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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.

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 #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 #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 #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 #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 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: #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 #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: #wjchat

jacklerner (Jack Lerner) Wait, here’s another: read EFF guide and peruse RFCP website! And OLMN! #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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