legal issues facing journalists

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Avoiding Legal Landmines in Social Media Ellyn Angelotti Faculty, Digital trends & social media Poynter Institute

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Page 1: Legal issues facing journalists

Avoiding Legal Landmines in Social Media

Ellyn AngelottiFaculty, Digital trends & social media

Poynter Institute

Page 2: Legal issues facing journalists

What’s Changing?

Page 3: Legal issues facing journalists

Disclaimer• This is not specific legal advice, but

legal information.

Page 4: Legal issues facing journalists

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?

Page 5: Legal issues facing journalists

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?

Page 6: Legal issues facing journalists

The new legal issues?• Posting offensive/inappropriate

content– Badmouthing others

• Copying what people find on websites

• Privacy expectations– Social media files, emails, etc.

Page 7: Legal issues facing journalists

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

Page 8: Legal issues facing journalists

What every web users should know

• Duty to read– Terms of Service/

Privacy policies– User agreements

Page 9: Legal issues facing journalists

Danger Areas• Defamation– Key Point: Falsity of Fact

• Copyright– Key Point: Market Value

• Privacy– Key Point: Consent

Page 10: Legal issues facing journalists

Defamation: Guiding Values• Seek truth and report it• Minimize harm

Page 11: Legal issues facing journalists

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

Page 12: Legal issues facing journalists

What is NOT Defamation?• Who– Libelproof Defendants• Someone with an already tarnished

reputation

– Deceased– *More difficult* Public Figures• Must prove actual malice

Page 13: Legal issues facing journalists

Who Is A Public Figure?

Page 14: Legal issues facing journalists

Who Is A Public Figure?

Page 15: Legal issues facing journalists

Who Is A Public Figure?

Page 16: Legal issues facing journalists

Who Is A Public Figure?

Page 17: Legal issues facing journalists

Who Is A Public Figure?

Page 18: Legal issues facing journalists

Who Is A Public Figure?

Page 19: Legal issues facing journalists

Content: Fact vs. Opinion• Is it true?• Can you determine if it is true or

false?• Context

Page 20: Legal issues facing journalists

What is not defamation?• Content– Opinions• The “true or false” test

– Hyperbole– Parody

Page 21: Legal issues facing journalists

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

Page 22: Legal issues facing journalists

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

Page 23: Legal issues facing journalists

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

Page 24: Legal issues facing journalists

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.

Page 25: Legal issues facing journalists

What is Copyright?• Grants authors exclusive rights to

works and the rights to:– Reproduce– Distribute– Perform– Display– Transfer rights

©

Page 26: Legal issues facing journalists

What Copyright Isn’t• Not subject to copyright:– Idea– Concept– Discovery– Laws– “Fair Use”– “70 years rule”

Page 27: Legal issues facing journalists

Copyright Era vs. Open-source World

• Copyright-era language– Scoop, byline, beat, etc.

• Open-source language– Collaboration, retweeting, embeddable

content, etc.

Page 28: Legal issues facing journalists

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.

Page 29: Legal issues facing journalists

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 .

Page 30: Legal issues facing journalists

Fair Use Factors• Subjective balancing test• Four areas– Purpose and character– Nature of work– Amount of work used–Market value effect

Page 31: Legal issues facing journalists

Fair Use• Purpose & character (in the public

interest)– News reporting– Non-profit– Adds a new meaning to the original work

Page 32: Legal issues facing journalists

Fair Use• Nature of the work– Creative work is more protected than

fact-based work

Page 33: Legal issues facing journalists

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”

Page 34: Legal issues facing journalists

Fair Use• Market value effect–Most important factor

Page 35: Legal issues facing journalists

Attribution/Disclaimer• Will not protect you from a copyright

claim*

* Unless the owner has granted rights via Creative Commons

Page 36: Legal issues facing journalists

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

Page 37: Legal issues facing journalists

Copyright Tips• Create your own work• If you do use others’ work …– Ask for permission– Give credit– Ensure that it is fair use

Page 38: Legal issues facing journalists

What is Privacy?• Publishing personal information

without permission• Intrusion into personal space• False light (in some states)• Right of publicity (commercial

misappropriation)

Page 39: Legal issues facing journalists

What is Privacy?• Personally

Identifiable Information

• Personally Embarrassing Information

Page 40: Legal issues facing journalists

How Private Are You?

Page 41: Legal issues facing journalists

When is Privacy Violated?• When an aggrieved person has a– Reasonable expectation of privacy (no

established method to determine this)

Page 42: Legal issues facing journalists

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

Page 43: Legal issues facing journalists
Page 44: Legal issues facing journalists

Elements of Intrusion• Intentional invasion of someone’s

private affairs• Reasonably offensive• Private matter• Mental Anguish

Page 45: Legal issues facing journalists

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

Page 46: Legal issues facing journalists

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?

Page 47: Legal issues facing journalists

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

Page 48: Legal issues facing journalists

#PrivChat• Center for Democracy & Technology

Page 49: Legal issues facing journalists

FOIA Requests

Page 50: Legal issues facing journalists

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/

Page 51: Legal issues facing journalists

For More Information• Section 512 of the Digital Millennium

Copyright Act• CDA 230 (Section 230 of the

Communications Decency Act)