Determination 92: Metropolitan Council v. 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.”
Tags: WCCO-TV