legal issues facing journalists

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)