College Media / Legal Issues

Frank LoMonte on archived materials: often an ethical, not a legal call

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Frank LoMonte of the SPLC was at Eastern Illinois University last week speaking to classes around campus as part of a visiting professionals program in the journalism department. While he was here, I took the opportunity to ask him about a couple of issues facing college media. This is the audio from the first question, about archives and takedown requests, an issue that comes up frequently.

Below the mp3 player is a transcript for those who can’t listen to the audio.

LoMonte on Takedown Requests (Click the link to play)

(Transcript by D’ara Townsend)

LoMonte:  Yeah so, this is a nightmare call that newspapers and magazines are getting, not just college either, pros are getting it too, which is “your archives are ruining my life.  I committed some minor disciplinary or criminal offense when I was a kid, and now I’m 30, now I’m 40, I’m out there looking for jobs and somehow it’s haunting me because it’s coming up in my Google results.”

So the biggest thing to know and to be confident about is that as long as something wasn’t libelous at the time that you printed it, it doesn’t magically become libelous 10 years later just because it’s tampering with my job search, so that’s the biggest thing.

So you don’t have any legal obligation to pull down non-libelous material. Sometimes people will decide that they want to publish a correction or a modification of some kind, because they realize that the story is incomplete. This often happens when someone is accused of a crime and perhaps later on they were completely cleared or exonerated of it. And as an exercise of just thoroughness and good professionalism and ethics you want to go ahead and put an editors note or even a follow up, and say yes, this case was concluded with no liability found. But that’s not really a legal matter, it’s an ethical matter and a matter of professional judgment.

So you’re not under any obligation to de-archive any non-libelous material. And by the way the statute of limitations of a defamation claim is always 2 years or less from publication. So when that phone call comes in and its 10 years after publication, that person has waited too long, so frankly even if they were able to point to something defamatory in the story they’ve waited too late to sue. And so you have no liability at all.

The other thing, I guess, we’re getting this call in the context of reader comments too. Lots of people are aggrieved by things that are said about them on a reader comment board. You should know that, as a person operating a comment board, federal law – The Communication Decency Act – insulates you from liability for defamatory comments that other people – outsiders, non-staff people – come and post on your board.  So, again, as a matter of good professional judgment and ethics, you may decide you want to pull that defamatory comment down, but as a matter of law you’re really not obligated to.