Legal Notes: In a Brave New World Old Laws Still Apply

By Kathleen Kirby

The Internet is not the Wild West—so beware of copyright, libel and other liabilities.


There can be no doubt that the Internet has transformed journalism. It offers reporters instantaneous access to a wealth of information. It has blurred the lines between traditional and non-traditional journalists. It has given radio, television and newspaper outlets multiple platforms through which to disseminate information to the public, to further stories and to connect with listeners, viewers and readers.

At the same time, technology has catapulted so-called “citizen journalism” into the mainstream. Not only do video sharing and social network sites feature citizen reporting on news and current events from around the globe, but traditional news organizations are also incorporating user-generated content in their reporting, presenting diverse opportunities for their audiences to comment on stories, provide new leads and sources, and offer opinions. As RTNDA members were gathering a year ago, the news was dominated by a video of police responding to the Virginia Tech shootings taken by a student on his cell phone and submitted through CNN’s citizen journalism website portal. We’ve seen other memorable photographs and videos of breaking news events taken by ordinary citizens in connection with major events, from the London subway bombing to the Minneapolis bridge collapse. “Don’t tase me, bro,” the phrase captured on video by a bystander at a campaign rally, was named one of the most memorable quotes of 2007.

The information superhighway, coupled with increasingly participatory media, contribute to a complex and sometimes uncertain legal landscape. We’ll examine some of the issues raised in this column in more depth and from different perspectives in future Legal Notes. What follows here is an overview of things to consider as you practice your craft in this brave new world.

For all its benefits, the relative ease with which anyone can post information online should cause every electronic journalist to question, and then question again. When considering information derived from the Internet, don’t forget the basics. Whenever possible, use original sources and documents, attribute information to published sources, use multiple original sources of information, and check every fact reported.

Despite the technological revolution, bear in mind that the old laws still apply. Defamatory statements are still defamatory, whether they appear on television or online. Copyright laws apply to material published on the Internet and to user-generated content. Privacy issues abound. In short, just about every substantive law previously followed when practicing journalism in the “traditional” realm should be followed in the context of cyberspace.

Certain “new” laws have been developed to protect, and in some cases restrict, activities that take place online. For example, Section 230 of the Communications Decency Act of 1996 (CDA) provides certain protections for interactive computer service providers when publishing the statements of another person. It provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Operators of websites, including those that provide news, qualify for immunity under the statute.

The CDA has been used to protect online content providers against defamation, negligent misrepresentation, breach of contract, intentional nuisance, violations of federal civil rights and other claims. However, if there is sufficient involvement by the news organization such that the content can no longer be considered to be provided by another information content provider, it is not likely to be protected by Section 230. The statute should protect online media from liability for comments posted in comments sections and forums. No court yet has addressed the application of Section 230 to blogs, but a number of courts have indicated that active solicitation of content could eliminate Section 230 immunity. If a citizen journalist provides a news story for your website, courts are likely to examine the underlying role of the news organization in determining whether immunity can be invoked.

Are you a reporter thinking about creating a blog? If you engage readers in discussions about your stories, you run the risk of being subject to another state (or country’s) courts and laws. Your employer should know and approve, or blogging could cost you your job. Take note of your company’s policies; many news organizations impose the same level of pre-publication review on blogs as on published stories.

Whether you are launching your own website or contributing to one, be aware that there are two key documents or statements that all websites should post as they go “live.” First, the site’s terms of use govern its relationship with users, allowing you to set boundaries of acceptable on-site behavior and potentially limiting liability. Second, the site’s privacy policy informs users of practices relating to private information, and helps to avoid liability under a complex array of federal and state privacy laws. Seek legal guidance in preparing these or in adapting newsroom procedures to your company’s policies.

Certainly the brave new world may affect where you and/or your news organization can be sued. The ability to widely disseminate information via the Internet, without regard for territorial boundaries, raises significant uncertainties as to which jurisdiction’s law applies to the conduct in question. For instance, what happens when a station website contains a story written in Texas, but is read in and defames a California resident? Are the station and the reporter subject to Texas or California law? How can a journalist be expected to conform to every state’s laws, which can differ significantly? These are questions that do not have clear answers.

Under traditional libel law, a party can be sued wherever the libelous material is circulated. If you “publish” on the Internet, it would seem you could be dragged into any court and held to any state’s laws. Under personal jurisdiction doctrine, a party can only be sued in a court where he has purposefully availed himself of that jurisdiction. When applying this doctrine to the Internet, courts have tried to draw a distinction between “active” and “passive” websites. A passive website is one that does little more than display information -- it does not by itself subject a party to a court’s jurisdiction. An interactive website is one through which the publisher engages in knowing and repeated contacts with users. An interactive website may be sufficient to subject the publisher to the laws in the reader’s area.

Online journalism involving news stories that do not allow for reader interaction would seem to fall in the passive website category. But even in the context of passive websites, journalists potentially may be subject to another state’s laws if the website or content is clearly directed at the residents of that state. Moreover, there are clear signs that online journalism is trending toward increasing levels of viewer interaction. Many national and local news websites allow readers to comment on and rate stories. Thus, the line between passive and active websites may well be eroding. If a journalist wishes to avoid being hauled into another state’s court, he should avoid responding to reader comments about stories, creating blogs to interact with readers or giving readers direct avenues of communication.

When you use the web for reporting, and when you incorporate user-generated content, copyright infringement liability also becomes a significant legal risk. Section 230 does not protect you from intellectual property claims. Here are just a few of the things you need to think about on the copyright front:

■Many people believe that anything published on the Internet is in the public domain and that anything can be incorporated into news reporting as a fair use. Wrong. You should subject material obtained from the Internet and incorporated into your reporting to the same copyright analysis you would normally use.

■Second, the inclusion of citizen journalists in finding, publishing and propagating news may make it difficult to determine “ownership” of the story ultimately produced. Treat your amateur contributors as you would freelancers, with rights clearly outlined.

■Third, for certain user-directed content, the Digital Millennium Copyright Act (DMCA) may offer some protection. It provides a safe harbor for ISPs from copyright violation claims, provided they follow certain guidelines and promptly remove infringing materials once they receive notice of the infringement from a copyright holder.

Material obtained from listeners or viewers may raise potential liability for newsgathering torts (like violation of wiretapping laws, fraud, trespass or conversion). Generally speaking, the news media will not be held liable for publishing lawfully obtained information on matters of public concern, even if they knew or had reason to know that the material itself had been obtained unlawfully by a third party. But you might be held liable if you participate, directly or indirectly, in the unlawful conduct through which the information was obtained. If you solicit input or source material from listeners and viewers, be mindful of any actions that could be construed as encouraging illegal behavior and recognize that third parties invested in a collaboration may be more apt to cross certain lines than would seasoned journalists. And of course, take care not to promote risky behavior.

The proliferation of online publications and the ease with which almost anyone can publish “news” begs the question of who is a “journalist.” This has obvious implications in the context of state (and proposed federal) laws that protect “journalists” from disclosing certain information during government proceedings. Whether or not you qualify as a journalist -- entitling to you to invoke a privilege against testifying about or revealing your sources or other confidential information -- may have far-reaching implications for you and your reporting.

These are just some of the issues confronting electronic journalists and their lawyers in today’s rapidly evolving media marketplace. As the law attempts to catch up to technology, we’ll examine developments more closely in future Legal Notes.

Kathleen Kirby is an attorney with Wiley Rein in Washington.

Originally published in the April 2008 issue of Communicator. All rights reserved.��

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