Newspapers, magazines, and broadcast networks typically have their own lawyers. But citizen media outlets, bloggers, social network members and other Internet users generally don’t have lawyers on standby. What are citizen journalists missing in terms of legal services and advice? Newsroom lawyers help journalists avoid unnecessary legal risk, recognize empty legal threats as such, fend off subpoenas, and defend against lawsuits.
Watch David Ardia on Strategic Lawsuits Against Public Participation
In some cases, these newsroom lawyers also help journalists gain access to government documents, meetings and judicial proceedings. Lawyers who advise reporters and editors typically have special training in First Amendment law and media-related legal issues.
Sometimes the journalist contacts a lawyer in the planning phase of a story that’s likely to attract legal opposition, such as an investigation of wrongdoing at a powerful corporation. Other times, reporters and editors may ask a lawyer to review a story before publication to screen for defamation risk. And whenever a news organization is threatened with a lawsuit or receives a letter from an attorney who represents a subject of an investigation or story, seeking a lawyer’s advice on what precautions to take and how to respond is a no-brainer.
When should you seek legal advice?
Watch Maherin Gangat, Media Law Resource Center Staff Attorney, Discussing the Josh Wolf Case
Seven Scenarios
Here are some of the situations in which a blogger or citizen journalist should seek legal advice.
1. You receive a credible threat that you’re going to be sued in connection with something published on your blog or Web site.
Find a lawyer with expertise in media law, including knowledge of Strategic Lawsuits Against Public Participation (SLAPPs; see below) and Section 230 (especially if the threat concerns something created by another content provider.) If the threat comes from out of state, you ultimately may need a lawyer who can advise you on the laws of that jurisdiction.
2. A lawyer representing a subject of your inquiries contacts you in a dispute concerning your newsgathering or planned posting.
This may be something less than a credible threat of a lawsuit and more of an intimidation tactic. However, don’t overlook the potential seriousness and chance of a lawsuit whenever an attorney contacts you on a possible adverse party’s behalf. Don’t be cowed into backing off a legitimate publication, but proceed with caution. Check any facts in dispute with care. Substantiate any assertions you make with hard evidence and documentation. Consult with a lawyer if you’re still uncomfortable and want your work “vetted,” or checked for legal risk, so you can go ahead and post without worrying. Pre-publication vetting by lawyers is standard practice in newsrooms when there’s a perceived legal threat.
3. You find that content you have posted has mysteriously been taken down by your Internet service provider.
According to lawyers at the Berkman Center for Internet & Society, if your Internet service provider has taken down some of your content, that could be the result of a demand by a seriously miffed potential plaintiff. For anonymous posters, this could be your earliest clue that legal trouble lurks and you should consult with a lawyer.
4. You are subpoenaed in connection with your online activities or newsgathering.
You need to contact a lawyer with expertise in media law to help you respond and to protect your rights, including under any state shield laws that may apply. Whether state shield laws apply to bloggers and citizen contributors is largely unresolved.
5. You or an adversary are either contemplating or are in the midst of a lawsuit and you plan to post disparaging words or images concerning that person or entity online.
Bad idea. See Rule 2 and, if you’re still determined to post, talk to your lawyer before you do.
6. You aren’t sure whether some action you’d like to take to access information is legal or illegal or you’re about to post something that, when you think about it, could cause someone or some company or organization to want to sue you.
A big part of what newsroom lawyers do is proactive — advising journalists in advance of reporting and publishing activities to eliminate unnecessary legal risk. It’s better to get legal advice before you take a questionable action than after the fact — and a quick consult is far less costly than hiring an attorney to defend you after a lawsuit has been filed.
7. You’re asked to sign a contractual agreement that involves assuming unreasonable legal risk (such as a broadly drafted indemnification clause) or that contains provisions you either don’t fully understand or that seem onerous or unreasonable or unduly restrictive.
If the contract is going to limit your online activities in a manner that you may come to regret or may cause you to take on unreasonable legal risk, either don’t sign, agree to strike or edit the sections of concern, or have a lawyer negotiate a better deal for you.
Strategic Lawsuits Against Public Participation
It’s important to recognize that many lawsuits brought against bloggers and other citizen journalists are intended to intimidate citizen journalists and chill the legitimate exercise of freedom of expression. These lawsuits are called Strategic Lawsuits Against Public Participation, commonly known as “SLAPP” suits.
Generally, a “SLAPP” is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.”
Georgette Gilbert, dissatisfied with plastic surgery done by Dr. Jonatahn Sykes, sued him for malpractice. She also set up a Web site detailing her experiences. Sykes countersued for libel over the contents of the site, and sought a court order to have it removed. After the court refused to issue such an order, Gilbert sought to have the libel claim dismissed under California’s anti-SLAPP law, which allows courts to dismiss libel and similar claims which attempt to limit discussion of public events and controversies. The trial court denied the motion, holding that Dr. Sykes was not a limited purpose public figure. But an appellate court reversed, granting the anti-SLAPP motion, thus dismissing the libel claims.
Anti-SLAPP laws can pack costly consequences. A friend of Lindsey Lohan recently was ordered to pay Perez Hilton nearly $85,000 for legal fees in connection with the libel lawsuit she brought against the blogger.
In the U.S. about half the states have anti-SLAPP laws. If you think you’ve been hit with a SLAPP suit, the Anti-SLAPP Resource Center is the place to go for further information and resources.
Increasingly, unhappy subjects of blogging or other Internet posting have lawyers send threatening letters. These lawyers’ letters, whether they’re “cease and desist” letters or take some other form, can aim to intimidate bloggers and other contributors into backing off their stories or taking down what they’ve already published.
There is a database of such letters available at Chilling Effects Clearinghouse and should you get one, you can send it to the Clearinghouse — a collaboration between law school clinics and the Electronic Frontier Foundation that aims to support “online activity against the chill of unwarranted legal threats.”
Maherin Gangat details the lawsuit against John Wolf, a journalist and filmmaker jailed for 228 days in 2006 for failing to turn over a collection of videotapes and reveal his sources, in the video box below.
Consider Insurance
Insurance can provide some protection, including some homeowners’ policies and media liability policies. The newly launched Citizen Media Law Project’s Legal Guide provides helpful insurance information.