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Legal issues facing journalists
- 1. Avoiding Legal Landmines in Social Media Ellyn Angelotti Faculty, Digital trends & social media Poynter Institute
- 3. Disclaimer • This is not specific legal advice, but legal information.
- 4. Some Rules of Thumb • When it comes to the law, “it depends” – Gray areas are common – Different facts change how the law is applied • Common questions – What is reasonable? – What is foreseeable? – What are my/my audiences expectations?
- 5. Just because you can, should you? • Legal vs. Ethical issues – Gut check – What are your values? – Do you have a decision-making process? • Would you/could you share your process?
- 6. The new legal issues? • Posting offensive/inappropriate content – Badmouthing others • Copying what people find on websites • Privacy expectations – Social media files, emails, etc.
- 7. What every site should have • Terms of Use – Set boundaries for your users • Privacy Policy – Let your users know what information you collect and how you use it – Potential opt out options
- 8. What every web users should know • Duty to read – Terms of Service/ Privacy policies – User agreements
- 9. Danger Areas • Defamation – Key Point: Falsity of Fact • Copyright – Key Point: Market Value • Privacy – Key Point: Consent
- 10. Defamation: Guiding Values • Seek truth and report it • Minimize harm
- 11. What is Defamation? • Injury to reputation caused by publishing a false statement of fact AND – A publisher was careless, reckless or had knowledge of falsity – The defamed person can be identified • Public vs. Private person – Injures a person or business/exposes someone to hatred, ridicule or contempt
- 12. What is NOT Defamation? • Who – Libelproof Defendants • Someone with an already tarnished reputation – Deceased – *More difficult* Public Figures • Must prove actual malice
- 13. Who Is A Public Figure?
- 14. Who Is A Public Figure?
- 15. Who Is A Public Figure?
- 16. Who Is A Public Figure?
- 17. Who Is A Public Figure?
- 18. Who Is A Public Figure?
- 19. Content: Fact vs. Opinion • Is it true? • Can you determine if it is true or false? • Context
- 20. What is not defamation? • Content – Opinions • The “true or false” test – Hyperbole – Parody
- 21. Is it Defamatory? • My neighbor John Smith is a stinking lush. • In my opinion the mayor is an alcoholic. • My attorney Dan Jackson is a crook. • All Florida attorneys are crooks. • Calling a TV show participant a “local loser,” “chicken butt” and “big skank” • Calling someone a pimp
- 22. Defamation Tips • Create standards and follow them – Accuracy (Check, double check and triple check) – Thoroughness (The more perspectives and sources, the better) – If you’re making a bold claim, make sure all sides are represented (gives you more credibility) – Support opinions with on-the-record quotes
- 23. Defamation Tips • We all make mistakes – Promptly correcting or retracting inaccuracies can boost your credibility with your audience – Carefully investigate claims that you are incorrect
- 24. Online Commenters • Determine how you will moderate comments – Before or after publication – Will you strike or edit comments? • Thoughtfully craft your terms of service • Authors: make your presence known • Enable user comments only for stories that will benefit from it/if you can handle it.
- 25. What is Copyright? • Grants authors exclusive rights to works and the rights to: – Reproduce – Distribute – Perform – Display – Transfer rights ©
- 26. What Copyright Isn’t • Not subject to copyright: – Idea – Concept – Discovery – Laws – “Fair Use” – “70 years rule”
- 27. Copyright Era vs. Open-source World • Copyright-era language – Scoop, byline, beat, etc. • Open-source language – Collaboration, retweeting, embeddable content, etc.
- 28. Copyright Issues in Linking • Deep Linking: Putting a link on your site that opens a specific page on another site. • Inline Linking: Embedding HTML code on your site so it displays content directly from another site.
- 29. Copyright Issues in Social Media • Typically the original author owns the copyright (should clarify this with contract). • Some posts do not meet minimal creative threshold and may not have copyright protection. • Aggregation can bring up copyright issues .
- 30. Fair Use Factors • Subjective balancing test • Four areas – Purpose and character – Nature of work – Amount of work used – Market value effect
- 31. Fair Use • Purpose & character (in the public interest) – News reporting – Non-profit – Adds a new meaning to the original work
- 32. Fair Use • Nature of the work – Creative work is more protected than fact- based work
- 33. Fair Use • Amount of work used (relative) – Not necessarily based on proportion – Look at the “heart” of the work – Too little for fair use: “de minimis”
- 34. Fair Use • Market value effect – Most important factor
- 35. Attribution/Disclaimer • Will not protect you from a copyright claim* * Unless the owner has granted rights via Creative Commons
- 36. Online Commenters • “Notice and takedown” – DCMA protects publishers • You will generally not be liable if you promptly take down a comment after being notified by a copyright owner
- 37. Copyright Tips • Create your own work • If you do use others’ work … – Ask for permission – Give credit – Ensure that it is fair use
- 38. What is Privacy? • Publishing personal information without permission • Intrusion into personal space • False light (in some states) • Right of publicity (commercial misappropriation)
- 39. What is Privacy? • Personally Identifiable Information • Personally Embarrassing Information
- 40. How Private Are You?
