Blog Questions and Answers

Video Links and Copyright Concerns

Question:  When using video in connection with blogs, is providing a link to video that may be protected by copyright permissible, or is that unclear, and are there any parameters or useful rules of thumb for bloggers and citizen journalists?

Response By →Levine Sullivan Koch & Schulz:

(Posted on January 10, 2009.)

Copyright protection applies to all manner of expression once that expression is captured in a tangible form from which others (with their own senses or with the aid of a device) can perceive the work.  Thus, in addition to written, pictorial, musical or artistic works, among others, copyright applies to videos or other audiovisual works.  Moreover, copyright applies not only to creative works, but to factual works such as news clips and video of actual events.  Thus, anytime a blogger or citizen journalist wishes to use video that was not created by them, they should consider whether, under the principles of copyright law, the use is permissible.

Generally, copyright law gives copyright owners the exclusive right to reproduce, distribute, publicly perform, publicly display or prepare derivatives of their work. In most circumstances, anyone who exercises any of these rights, without the permission of the copyright owner, is infringing the copyright.  For example, if you have created a short video depicting an event and, without your permission, someone copies the video, uploads it to her own Web site, and lets visitors download copies, that person is infringing your copyright by engaging in a number of the exclusive rights (reproduction, distribution, possibly public performance and display).  However, the copyright law prohibition of unauthorized use is not absolute.  Under certain circumstances, the doctrine of “fair use” requires that particular publicly beneficial uses be allowed, notwithstanding the lack of permission from (and sometimes over the objection of) the copyright owner.  In addition, as the Internet continues to evolve, and courts become more familiar with its workings, some uses—including certain linking—that may resemble copyright infringement have been judged not to be infringing based on the technical aspect of how a given video is provided to users.

Technical issues and infringement

Recent decisions by the influential Courts of Appeals for the Second Circuit and Ninth Circuit show that courts are now taking a much more technical approach to assessing issues of copyright infringement.  Thus, to determine whether content is being infringed by being publicly displayed, publicly performed or distributed via a given Web site, courts will consider on whose server the content actually resides and whether the content is presented to users by being served directly to them or simply presented through inline links to another site.  These courts have held that, in order to infringe by performance, display or distribution, the putative infringer must actually possess a copy of the work. 

When the content actually is on a third party’s Web site and resides on that site’s servers, and you merely employ an inline link such that the content appears in a frame on your site, the copy is served from the third party’s site to users, and technically never resides on your site or servers.  Under the holding of some recent cases, you would not be committing infringement.  Likewise, simply linking to content residing elsewhere generally should not amount to direct infringement on your part.

Note that, while linking to content residing elsewhere on the Internet typically does not amount to infringement, a blogger can become liable for infringing acts committed by others if the blogger is aware that content on another site is in fact infringing but nevertheless provides a link to and encourages users to access the infringing content.  In that circumstance, although the blogger will not have engaged in any directly infringing act, he or she could be held liable for contributory infringement based on his or her knowing participation in the infringing conduct of others.

In contrast to links, where an unauthorized copy of a video resides on your site or servers, you likely would be deemed to be an infringer unless your use of the video qualifies as a fair use.  Thus, if you were to make a copy of an over-the-air broadcast or download a video from someone else’s site and upload it to your own site, you would be reproducing copyrighted content.  By providing that content to the visitors to your site, you also would be distributing (for example if you made the content available for downloading), or publicly performing or publicly displaying (for example if you streamed the content to your users) and thereby committing additional acts of infringement.

Fair Use

The doctrine of “fair use” may permit some uses of works that would otherwise constitute infringement.  Fair use is a statutory provision that balances a copyright owner’s exclusive right to control use of his or her work against the public’s need to have that work available for publicly beneficial purposes.  Courts often describe the doctrine of fair use as the most difficult concept to apply in all of copyright law.  Under Section 107 of the Copyright Act, use of someone else’s work for such purposes as commentary, criticism, news reporting, research and scholarly reports, among other things, may be considered to be a fair use, and thus non-infringing, based on a balancing of four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the copyright owner’s potential market.  Despite the presence of these statutory factors, there are no hard and fast rules that govern the application of fair use; each use must be addressed on its facts. 

* Uses are more likely to be fair when they “transform” the work that is being used.  That is, where the use builds upon the original, for example providing a critique of the original, or adds content that builds on the message of the original.
* Uses are less likely to be fair when they simply present the original for the same purpose as it originally was used.  For example, if a video of a live event appeared on a news program, and you want to report on the same news event but do not have your own video, showing a copy of the original news program’s video is not likely to be fair.
* Uses that “scoop” the copyright owner’s first use of the work are less likely to be fair.  For example, if you rush to get a video distributed via your Web site before the copyright owner broadcasts it, this fact will weigh against fair use.
* Taking more than is appropriate for a proper purpose is less likely to be fair.  Thus, if you are making a point for which 10 seconds of a three minute video might be crucial, but you use the entire video, this fact will weigh against fair use.
* Uses that interfere with the market for the original work tend not to be fair.  If the copyright owner typically offers licenses to bloggers and others to make the type of use you want to make, using the content without obtaining that license tends not to be fair.

Permission from the copyright owner is the safest route if you wish to upload or distribute another’s video content.  If you don’t have that permission, because of the complexity and unsettled nature of this area of the law, it may be helpful to consult with a qualified attorney before uploading or otherwise reproducing or distributing another’s video content.

