“There is a certain laundering that happens … if there is enough distance from the bad act or criminal behavior,” Klaris explains. In other words, the first publisher of illegally obtained information is most at risk, while subsequent commentators are relatively protected by the sheer fact that the information is already in the public consciousness.
“The historical precedent is to turn the other cheek,” Klaris says. “But, risk aversion may have changed over time.” In the case of the hacked e-mails, he suggests two alternative reasons why some publications may have hesitated to publish them in part or in their entirety. First, there are the ethical issues of not promoting the distribution of illegally obtained information.
Second, in regard to whether or not the documents should be republished in their entirety or in large excerpts, news organizations may come up against copyright issues. It is possible that some news outlets see no reason to get drawn into even a possible legal battle if they could just paraphrase and link instead. In fact, Hoyt of The New York Times mentioned the copyright issues in a recent column in the paper. Unlike the legal liability for the acquisition of the documents, the copyright issues do not disappear if more and more publications reproduce the documents. Rather, each and every subsequent publication can be held liable for copyright violations.
What should journalists do when faced with this dilemma?
“Go with your gut,” says Klaris. “[A]s soon as it feels funny, stop and get another opinion… Don’t encourage or participate in any illegal newsgathering activity.”
If you are going to be the first to publish and have a connection with the original, illegal acquisition of the information, or if you are being sent information that has clearly been stolen-no matter how newsworthy it is-think twice before publishing, suggests Klaris. Most likely, a journalist would be in the clear so long as they were not involved in the illegality in any way. But, it’s worth thinking it over and, perhaps, seeking out qualified legal advice.
Nevertheless, there are countervailing factors that journalists should take into account. Just recently, the deans of five of America’s most prominent journalism schools published a letter in The Washington Post titled, “When in Doubt, Publish.” The deans argue that “[i]t is the business—and the responsibility—of the press to reveal secrets.”
In practice, “ignorance often protects news organizations in these cases,” Klaris says, and the Internet provides the perfect environment for acquiring anonymously posted, illicit information under that rubric.