

they are unable to charge directly.

Thus, customer of goods or services and citizen 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 vote intelligently 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 the press broad freedom from

legal liability for the harms it causes must give away! It does not

necessarily mean that the economic case for legal sanctions has been

made. Although it seems the market could be relied upon to supply

"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 the benefits 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 in two quite different cases:

1) The first occasion has to do with the market's responsiveness to

the demands of consumers. The failure occurs when customers are

unable to detect defects before purchase or to protect themselves

by taking appropriate precautions 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 when suppliers are unable to gain any

competitive ad- vantage either by exposing defects in their

rivals' products or by touting the relative merits of their own.

2) The second kind of market failure is an inability to internalize

harm to bystanders - third parties who have no dealings with the

producers but who just happen to be in the wrong place at the

wrong time when a product malfunctions. 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, relevance and

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 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 particular suppliers, consumers are not

inclined to punish information producers by avoiding future

patronage even when they commit an occasional 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 to be careless

about truth. These realities create incentives for journalists not

to make mistakes.

Moreover, the investment that mainstream publishers and broadcas-

ters make in their reputations for thoroughness and accuracy attests

to the market's perceived ability to detect and reward suppliers of

consistently high- quality information. Information suppliers that

cater to more specialized tastes play a significant role. These

alternative ways of getting info are often probe apparent realities

more deeply, interprete events with greater sophistication and

analyse data more thoroughly than the mainstream 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 mainstream media's

ability to portray falsehood as truth or 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 and complete. Or perhaps it

would be slightly more precise to say that the market unfortunately

does not appear systematically to reward producers of falsehood or

half-truth information yet, according to their activities. So that

consumers of political information don'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 an asserting that the reason

the market for political information works well is that it provides

just the right kind and quality of information to each individual

citizen and that each individual citizen has identical preferences

for info about government. Indeed, the premise of this argument is

that the market works because citizens (or customers) do not have

identical preferences and producers exploit that fact by finding

ways to cater to and profit from the 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 out here.

The claim that the market in general "works" shouldn't be

understood as a claim that the information it generates is uniformly

edifying and never distorted. As you know many 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 quality and quantity

that met their own needs as they themselves defined than does the

competition in the marketplace of ideas that we presently enjoy.

This analysis suggests that the workings of the market create

situation in which consumers of political information do not need

the threat of producer liability to guarantee that they are

systematically getting a TRUSTWORTHY product.

But consumers are not the only potential victims of defective

information and market incentives are not always adequate to protect

NONCONSUMER victims from the harm of defective information. Innocent

bystanders, such as pedestrians hit by defective motorcycles, are

sometimes hurt by products over whose producers they have no control

either as consumers or competitors. Persons, who find themselves the

unwitting subjects of defective information, stand in an analogous

position.

For example, a story about sexual assault might be very

interesting for public and might serve well the public interest in

being informed about the police efforts or criminal justice system.

But the victim's name is NOT NECESSARY to its purpose and its

publication both invades her privacy and broke her safety. In cases

like this, it's not so easy to have confidence 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 major question: Should the press be

permitted to externalize particularized harms? Why should not the

press, like other business entities, be liable when defects in its

products cause particularized harm to individual third parties who

have few means of self-protection at their 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 not always eager to give space to

claims that it has erred. There are two objections, why the press

shouldn't be responsible for the harm of such kind: accountability

to a more demanding legal standard would compromise its financial

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 harms innocent third parties than it

is when other manufacturers' malfunctioning products harm

bystanders. As press doesn't underproduce information, thus

"freedom" from liability can'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 would lurk behind a rule that required

the press to compensete individuals. It is not obvious that

enforcing a rule that simply prohibited publishing the names of rape

victims would signal the beginning of the end of our cherished press

freedom.

Asking whether the press should be more legally accountable than

it is now for publishing defamatory falsehoods about individuals or

revealing rape victims' names touches a number of difficult, highly

discussed questions. In spite of the fact, by recasting a portion of

the debate over legal accountability and 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, 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 to be amiss to suggest that

when neither the threat of increasing a supposed undersupply nor the

looming shadow of government censorship is implicated, the massmedia

should be liable for egregious errors.