From Geanne:  Thank you Levine Sullivan Koch & Schulz for this thoughtful response.

To Post a Question, Scroll Down To Bottom of Page

What is the Status of the Proposed Federal Shield Law and Will it Likely Help Bloggers and Citizen Journalists?

Question:  Is the proposed federal shield law dead?  If it is ultimately passed, would it be helpful or hurtful to bloggers and citizen journalists?

Response By →Levine Sullivan Koch & Schulz:

(Posted on November 5, 2008.)

No, efforts to pass a federal shield law are not dead, but they will likely have to wait until next year and the new Administration to move forward.  It is unclear whether it would help or hurt bloggers and citizen journalists. 

When discussing the proposed shield law, it is important to recognize that there are two versions of the law under consideration by the Congress, the House bill (H.R. 2102) and the Senate bill (S. 2035), and that the two bills differ in a number of ways. 

The House bill passed overwhelmingly and with broad bipartisan support, 398 to 21, on October 16, 2007.  The Senate bill experienced a procedural setback on July 30, 2008, when efforts to bring it to the floor for a vote failed as a result of maneuvering related to debate on amendments to an energy speculation bill.  However, a number of supporters of the bill considered the vote, and the Senate’s attention to the issue, a positive development.  At this juncture, given the explosive financial crisis on Wall Street, it seems unlikely the bill will be taken up again in this session. 

Because there are some differences between the House bill and the current form of the Senate bill, the impact of a federal shield law on bloggers and citizen journalists will turn on which provisions are ultimately incorporated into a final law.  Interestingly, regardless of who might be protected by the law, the present Senate version provides somewhat less protection for confidential sources in certain situations - like civil litigation - than does the House bill.  However, in its current form, the protections the Senate bill does recognize would likely cover a greater number of bloggers and citizen journalists than the House bill. 

The language of the current draft of the Senate bill uses a functional test to decide who would be protected by the law.  It applies to all individuals engaged in “journalism,” a term that is defined as “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”  Many bloggers and citizen journalists, provided they address public issues on a regular basis, would seem to be protected by this legislation. 

In contrast, although the House bill employs the same definition of journalism, it adds a professionalism test to decide who is protected.  It only applies to professional journalists, that is, individuals engaged in journalism “for a substantial portion of the person’s livelihood or for substantial financial gain.”  Thus, although some might satisfy this standard, the majority of bloggers and citizen journalists probably would not. 

Since the Senate bill is the less substantively protective of the two, it may have a better chance of passing in the House than the House bill does in the Senate.  However, as the proposed law will likely be taken up under a new Administration and in a new Congress, it is difficult to predict at this juncture what the final version might look like.  Moreover, particularly given some of the limitations of the Senate bill, if it is this version that is passed, the courts may have a great deal to say about exactly how the law would be interpreted and applied.

From Geanne:  Thank you Levine Sullivan Koch & Schulz for this helpful reply.

Are Private Facts Found On the Internet Still Private Under Privacy Law and Can Republishing Them Cause Legal Trouble?

Question:  A legal claim that private facts have been wrongfully published generally requires that the facts at issue were not previously public.  Does that mean that if truthful personal information about a private person, such as financial or medical data or an ancient shoplifting arrest is posted in some obscure location on the Internet, perhaps within a database or deep inside a social networking site, that anyone can republish it without worrying about a private facts claim?  In other words, once truthful information has been publicly accessible online, is it fair game for re-publication by a blogger or citizen journalist or anyone else?

Response By →Levine Sullivan Koch & Schulz:

(Posted on September 20, 2008.)

Overview

Historically, truthful information that is not kept private has been fair game for republication, even when the information is about a private (i.e., non-famous) person.  Technology has altered the legal landscape somewhat, however.  Both the pervasive nature of the Internet and technological glitches resulting in accidental disclosure of information have led courts to alter this general rule in some circumstances where sensitive personal information, like medical or financial information, is at stake.  As a result, there is no easy, clear answer to the hypothetical question posed above.  A general understanding of the law governing the disclosure of private facts should, however, assist a citizen journalist in assessing the risk presented by republishing a given piece of information found on the Internet.

Most states make the “unwarranted publication of intimate details of a person’s private life” unlawful, although the precise contours of the law governing such claims vary from state to state.  Liability for this kind of invasion of privacy primarily turns on whether the person whose data is disclosed has a reasonable expectation of privacy in that data.  This, in turn, can depend on a variety of factors, including the nature of the information, the context in which it was initially revealed, and the extent of its initial disclosure.  Even where a person has a reasonable expectation of privacy in the facts disclosed, however, there can be no liability if the information is of legitimate concern to the public. 

Public Disclosure of Private Facts

A person suing for public disclosure of private facts is required to prove that another person (1) gave publicity (2) to a private fact (3) that is not of legitimate concern to the public, where (4) such disclosure is highly offensive to a reasonable person.  In the hypothetical scenario posed above, the blogger or citizen journalist is giving publicity to the information, and the disclosure would arguably be “highly offensive” to any reasonable person given the sensitive, personal nature of the information.  (The categories of information that most often give rise to this kind of invasion of privacy claim include mental and physical health, sexual relations and orientation, family matters, status as a crime victim, and personal financial matters).  Therefore, the likely battleground in any such lawsuit would be the second and third elements—whether the facts can truly be considered “private” when they previously have been posted on the Internet, and whether they are of legitimate concern to the public. 

