By GEORGE HOHMANN
For the WVPA
MORGANTOWN — Relevant legal information that journalists could put to immediate use was presented in a recent day-long seminar at the West Virginia University School of Journalism.
Participants in the News Law Training Seminar learned key points about defamation law, privacy, state and federal Freedom of Information Act laws, and online and social media legal issues.
NOTE: See the valuable links at the end of this article.
WVU’s School of Journalism and College of Law, along with the West Virginia Press Association, hosted the seminar. About 30 print, radio, television and social media practitioners from around the state attended the Oct. 23 event on WVU’s downtown campus.
Presenters were WVU law professors Robert Bastress and Patrick McGinley, WVU journalism assistant professor Tom Stewart, Charleston attorney Sean McGinley and Charleston Gazette investigative reporter Ken Ward.
Bastress led off the seminar by describing four key points related to privacy law:
* Intrusion, which is defined as intentional and highly offensive. Among the cases he cited was Galella vs. Onassis, which involved freelance photographer Ronald Galella, who went to great lengths to get photos of Jacqueline Kennedy Onassis. Also under the intrusion category are laws and court decisions governing the recording of phone conversations. Federal law says you can’t record a conversation unless one party knows it. However, Pennsylvania law says both parties must know.
* Appropriation, which is the use of a person’s picture or likeness. Cases include Zacchini vs. Scripps-Howard Broadcasting. Zacchini had a “human cannonball” act. A Scripps-Howard TV station filmed the act and broadcast all of it.
An important West Virginia case involved a Rev. West, who gave National Geographic permission to photograph him during a faith-healing service. The picture was later used – without Rev. West’s knowledge — to promote a Dennis Hopper movie – in other words, they used Rev. West’s likeness for commercial gain. Bastress said Rev. West’s lawsuit was settled out of court.
* False light in the public eye, which involves the publicizing of false facts regarding private affairs. Time, Inc. vs. Hill and N.Y. Times vs. Sullivan are two important cases. Bastress said an important West Virginia case is Crump vs. Beckley Newspapers.
Bastress pointed out, “Truth is a defense to anything that is defamatory.” Also, he cautioned that many laws provide special protection to children.
Patrick McGinley and Stewart teamed up to discuss online media law issues.
Stewart asked, “Can you use stuff you find on the web?” He said you probably can if it is material that was posted for all to see. He noted that content posted on a Facebook page may have been intended only for “friends.”
He pointed out that copyright might be a concern. “Copyright protects the work but not the ideas or facts,” he said. “Copyright protects how ideas or facts are expressed. You can copyright a blog or photos. A work is copyrighted the moment it is ‘fixed in a medium.’ This is automatic. No copyright symbol is required.”
Under the doctrine of “fair use,” portions of a work can be quoted without permission. This means that even while a work is copyrighted, the owner does not control all uses of it, Stewart said. The key factor is how your use affects the market for the copyrighted work. If the owner might profit from the work but your use reduces its value, you may be in trouble.
He also made these points:
* When you post to Facebook, you give up most rights. “You need to be careful about this.”
* Pulling a mug shot out of a group photo for news purposes probably wouldn’t infringe on copyright.
* Linking to copyrighted material does not violate copyright.
* You can use the copyright symbol – the small “C” within a circle – without registering a piece, he said. Work is presumed to be copyrighted as soon as it is published to a medium.
* “You can’t turn off your judgment; you can’t turn off your ethics. Our livelihoods depend on copyright. We probably shouldn’t be scofflaws.”
* What if somebody publishes your stuff without your permission? Stewart’s answers include: Write a strongly worded letter and get legal advice.
Stewart also addressed the question, “Can others’ postings on my site get me in trouble?” He said Title 47 of the U.S. Code, Section 230, protects internet service providers and web hosts from legal liability for defamatory information posted by third parties.
“This protects the big providers like Facebook,” he said. “It also protects us little guys.” Steward cautioned that “you may lose protection if you found third-party material elsewhere and chose to post it on your website.”
Can you edit a post from somebody else and still keep protection? Stewart said minor edits are probably OK but if you change the meaning or add libelous material, you might be in trouble.
“If someone complains that a posting is libelous, take the complaint seriously,” he said. “Get legal advice.”
Stewart said good resources include the online media law course in the Media University section of Poynter.org; the Legal Guide for Bloggers published by the Electronic Frontier Foundation; and the Reporters Committee for Freedom of the Press’ Digital Journalists Legal Guide.
Sean McGinley tackled libel. He said libel is defined as a false and defamatory statement about an identifiable person that is published, causing injury to the subject’s reputation. This encompasses six considerations:
* The defamatory communication. It imposes hatred, ridicule or contempt; this is about reputation.
* It’s a non-private publication to a third party. In other words, “it has to be a communication made to a third party,” he said. “You can be liable for republishing so you must be careful with advertisements and letters to the editor.”
* The statement is false. (Truth is an absolute defense.)
* It makes the plaintiff identifiable. Is it “of and concerning” the plaintiff? Companies can bring claims; governments and large groups have no standing. Over the years the burden of proof has shifted from the media proving truth to the plaintiff proving falsity.
* There is harm to the plaintiff’s reputation. This could mean harm to a company’s reputation for honesty or efficiency. When you accuse a person of a crime, harm is presumed.
