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Highlights from chat 3.24.10: Law + Web Journalism

March 25, 2010 - Posted in Highlights , Web Journalism Posted by:

Q1 Are bloggers journalists? Legally, do they and other Web folks have reporter privileges?

jacklerner (Jack Lerner) The privilege isn’t defined in CA law, but at least 1 court has held that it applies to anyone gathering and disseminating news. #wjchat

Oops, meant to say the term “reporter” isn’t defined in CA law #wjchat

eff (EFF) What makes a journalist a journalist is whether she is gathering news, not the method or medium she uses to publish #wjchat

eff (EFF) The freedom of the press can apply to every sort of publication that affords a vehicle of information and opinion, including blogs #wjchat

newswithnumbers (Numbers Guy) So if a bloggers posts are 1/3rd “news”, 1/3rd “opinion” 1/3rd normal blogger stuff… the 1/3rd that’s news is still journalism? #wjchat

jacklerner (Jack Lerner) Yes, fair use is there for all! It’s murky–and dynamic. But quoting for news, commentary, criticism is firmly established. #wjchat

citmedialaw (Citizen Media Law) Question of reporting privileges varies by state/context. ..the more your actions look like journalism, the better. #wjchat

Q2 I’m a journalist… aren’t I covered under fair use online? How is the concept of fairness changing? #wjchat

jacklerner (Jack Lerner) Here are 3 guidelines for FU: Should be some reason to quote; use only what is necessary; avoid using the “heart of the work” #wjchat

jacklerner (Jack Lerner) Also use should be transformative, ie not replicating original purpose such as entertainment, etc. Quoting is usually transformative #wjchat

lisaborodkin (Lisa Borodkin) In fair use cases, the Supreme Court has weighted the economic factor (threat to the market of the original) most heavily.
#wjchat

lisaborodkin (Lisa Borodkin) The economic threat to the market may or may not be more severe because the journalism takes place online #wjchat

lisaborodkin (Lisa Borodkin) Keep in mind fair use is an affirmative defense – it means an infringement that is excused, yet it is still an infringement #wjchat

eff (EFF) @lisaborodkin Fair use may be a defense, but the Act still says fair use of a copyrighted work…is not an infringement of copyright #wjchat

phj_pdx (Paula). @lisaborodkin Check recent fair use cases, incl 9th Cir. Bill Graham case. Trend away from financial factor toward transformation. #wjchat

Q3 I have a blog. Am I responsible for the remarks from my commentors? #wjchat

eff (EFF) Section 230 provides a powerful defense against claims based on comments on your blog http://eff.org/r.h7a #wjchat

jacklerner (Jack Lerner) @RobinJP Case law says generally OK to delete, even edit a bit, but if you are changing meaning, that’s a problem #wjchat

citmedialaw (Citizen Media Law) DA: @webjournalist: You can edit user comments without taking on liability as long as you don’t materially change the meaning #wjchat

citmedialaw (Citizen Media Law) KI: Exception re: not responsible 4 user comments – IP claims (mainly TM) and criminal claims. #wjchat

citmedialaw (Citizen Media Law) KI: I say mainly TM claims b/c copyright has a safe harbor in DMCA #wjchat

lisaborodkin (Lisa Borodkin) @phj_pdx In addition, right of publicity claims have been considered to be IP claims not covered by 230 immunity #wjchat

Is there consensus for how to handle news site comments? Edit? Remove profane ones afterward? OK before posting? #wjchat

lisaborodkin (Lisa Borodkin) @wjchat I would say best practice is either approve, or don’t approve comments. Avoid becoming co-author. Why raise a fact issue. #wjchat

citmedialaw (Citizen Media Law) KI: Editing comments: delete criminal ones (child porn). For user experience, prob. delete spam. After that, discretion. #wjchat

Q4 How much legal weight does a sites Terms of Service have? #wjchat

jacklerner (Jack Lerner) Re Q4: Generally courts have upheld Terms of Service, even if only linked to on a site’s home page. #wjchat

citmedialaw (Citizen Media Law) KI Q4: Lawyer answer: it depends. Content of ToS and visibility. #wjchat

eff (EFF) Q4: Court generally have upheld, but will strike unconscionable terms #wjchat

lisaborodkin (Lisa Borodkin) @wjchat 1 TOS issue that may come up is an arbitration agreement. Generally click-wrap agreements would be ok. #wjchat

citmedialaw (Citizen Media Law) KI: Certain clauses (mandatory arbitration) subjected to more scrutiny than others. #wjchat

lisaborodkin (Lisa Borodkin) But browse-wrap TOS agreement would be questionable. Certainly to a user seeking to get out of an arbitration clause #wjchat

Q5 What does the Web journalist need to know about the difference between Creative Commons and copyright?

eff (EFF) Q5: Creative Commons provides a set of pre-made licenses for your copyrights, modifying the default all rights reserved #wjchat

jacklerner (Jack Lerner) @newswithnumbers FU allows one to use CR’d content without permission. It is murky and uncertain. CC are contracts. #wjchat

