Legal Issues

SPLC's Frank LoMonte on current legal issues for online college media

I recently interviewed Frank LoMonte, executive director of the Student Press Law Center, about the most common legal issues facing college media related to their online presence. His responses are included in the YouTube video below.

Part 1

Part 2

Transcript below the fold.

The Most Common Legal Issue Today

I think in terms of online publishing, the number one recurring one, and this has been true for a couple of years now is that species of claim like “you are defaming me by archiving a police blotter item that makes me look bad, and I’m demanding that you pull it down out of your online archives.”

That’s a recurring fact pattern. A question we get over and over again. And it has both a legal and ethical dimension to it, I guess. The legal issue is pretty simple: which is that if something wasn’t defamatory at the time that you wrote it, it doesn’t suddenly become defamatory just because it’s now bothering me 10 years later. So if it meets the test for being lawful 10 years ago, then it’s lawful today, as long as it doesn’t falsely accuse me of a crime I didn’t commit, or falsely state some other damaging facts about me, then it’s not defamatory and you have every right to publish it.

That’s the legal answer. Additionally, if it really is a 10 year old item, then the time clock to bring a defamation claim has long since expired anyway, so anybody that is rattling the lawsuit saber and saying “I’m going to sue you” over a 10 year old item has almost certainly slept on their rights too long and so that claim is almost certainly dead.

But, you know, there are ethical and judgment issues that get involved in this too.

It’s a little complicated from the editorial judgment standpoint when somebody’s able to show that you reported that they were accused of a serious crime, but you never reported that their name was cleared and that all the charges were dropped. So, even though legally you haven’t done anything wrong by archiving that police blotter item, your ethics and your judgment and your standards might be telling you, “maybe I should update that, maybe I should append some additional information on there to give everybody the complete story.”

And that’s totally fine to do that, but a) you want to make sure that there’s documentation of it, that you’re not just taking this person’s word for it, that they can provide you some documentation, and b) you want to be real careful about getting in there and actually rewriting the initial item. In other words, I wouldn’t go into the police blotter item and rewrite the text of that item. The reason being, there’s something in the law called the “single publication rule” and once something’s been published one time, then just publishing an identical new version of that on your web site is not a brand new publication. It doesn’t re-start the libel clock. But if you publish an altered version, a changed version, a revised version, then you might restart the libel clock. So you might be giving that guy another year or two-year window to sue you over something that was long-since dead and gone.

The better practice is 1) to just append it onto the end like an editor’s note, rather than revising the text, and 2) ideally to get some kind of release from that aggrieved person. Some kind of a written statement that says “if you add the following paragraph, I’ll release any claims that I might have against you,” and then go right ahead and do it.

The other one that’s kind of interesting, and we don’t have a particular legal answer for this, but it’s something everybody at least needs to have a discussion about and do some thinking about at the start of a term and that is “who has the keys to the web site” In other words, there’s a little bit of a potential censorship issue at a public institution if you have an instructor, a government employee, who’s acting as the gatekeeper of the web site.

We’ve run into this from time to time where it turns out that the adviser has posting privileges and the adviser is using their privileges to put up and take down material. And there is some risk of running afoul of the first amendment if the adviser’s going in there without the permission of the editors, maybe even against their wishes, yanking down pieces of content.

The adviser understands that they couldn’t do that on the printed page. They couldn’t go over the shoulder of the editor and push the delete key and kill things out of the print publication, so you should establish the same kind of boundaries with the online publication as well. I’m not saying there should be a per se rule necessarily that the adviser doesn’t have those privileges, but there should be some understanding of how those are to be used.

The concern comes in, the practical concern is that there are going to be times where the students disappear from the campus, and the adviser or the business manager, the general manager might be the only person who’s physically sitting there at the desk when the phone rings with the aggrieved person who’s demanding that you pull down the content.

So if you’re going to restrict access to the web site to the student editors, and you’re not going to give that adviser the key to the web site, then you need to have some kind of coverage plan so that there’s always a student who has takedown ability who’s reachable. Some kind of a shift where if you, the editor in chief, go skiing over Christmas time, the managing editor’s reachable. The managing editor knows that it’s their responsibility if they get that phone call, “hey, your web site’s been hacked and there’s some pornographic material or some material that’s defamatory, and it needs to be pulled down right away” that that person has the ability to do that.