What Makes a Fact “Private”?

Information is recognized by the law as being “private” when a person has a reasonable expectation of keeping the matter private.  A person’s reasonable privacy expectations change depending on the nature of the information and how it was disclosed:

(1) Public Records

At one end of the spectrum - the least private end - is information in official government records.  One does not have a reasonable expectation in the privacy of information contained in public records, and thus such information is virtually always fair game for republication.  This is true even where the information is not ordinarily made accessible to the public, and the initial disclosure is inadvertent or in violation of the law. 

The United States Supreme Court has held that the publication of truthful information contained in official public records cannot be punished absent “a state interest of the highest order.”  And the Court was not kidding when it said “highest order”; it even rejected an invasion of privacy claim based on a newspaper’s publication of the name of a 17-year-old rape and murder victim - which it obtained from a review of an indictment - even though a state statute outlawed publication of that information.  Most courts have held that this principle applies despite the passage of time; even information in “ancient” public records does not revert to private status. 

Suffice it to say, therefore, that a person can rarely successfully sue for invasion of privacy where facts contained in public files are published (or, as in our hypothetical, republished).  So, for instance, the person in the hypothetical above could not successfully sue for publication of the ancient shoplifting arrest since the information is contained in a public record (even if the blogger did not obtain the information from the official public record). 

This principle has also been held to apply even where once-private information makes its way into the public record.  One court held, for example, that medical information that was publicized one time at an open hearing was no longer private.     

(2) Publicized Information

Even where the matter disclosed is not in a public record, it may have otherwise become sufficiently public that it enjoys no privacy protection under the law.  Courts have long held that “there can be no privacy with respect to a matter which is already public or has previously become part of the ‘public domain.’”  Thus, when a person voluntarily publicizes information about herself to any significant number of individuals, even in a limited way, she may forfeit her right to privacy in that information. 

For example, one court held that a nude dancer had no basis for complaining about a newspaper’s publication of photos of her when she originally circulated the photos to publicize herself and the clubs where she was appearing.  Another court reached a similar result when a newspaper republished a person’s name and address only after he previously disclosed the information in numerous letters to the newspaper and to a congressman.  And the disclosure that the man who saved President Ford’s life was homosexual did not violate his privacy because he had marched in gay parades and acknowledged his sexual orientation to a large circle of friends.

Similarly, information that is in public view for anyone to see can be republished.  In these situations, a person also has no basis for complaining of further publicity because the information is part of the “public domain.”  In one case that makes the point clear, a court held that the publication of a photograph of two young women at a rock concert with body paint on their exposed breasts was not unlawful, even though the concert was on private property, because the women’s activities were “open to the public eye.” 

Indeed, even the involuntary disclosure of information can diminish one’s expectation of privacy in it.  Once the information has been pervasively publicized, or if it is open to the public eye, courts usually will not recognize a right of privacy in that information.  So, for instance, a citizen journalist probably would not be held liable for posting a video of an emergency rescue made in a hurricane, even where that rescue involved medical procedures, so long as the rescue was made in a public area in plain view and not in the confines of an ambulance or helicopter. 

(3) Limited Disclosure

The trickiest situation arises where information is not widely disclosed.  A matter may remain private where it is revealed only to a single individual or to a small, select group of people.  Courts sometimes see a legally significant difference between this type of limited or selective disclosure and the disclosure of the same facts to members of the public at large. 

This doctrine of limited disclosure becomes particularly important in circumstances, suggested by the hypothetical, where it appears that information of a sensitive personal nature has been unintentionally disclosed.  To the extent that such information is inadvertently disclosed or left open to a large audience, courts will often find a valid privacy expectation in it, even if it has been published on the Internet to a theoretical worldwide audience.

Thus, for example, a person’s disclosure of his financial data to an online banking service, or posting his medical data on a pharmaceutical Web site, might not be viewed as transforming the information from private to public - even if that information is viewable in some remote place on the Internet.  Indeed, at least one blogger has been prohibited from disclosing patients’ personally identifying medical information that she found online.  The blogger said that she had discovered the information on a publicly available Web site created by a medical organization.  The organization acknowledged the data posting, but claimed both that it was inadvertent and that a regular Internet search would not have pointed a user to the patient’s information.  The court found these factors important to the analysis and rejected the blogger’s contention that the information had lost its private character.

Similarly, another court held that the anonymous Internet posting of a small segment of an explicit video portraying sexual conduct between former rock star Bret Michaels and actress Pamela Anderson did not render the contents of the video fair game for republication by an adult entertainment business.  The court held that because the video had not been viewed by a wide audience before it was removed from the web, and Michaels and Anderson had not left their conduct open to public view, they had a reasonable expectation of privacy in the images on the video. 

When Is a Fact Newsworthy?

Even if the information disclosed is a private fact, the First Amendment forbids liability for the disclosure if the matter is “newsworthy” - in other words, if it is of “legitimate public concern.”  Unfortunately, the determination of what matters are of legitimate public concern is the most problematic and unsettled aspect of the law of privacy.

Most courts use a broad definition of newsworthiness, limiting its scope only when information is not truly reported for any purpose other than “prying” into the private affairs of another:

In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of community mores.  The line is to be drawn when publicity ceases to be the giving of information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.

