Legal considerations for responding to takedown demands
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
Takedown demands?
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Takedown demands?
Here is a roadmap of choices, rationale
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
In case you missed Mary Beth Tinker
students provide solid coverage
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.
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.
Fond du Lac English department
posts support for students
in censorship fight
Fond du Lac (WI) High’s English department has submitted a statement supporting student journalists and advocating the need for an open forum for student expression at their school.
Student journalists there have been in a prior review and restraint battle with school officials over a story on rape, called “Rape Joke.”
Kettle Moraine Press Association director Linda Barrington also noted the students aired a video on school announcements March 21, with administration approval. The video had some explanation from the principal about why he thinks the guidelines for prior review are needed.
The video can be seen here.
Arguments made on the video include the general thought that the school would like more oversight, the thought that some of the words used in the story were too edgy, and a reference to the argument the principal has been giving lately that reporters should have gotten the permission from the rapists who may have been involved in the stories of sexual abuse related by the anonymous sources in the “Rape Joke” story.
Barrington said in am email to the Journalism Education Association’s listserv that the next school board meeting for the district is Monday, March 24 at 5 pm at the Fond du Lac School District Administration Center at 72 Ninth St.
“Students are looking for as much support there as possible,” Barrington wrote.
Students journalists have received more than 5,300 signatures on a petition to their superintendent to reverse his prior review and censorship decision.
Additional coverage links:
• Trust kids to speak
http://www.redeyechicago.com/news/censoring-rape-high-school-20140320,0,1091161.story
• High school student protest censorship of the ‘The Rape Joke,’ school publication restriction
http://www.stevenspointjournal.com/article/20140312/SPJ01/303120258/High-school-students-protest-censorship-Rape-Joke-school-publication-restrictions
• Fond du Lac student protest censorship mandate for school publication
http://www.sheboyganpress.com/article/20140312/SHE0101/303120232/Fond-du-Lac-students-protest-censorship-mandate-school-publication
• High school cracks down on student paper that published rape culture article
http://www.huffingtonpost.com/2014/03/13/fond-du-lac-rape-article_n_4959167.html
•How far is too far? The issue of rape in the high school
http://wisoapbox.blogspot.com/2014/03/how-far-is-too-far-issue-of-rape-in.html
• High school administration teaches student journalists valuable lesson: We will censor you early and often
http://wonkette.com/543939/high-school-administration-teaches-student-journalists-valuable-lesson-we-will-censor-you-early-and-often
• oped: Rape culture article in school paper leads to censorship policy
http://www.digitaljournal.com/news/politics/rape-culture-article-in-school-paper-leads-to-censorship-policy/article/376415
• Wisconsin administrators impose prior review after news magazine’s story on sexual assault
http://www.splc.org/news/newsflash.asp?id=2691
• Principal requires approval of high school paper’s stories after rape culture article
http://www.poynter.org/latest-news/mediawire/243237/principal-requires-approval-of-high-school-papers-stories-after-rape-culture-article/
• WI school offices seize control over student paper after ‘rape culture’ article appears
http://www.rawstory.com/rs/2014/03/12/wi-school-officials-seize-control-over-student-paper-after-rape-culture-article-appears/
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Court ruling may give
new meaning to ‘open mic’
by Stan Zoller
The ruling by the Illinois Supreme Court that strikes down the state statute prohibiting the recording of conversations without permission may not be the panacea a lot of people are hoping for.
The Chicago Tribune reports the statute was considered among the strictest in the country. The Court said loud conversations in public could not “be deemed private,”,noting “…a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others.”
The case was, to no surprise, complicated and came as a result of recordings made by Annabel Melongo who recorded three telephone conversations she had with a court reporter supervisor at the Leighton Criminal Court Building about the policy for correcting a hearing transcript. Melongo was convicted and spent 20 months in Cook County Jail. Melongo also posted those recordings on the Internet.
[pullquote]At a time when there are more and more “citizen journalists,” professional journalists need to maintain or raise the bar of ethical news gathering. A gentle reminder that a conversation is being recorded is a great step to incorporate.[/pullquote]
While the Court’s ruling does not specifically cite the recording of telephone conversations, you can bet that there are those people who will record anything without asking.
And therein lies the problem.
For responsible citizens and journalists, the use of recording devices is a useful backup to ensure accuracy as no one likes to be misquoted. Freedom to record does not diminish the need for courtesy and ethics. It seems logical that a reporter, or other individual seeking to record a conversation, would inform the interviewee – whether it’s an in-person or phone interview. I imagine there will be a new round of protocol for both interviewers and interviewees.
For interviewers, inform; for interviewees, ask. If the Court ruling does in fact cover telephone interviews, do people now have to answer their phone “hello, please don’t record this?”
So while people will point the finger at over-zealous interviewers, there seems to be a possibility some people, especially public officials, may clam up out of fear of being recorded. Good bye transparency. At some point, in some way, the two sides need to work together. Responsible recorders, and for the sake of argument, journalists, need to have full disclosure from public officials no matter how the information is being taken down – writer or recorded. Conversely, journalists will need to follow ethical standards and not be deceitful in how they record (written or audio) information.
The Code of Ethics for the Society of Professional Journalists state that journalists should “…Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story…”
Quite simply, in most cases, do not be deceitful.
At a time when there are more and more “citizen journalists,” professional journalists need to maintain or raise the bar of ethical news gathering. A gentle reminder that a conversation is being recorded is a great step to incorporate.
Conversely, interviewees, especially public officials, need to recognize the need for transparency and not hide behind a microphone.
It’s a two-way street and in the end, it’s the news consumer who benefits the most.
For a look at the opinion by the Illinois Supreme Court, go to Eavesdropping Opinion
Read MoreStudent free speech vs. adviser job security?
“But what do you do if what they want to publish may cause a problem?” Rachel asked, a little furrow of a frown between her eyes.
She and the other 16 education majors in Kent State’s Teaching High School Journalism course had heard all about the value of a free press from Knight Chair in Scholastic Journalism Mark Goodman. He had met with them the week before when I had to miss class. Now I was back, explaining the value of the Tinker standard and re-emphasizing their future students’ First Amendment rights.
Rachel and most of the others felt our passion and wanted to believe, but…they envisioned a lot of “what ifs” for new teachers.
Read More