Determination
92
Minnesota
News Council
In the Matter of the Complaint of
Metropolitan Council against WCCO-TV
The complainant claims the television station acted contrary
to "accepted journalistic conventions" in ignoring an embargo placed
on a news release by the complainant.
Background: In the late summer of 1991, the
Metropolitan Council's advisory task force on sites for a new airport
completed its study and report. On August 9, the task force mailed
to the Twin Cities news media a notice that the task force would be
holding a news conference on Friday, August 16, a week later, to receive
and act upon a report from the Council's staff recommending a replacement
airport location. The notice stated that "copies of the report
may be ready and available to the media by Thursday so that you may
prepare for the news conference, but the information is absolutely
not to be released until 9:15 a.m. on Friday." (emphasis in original).
On Thursday, August 15, WCCO-TV called the Metropolitan
Council and requested a copy of the report; a summary of the report,
in the form of a news release, was promptly faxed that day to the
television station. The news release stated that east-central Dakota
County was the most promising airport site of the three locations
considered. At the beginning of this news release was the statement:
Not For Release or Publication Before 9:15 a.m., Friday, Aug. 16.
Upon receipt of the news release, WCCO-TV called the Metropolitan
Council to say that it was going to release the story on the 5 p.m.
news that day. The Council objected, but to no avail. As a result,
Council staff called the other major media in the Twin Cities and
told them of WCCO's decision and that they could go ahead and release
the story as well. Other media had to hurriedly rearrange their schedules,
and some of the local officials in the search area, contacted by the
media for their reactions, were unprepared to comment.
WCCO readily concedes it did not honor the Metropolitan Council's
embargo, but claims it was not required to do so because it had never
agreed to the embargo beforehand. The station says a news source should
not be able unilaterally to impose restraints on the free flow of
information to the public. WCCO-TV will, on occasion, agree in advance
to delay the reporting of information, but only if there are good
reasons for doing so.
Decision: To embargo news is to prevent its publication before
a specified time. If a source decides to embargo a news story, the
common practice is to state, "Do not release before such-and-such
a time and date." Apparently, the embargo practice has developed
informally between media and regular providers of news items, particularly
governmental units, business entities, and public relations firms.
From the news providers' point of view, the embargo system is a way
to treat all media fairly by having the same news release time for
all. From the media's point of view, the embargo, at least as to complex
stories (such as the governor's budget message, an appellate court
decision, or a detailed research report), gives the media time to
digest the information and do background work before publication so
a better news product results.
From the discussion at the News Council hearing and from our investigation,
it appears that the embargo system is now more honored in the breach
than in the observance. To some extent, perhaps, news sources may
have abused the practice by attempting to control the news when there
was no need to do so. The main reason for the decline of the embargo,
however, appears to be the rise in competition between the print and
broadcast media. Because the two media have different publishing schedules,
there is no way the timing of an embargo will satisfy both print and
broadcast media. One or the other is put at a disadvantage in breaking
the story. Our survey of several public relations firms indicates
that they rarely use embargoes on news releases for clients because
the media simply ignore them. "The embargo system is disappearing,"
says one public relations executive. "We haven't issued a release
under an embargo for the last five years. We'd never send one out
cold - that is, without calling and establishing a prior agreement.
It would be a huge risk."
Even outside the news releases of public relations firms, the effectiveness
of embargoes appears to be weakening. The public is accustomed to
the news story stating that a news conference has been scheduled by
some party for the following day for an announcement to be made, with
the story then continuing to speculate or state flatly what that announcement
will be.
Embargoes apparently are still in use on complicated stories in combination
with briefings by the news source of the media for, say, a day before
the release. This practice makes for accurate, in-depth reporting
of the news and is in the public interest. Even here, the system usually
works only on the basis of a prior agreement or on news beats such
as state government where the practice is well-known and understood
both by news sources and reporters. In the case of appellate court
opinions, the embargo is enforced by court order. The New England
Journal of Medicine's embargo is designed to withhold information
about medical research until physician subscribers have had a chance
to receive, absorb, and prepare themselves to answer patients' questions.
In the case before us, the Metropolitan Council's task force was unaware
that the old rules about embargo were no longer reliable. Indeed,
complainant says its embargoes in prior cases had always been honored.
In any event, in this particular case the Metropolitan Council offered
to furnish the media a copy of the site location report on request,
but on condition the information in it was not to be released before
Friday morning. WCCO-TV did not choose to conduct an independent investigation.
It requested a copy of the report; in making this request we believe
WCCO-TV accepted the condition on which the offer of the information
was made, namely, to abide by the embargo. Consequently, under the
facts of this case, we believe there was a prior agreement to an embargo
and that the television station should have honored the release date.
Placing embargoes on news developed simply as a business practice,
an arrangement tacitly agreed to by both parties for their mutual
interest. It is now clear that some news organizations, pressured
by competition, are increasingly finding this arrangement no longer
meets their interests.
If nothing else, this case suggests that the subject of embargoes
deserves further study and further discussion within the profession.
Clearly, any attempt by a news source to impose unilaterally an embargo
on a news story is worthless. For an embargo to have any hope of being
honored, the news source must seek and obtain an explicit prior agreement
with the media concerned.
The grievance is sustained.
Concurring: Dornfeld, Flemming, Orwoll, Stauffer,
Stone, Swain, Graham, Pennock, Parker, Stanley
Abstaining: Handberg
Dissenting: Hilger, Parrish, Tanick, Larson - We share the
view, as expressed by the majority, that news embargoes generally
are valuable policy and of utility to the news profession as well
as the dissemination of news. However, in this particular case, we
do not believe that WCCO acted improperly.
The scope of the proposed embargo here was somewhat ambiguous. If
an entity desires to impose an embargo, it has an obligation to make
the barricade as clear and impenetrable as possible. The Metropolitan
Council did not do so here.
In addition, while useful, embargoes should be used sparingly because
they impede the free flow of information. When used by a public entity,
embargoes have First Amendment implications of restriction of public
data. In this case, we do not perceive: 1) a substantial need for
an embargo; 2) that any great harm would ensue from disregarding the
embargo; or 3) that any significant deleterious effect ensued because
WCCO broke the embargo.
The attempt by a government entity to control the timing of news is
troublesome. Embargoes have their place. When the subject matter of
the material is relatively complex, furnishing it in advance to journalists
makes sense because it allows them the opportunity to digest the material,
undertake background research, and otherwise prepare for a news story.
That type of complexity does not seem to be the issue here. Rather,
the Metropolitan Council wanted to impose the embargo largely for
its own political convenience. This may constitute a legitimate concern
for the Metropolitan Council, but is not one that should be given
great deference by a news organization. We do not believe that WCCO's
action was above reproach, but neither do we think that its conduct
merits upholding the grievance under this particular circumstance.
For these reasons, we respectfully dissent.
Dissenting Opinion: Hilger, owner of two radio stations in
St. Cloud, objects to news embargoes, saying that they often favor
newspaper publishing deadlines and that, more important, they are
used to manipulate media to insure what the source considers "the
best coverage." Hilger finds embargoes by government agencies
especially distasteful: "Media should not encourage that close
a relationship to those who govern or rule us. It is better for an
entrepreneurial and competitive media to pursue a story than to behave
like sedulous scriveners waiting for embargoed handouts, much like
Sea World dolphins performing on cue for sardines."
January 9, 1992
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