legal issues facing journalists
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Avoiding Legal Landmines in Social Media
Ellyn AngelottiFaculty, Digital trends & social media
Poynter Institute
What’s Changing?
Disclaimer• This is not specific legal advice, but
legal information.
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?
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?
The new legal issues?• Posting offensive/inappropriate
content– Badmouthing others
• Copying what people find on websites
• Privacy expectations– Social media files, emails, etc.
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
What every web users should know
• Duty to read– Terms of Service/
Privacy policies– User agreements
Danger Areas• Defamation– Key Point: Falsity of Fact
• Copyright– Key Point: Market Value
• Privacy– Key Point: Consent
Defamation: Guiding Values• Seek truth and report it• Minimize harm
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
What is NOT Defamation?• Who– Libelproof Defendants• Someone with an already tarnished
reputation
– Deceased– *More difficult* Public Figures• Must prove actual malice
Who Is A Public Figure?
Who Is A Public Figure?
Who Is A Public Figure?
Who Is A Public Figure?
Who Is A Public Figure?
Who Is A Public Figure?
Content: Fact vs. Opinion• Is it true?• Can you determine if it is true or
false?• Context
What is not defamation?• Content– Opinions• The “true or false” test
– Hyperbole– Parody
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
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
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
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.
What is Copyright?• Grants authors exclusive rights to
works and the rights to:– Reproduce– Distribute– Perform– Display– Transfer rights
©
What Copyright Isn’t• Not subject to copyright:– Idea– Concept– Discovery– Laws– “Fair Use”– “70 years rule”
Copyright Era vs. Open-source World
• Copyright-era language– Scoop, byline, beat, etc.
• Open-source language– Collaboration, retweeting, embeddable
content, etc.
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.
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 .
Fair Use Factors• Subjective balancing test• Four areas– Purpose and character– Nature of work– Amount of work used–Market value effect
Fair Use• Purpose & character (in the public
interest)– News reporting– Non-profit– Adds a new meaning to the original work
Fair Use• Nature of the work– Creative work is more protected than
fact-based work
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”
Fair Use• Market value effect–Most important factor
Attribution/Disclaimer• Will not protect you from a copyright
claim*
* Unless the owner has granted rights via Creative Commons
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
Copyright Tips• Create your own work• If you do use others’ work …– Ask for permission– Give credit– Ensure that it is fair use
What is Privacy?• Publishing personal information
without permission• Intrusion into personal space• False light (in some states)• Right of publicity (commercial
misappropriation)
What is Privacy?• Personally
Identifiable Information
• Personally Embarrassing Information
How Private Are You?
When is Privacy Violated?• When an aggrieved person has a– Reasonable expectation of privacy (no
established method to determine this)
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
Elements of Intrusion• Intentional invasion of someone’s
private affairs• Reasonably offensive• Private matter• Mental Anguish
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
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?
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
#PrivChat• Center for Democracy & Technology
FOIA Requests
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/
For More Information• Section 512 of the Digital Millennium
Copyright Act• CDA 230 (Section 230 of the
Communications Decency Act)