These courts look to see (1) whether the publication overall concerns a newsworthy topic, and (2) whether each fact disclosed in the publication bears some nexus to that topic - in other words, whether the fact was included “for its own sake” and not to advance the point of the overall publication. 

Thus, one court held that it was not unlawful for a news report about a doctor’s malpractice claims to reveal facts about her psychiatric history and marital problems because those facts were “substantially relevant to the newsworthy topic of policing the medical profession.” 

Similarly, another court was called upon to determine “whether the possibly private facts complained of - broadly speaking, an accident victim’s appearance and words during the rescue and evacuation - were of legitimate public interest.”  The court concluded they were:  “the broadcast video depicting” the accident victim’s “injured physical state (which was not luridly shown) and audio showing her disorientation and despair were substantially relevant to the segment’s newsworthy subject matter.”  (The accident victim wasn’t clearly identifiable in the video segment and only her first name, “Ruth”, was stated.)
 
Where the overall focus of a report is further removed from the particular facts at issue, courts are less likely to find those particular facts are “newsworthy.”  For example, one court allowed a privacy claim to proceed where the person objected to the use of “before” and “after” photos of her face lift to illustrate a television report on plastic surgery.  While the public “undoubtedly has an interest in plastic surgery,” the court found that the use of the particular photos “neither strengthened the impact nor the credibility of the presentations nor otherwise enhanced the public’s general awareness of the issues and facts concerning plastic surgery.”

In sum, many courts give deference to reporters and editors to choose what details will most effectively contribute to the credibility and persuasive value of a publication, and therefore what details are “newsworthy”:

That the broadcast could have been edited to exclude some of the person’s words and images and still excite a minimum degree of viewer interest is not determinative.  Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting.  The courts do not, and constitutionally could not, sit as superior editors of the press. 

Other courts have proven less deferential to the news media, however, and a blogger or citizen journalist unaffiliated with a traditional news media outlet might receive less deference still. 

The Bottom Line

Whether a citizen journalist or blogger may republish sensitive, private information about a private person found in an obscure location on the Internet is a “totality of the circumstances”-type analysis that may depend on a variety of factors, including:

* the nature of the information
* the manner in which it was placed on the Internet
* whether the information is of public record
* how “public” the information has become by virtue of the place where it resides on the Internet
* whether the information is of legitimate concern to the public - i.e., whether the facts disclosed bear a logical relationship to a newsworthy subject, and whether they are intrusive in great disproportion to their relevance.

From Geanne:  Thank you Levine Sullivan Koch & Schulz for shedding new light on this rarely addressed, but bound to arise, issue.

Guide To Takedown Notices And The DMCA’s Safe Harbor

Question: What is a DMCA takedown notice and what should a blogger or Web site producer do if he/she receives one?

Response By →Levine Sullivan Koch & Schulz:

(Posted on June 26, 2008.)

A DMCA “takedown notice” is formal notification that content posted on a Web site, blog, or other online forum is in violation of copyright law.  Receipt of such a notice by a “service provider”, such as a Web site operator, blogger, online forum, or other Internet-based host for third-party content, necessitates a prompt response.  Some basic first steps when a DMCA takedown notice arrives:

1.  Evaluate the takedown notice and related content;

2. Depending upon the outcome of that evaluation, remove or temporarily disable access to the content at issue;

3. Notify the original poster of the complaint. 

By way of background, the →Digital Millennium Copyright Act, known as the DMCA, was added to federal copyright law in 1998. The DMCA addresses electronic and Internet-related issues.  One portion of the DMCA includes “anti-circumvention” provisions.  These anti-circumvention rules make it unlawful to avoid copyright protection measures (such as protections against unlawful copying that are built into software, DVDs, CDs and the like).  The rules also prohibit trafficking in devices designed to circumvent such copyright protection measures.  Another portion of the DMCA relates to takedown notices.  This portion creates a “safe harbor” for online service providers (“OSP’s”) against copyright infringement claims relating to third-party posts provided certain requirements are met. 
An OSP that follows the DMCA rules and appropriately removes infringing material, as outlined below, can protect itself against liability. 

Generally, copyright law gives copyright owners the exclusive right to reproduce, distribute, publicly perform, publicly display or prepare derivatives of their work.  In the context of the Internet, loading a copy of a work — such as a file consisting of a photo, news report or video — onto a server is deemed to be reproducing that work.  Similarly, making that work available to Internet users, for example by streaming a video from your server to a user’s computer or permitting the user to download a copy, is deemed to be either distributing, publicly performing or publicly displaying the work.  Subject to important limitations such as fair use, a person who engages in those acts without the copyright owner’s permission may be committing copyright infringement. 

Copyright infringement is a strict liability offense (i.e., the fact that you may have been unaware that your acts constituted infringement or that you acted innocently or unintentionally is no defense).  If you exercise any of the exclusive rights reserved to the copyright owner (i.e., reproducing the work), you are potentially liable for infringement. 

This basic structure of copyright law had the potential to stifle the Internet.  That’s because those providing Internet hosting or forums for third-party content could easily be in violation of copyright law without any intent, fault or awareness concerning the infringing content.  Here’s where the DMCA “safe harbor” comes in.  It enables hosts to avoid liability for infringing content posted by third parties.  However, this safe harbor does not protect those who post infringing content.

