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Legal considerations for responding to takedown demands

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by Mark Goodman
When a student news organization receives a demand to remove content from its website, consider a handful of legal considerations as well journalistic and ethical ones.

The first question should always be, what’s the reason for the demand?
• Is it based on a claim the content in question was factually inaccurate and damaging to someone’s reputation (in other words, libelous)?
• Or is it based on the fact the content in question is embarrassing to someone and reveals information they would rather not have exposed (an invasion of privacy)?
• Or perhaps the claim is the material infringes on someone else’s copyright?
• Maybe the complaint is the person making the demand just doesn’t like the content – it’s offensive to them or conflicts with their perspective.

The last of these four common reasons for a takedown demand is the easiest to dispose of, at least from a legal perspective.  A news organization never has an obligation to remove content simply because someone doesn’t like it.  Unless the individual making the demand is alleging an identifiable person has suffered a personal injury as a result of the content, there typically is no risk of a legal claim to be concerned about.

If the claim is “you’ve infringed my copyright,” the demand should be taken seriously.  Did the student news medium obtain permission to use the content before publication?  Or is the use of the content what the law refers to as a “fair use?” (Generally, using a small part of a copyrighted work for news or commentary about the copyright owner of that work will be considered a fair use.  For example, using an image from an album cover to illustrate a review of that album will always be considered a fair use.)  Remember, the fact you didn’t intend to infringe a copyright or that you didn’t understand what copyright protected is not a defense.  If your use represents a copyright infringement, your obligation is to take the work down.  The Student Press Law Center has excellent resources available about fair use and copyright infringement.  You can find them here: http://www.splc.org/knowyourrights/legalresearch.asp?maincat=6

Many takedown demands are the result of individuals believing their privacy has been invaded.  Even if the content has been up for years, they may believe the fact they face consequences from it now (being asked about it by prospective employers, for example) is justification for demanding its removal from your website.  The good news, legally, is if the content was not an unwarranted invasion of privacy at the time it was published, it can’t be one subsequently.
• For example, if your students accurately report a student was arrested and charged with vandalizing the school, that content is protected from an invasion of privacy claim. Accurate reporting about allegations of crime and other legal matters will almost never meet the requirements for an unwarranted invasion of privacy.
• But, if the information did constitute a legally actionable invasion of privacy at the time of publication, takedown is a necessary step. For more information in this area of the law, see: http://www.splc.org/knowyourrights/legalresearch.asp?id=29

Concerns about damage to reputation are one of the frequent justifications raised by those who demand content be taken down.  Using the example above, a student arrested and charged with the crime of vandalizing school property may raise the fact he was subsequently found not guilty of the crime or perhaps even the charges were dropped.
• Again, if the information was accurate and not legally actionable at the time of publication, new facts won’t remove the legal protection for having published it in the first place.
• And if the complaint isn’t about inaccuracy but rather just about embarrassment, there is an easy defense: truth.  The publication of factually accurate information at the time of publication can never be the basis of a successful libel suit.
• For more information about libel, see http://www.splc.org/knowyourrights/legalresearch.asp?id=27

One other important legal consideration when responding to a takedown demand, especially when the requested remedy is just to remove a part of a story or other content: you may be opening the door to potential lawsuits by others.  Lawsuits for privacy invasion and libel must be filed within a set time frame after the content was first published (1-2 years in most states). This is called the statute of limitations. Most courts have concluded that the clock starts running on the date the content was first posted online, not when the people mentioned in the story first learned of it.  *But if you materially edit a story that appears on online, that can start the statute of limitations clock all over again.

The best legal advice: only respond to takedown demands when you have a solid journalistic or legal reason for doing so.  But when you have published legally unprotected content, you can lessen the likelihood of being sued or a significant damage award by removing the offending content from your website.

The Student Press Law Center offers a detailed analysis of responding to takedown demands.  You can find that here: http://www.splc.org/pdf/takedowndemand.pdf

Mark Goodman is the Knight Chair of Scholastic Journalism at Kent State University and the former Executive Director of the Student Press Law Center.

