News organizations are more legally protected on the Internet than in other media, media lawyer Jonathan Hart of Dow Lohnes PLLA told attendees at ScienceWriters 2009 during, "Mini-Law School for Science Writers," an NASW session organized by Peggy Girshman.
News organizations are more legally protected on the Internet than in other media, media lawyer Jonathan Hart of Dow Lohnes PLLA told attendees at ScienceWriters 2009 during, "Mini-Law School for Science Writers," an NASW session organized by Peggy Girshman.
The protections are thanks to the Communications Decency Act (CDA), passed by Congress in 1996, explained Hart, author of Internet Law: A Field Guide, who spoke from Washington, DC, via videoconferencing technology. The CDA protects providers of "interactive computer services" — such as facebook, twitter and news sites — from liability for user-generated content. In other words, Hart said, if a user posts defamatory or libelous content in a comments section, message board or other public place, the Web site that publishes the post is not legally responsible.
Importantly, Hart said, that's true even if the Web site's owners — journalists, editors or otherwise — edit the post. Four methods of editing are safe, he said: moving content for relevance, removing content altogether, editing content for indecency and editing content for length.
Some lawyers still give what Hart considers outdated advice that online publications should protect themselves by never editing user-generated content. But that was only necessary before the enactment of the CDA, which is "designed to allow you to make those judgments as an editor ... without becoming the publisher for legal purposes," Hart said. "This is something that Congress really got right."
Hart warned, however, that online publications are not protected if editors introduce defamatory content or change the gist of defamatory statements. For example, an editor can't remove the word "not" from the user-generated sentence, "My husband is not an alcoholic." He also warned that tightening prose and trimming for length, while allowed, could open publications to liability.
The legislation does not cover situations in which a Web site induces unlawful statements, Hart noted. For example, the legislation might not protect a Web site that encourages victims of sexual harassment to name the co-workers who harassed them and the companies where they were harassed, he said. However, the legislation would probably protect a news-gathering agency that asks users to report problems with their health care on a message board.
Of course, online publications are responsible for employee-generated content just as they would be in a newspaper or in any other medium, he said.
Copyright issues related to user-generated content is covered by the Digital Millennium Copyright Act, Hart said. Web sites are given "safe harbor" under the act if they don't know about the copyright infringement, get no direct financial benefit, are registered with the copyright office as an agent to receive notice of infringement or if they act "expeditiously" to remove the infringing material when they are notified.
Journalists can excerpt from other works without violating copyright laws under the doctrine of fair use, Hart said. But, he warned, "fair use is about as squishy a doctrine that there is in the law." In other words, it is difficult to know whether an excerpt is covered under fair use, he said. When considering whether a fair use applies, the courts take into account the purpose and character of the use, the nature of the original work, the amount that's excerpted and, most importantly, the effect on the market for the original work.
The idea that there are common rules of thumb about fair use is incorrect, Hart said. Some people, for example, may believe it's always okay to excerpt a certain number of words or a certain length of video clip. But legal advice should always be "dependent on the circumstances," he said.
For links to online articles, he said that the "emerging consensus" was that excerpting a headline and a few lines of text — as Google News does — is safe, but that excerpting more may not be. He added that people should be especially careful about using music, which has complex licensing rules.
Workshop attendee and National Public Radio reporter Vikki Valentiene asked Hart about a specific case she encountered at work. NPR excerpted YouTube clips of dancing animals for a video. The clips ran from about 2 seconds to about 10 seconds. Was this fair use? Hart couldn't be sure without looking at the specific clips, he said, but he did advise that shorter clips are safer than longer ones.
Hart spent the final minutes of his talk briefly reviewing several topics. First, he told attendees that an employer must use the exact words "work made for hire" on contracts if the employer wants to own the copyright to a freelancer's work. Otherwise, the copyright defaults to the freelancer.
Next, he noted that a work doesn't have to bear a copyright notice in order to be copyrighted. However, he said, it's a good idea to put a copyright notice on one's own work, such as a copyright symbol or the word "copyright," followed by the date, and finally the copyright owner's name.
Finally, he discussed privacy laws. If a Web site collects information on California residents that could be used to identify an individual, he said, the site must comply with the California Online Privacy Protection Act (COPPA). The law is not burdensome, he said. He also warned attendees to adhere to stated privacy policies or they could be accused of a deceptive trade practice or a breach of contract.
Session organizer Girshman, of Kaiser Health News, asked whether a nonprofit site would be exempt from the privacy laws. The California statute uses the word "commercial," Hart replied, but it's not yet clear if that includes, for example, nonprofit sites that collect donations. Complying with the law is the safest course of action, he said.
The Children's Online Privacy Protection Act prohibits collecting identification information from children under 13 without prior, verifiable parental consent, Hart said. This is very difficult to do properly, he said, so he advised attendees to avoid it altogether.
Finally, Hart reminded attendees that, online, "if you publish anywhere, you are publishing everywhere." That means it's possible to break laws in other countries even when adhering to U.S. laws. Fortunately, he said, some U.S. courts have declined to enforce foreign judgments when they are not consistent with U.S. laws. However, he told attendees that they should pay attention to the laws of countries where they have assets and wish to operate, and that they should always have libel insurance. "It allows you to defend the integrity of your product," he said.
Chelsea Wald was a 2009 NASW Freelance Travel Fellow. She lives in New York City, edits UnderTheMicroscope.com for the Feminist Press and writes for Science, Earth and others.