To obtain immunity against copyright claims under the DMCA, certain procedures must be followed.

First, the host or Web site proprietor must have designated an agent to receive notices of claimed infringement.  The statute requires that the Web site desiring to benefit from the safe harbor provide the following information on its Web site: the name, address, phone number and email address of the designated agent.  In addition, the contact information for the designated agent must be registered with the Copyright Office.  A form for registering a designated agent is available at http://www.copyright.gov/onlinesp/agent.pdf.  Currently, there is an $80 fee for registering a designated agent.  It is important to remember to update this information promptly when it changes, or else risk losing the protection of the safe harbor.  Indeed, one federal appellate court found that DMCA immunity did not automatically apply where the OSP had changed its designated agent and failed to post an update or amend the registration with the Copyright Office.  For several months, takedown notices to the OSP consequently disappeared into an unmonitored mailbox.
Second, in order to qualify for the safe harbor, a Web site must adopt a policy complying with DMCA takedown procedures, and post the policy in its terms of use.  Many Web site owners also include as part of the terms of use for their Web sites provisions identifying their designated agents and listing the requisite information. 

Finally, the operator must follow specific procedures when it receives a proper notice of possible infringement.  The notification must include six elements:

1. a physical or electronic signature of someone authorized to act on behalf of the copyright owner;

2. identification of the work that has allegedly been infringed;

3. identification of the Web site material that is allegedly infringing;

4. information for the Web site owner to contact the complaining party, such as a postal address, telephone number, or email address;

5. a statement that the complaining party has a good faith belief that the allegedly infringing use is not authorized or legal; and

6. a statement that the information in the takedown notice is accurate and, under penalty of perjury, that the author of the takedown notice is authorized to act on behalf of the copyright owner.

Upon receiving a proper complaint, the Web site operator should “take down” the challenged material “expeditiously,” either by removing the posting or by temporarily disabling access to it, and then take reasonable steps to provide prompt notification to the user who originally posted the allegedly infringing material.  If there is a valid “counter-notification,” where that original poster claims that the material does not infringe a copyright, then the operator must provide a copy of the counter-notice to the person who claimed infringement and restore access to the disputed material after 10 days, but before 14 days, unless the person claiming infringement files a lawsuit seeking a court order.  A proper counter-notification, like the takedown notice, must include specific elements by statute:

1. a physical or electronic signature of the third party poster or “subscriber”;

2. identification of the material that was removed or disabled from the Web site;

3. a statement under penalty of perjury that the subscriber has a good faith belief the challenged material was misidentified or that the notification was mistaken; and

4. the subscriber’s name, address, and telephone number, along with a statement that the subscriber submits to jurisdiction in federal district court and will accept service from the person who filed the notification.

It is important to note that the safe harbor protections do not apply where the Web site actually knows or should know that the posted material is infringing, or otherwise receives a financial benefit directly attributable to the infringement.  Caveats aside, the DMCA offers significant protections for Web sites against liability for copyright infringement by third parties — so long as the sites comply with the requirements of the DMCA, including the detailed takedown process.

From Geanne:  Thank you Levine Sullivan Koch & Schulz for this useful guide to DMCA safe harbor protection.

Avoiding Subpoena Risk:

Given what appears to be greater subpoena-related risk than ever for journalists, many of whom have news organizations and their media lawyers backing them, what can/should citizen journalists do to avoid or limit subpoena-related legal risk? — Geanne

Response By →Levine Sullivan Koch & Schulz:

(Posted on May 31, 2008.)
While subpoenas to journalists have received a lot of attention recently, there is some good news for citizen journalists.  Far fewer subpoenas are issued to citizen journalists than to members of the institutional media.  However, that may change as Internet journalism grows and evolves.

There is no way to ensure that you won’t be subpoenaed, but that is true for any person in all walks of life.  The best thing you can do is to become more aware of what kinds of situations most commonly lead to subpoenas to journalists.  By doing that, you can decide whether you want to reduce your risk of receiving a subpoena in certain situations.  In addition, it may be helpful to familiarize yourself generally with the law governing subpoenas to journalists in the geographic area in which you principally publish.

To limit your risk of being subpoenaed, it is wise to keep the following considerations in mind:

1.  Some story topics are more likely to attract subpoenas:

Many of the high-profile subpoena cases in the news involved situations in which journalists received confidential information about criminal law enforcement investigations.  These leaks have ranged from actual transcripts of testimony before grand juries to updates about specific investigative findings and methods.  If you are the recipient of this kind of information, particularly from sources connected with a federal investigation, you may be at greater risk of receiving a subpoena if you decide to publish the information.

A recent California case involved a similar issue in the realm of private industry.  An online news magazine that reported about the Apple Corporation published some leaks about upcoming Apple products, which the company contended were trade secrets.  Apple subpoenaed the publisher and the publisher’s Internet service provider for the sources, but an appellate court ruled that the magazine was protected against having to disclose its sources.

Another common source of subpoenas are interviews with persons who are involved in litigation, either civil or criminal.  When a journalist interviews one side of a dispute, sometimes the other side will subpoena the journalist to ask about interview statements that may contradict the same person’s testimony in the case.  The risk of these kinds of subpoenas increases substantially if the journalist has a video or audiotape of the interview, because often just the raw tape will be subpoenaed.