See more for the complete package:
Evaluating ethical choices
Decision models
10 steps to a “Put Up” policy
Resources
Handling online comments

 

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Takedown demands?
Here is a roadmap of choices, rationale

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Because of a growing number of takedown demands, requests for removal of online articles, JEA’s Scholastic Press Rights Commission offers guidelines to assist students and their advisers face these requests.  Such requests typically  come from sources, former staffers or citizens with concerns.

We agree with the Student Press Law Center’s Executive Director Frank LoMonte when he said the SPLC has shied away from telling people a ”right way” to handle takedown requests, leaving the decision to their editorial discretion.

“What we DO tell them is that they’re legally protected pretty much whatever decision they make,” LoMonte said. “Almost every newsroom has a variation of the simple rule that nothing will be taken down unless it’s proven factually false or otherwise legally deficient as of the time it was published.”

LoMonte said those creating takedown policies might “shackle themselves,” to the point they could not use discretion for that “one out-of-left-field moment …essential to deviate from policy.”

So, instead of policy, we offer this to help students make informed choices. In all situations, we recommend the SPLC’s existing work on the subject, and hope these guidelines will offer a roadmap if your students face takedown decisions. In addition, we also offers series of guideposts to evaluate information before it is posted: A Put Up policy that might prevent hard choices later.

Our guidelines look at legal demands, ethical considerations and possible reactions
Evaluating legal demands
Evaluating ethical choices
Decision models
10 steps to a “Put Up” policy
Resources
Handling online comments

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Information of how colleges
restrict athletes’ social media use available
year-round for localization

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Even though Sunshine Week 2014 has passed, you can still obtain information about how colleges regulate athletes’ speech using social media and whether colleges would release the information when asked.

This information is interesting and important on its own, but can also be localized for coverage in scholastic media.

The resources are available here and here.

The SPLC has licensed these pieces using a Creative Commons license to encourage republication.

Information in the packages was researched by students at the Merrill College of Journalism at the University of Maryland and developed into the finished product by SPLC Publications Fellow Sara Gregory and journalism intern Rex Santus of Kent State University.

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In case you missed Mary Beth Tinker
students provide solid coverage

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Editor’s note: The following is the introduction to Mary Beth Tinker at Whitney High School in Rocklin, Calif. It is used here with permission in an effort to reach as many people as possible.

Kavleen Singh, co-editor-in-chief, The Roar introduced Mary Beth Tinker and the Tinker tour April 1  at Whitney High School.
Here is her speech:
We listen, we read, and we speak. How do we do all of that? With words. The string of sounds and syllables we convert into meaningful messages is the most prominent outlet in expressing one’s thoughts.
There’s great power that comes with the mastery of words, and it can cause a massive uproar. Just over the past few years, Egypt and Tunisia incited a revolution that was fueled through Twitter and Facebook. Both social media outlets are traversed with words. But here in the United States, we have a protection for words that many countries unfortunately do not. We have the First Amendment.
It is through the 45 words of the First Amendment that we are granted a voice in society, free to speak our minds and participate in a melting pot of diverse opinions and clash constructively with others. There have been challenges throughout history regarding the First Amendment, and few are more prominent than that of the 1969 Supreme Court case Tinker v. Des Moines. As a freshman in Journalism I class, I learned about the Tinker case and how the courage of Mary Beth Tinker led to the high court setting a precedent that would forever impact students. In the decision, Justice Abe Fortas said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Now, as I stand before you as editor-in-chief and a much more experienced journalist, I can better appreciate that protection. In my four years with Whitney High Student Media, we have reported on two teacher arrests, bullying, online privacy, struggles with sexuality, smoking, body image, suicide, depression and a variety of other stories important to our readers. I am grateful for the freedom of speech and of the press afforded to us by the First Amendment and the California Educational Code that supports us in this responsibility. I also am grateful to have the resources available from the Student Press Law Center and to know that outside the gates of our school, other journalists are working just as hard to tell the important stories at their school — stories that take courage to find, hear, and deliver with fairness and accuracy to help improve communities and their audiences all around the world.
It is my honor and absolute pleasure to present free speech activist Mary Beth Tinker.
- Kavleen Singh, co-editor-in-chief, The Roar
Whitney High Student Media; Rocklin, Calif.