* Fault. A public figure has to show “actual malice,” which is defined as intentionally writing something false with reckless disregard for the truth. The court may look at your newsgathering techniques. Edited quotes do not demonstrate actual malice unless the quotes were materially altered to change the meaning.
McGinley said defenses to libel claims are:
* The fair reporting privilege. For example, you report fairly what is in a government report. The privilege also applies to government meetings and court proceedings. There’s also a “neutral reporting privilege,” where you report an accusation someone else said, the person is a reliable source, and the accusation is newsworthy.
* Third-party postings
* Pure opinion (but watch out if the opinion implies a fact. See Milkovich vs. Lorain Journal Co.)
* Statute of limitations. In West Virginia it is one year from the original publication date.
* Retraction. This can help but it also may be seen as an admission of falsity.
To avoid libel suits, McGinley suggested:
* Check sources thoroughly.
* Verify the story’s accuracy.
* Confront the subject and give them a chance to comment.
* Understand the terms being used in a lawsuit or relevant paper and be sure to read the document.
* Be cautious when editing.
* Be cautious of headlines, captions, promos, teasers.
* Be cautious about using use file photos or generic footage with identifiable individuals when reporting on a questionable activity.
* Check any factual allegations contained in letters to the editor.
* Be sensitive to words that connote dishonesty and immorality.
* Give a full and fair portrayal.
* Be careful with your notes. For example, your organization might have a rule that everyone gets rid of notes after six months. “Whatever you do, be consistent!”
* If someone calls and complains, be nice and do not admit any guilt.
McGinley said using “allege” does not protect you. “Attribute allegations to the official source – the police report, the indictment…”
Asked about the dangers of publishing anonymous comments in a “Vent Line” or “Readers’ Voice” type column, he said, “You’d better be safe than sorry.”
McGinley also described the 2011 West Virginia Shield Law, which is State Code 57-3-10. It protects reporters from litigants who see something you write and want to know your source. It provides absolute protection unless a person is at risk of death or going to jail. The statute specifically covers student journalists. “West Virginia protections are greater than federal protections,” McGinley said.
“You lose your protection in a libel.”
McGinley said you want to fight subpoenas to prevent them from becoming commonplace. As an alternative to fighting to squash a subpoena, you could offer to provide the litigant’s lawyer with a notarized copy of your story.
Reporter Ken Ward and Professor Patrick McGinley explained Freedom of Information Act (FOIA) ins and outs.
FOIA requests are a basic tool you’ve got to have in your toolbox, Ward said. FOIA requests can help you produce better stories. They show that your news organization is digging to shine light on what the government is doing. “Sometimes what the government will not give you becomes the story. Some stories can only be gotten by filing FOIA requests.”
As for filing requests, “You can do it!” McGinley said.
The federal law is in 5 U.S. Code. McGinley said each federal agency handles FOIA requests differently. “Some are open. Some stonewall. And some are in between.” He said the U.S. Department of Justice maintains a “public reading room,” where you can see all of the requests filed and all of the records that have been released. It makes for some fascinating reading.
The state law is in Section 29 B-1-1 and continues from there.
McGinley noted that when filing a request for information, you do not have to state a purpose.
Regarding how much can be charged for copies of documents under state FOIA law, Kanawha Circuit Judge King ruled in a 2013 case that only the “actual cost of reproduction” can be charged.
If an agency says it can’t supply documents because they contain exempted information, ask that the exempt material be redacted.
Under the laws, the time limit for state government to reply is five working days; the limit for the federal government is 20 working days.
There are provisions in both the state and federal laws that say if you sue and documents were improperly withheld, the government must pay. Some lawyers are very interested in taking FOIA cases.
What to do if an agency refuses to turn over documents:
* Write a follow-up letter saying, “That’s not good enough!”
* Ask what exemption they claim as a basis for their denial.
* Write a story about their denial.
* Consult a lawyer. Have a lawyer send a letter. Sue.
“FOIA exemptions must be narrowly construed,” McGinley said.
There’s a new federal site used by some agencies: FOIA.gov
McGinley and Suzanne Weise have compiled “Open Government Guide: Access to Public Records and Meetings in West Virginia,” published by the Reporters Committee for Freedom of the Press. It is posted online at wwwk.rcfp.org/ogg
The seminar was sponsored by the WVU School of Journalism, WVU School of Law and West Virginia Press Association. For more information contact Don Smith, executive director of the press association, at [email protected] or 304 342-1011, Extension 160.
NOTE: This article was prepared by a reporter who is not a lawyer. For legal advice, consult a lawyer.
Among the resources suggested:
Open Government Guide from the Reporters Committee fro freedom of the Press:
1. Poynter’s course on Online Media Law. You’ll need to register to take this course, but it’s free. The entire course won’t take more than a couple of hours. Here’s a link to a list of courses on Poynter’s News University:
http://www.newsu.org/courses/all?keys=Online+Media+law#table Just click on the Online Media law course, then follow the directions to register and enroll.
2. Electronic Frontier Foundation’s “Legal Guide for Bloggers” is here: https://www.eff.org/issues/bloggers/legal
3. RCFP’s “Digital Journalists’ Legal Guide” starts on this page: http://rcfp.org/browse-media-law-resources