As a news editor, you’re faced with many daily decisions, each affecting the way you cover a story and, sometimes, shaping the way that story develops. The narrative arc is a well used tool that can keep a topic in the headlines for days or even weeks on end. And these days, many editors are rightly focussed on what the audience wants. Sometimes this is determined by simple sales metrics, but increasingly it is driven by clicks, and the amount of engagement or interaction by the audience.
To old hacks like me, the clickbait nature of today’s news landscape can be incredibly frustrating. Yet so many managers talk as if there’s nothing else. Take the BBC’s Digital First strategy or, as many in the Corporation call it, another excuse to cut linear broadcast output.
No, perhaps I’m being unfair there. Or am I? I recall sitting in yet another team briefing, hosted by a senior manager, in which we were told that engagement with digital content was now a key metric. “Just look at the story when ran last week,” they enthused, “which attracted over four thousand comments within the first two hours and became the most read story on the BBC website that day.”
I won’t name the story in question, but a wise colleague then asked the manager if we were in danger of obsessing over clicks without considering the kind of interaction it was encouraging. They argued that while there were, indeed, over four thousands comments, many were offensive, mocking and racist. Was this really the kind of content we wanted to focus on - stuff that was big on numbers but also big on unpleasantness? The concern was quickly dismissed.
Some outlets have decided to take action. Graeme Brown, the boss of the Birmingham Mail, has called out the racist reaction to an article celebrating Eid. It’s a refreshing approach that is sadly lacking elsewhere. Much of this is down to the complete lack of resources to moderate or police public comments. The BBC’s approach is [usually] to remove offensive replies if they are made aware of it. But this usually relies on a diligent journalist flagging it to the relevant editor, which in the case of the BBC ‘s vast online content can be any of a hundred people.
Let the people have their say, even if their views are unpleasant. Perhaps so. Yet when it comes to some stories, news providers could be in a trickier position than they sometimes let on.
From the moment of arrest to the conclusion of a trial, the law states that “proceedings are active” and any coverage of a story must take this into account. Before the days of social media, reinforcing the principles of the Contempt of Court Act was relatively easy. Print could be controlled. Digital, less so.
This week I engaged in a debate on this subject where a respected news outlet posted details of a criminal trial, leaving comments open. Several replies suggested the defendant was almost certainly guilty and should be jailed for a long time. I contended that allowing replies was a mistake.
David Banks, the highly respected media lawyer disagreed with my assessment : “Generally, the rule is that comments are allowed. If you have the editorial control to do so you should remove prejudicial comment if and when you’re notified of it. The offending publisher here is the poster and X, not the original poster”. In other words, the social media platform had a problem, not the news outlet. If anyone was in Contempt of Court, it would be X and the person who posted the offending material.
Another media law expert, Polly Rippon, took a slightly different view, referring to the guidance issued by the press regulator IPSO. It reads :
If you post a link on a social media platform to a report on active/ongoing criminal proceedings, you have a legal duty not to breach the Contempt of Court Act 1980. Failure to do so can result in a fine or a custodial sentence.
When posting information related to ongoing criminal proceedings to social media sites, you should therefore consider how best to warn social media users that they must not post related comments that may prejudice a fair trial. Consider removing the ability to post comments altogether.
To me, that final sentence is central message. Why risk it if there’s a chance you may get into trouble?
David Banks replies : “There are a couple of issues with that guidance. Firstly… the last time an editor was jailed for contempt by publication was 1949. It’s theoretically possible, but it doesn’t happen now, editors get fined. Secondly, removal of the ability to reply isn’t possible with all platforms and even where it is, posters will just quote tweet and screen shot if they want to do so. I don’t think it fully appreciated social media behaviours.”
And therein lies the problem. Like much of the rules and guidance around editorial, it simply hasn’t kept pace with the technology. Whenever I was confronted with a legal dilemma, I was fortunate is having the resources of a BBC lawyer to guide me. The test for them was usually to assess whether there was ever a substantial risk of prejudice in what we were saying. Different lawyers would apply different thresholds, but you were always covered by the phrase “LEGALLED BY XYZ” at the top of a script. If it went wrong, it was their problem not yours.
The debate so far has been around established news outlets. And you might argue that the bigger the outlet, the bigger the risk is that a juror might see a comment and a trial could collapse. David Banks takes a different view : “I think the far bigger risk than mainstream media is what goes on in fairly large community Facebook groups around local trials. They’ve had to shift at least two trials because of witness intimidation and prejudicial material. A much more serious situation in my opinion.”
He’s right, of course, and the example here highlights just how much of an unregulated sewer social media has become. It’s not only the contributors who have no sense of legal knowledge, but those who set up the groups, and have exactly the same level of legal responsibility as a professional publisher.
Whether we like it our not, controversy drives clicks, clicks drive comments, and that drives income. It would be nice, though, if those with the power would occasionally exercise a little more responsibility.