Доклад: Should press be liable or not?

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.