By Samantha Plesser
Black’s Law Dictionary defines the legal standard of “assumption of the risk” as the act or an instance of a prospective plaintiff taking on the risk of a loss, injury, or damage.
Since before Christ, people, whom many would consider the world’s journalists, documented history with facts and evidence. Without Thucydides’ History of The Peloponnesian War, we would not have account of the Greco-Persian Wars of the 5th Century B.C.E. Without the famed radio broadcast by Edward Murrow on April 15, 1945 allowing the world their first real glimpse into Nazi concentration camps, how long would it have taken to liberate Nazi concentration camps?
Journalists have always been considered “civilians” while reporting on these international events. In other words, during wartime they were not treated as partisan and therefore given amnesty if captured by enemy troops. That is, until the war on terror began on September 11, 2001. From 2001-2014, there have been 26 international journalists killed in Afghanistan reporting on the “war on terror.” The murders against these journalists were brutal and, more importantly, were intentional. On September 30, 2014, on national television in Syria and Afghanistan, the Islamic State beheaded British journalist Steve Sotloff. He was the 70th international journalist killed by IS, and one of the 80 journalists taken hostage by IS in the past two years.
Media outlets are aware of the shift in the way journalists are now treated and the increased risks against them. For example, the Kansas State University Study Abroad Journalism Program now makes all of their graduate students in their journalism programs sign a waiver titled “Conditions of Participation Agreement and Assumption of Risk and Release,” that states “I give Kansas State University permission to contact my parents or next of kin if necessary, concerning matters of heath or safety.”
Why, then, do journalists continue to take assignments that may very well lead to their death in unstable nations? First, if a young journalist refuses an assignment, he or she will never again be given an opportunity to receive another of substance. Second, in journalism schools, faculty educates their students on how to write, but not at all on risk avoidance, risk transfer, risk retention, or risk control. Safety education in these schools is simply not a priority. It is ignored, despite the fact that media outlets have a legal obligation of a “duty to warn” journalists of the safety issues associated with all journalism assignments.
Additionally, in order to find employment at a substantive paper, most journalists today must begin as freelancers. This means they operate without the backing of a large paper or television sponsor. In order to gain recognition, they are often forced to take dangerous assignments that will prove to these large media outlets that they are willing to risk it all “for the First Amendment.” It is estimated that in 2013, over two thirds of the journalists that were killed in war zones nations were freelancers attempting to gain a name for themselves.
Many of these freelancers are aware of the risks they take when going to nations like Syria, Libya, or Afghanistan, but the rewards for getting “the most daring story” simply outweigh the notion of unemployment their entire lives. The International News Safety Institute says that in 2014 alone, 85 international freelance journalists have been killed. Most of these journalists did not have medical coverage, proper safety equipment, or a security detail that a proper media outlet would provide for one of its represented reporters.
Journalists are also not trained on how to deal with high-pressure “life or death situations,” like soldiers are. Once they reach the frontline, they are tempted to take more risks in order to get the best story possible. Max Hastings of The Daily Mail describes covering the 1982 Falklands War as the only time he risked the lives of the soldiers around him to get the best pictures he could. Years later, he ran into one Argentinian captain who had the opportunity to shoot him on the enemy line but did not. He asked the captain why he had spared his life. The captain responded, “As far as I know, there was no lunatic asylum on the Falklands Islands. So I assumed you must be a journalist. “
The international community recognizes that journalists are in danger, and is taking steps to protect them but progress is moving slowly. In March 2012, the UNESCO International Programme for the Development of Communication (IPDC) issues guidelines condemning the killing of journalists by various terrorist groups. It endorsed an urgent plan recommending for the UN Security Council to have more enforcement power against countries that intentionally commit violence against citizens whom they know are journalists.
With so little work for even the biggest named journalists now, knowing the dangers and inherent risks involved in taking assignments, many journalists simply don’t care. A good story is simply worth more to a reporter, literally, than their safety. Negligently confronting a risk that a “reasonable person” would not is the textbook definition of “assumption of risk.” In a court of law, the doctrine of “assumption of risk” is an argument often used for a defendant to avoid liability when a plaintiff acts dangerously.
Thus, when a journalist, understanding the facts of the situation, still proceeds into a country that has made it clear that amnesty is no longer their policy toward reporters, legally it should mean that we have no duty towards that person, if he or she is caught, to risk innocent lives to rescue them. However, for those journalists simply seeking to earn a living and wanting to attract the attention of a major media outlet, this is a difficult argument to make, especially knowing that they are there to document history.
Samantha Plesser is a current student at The Milano School of Nonprofit Management and Policy, former corporate attorney, and a graduate of Brown University.