ABSTRACT
Journalists and lawyers both seek objective evidence in order to determine ‘facts’, but they do so in fundamentally different ways. The press does not adopt for its work, except superficially, the legal procedures developed over centuries. Journalists don’t ask for evidence under oath. They don’t necessarily hear both (or as many as exist) sides. They do not cross-examine. They do not thereby (or, necessarily, in any other way) triangulate. Moreover, at times they can play any of the roles the law has developed in line with its protocols – judges, partisan advocates, or jurors. These differences threaten any claim of journalistic objectivity, transforming it into a hostage to fortune. The law, though, also positively impacts on journalism by guaranteeing free expression (though this is not an absolute). Damaging speech – traditionally sedition, defamation, etc., and now specific laws criminalising, for example, ‘hate speech’ – is not protected, though proving damage is problematic. How can a specific news report be linked with legal certainty to any specific effect? In any case, fake news does not usually approach the level of legally recognised harm. Meeting this basic standard currently is anyway further undercut by the law’s failure to impose traditional limitations on internet speech.