Q6 How do you recommend handling corrections or retractions? Do speed and placement count? #wjchat

jacklerner (Jack Lerner) Q6: Speed & placement could count a bit because intent matters in defamation law esp. for journos. Also ethically right thing to do! #wjchat

lisaborodkin (Lisa Borodkin) @wjchat Yes, speed and placement count. On an ethical level I think it’s important to be transparent as to what the error was. #wjchat

eff (EFF) Q6: Varies. Some states have retraction statutes that protect against defamation lawsuits if you retract. #wjchat

citmedialaw (Citizen Media Law) DA: Retractions are tough issue for lawyers to answer in abstract. Ethics and law might not always align. Can vary by state. #wjchat

Q7 What options do Web journalists have and what should they do if served with a take down notice?

FOLLOW UP Q6: Text is “easy”… what about databases or a Flash graphic? Something very Webby?

webjournalist (Robert Hernandez) @lisaborodkin Ethical: In correcting errors, whether public or privately ID’ed, always be transparent and fix… and announce/label. #wjchat

citmedialaw (Citizen Media Law) KI: As mentioned earlier, for non-criminal, non-IP claims, Sec. 230 is a strong defense. #wjchat

citmedialaw (Citizen Media Law) KI: If it’s a copyrigth takedown, you need to comply with DMCA (you’ve registered a DMCA agent, right?). #wjchat

citmedialaw (Citizen Media Law) KI: DMCA agent is a person registered with the Copyright Office to receive copyright takedowns http://www.copyright.gov/onlinesp/ #wjchat

citmedialaw (Citizen Media Law) KI: Registering an agent gives you protection against copyrigth infringement claims based on user submissions (NOT UR own writing). #wjchat

citmedialaw (Citizen Media Law) KI: DMCA requires prompt take down with notice to poster (if possible) and option for them to counternotice *if* notice sufficient. #wjchat

eff (EFF) Q7: Whether to takedown in response will be fact specific, and depend on alleged liability. See http://eff.org/r.h7a #wjchat

citmedialaw (Citizen Media Law) KI: DMCA (17 U.S.C. section 512) sets forth what’s sufficient for a take down notice. #wjchat

lisaborodkin (Lisa Borodkin)@citmedialaw That’s the thing. For a journalist, first make sure the takedown notice is a true copyright issue, not something else. #wjchat

citmedialaw (Citizen Media Law) DA: Lots of bogus takedowns get sent. Read the notice carefully. DMCA has precise list of what is required http://bit.ly/9FziR8 #wjchat

Q8 What should web journalists do if served with a subpoena for the identity of a source?

webjournalist (Robert Hernandez) @ethanklapper I’d say follow same rules in journalism, regardless of medium. Protect your sources – that’s part of our credibility. #wjchat

citmedialaw (Citizen Media Law) DA: If you get a subpoena for source information, contact a lawyer ASAP. We can help at www.omln.org and so can @EFF #wjchat

Q9 Can I be sued for publishing somebody else’s private facts? What if it’s just a tweet?

jacklerner (Jack Lerner) Re Q9: A tweet is a publication so yes. Law varies from state to state. RCFP, again, is amazing on this: http://bit.ly/RFCPpriv #wjchat

jacklerner: Yes! Saying something to 1 other person = publication! RT @killbutton: What about FB status updates? Those too? #wjchat

webjournalist (Robert Hernandez) @killbutton My understanding is that “publish” means telling another person, so FB status would count. IMs and emails too. Correct? #wjchat

lisaborodkin (Lisa Borodkin) @killbutton @jacklerner Ha, never write anything you don’t want linked to from the home page of NYTimes.com. #wjchat

lisaborodkin (Lisa Borodkin) @killbutton Yes, even your draft gmails are getting “published” to the cloud in a sense. #wjchat

eff (EFF)Q9: States allow suits for disclosure of private facts. Fact being newsworthy is a defense – a “legitimate matter of public concern” #wjchat

lisaborodkin (Lisa Borodkin) @wjchat There’s many contexts you could be sued depending on how the facts were obtained – trespassing, deceit, breach of NDA #wjchat

Q10 What is one law tip you recommend to all Web journalists? #wjchat

lisaborodkin (Lisa Borodkin) @wjchat Be accurate and check your sources. #wjchat

citmedialaw (Citizen Media Law) KI: Q10 – Educate yourself about defamation and other publication risks. Watch this: http://bit.ly/adUqLe #wjchat

jacklerner (Jack Lerner) Wait, here’s another: read EFF guide bit.ly.cLLxpy and peruse RFCP website! http://www.rfcp.org And OLMN! http://www.omln.org/ #wjchat

citmedialaw (Citizen Media Law) KI: Also, make sure any of your contributors are educated and follow same best practices. #wjchat

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