Subpoenas also frequently result when journalists bring cameras to violent public
demonstrations or arrive very early to disaster scenes.  The journalists’ raw videotape may be subpoenaed in an effort to identify those who committed crimes, or to help reconstruct the disaster.  A recent high-profile case in San Francisco involved a subpoena to an independent journalist, Josh Wolf, for footage of videotape taken at a demonstration.  Wolf spent several months in jail rather than turning over his tapes. 
2.  Subpoenas in Libel Lawsuits:

Courts considering libel lawsuits against journalists often require them to turn over their work product related to the story at issue.  The only way to reduce your risk of receiving these kinds of subpoenas is to do whatever you can to reduce your risk of being sued for defamation.

3.  Subpoenas Relating to Posting Third-Parties:

One particular issue for online journalism involves subpoenas for information about people commenting on your blog or Web site. The law exempts the hosts of Web sites from liability for postings by third parties.  However, the law does not necessarily shield Web site hosts from subpoenas for information that would help identify people who post.

Although many people who comment on blogs do not use their real names, some blogs require commenters to provide registration information, such as e-mail addresses.  And many blogs log the Internet Protocol addresses of commenters.  A prosecutor or civil litigant could subpoena you to obtain any of this information you have, and could also subpoena your Internet Service Provider.  That is what happened in the Apple case.  While the law sometimes provides protection for anonymous posters, be aware of the information that you collect about those who comment on your blog.

4.  Carefully consider whether you can promise confidentiality, and how much you can promise:

If you promise sources confidentiality, you may want to consider what that promise means in each particular case.  As we discuss more fully below, the extent to which the law protects these promises varies widely.  Before you make any promises, you may want to consider whether, if subpoenaed, you would you be willing to go to jail and pay large fines to protect your source’s identity?  If not, you may want to consider asking up front whether the source just wants to keep his or her name out of the story, or whether he/she really wants complete confidentiality.
 
5.  The more records you keep, the more you have to worry about:

It sounds simple, but the easiest way to reduce your risk from subpoenas is to limit the amount of material you have that can be subpoenaed.  If someone issues a subpoena for material that you no longer have, there may be no issue.  So if you hang on to every filled notepad, e-mail message, and tape-recorded interview for years after you publish your story, you are exposing yourself to increased risk of being subpoenaed.

Of course, sometimes you may have good reasons to keep old material.  Generally, however, government agencies and large companies often set policies that dictate when they can dispose of records.  You may also want to consider whether you need to retain as much information as you currently do.

It is particularly important that whatever you decide to do about keeping records, that you be consistent.  For example, if you purge e-mails or throw out notebooks, tapes or discs every so often, unless there is something specific you need to keep for journalistic reasons, you should stick to that routine.  Otherwise, it may be difficult to explain why you destroyed certain records that were later subpoenaed, but not others.

Most importantly, do not selectively destroy records based on a belief that they are more likely to be subpoenaed.  And once you are actually alerted to the possibility of having particular documents subpoenaed, do not create a retroactive records policy or destroy those files.  Both of these actions could result in jail time and heavy fines.

6.  Understand the basics of the law governing subpoenas to reporters:

Unfortunately, even for journalists who have the benefit of regular legal counsel, it can be very difficult to predict how the law may or may not protect them if they receive a subpoena in connection with any particular story.  That is because the law governing subpoenas depends upon many factors:  whether the subpoena comes from a state or a federal court, which state or federal jurisdiction you are in, and even sometimes what kind of case or proceeding resulted in the subpoena.

For most everyday news, particularly local news, subpoenas are more likely to come from a state court.  Thirty-two states and the District of Columbia have actual written statutes, called “shield laws”, that protect journalists from these subpoenas to some degree.  Most other states have provided some protection through case law. 

However, none of the 33 shield laws explicitly mention Internet-based journalism.  Many of the statutes were last amended decades ago, and some refer to specific forms of traditional media, such as newspapers and broadcasters.  Therefore, it is an open question in most places whether these laws would protect an online journalist at all.  Many statutes seem more limited to employees of the traditional media, while others are written more broadly.  For example, a local Maryland court recently ruled that a well-known blogger who wrote about local government was not protected at all by that state’s shield law. 

Even if you do qualify, the amount of protection varies enormously.  For example, Montana law protects virtually anything a qualifying journalist does, while Texas law provides little or no protection at all.  For confidential sources, close to 20 states provide complete protection, while most of the rest provide more limited protection.  Typically, disclosure turns on how important the information is to the case, the importance of the case, and whether the same information can be obtained elsewhere.

In federal courts the picture is even murkier.  No federal jurisdiction provides absolute protection from subpoenas.  Most provide some protection for confidential sources in certain kinds of proceedings, while only some provide any protection for materials like notes or tapes.  And federal courts have not yet considered any significant number of cases involving citizen journalists.

  The United States House of Representatives passed a federal shield bill last year to strengthen these protections and make them apply uniformly in all federal courts.  The Senate is considering its own version, which has not yet come to a vote.

To learn more about the law, the Citizen Media Law Project maintains a →listing of all 33 shield laws.

The Reporter’s Committee for Freedom of the Press also has a →useful summary of the law of each state and federal jurisdiction.
From Geanne:  Thank you Levine Sullivan Koch & Schulz for this helpful information.

