The Code says except in justifiable cases, journalists should not tape record anyone without the person’s knowledge. An exception may be made only if the recording is necessary to protect the journalist in a legal action or for some other compelling reason. In this context, these standards also apply to the electronic media.
The increasing number of gadgets to record interviews in a clandestine manner makes it very tempting for journalists to record their interviews in a concealed way. Indeed John Githongo’s now famous method which led to the exposure of the Anglo Leasing scandal makes it even more attractive for journalists to imitate. The method made Githongo famous and journalists may think that the way to fame is through clandestine interviews. If hey do so, however, they would be both professionally and ethically wrong. In the Third Schedule of the published Media Bill the Code suggests that before recording a telephone conversation for broadcast, or broadcasting a telephone conversation live , a station should inform any party to the call of its intention to broadcast the conversation.
The Code explains hat this does not apply to conversation whose broadcast can reasonably be presumed, for example, telephone calls to programmes where the station customarily broadcast calls. Broadcast pluralism and diversity has made it possible for a wide spread of people to participate in any important debate concerning their lives. This of course could not have been possible without broadcast telephone conversation. The Code was drafted in such a way as not to violate rights protected by the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights or the African Charter on Human and People’s Rights all of which defend the principles of freedom of expression.
Kenyan journalists have yet to introduce in their profession email interviews which are covered by the Code. According to Hart (2006) email interviews have become an increasingly popular technique (in America).[1] In email interviews journalists can be sure of written answers to their questions but they cannot be sure that those answers come from the people they intended to interview since they cannot see them and very often they do not even know them. Hart however says that in some newsrooms email interviews have become even more popular than telephone interviews because reporters believe “that the electronic communication is easier”.[2]
The one advantage of email interview is that it eliminates any possibilities of accusation of misquotations. Just as some reporters regard tape recorders as invaluable news gathering tools that create important documentary evidence of conversation, others regard tape recorders as intrusive devises that all but ensure that interviewees will be uncooperative .According to the First Amendment Handbook for Reporters’ Committee for Freedom of the Press, news organizations frequently adopt policies regarding surreptitious use of tape recorders. The Handbook advises journalists to record, film, broadcast or amplify any conversation “if all parties to the conversation consent”.[3]
While relatively few legal wiretaps are authorized in the United States improvements in technology have made it easier to illegally wiretap, record eavesdrop on telephone conversations.[4] Privacy Rights Clearinghouse defines wiretapping as any interceptions of telephone transmission by accessing the telephone signal itself. It defines electronic eavesdropping as the use of electronic transmitting or recording devise to monitor conversation without consent of the parties.[5]
Despite the advancement in technology used in Kenyan newsrooms there has not been any known use of electronic eavesdropping and it is not right to even imagine what kind of stories would come out of such an illegal exercise. According to Wikipedia, the free encyclopedia, telephone tapping is officially strictly controlled in many countries to safeguard the individual privacy; and it is the case in many democracies. In theory telephone tapping often needs to be authorized by court, and is, again in theory, normally only approved when evidence shows it is not possible to detect criminal or subversive activity in less intrusive way.[6]
Martin (2005) advises journalists to ask themselves a simple question before they press the RECORD button on their tape recorders: Would recording this conversation help to make my story better? [7] She says though recording phone conversation is illegal in the 50 states and the District of Columbia, Federal law permits electronically recording a phone conversation with the consent of only one person involved in it. This “one-party” rule requires the consent of at least one person in the conversation. But for journalists this means only the reporter herself is required to know that the conversation is being recorded. Many newsroom policies, she says, do not specifically address the recording of telephone interviews, but some include closes that urge employees to obey the law.[8]
In its guide for journalists to the state of the law concerning electronic recording and its implications, the Reporters Committee for the Freedom of the Press says at first, the question of whether or not to tape-record a telephone call seems like a matter of personal preference. It says some journalists see taping as an indispensable tool, while others don’t like the formality it may impose during the interview. Whereas some journalists would not consider taping a call with the subject’s consent others do it routinely. The Committee warns journalists about the unlawful use of the tape recorder which they say could give rise not only to a civil suit by the injured party, but also criminal prosecution.[9]
The question of whether a recording devise is in a plain view is not always straightforward, advises RCFP and gives an example of an interview between a reporter and a deputy sheriff of Oregon , when the deputy asked whether the object protruding from a reporter’s pocket was a tape recorder. Though the reporter stated that it was and that it was on, the reporter was later convicted under the state statute making it a crime to record a face-to-face conversation without informing all the parties.[10]
In April 2007 the police in Kenya summoned and questioned top Standard Group directors and senior editors for close to six hours after publishing a story based on a recorded telephone conversation between a Standard reporter and Artur Margaryan who claimed that Gideon Moi was on his top “hit list”.[11] The public has not yet been told the kind of questions the Standard team was asked by the police but obviously it had something to do with the recorded interview. What journalists should understand is the fact that a recorded story that is factually untrue does not alter the falsity of the story by the mere fact that it is recorded.