Journalism students at Whitney also published Storify coverage of the Tinker Tour here. Consider using Storify as another way to report events. News coverage can be read here and photo gallery coverage here .

The Tinker Tour also stopped April 2 at Monta Vista High School, and included a panel discussion with Tinker, Frank LoMonte, executive director of the Student Press Law Center and Nick Ferentinos, retired adviser whose students won a post-Hazelwood censorship battle. Two Monta Vista students who successfully defied a subpoena earlier this year using the California shield laws also spoke.

Tomorrow, April 3, journalism students will  live stream the Tinker Tour assembly from Convent of the Sacred Heart HS in San Francisco at 10:45 PDT. At the end, student journalists will take questions hashtagged #TinkerTourSF via Twitter.

Coverage can be accessed here.
For those of you in PRIVATE SCHOOLS, this is your chance to get in questions specific to your situation. (But everyone else should feel free to logon, too
For those in PRIVATE SCHOOLS, this is your chance to get in questions specific to your situation.
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Watch the Tinker Tour April 1 via live streaming

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Watch the western segment of the Tinker Tour as it visits Whitney High School and students from northern California April 1, 10 a.m. Pacific time.

To watch the presentation live, visit www.wctv19.com

The Tinker Tour is a special project of the Student Press Law Center. Its goal is to bring real-life civics lessons to schools and communities through my story and those of other young people, according to the Tour website.

“I made a difference with just a simple, black armband,” Mary Beth Tinker is quoted. “Can you imagine what a shy 13-year-old could do today with all of the extraordinary speech tools available?”

To watch the presentation live, visit www.wctv19.com.

Also follow the Tinker Tour at #tinkertour.

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Making a Difference application now open

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Advisers, as you prepare for the end of year contest submissions, consider entering student work in the JEA Scholastic Press Rights Commission Making a Difference project. You can fill out this online form and upload documents for consideration for publication.

We published our first copy of Making a Difference in hard copy in 1988 because of the Hazelwood malaise. In that version, now downloadable, we highlighted scholastic reporting that demonstrated  student journalism did not need the heavy hard of prior review and censorship. That tradition continues today and will continue so long as students continue to take their roles seriously and professionally.

In 2012, we committed ourselves to updating the project, hoping to show student journalism had not succumbed to Hazelwood.

We have seen some great work by student journalists across the country covering some intense topics. Let’s show the country what great work student journalists are doing that rivals work done by professional journalists.

You can enter your students’ work here: http://tinyurl.com/bmz6m5r

Here are some of the stories submitted earlier:

Making a Difference articles – 2014

• Students speak out about cancellation of SGA elections
http://jeasprc.org/students-speak-out-about-cancellation-of-sga-elections/

• And the children shall lead them. Student journalists Make a Difference
http://jeasprc.org/and-the-children-shall-lead-them-student-journalists-make-a-difference/
• Student journalists make a difference
http://jeasprc.org/student-journalists-make-a-difference/
• Making a Difference: Student journalists document controversy
http://jeasprc.org/making-a-difference-student-journalists-document-controversy-challenging-community/
• Broken Hearts and Broken Minds
http://jeasprc.org/broken_hearts_broken_minds/
• Students tackle coverage of rape culture
http://jeasprc.org/students-tackle-coverage-of-rape-culture/

Past student work:
• Past stories: You can Make a Difference. Show everyone how
http://jeasprc.org/tweet24-you-can-make-a-difference-show-everyone-how/

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