A project of Democracy Fund

January 29, 2015

Legal Tips for Local News Publishers

This guest post by Amy Gahran originally appeared on the Knight Digital Media Center website. It is reposted here with permission.

Like any publisher, people who provide community news or information have legal concerns. Especially, how can you minimize the risk of lawsuits that could threaten your scarce resources and time — without compromising your ethics, mission, or community?  In a Jan. 8 call-in podcast, Rutgers University law professor Ellen Goodman  answered general questions about local publishers and the law.

Goodman, who authored the nonprofit media section of the landmark 2011 Knight/FCC report on theInformation Needs of Communities, shared her legal expertise related to local news gathering and publishing. Currently she’s working on a project in which journalism and law students are collaboratively developing a legal FAQ for local news reporters and publishers, focusing on digital media and relatively new entrants to the field (such as bloggers and citizen journalists)

In this podcast (presented by the Center for Cooperative Media at Montclair State University, N.J.), Goodman took a call about the difficulty that local news publishers often have in acquiring libel insurance. She offered the context that U.S. courts generally tend to support publishers in libel and defamation cases; it’s very hard for plaintiffs to win. Still, the time and cost of responding to such lawsuits can be overwhelming. Liability insurance usually is used to cover the cost of fighting claims (or getting them dismissed), rather than to pay damages.

Organizations such as the National Newspaper Association and the Investigative News Network offer discounted media liability insurance to members — but it can be difficult for publishers to find many affordable libel/defamation insurance options.

Podcast host (and former Baristanet publisher) Debbie Galant shared a relevant story from her past. Her father, who published a food safety regulation newsletter, was once sued for defamation by a local gadfly — claiming that even though he made remarks in a public forum, he wasn’t a public figure and shouldn’t have been “held up for ridicule” in the newsletter’s coverage.

“My father had libel insurance, and his insurance company wanted to fight this claim,” said Galant. “They lost the court battle at several levels. It got to the point that the legal fees were nearing the $1 million coverage of his libel policy — after which, he would have been responsible for further costs. Fortunately, my father won at the appellate court level. But his entire nest egg was threatened by this, even though he was ultimately vindicated.”

Goodman noted that legal guides from the Reporters Committee for Freedom of the Press and the now-defunct Digital Media Law Project, as well as journalism organizations in your state (such as SPJ state chapters), can be useful resources for making such decisions.

For deciding how to cover controversial public statements more safely, Goodman explained that if the person being quoted or characterized is deemed a “public figure” under the tests of defamation law, it’s much harder for a plaintiff to claim defamation and demonstrate damages.

“Just standing up at a public meeting does not make you a public figure,” said Goodman. “That’s when you need to be careful to have corroboration to support your reporting — a transcript, public record or recording. The Fair Report Privilege can offer some protection. Neutrally report on what’s happening in a public space or at a public event, and get witness corroboration. That should minimize your risk of defamation liability.”

While defamation and libel currently present relatively low legal risks for local news publishers, Goodman noted that courts are getting more aggressive about protecting privacy. “There is a retrenchment and concern around privacy issues, especially due to social media and mugshot sites.”

According to Goodman, because of what amounts to extortion practices by websites that publish mugshots (and then pressure people who were arrested to pay up in order to have their mugshot taken offline), several states have reacted by rescinding the public record of mugshots.

Similarly, on Jan. 1 this year, a controversial California law took effect which gives teens in that state the “right to be forgotten” — by requesting that online services providers permanently delete content that the teen posted. Also, some courts are pulling back on access to court documents in the name of protecting privacy.

Galant shared that when she published Baristanet, she personally tended to respond sympathetically to requests from community members to remove or amend stories on that site which they claimed led to unfortunate or inaccurate portrayals of them via search results. She acknowledged that this practice is controversial among journalists.

In the podcast, Goodman also tackled the issues of whether to publish content from Facebook or other social media. “That depends on whether you’re talking about something that was posted publicly or privately, and how you got access to it. Did you have direct access, or did someone forward it to you? There are many shades of grey here.”

However, discussion groups on social media generally pose less legal risk than an individual’s social media posts, Goodman noted. Many communities have local discussion groups on Facebook, Reddit, online bulletin boards or other social media. Sometimes these are wholly public; sometimes access is limited only to approved members.

“With discussion groups, that’s when conversations start to look more public, even when access is limited. People who post in such forums need to assume that what they post will not necessarily be kept private.”

Goodman and Galant also discussed whether local news publishers should release the IP addresses of commenters — a privacy issue concerning the right to post anonymously or pseudonymously. Here, court opinions have varied widely.

“Some courts are very protective of a news publisher’s right to protect the anonymity of commenters,” she said. “Other courts don’t think divulging that information is a problem.”

Goodman noted that in a recent lawsuit involving Yelp, a court required Yelp to release to a business owner the names of people who left negative reviews about that business — so the business could prove that those people had never been customers (which could influence a decision in a defamation suit).

“For publishers, the protection of the IP addresses or names of commenters has not yet risen to the sacred space of protecting the names of your sources,” said Goodman.