Guidance From Roommates.com

What does the recent Court of Appeals ruling in →Roommates.com mean for bloggers and citizen journalists? — Geanne

[From Geanne:  Roommates.com or Roommate.com?  The Court notes that though the Web site is called “Roommates.com”, the “company goes by the singular name ‘Roommate.com, LLC’”.]

Response By Levine Sullivan Koch & Schulz:

(Posted on May 9, 2008.)
The Roommates.com decision probably does not pose significant risk to bloggers and citizen journalists as a general matter.  But it does help to identify certain actions that could lead to trouble.

Generally, citizen journalists and bloggers have powerful protection against lawsuits relating to posts to their sites by third parties.  That protection exists under Section 230 of the Communications Decency Act (“CDA”). 

The CDA is a federal statute that provides ISPs and Web site hosts with two independent bases of protection against liability.  The first, found in Section 230(c)(1), states that “providers and users” of “interactive computer services” - which have been held to include Web site operators and blogs - shall not be treated as the “publisher or speaker” of information provided by another “information content provider.”  The statute defines “information content provider” as a person or entity who is “responsible, in whole or in part, for the creation or development” of the information in question. 

What this means is that if a third party posts defamatory (or otherwise unlawful) information on a Web site, the Web site operator generally won’t be legally accountable so long as he or she isn’t responsible “in whole or in part” for creating or developing that information.  There are exceptions.  The provision provides no immunity for violations of federal criminal, intellectual property, or communications privacy law.

The second, Section 230(c)(2)(A), protects the “provider or user of an interactive computer service” from the imposition of liability based on “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  In other words, a Web site host may edit, delete or restrict access to any content that he or she believes to be objectionable and can’t be held liable for that editing.

It is important, however, to note that the statute provides no protection whatsoever as to the original author.  That is to say, if a blogger or citizen journalist is responsible “in whole or in part” for authoring a defamatory (or otherwise objectionable) post, he or she will not be able to take advantage of CDA immunity. 

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, the Ninth Circuit Court of Appeals considered allegations brought by a California Fair Housing organization.  The Fair Housing organization argued that the Web site Roommates.com was violating the Federal Fair Housing Act (“FHA”) by directly posting, and facilitating users posting, information that expressed discriminatory preferences with regard to housing choices.  The FHA makes it unlawful to publish such discriminatory housing ads.

In its defense, Roommate.com argued that under Section 230(c)(1) it was immune to legal claims because the objectionable information was provided by third-party users, and thus Roommate.com couldn’t be treated as the “publisher” of the information.

The Court disagreed and decided that even though users created their own profiles, Roommate.com couldn’t completely disclaim responsibility for the objectionable text.  The reason:  the Web site had specifically solicited the illegal content by asking questions that could be (and perhaps could only be) answered with discriminatory statements, and provided pull down menus that provided users with a pre-populated list of responses, choices that appeared to violate the FHA.  As a result, the Web site was responsible, at least in part, for the development of the objectionable content and was therefore not immune under the CDA.  The Court found the Web site was immune, however, for statements that Web site users posted in their profiles’ free-form “Additional Comments” section.  Roommate.com was in the clear with respect to those free-form third-party posts, the Court said, because the Web site gave no indication that users should post illegal content and because there was only minimal “bleed over” from the solicitation in the site’s pull down menus.

Unfortunately, the Roommates.com opinion also contains “loose language” regarding the loss of CDA immunity for “encouraging” others to post unlawful content.  While the Court found Roommate.com immune for statements users posted in its “Additional Comments” section, the Court finished its analysis with the disturbingly vague statement: “If you don’t encourage illegal content, or design your Web site to require users to input illegal content, you will be immune.”  While the court’s direction to avoid “encourag[ing] illegal content,” is disconcertingly imprecise, other statements in the decision add a measure of relief to bloggers and citizen journalists.  The Court acknowledged that there will always be close cases where a “clever lawyer could argue that something the Web site operator did encouraged the illegality,” and the court indicated the judges should resolve such “close cases” in favor of finding immunity.

Practical Tips For Bloggers and Citizen Journalists:
• 1.  Bloggers and citizen journalists with Web sites that provide drop-down menus should be sure that they’re not providing users with selections that encourage the posting of illegal content.  Providing users with illegal content choices can be perceived by a court as essentially putting words into the user’s mouth.  To the extent that those words are unlawful, a blogger or citizen journalist may be held responsible as the publisher. 
• 2.  Reduce the risk of losing Section 230 protection by making the selection of content for third parties voluntary — for example, by including a “no response” option. 
• 3.  Avoid posting statements that appear to encourage site users to post unlawful content.  Those encouraging statements could themselves be actionable (“Please tell me if you’ve also been ripped off by Company X.”)  Plus, such statements may unwittingly invite a lawsuit from a plaintiff seeking to hold a blogger responsible for the contents of the third-party’s post.

Thank you Levine Sullivan Koch & Schulz for providing helpful information and advice in the wake of this complex court opinion. — G.

Photographing Private People

What do you advise photojournalists when it comes to taking pictures of private people, and when are releases necessary or advisable?  Would any varying considerations apply to citizen journalists and bloggers and social network participants who take photos in their local communities and post them online? — Geanne

Response By Levine Sullivan Koch & Schulz:

(Posted on April 14, 2008)

The use of photographs of “private persons” raises several types of issues:

(i) concerns about intellectual property-type rights that the person may have in how his/her likeness is used;

(ii) concerns about whether use of the photo might give rise to an invasion of privacy claim;

(iii) concerns about whether the context in which the photo is used might portray the person in a false light or other defamatory way;

(iv) concerns about an unlawful intrusion in the course of taking the photo.