Basic Online Legal Principles

I would say two things there: 1. The biggest thing to understand is that the rules aren’t fundamentally different. I think people often have the perception that online publishing is a different species and that it’s qualitatively different from print publishing, and really it’s not, with a couple of exceptions. All the same rules pretty much apply. The supreme court has said that the same first amendment standards apply to the Internet as would apply to a printed newspaper, so publishing is publishing is publishing is publishing.

That also means, by the way, that you can libel somebody in a Tweet. You can libel somebody in a Facebook post. You can libel somebody in an online publication every bit as effectively as you can libel them in print, so all the same rights and all the same responsibilities and risks apply equally. So that’s the first thing to understand.

So where the rules diverge, where they deviate, the big one is third-party content: reader comments. And that is another huge area that I think people both in the student media and in the professional media are kind of just figuring out is how do we police or not police what readers come and hang on our comment board.

And it’s funny, because I’ve only been doing this work for about three years now, but just in those three years, I’ve seen an evolution, a sea change, in the practice both in the professional media and in the student media, where it used to be kind of a cherished belief that anonymous speech was to be valued and protected and that we wanted to encourage people to come and post anonymously so that they would speak openly and freely.

And now, the pendulum is swinging back a little bit toward preferring that people sign their names to their comments, because what we found out is that anonymity also encourages a lot of people to do some stupid crazy stuff like spout off their racial hatred on your comment board. And come to find out, that racists are not that brave, and when you require them to log in using their real e-mail address, suddenly their courage evaporates and they stop doing that. So a lot of publications have started either requiring that you log-in through a portal like Facebook, or that you at least provide a verifiable e-mail address, or they’ve preferred those comments. In other words, they have a hierarchy system where a named comment is going to float to the top of the comment board, and an anonymous comment is going to sink to the bottom of the comment board, and so as a practical matter, it’s probably not going to get seen or read anyway.

But the policing of the online comments is a huge area of uncertainty, and that is one where the law’s different. In print, if I publish a letter to the editor – if I publish your written letter – that’s my content. I’m as responsible for that as if I had assigned it to you and I had paid you for it. So if you libel somebody in that letter, I’ve got ownership of that as a publisher. Not true on a comment board. That’s the Federal Communications Decency Act Section 230, which says is if you’re the provider of the web site portal, basically, and you do no more than hang out a board for people to post their comments on, that as long as you’re not the co-creator of those comments, that’s not your speech. You’re not liable for it. The person who’s offended by it, the person who’s aggrieved by it can always go after the author, that person is liable if they can find them. But you as the host are not. That’s a specific provision of federal law that applies only to online speech, and does diverge from the rules for print.

As a general matter, I certainly think that people need to be mindful that publishing online is publishing, and that you have to apply all the same rules of verification that you would to print publishing. That the fact that you put something out on Twitter, and you have the ability to delete it or take it down later doesn’t mean that it was never said. It doesn’t mean that it was never published. So you certainly need to adhere to the same verification standards before you would make an allegation on Twitter as you would before making an allegation in print. You don’t just go floating rumors and saying “we’ll go check this out later.” Once you’ve published it, you’ve published it, and you’ve got ownership of it.

Editing and Twitter

I think as a practical matter, one of the benefits of Twitter is the immediacy, and if you’re going to have an intermediary there, it’s clearly going to slow you down. I think you’re just going to have to use your judgment and common sense and realize that there are certain types of stories that are going to lend themselves to a libel risk. And so I would never say you necessarily got to have an editor sitting there in the football press box. If you’re doing no more than providing periodic game action updates by twitter, the libel risk is almost infinitesimally low.  I mean, how are you going to libel somebody giving an update on how many yards the running back has?