- 41. When is Privacy Violated? • When an aggrieved person has a – Reasonable expectation of privacy (no established method to determine this)
- 42. Are Posts Private? • Public postings on public sites (i.e. Twitter) are not private. • Secured Communication Act may protect posts on: – Password-protected sites – If poster has deliberately prevented outside users from viewing site
- 44. Elements of Intrusion • Intentional invasion of someone’s private affairs • Reasonably offensive • Private matter • Mental Anguish
- 45. Privacy Tips • Gather content from public places and public sources • Be cautious when technology lets you intrude (lenses, microphones, etc) • Get consent, when possible. • Rely on public information
- 46. Is it Private? • Who owns the tool or account being used? • Where are the messages stored? • What network is the information traveling through? • Are the messages being sent on employer time? • Does the employee affiliate with employer in message?
- 47. What Can I Do? • Have a process/ policy – Coach people on how to use the tools and the importance of good judgment • If you’re posting content from others from social media to your site, consider the benefits of a moderator
- 48. #PrivChat • Center for Democracy & Technology
- 49. FOIA Requests
- 50. Resources • Electronic Frontier Foundation – http://www.eff.org/ • Reporters Committee for the Freedom of the Press – http://www.rcfp.org/ • Online Media Law: The Basics for Bloggers and Other Publishers – http://www.newsu.org • Citizen Media Law Project – http://www.citmedialaw.org/
- 51. For More Information • Section 512 of the Digital Millennium Copyright Act • CDA 230 (Section 230 of the Communications Decency Act)
Notas del editor
- "[Name of website] will not collect any personal information about you except when you specifically and knowingly provide such information Privacy: When a user visits a website, he or she provides personal information to the website operator simply by virtue of browsing, reading, and downloading material. This information includes IP address, user configuration settings, and what website referred the user to the site, among other things. It is better to tell users that this type of information is being collected automatically on standard web server access logs. .
- Private Figures: the amount of research undertaken prior to publication; the trustworthiness of sources; attempts to verify questionable statements or solicit opposing views; and whether the defendant followed other good journalistic practices.
- Public Figure District 2 St. Pete Councilperson Calvin Harris
- High School wresting coach The case went all the way to the Supreme Court, which ruled 7-2 in favor of Milkovich in a landmark 1980 decision that he is not a public figure and therefore not subject to a published opinion. One reason is in his 27 years of coaching (1950-77), he had a dual meet record of 265-25-2. From 1963-72, his teams won 102 consecutive matches, which is still a state record. He also guided the Mustangs to 10 state team titles and nine state runners-up, and had 37 individual champions - the last being his nephew Jamie, who is the team's current coach. The other reason is for a landmark Supreme Court ruling. On Feb. 9, 1974, a brawl erupted among wrestlers at a match between Maple Heights High School and Mentor High School covered by J. Theodore Diadiun, who at the time was sports editor for the Willoughby News-Herald. Diadiun is now The Plain Dealer's reader representative. Milkovich filed a libel action against Diadiun and the News-Herald for what Diadiun wrote in a column following a Ohio High School Athletic Association hearing about the fracas.
- Cliff Lee’s wife Time, Inc. v. Firestone 1976 (Florida Supreme Court) (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across
- Limited: (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across
- Limited: (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across
- No such thing as a false idea.
- When false, these are defamatory (if they are true, then not defamatory) (in most state) No, yes, Yes, yes, no, maybe but probably no. 3: They concluded the term has "no generally recognized meaning." 2: “Our dad’s a pimp. . . . We’re interested in the underclass.” “dad dabbled in pimportial arts” –had to be false because he HAD been a pimp in the past, and that was good enough could not be used to support the truth of the statement. Vanity Fair mag, Allen Hughes and Albert Hughs Jr. Evil kenieval picture with his wife and another woman( No – not reasonbaly defamied)
- if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work. if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.
- Benefit to the public- unpublished work gets more protection because author gets the first shot at publishing
- Does not typically apply to Parody WEIRD AL De minimis: Movie Seven: appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable."
- Gather not necessarily publish
- Not for Facebook… but this is more for privates websites
- Phyiscial invasion, or electronic/optical invasion “ use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording. "
- Consent is implied if you tell them you are in the media All parties need to be aware a conversation is being recorded