For the most part, whether the photograph ultimately will be used in a highly circulated print publication or an online blog, the consideration of each of these issues would be similar.

1.  Intellectual Property Concerns

The right of publicity attaching to a person’s name or likeness can vary from state to state because this issue is a matter of state, not uniform federal, law.

Generally, under most states’ laws, a person’s name or likeness, including photographs of the person, may not be used for commercial purposes without the express written consent of that person.  The elements that typically comprise a claim for violation of a person’s right of publicity are:  (i) use of the plaintiff’s identity (including photographic likeness); (ii) for the advantage of the user; (iii) without consent; and (iv) to the detriment of plaintiff. 

But there’s important First Amendment protection for news photos.  The First Amendment not only protects use for news purposes, but generally permits unconsented use of a person’s likeness in “commentary, entertainment, [and] works of fiction or nonfiction.” 

To the extent that a photograph is used with and is reasonably related to an item of news or information, i.e., a report concerning a local happening and the photograph was taken at that event, the use typically would be protected by the First Amendment and no release would be necessary.  If, however, the photo might be used in connection with more commercial offerings, such as on tee-shirts, calendars or posters, then obtaining a model release from persons depicted is advisable.

2.  Invasion of Privacy Concerns

Many but not all states have privacy laws that protect private individuals from the publication of private facts about them.  Some courts have described privacy law as protecting individuals from “the unwarranted publication of intimate details of one’s private life which are outside the realm of legitimate public interest.”  Generally, the elements of a claim for invasion of privacy, which can vary among the states that recognize privacy claims, are: (i) a public disclosure (ii) of a private fact (iii) which would be offensive and objectionable to a reasonable person and (iv) which is not of legitimate public concern. 

Including a photograph in a blog or social networking site usually would amount to a sufficient public disclosure.  Thus, the success of a privacy claim will turn on the more subjective factors. 

Generally, photographs created in public places are considered as not revealing private facts because whatever is depicted was taking place in public.  However, this presumption is not universally accepted, so privacy issues should be considered even for photographs created in public places. 

Typically, courts find that information about a private person’s sexual relations, illnesses, finances and the like to be private matters not of legitimate public concern.  To the extent that a photograph reveals private facts (for example, depicting a private person being administered to in an AIDS clinic), publication of the photograph without consent of the person depicted could give rise to an invasion of privacy claim.  If a photojournalist or blogger desires to publish such photos, permission of the subject should be sought.  Moreover, if permission is obtained, it is always prudent to get that permission in writing (such as a release) signed by the person granting permission.

3.  False Light Concerns

Many but not all states recognize claims sounding in the theory of “false light.”  False light claims are similar to defamation claims, but involve a damaging context of a publication rather than specific false statements.  For example, use of a photo of a person standing in from of the local school to illustrate a story headlined “New school building is a haven for drug dealers” could present the person depicted in a false light (unless that person was in fact a drug dealer). On the other hand, a photograph of that same person standing in front of a local school used in connection with a story about how local residents take pride in the new school building would raise no concern. 
Generally, the elements of a false light defamation claim are (i) a person discloses to others information about the depicted person that is actually false or creates a false impression, and (ii) the information was understood by persons receiving the information as stating or implying something that would have a tendency to harm the depicted person’s reputation. 

Depending on whether the depicted person is a public or private figure, and whether the subject of the blog is a matter of public or private concern, there may be additional requirements needed to establish liability, such as a showing that the blogger knew that the published statement was false or recklessly disregarded whether the depicted person was portrayed in a false light.

To minimize exposure to false light claims, citizen journalists should take care to accurately describe what is depicted in the photographs that they use to accompany their writings.  It is a common practice that after the initial use of a photograph is made, the photograph is archived to be used as a stock photo.  The exposure to false light claims often arises when a stock photo is reused in an entirely different context then the context for which the picture first was created.  A signed photo release authorizing use of the depicted person’s image in connection with any and all uses and releasing claims in connection with such use will generally insulate against false light and other types of claims.  However, the pressures of breaking news, and the realities of how photos are created, make it unlikely that such releases will be obtained.  Accordingly, it is prudent for bloggers and citizen journalists to review the context in which they post their photos online, and be on the lookout for unfavorable but unintended messages conveyed by their use of a particular image with a particular story.

4.  Intrusion

The first three considerations relate primarily to how a photograph gets used after it is created.  However, when shooting photos of private people in local communities, it is prudent to keep in mind that in some circumstances there can be restrictions on even shooting the photos.  Some states’ laws provide that “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for the invasion of his privacy, if the intrusion would be highly offensive to the reasonable person.” 

Some states require that there be a physical trespass before the prohibition against intrusion will apply; other states permit intrusion claims whether or not a physical premise was unlawfully entered.  Circumstances that could give rise to an intrusion claim include accompanying a paramedic into someone’s house to take pictures of her administering first aid and shooting pictures of a patient inside an ambulance.

Thank you Levine Sullivan Koch & Schulz for this very thoughtful response. — G.