So, I don’t think I would ever say, yeah, you’ve got to have an ironclad rule that nobody ever puts anything on Twitter without an editor reading it, because your judgment and your common sense are going to tell you that a venue like that or a concert, an entertainment event, you’re not high exposure for defamation. But certainly, if it’s any kind of a political function, if it’s crime news … crime news is just a magnet for trouble. Because it is the kind of thing where if you name the person incorrectly, or you exaggerate the criminal charge against them, that can be slam-dunk defamatory. I would certainly not give my police reporter a Blackberry and tell them “go down to the police station and start live-Tweeting the police blotter.” I think that’s an invitation to trouble.

Just use your judgment and common sense about how sensitive the material is and just give everybody, obviously, a good grounding in defamation law. Everybody in the newsroom, even the sports writers, even the photographers, everybody just have a basic grounding in the rules of defamation and invasion of privacy so they can go out and tweet safely.

The Tatro Case

This is happening right as we speak, there’s a case that is probably going up this fall to the Minnesota Supreme Court that is called the Tatro case … that’s a First Amendment case involving online speech by students on a Facebook page. And what’s important to us about that is it’s the first case that we know of that’s gotten as far an appeals court, this got to the Minnesota court of appeals, where a student was disciplined for speech purely on her personal Facebook page that had to do somewhat with school matters, but was not in any way directed at a school audience, or intended to cause a disruptive impact on school. But because some people reacted negatively to it at school, the school decided that was good enough to punish the student, and they disciplined her, basically ran her out of this professional program that she was in. And we have seen cases like that bubbling up at the high school level before, but this is the first one we know of where – based on this “substantial disruption” test under the First Amendment – that a college has punished a student for purely off-campus social networking speech based on the way people reacted to it on campus.

Now that’s not a journalism issue exactly, but it’s certainly an issue, if I was a college student blogger, if I was running a wordpress site, if I was doing any kind of political commentary or something like that on an off-campus web site, I would be watching that very closely. Because we do need to draw some better boundaries where schools don’t feel like they’re the 24/7 speech police. That’s the big one involving college students’ first amendment rights that we’re following right now. We probably won’t a decision in that until I’m thinking 2012, and that’s in the Minnesota Supreme Court.

It’s in the state level court, but it’s construing the First Amendment. So it won’t be binding in any other jurisdiction, but it will certainly, I think, be one that a lot of people look to for guidance, just because there aren’t that many. The fact is the law of social networking is five years old at best, so we don’t really have a whole lot of other guidance to go on.

Copyright and Fair Use

I think the really big one that all of us in the media are looking at is the bundle of intellectual property and copyright issues that involve republishing part or all of other people’s content. That’s really quicksand right now. For a long time, in internet years, it was kind of accepted that if all I did on my web site was post a couple of paragraphs of your story with a link to what you did, and I did no more than that, that I was making a fair use of your content. I wasn’t violating copyright because I excerpted and linked and I was still, at the end of the day, driving the traffic to your site.

I’m not sure that we’re 100 percent secure that that’s always going to be right anymore. There was an old, old Supreme Court case back in the day when the news was being put out by wire services on news tickers, and it was called the “hot news” case. And what the Supreme Court said in that case was it was possible for a competing wire service to violate copyright or violate the predecessor of copyright by stealing your hot news, basically. That if they took your scoop and republished it as their own, they could still be violating copyright even if they added a little bit of their own creativity to it. That scoop, at least for some period of time, was yours, and they couldn’t just go and republish it and resell it under their own name. And that hot news doctrine was dormant for a really long time, but some attorneys are trying to revive that now so that they can protect their online scoops from aggregator sites whose whole business model is just to republish entire chunks of other people’s content. That’s one that the courts are still figuring out basically. How much of somebody else’s material can you safely republish before you’ve crossed the line into copyright infringement.

I still think that for purposes of the student media, if you want to put a paragraph, a sentence, that says “Top National News Headlines” and you summarize something that you saw on the front of the Wall Street Journal or the front of the New York Times and you link directly back to them, that’s awfully close to a fair use, and I have a hard time seeing how that would constitute copyright infringement, but you do want to reword it into your own words. You don’t want to cut and paste the first three paragraphs of the New York Times story. That’s skating too close to the edge.

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