All that the tape can do is to prove that the conversation took lace but the tape does not in any way authenticate the claims made in the conversation. If Artur told The Standard that he was paid to kill Gideon Moi it does not make it safe to publish the story. The fact that his voice is recorded on tape does not make his claims true. The most interesting thing to note about the interrogation by police of The Standard Group team is that the public was not too eager to defend the paper as it was when the paper’s editorial offices were vandalized by police in 2005. Any lesson? Yes indeed. It proves a recorded conversation cannot protect anyone when that conversation is basically dangerous legally.
Ignorance of the law or certain ethical principles cannot be used as an excuse to publish falsities or recording in a clandestine manner. In 2005, for example, The Miami Herald fired Jim DeFede, a popular columnist, when he admitted taping a phone call from a distraught Miami politician, Arthur E. Telee Jr. who later committed suicide. Executive Editor Tom Fieldler acknowledges that the decision to fire DeFede was perplexing to many readers and colleagues, but any lesser punishment would send a message that the paper tolerated breaches of its trust with the readers.[12]
Writing about DeFede, Colon (2005) warns that a journalist ignores ethical principle at his or her own peril. In Kenya, however, there is yet to be a case of any journalist who has lost his or her job because of ignoring ethical principles. May be that day is not far, given that professionalization of the craft is being considered seriously by the government, media owners and practitioners. Tompkins (2005) has made a list of things to keep in mind as journalists decide whether or not to record a phone conversation with a source.[13]On the list is advice to journalists to make sure they record the permission granted by the interviewee.
When legal issues concerning journalistic interviews are examined the one that causes a lot of problem though it is not strictly an ethical issue concerns that of copyright of the published interview. Lawyers do not quite agree as to whether the copyright owner belongs to journalists or interviewees who normally come up with new ideas. In the US Federal copyright laws provide that the author is the copyright owner of the work that “satisfies the originality and fixation requirement” Rich (2004) says the US judicial decisions and opinion have been split in deciding this copyright ownership issue.[14] To avoid any misunderstanding, Rich advices journalists to obtain written consent from interviewees for conducting and polishing interviews. He says by obtaining consent the interviewer will be protected from infringement claims, except in any instance where the interviewer’s use of interview goes beyond the scope of the consent that was granted such as inaccurate quotations. His other advice is to resolve all issues of copyright ownership of the interview in a written agreement before engaging in the interview.[15]
[1] Hart, Kim. Inbox Journalism in American Journalism Review of December/ January 2006.
[2] Ibid
[3] 2003 RCPF. First Amendment Handbook.
[4]Privacy Rights Clearinghouse .RCPF 1993-2007.
[5] Ibid
[6] Wikipedia, the free online encyclopedia. Visited in 2007.
[7] Martin, Meg. Think Before You Record. Poynteronline. 2005. Visited in 2007.
[8] Ibid
[9] Online Practical Guide to Tapping Phone Calls and in-person conversations in the 50 states and DC visited in 2007.
[10] Oregon v. Knobel – provided by Reporter’s Committee for Freedom of the Press (RCFP)
[11] “Gideon Moi on top of Artur’s Hit list” in The Standard of April 16, 2007. No.27769.
[12] Colon, Ally. DeFede and Beyond Second Chance Ethics in Poynteronline.(2005) visited in 2007.
[13] Tompkins, Al . Recording a Phone Conversation: A Checklist .Poynteronline (2005) visited in 2007.
[14] Rich, Lloyd L. Interviews: Copyright Protection and Ownership. Free Publaw Update Newsletter website vitiated in 2007..
[15] Ibid
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